dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 13, 2024 In Re: 30146284 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a 
member of the professions holding an advanced degree, as well as a national interest waiver of the job 
offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that he had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. We summarily dismissed a subsequent appeal because the Petitioner did not submit 
a timely brief or additional evidence specifying any erroneous conclusion of law or statement of fact 
in our summary dismissal. The matter is now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our prior decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). Because the scope of a motion is 
limited to the prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. 
§ 103.5(a)(l)(i), (ii). We may grant motions that satisfy the requirements and demonstrate eligibility 
for the requested benefit. 
In our decision summarily dismissing the Petitioner's appeal, we noted that although the Petitioner 
indicated that a brief and/or additional evidence would be submitted to the AAO within 30 calendar 
days of filing the appeal, the record did not show that the AAO received those materials within that 
period. An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the 
appeal. 8 C.F.R. § 103.3(a)(l)(v). 
On motion, the Petitioner submits USCIS Form I-797, Notice of Action, Receipt Notice for USCIS 
Form I-290B, Notice of Appeal or Motion filed in connection with the Petitioner's appeal and United 
States Postal Service (USPS) Click-n-Ship label records indicating delivery of the Form I-290B and 
appeal brief The Petitioner asserts that these new facts establish they timely submitted a brief or 
additional evidence in support of their appeal. However, the Petitioner incorrectly sent the brief in 
support of their appeal to the USCIS Phoenix Lockbox and not the Administrative Appeals Office as 
instructed in the Form I-290B instructions. 
Relating to the location filing parties are required to submit any follow-on briefs, the instructions for the 
Form I-290B state: 
For appeals, you must file any brief and/or additional evidence within 30 calendar days 
of filing Form I-290B. Any brief and/or evidence submitted after you file Form 
I-290B must be sent directly to the AAO, even if the appeal has not yet been 
transferred to the AAO. 
For the AAO's mailing address, visit www.uscis.gov/aao. The submission must clearly 
identify the appeal it relates to. 
(Emphasis in original). Additionally, the Petitioner filed the Form I-290B indicating they would submit 
their "brief and/or additional evidence to the AAO within the 30 calendar days of filing the appeal." 
(Emphasis added). 
Since the brief was incorrectly filed, the AAO did not receive the supplemental brief until after having 
summarily dismissed the Petitioner's appeal on July 31, 2023. Because the Petitioner failed to follow 
the form's instructions regarding where to submit the appeal brief: we conclude that our decision to 
summarily dismiss the appeal was a correct one. Furthermore, the Petitioner has not demonstrated that 
our summary dismissal decision was based on an incorrect application of law or USCIS policy and 
that our decision was incorrect based on the evidence in the record at the time of the decision. In 
addition, the Petitioner has not offered new evidence or facts on motion to overcome the stated grounds 
for dismissal in our appellate decision. 
Even if the supplemental brief was properly filed, upon careful review of the brief: it generally 
reiterates the benefits of the Petitioner's profession, his qualifications, and the claimed economic 
impacts of his proposed business but does not provide any new evidence or arguments which overcome 
the Director's determination. In addition, the supplemental brief does not identify specifically any 
erroneous conclusion of law or statement of fact in the Director's decision. See 8 C.F.R. § 
103.3(a)(l)(v). It does not specifically address the reasons the Director stated in the denial, nor does 
it identify any erroneous conclusion of law or statement of fact attributable to the Director. 
The Petitioner has not established new facts relevant to our appellate decision that would warrant 
reopening of the proceedings, nor has he shown that we erred as a matter of law or USCIS policy. 
Consequently, we have no basis for reopening or reconsideration of our decision. Accordingly, the 
motions will be dismissed. 8 C.F.R. § 103.5(a)(4). The Petitioner's appeal therefore remains 
dismissed, and his underlying petition remains denied. 
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ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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