dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 23, 2023 In Re: 28918501 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks employment-based second preference (EB-2) immigrant 
classification as an individual of exceptional ability in business, as well as a national interest waiver 
of the job offer requirement that is attached to this EB-2 immigrant classification. See section 
203(b )(2)(B)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2)(B)(i). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that he qualifies for EB-2 classification as an individual of exceptional ability and is not 
eligible for a discretionary waiver of the job offer requirement. We summarily dismissed the 
Petitioner's subsequent appeal. 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). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
As noted, we summarily dismissed the Petitioner 's appeal. The regulations provide that 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) . 
At the time the Petitioner filed his appeal in December 2022, he did not submit a statement identifying 
any erroneous conclusion oflaw or statement of fact as a basis for the appeal, as instructed on the Form 
I-290B, Notice of Appeal or Motion. He also submitted no brief or evidence with Form I-290B but 
stated that he would submit those materials to our office within 30 days. When we reviewed the record 
ofproceeding in April 2023, it did not include any supplement to the appeal. As a result, we summarily 
dismissed the appeal pursuant to 8 C.F.R. § 103.3(a)(l)(v) . 
On motion, the Petitioner asserts that he timely submitted a brief and evidence in support of his appeal. 
In support of this claim, he provides a copy of a USPS elick-N-Ship Label Record printed on January 
11, 2023, which indicates a "ship date expected" on the same date, and an expected delivery date of 
January 14, 2023. The Petitioner maintains that this new evidence overcomes our summary dismissal 
decision and demonstrates proper cause for the reopening of the appeal. 
The new evidence is insufficient to establish that the Petitioner properly filed a brief and/or additional 
evidence in support of his appeal. The newly submitted mailing label is addressed to the users 
Phoenix Lockbox. Although this is the appropriate address for the filing of a Form I-290B, Notice of 
Appeal or Motion, the form instructions to the Form I-290B instruct appellants who elect to submit a 
supplemental brief within 30 days of filing an appeal to mail the brief or additional evidence directly 
to the AAO. It is the Petitioner's burden to submit the complete appeal as indicated in the applicable 
form instructions. 
The newly submitted evidence does not indicate that the Petitioner followed these instructions and 
mailed his brief and additional evidence to the correct users office and mailing address. Further, the 
USPS label record only shows that a mailing label was created on January 11, 2023; it is not 
accompanied by evidence that the package was in fact mailed via USPS and delivered to a users 
facility. Finally, the Petitioner has not provided a copy of the brief and evidence that he claims he 
timely submitted in support of his appeal and therefore has not demonstrated that his claimed 
submission included a statement specifically identifying an erroneous conclusion of law or statement 
of fact as a basis for the appeal. Accordingly, the Petitioner has not provided new facts or new evidence 
in support of the motion to reopen that would overcome our decision to summarily dismiss his appeal. 
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 e.F.R. § 103.5(a)(3). The Petitioner does not claim our summary 
dismissal decision was based on an incorrect application of law or policy, nor has he demonstrated 
that the summary dismissal of his appeal was incorrect based on the evidence of record at the time of 
the initial decision. Given the record before us on appeal, which did not include a brief or a statement 
identifying the basis for the appeal, our summary dismissal decision was consistent with the regulation 
at 8 e.F.R. § 103.3(a)(l)(v). 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has shown proper cause for us to reopen his appeal. On motion to reconsider, the Petitioner 
has not established that our previous decision was based on an incorrect application of law or policy 
at the time we issued our decision. Therefore, the combined motions will be dismissed. 8 e.F.R. 
§ 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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