dismissed EB-2 NIW Case: Cardiology

DATE: OCT 2 2 2012 OFFICE: NEJ3RASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Departmellt of Homdand Security 
U.~. Cili/).::nshir and Immigralion Sen ices 
tu.hninistraliw I\ppt.::als Office (1\1\0) 
20 Massachuseus /\\'1.:: .. N.W .. MS 2090 
Washington. DC ~()."i29 2()()O 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Memher of the Professions HohJing an AdvanCl:d 
Degree or an Alien or Exceptional Ahility Pursuant to Section 203(h)(2) or the Immigration 
and Nationality Act, 1\ U.s.c. § 1153(h)(2) 
ON J3EHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please rind the decision or the Administrative Appeals Olliee in your case. Allor the documents 
related to this matter have been returned to the office that originally decided your case. Please he auvised that 
any further inquiry that you might have concerning your case must he made to that office. 
If you helievc the law was inappropriately applied hy us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for riling such a request can he found at H C.F.R. § 103.5. All motions must he 
suhmitted to the ollice that originally decided your case hy filing a Form 1-290B, Notice of Appeal or Motion, 
with a fcc of $630. Please he aware that H C.F.R. § 103.5(a)(I)(i) requires that any motion must he riled 
within 3() days or the decision that the motion seeks to reconsider or reopen. 
Thank you. 
i~1 r < j" --l4...A~/:j..,----." \...L<,-,--Y 
I:::p ?,erry Rhew 
Chief, Administrative Appeals Ollicc 
www.uscis.go\ 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) summarily dismissed the petitioner's appeal from 
that decision. The mailer is now before the AAO on a motion to reopen and to reconsider. The AAO 
will dismiss both motions. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), il U.s.c. § 1153(b )(2), as it member of the professions holding an advanced degree. The 
petitioner seeks employment as a physician specializing in cardiology. The petitioner asserts that an 
exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest 
of the United States. The director tClUnd that the petitioner qualifies for classification as a member of 
the professions holding an advanced degree, but that the petitioner had not established that an 
exemption from the requirement of a job offer would be in the national interest of the United States. 
The AAO summarily dismissed the petitioner's appeal as required by the U.S. Citizenship and 
Immigration Services (USCIS) regulation at 8 C.F.R. § 103.3(a)(I)(v), which states, in pertinent part: 
"An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned 
fails to identify specifically any erroneous conclusion oflaw or statement of fact for the appeal.·· 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported hy affidavits or other documentary evidence. 8 C.F.R. ~ 103.5(a)(2). A motion to 
reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or Service 
policy. A motion to reconsider a decision on an application or petition must, when filed, also 
establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. ~ 103.5(a)(3). A motion that does not meet applicable requirements shall be 
dismissed. il C.F.R. ~ 103.5(a)(4). 
It is significant that the present motion seeks to reopen and reconsider the AA()"s summary dismissal. 
not the director's underlying decision. The AAO must view any submission on motion through this 
lens. The motion process does not provide the petitioner with indefinite opportunities to seek 
readjudication of the petition. Rather, it is a means to seek redress relating to the most recent decision. 
In this instance, the petitioner, on motion, does not attempt to establish that the AAO's summary 
dismissal was based on an incorrect application of law or USCIS policy. The petitioner does not 
address the summary dismissal at all. Instead, the petitioner addresses the merits of the underlying 
petition. The opportunity for the petitioner to do so was on appeal. At that time, the petitioner, through 
counsel, presented only vague assertions that the petitioner had gained prominence in her field through 
unspecified achievements. 
The petitioner submits documentation, including new scholarly publications and a leiter of support from 
a professor at the University of Iowa, where the petitioner worked at the time she filed the petition. 
None of these materialS, however. address the AAO's prior finding that the appeal lacked sufficient 
Page 3 
substance. They establish that the petitioner remains active as a researcher, but the AAO made no 
finding to the contrary. 
With rcspect to the petitioner's latest activities. these endeavors took place alief" the petition's liling 
date. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the 
time of filing the benefit request. 8 C.F.R. § 103.2(b)(I). Therefore, subsequent events cannot cause 
a previously ineligible alien to become eligible after the filing date. See Matter ofKalifihllk, 14 I&N 
Dec. 45, 49 (Reg' I Comm'r 1971). 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS 1'. 
Dohan', 502 U.s. 314, 323 (1992) (citing INS v. Ahudll, 485 U.S. 94 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden."' INS v. Ahlldll, 485 U.S. at 110. The petitioner cannot 
meet this heavy burden simply by submitting evidence that, perhaps, should have accompanied the 
earlier appeal, but did not. 
Because the petitioner did not show that the summary dismissal was the result of an error of law or fact, 
the AAO will dismiss the motion to reconsider. Likewise, because the petitioner'S motion establishes 
no new facts relevant to the summary dismissal of the appeal, the AAO will dismiss the motion to 
reopen. The AAO summarily dismissed the petitioner's appeal, and the petitioner, on motion. fails to 
establish that the appeal was substantive. and that the AAO therefore should not have summarily 
dismissed that appeal. 
ORDER: The motions to reopen and to reconsider are dismissed. The AAO"s decision of April 5, 
2012, is undisturbed.