dismissed EB-2 NIW Case: Chemistry Education

(b)(6)
U.S. Depart_uientoflfonidand ~urity 
U.S. Citizenship and Immigration Servicc:s 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Cititertship 
and Immigration 
Services · 
DATE:·OCT 0 3 2013 Office: TEXAS SERVICE CENTER FILE: 
IN RE~ Petitioner: 
Beneficiary: 
··, 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding ;~n Advanced 
Pegr~e or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
. and Nationality ACt, 8 U.S.C. § 1153(b)(2) 
ON l3EHALF OF PETITIONER: 
lNSTRUCfiONS : 
Enclosed please fino the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new const.lilctions of law nor establish agency 
policy throu~h non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your cas~ or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I~290B) 
within 33 days of the date of this decision, Ple.~se review the Form . I-290B instructions at 
http:/Jwww.uscis.gov/forms for the latest iilfortnatic:m on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you; 
))'OWn~ 
(1 Ron Rosenberg 
f Chief, Administrative Appeals Office 
www.uscis,gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Cent~r, denied the imq~.igrant visa petition. The 
petitioner filed a motion to reconsider, which the director dismissed. The petit_i_oner appealed the matter 
to the Administrative Appeals Office (AAO). The AAO surilrilarily dismissea the petitioner's appeal 
on J<m\l:;try 29, 2013. The matter is now before the AAO on motion to reconsider. The motion will 
be dismissed, the previous decision of the AAO will be affirmed, and the petition _ will remain 
denied. 
The petitioner filed the Form I-140,Immigrant Petition for Alien Worker, on August 12, 2011, seeking 
classification under section 203(b )(2) of the Immigration and Nationality Act (tbe Act), 8 U.S.C. 
§ 1153(b )(2), as a member of the professions holding aii advanced degree. The petitioner seeks 
employment as & high school chemistry teacher. The petitioner asserts that an exemption from the 
requirement of a job offer, and thus of a labor certific:;ttion, is in the national interest of the United 
- States. The director denied the petition ort April 18, 2012, having found that tbe petitioner qualifies for 
classification as a member of the professions holding an advanced degree, but that the petitioner h_as not 
established that an exemption from the requirement of a job offer would be in the national interest of the 
United States. · 
The petitioner filed a motion to reconsider the director's decision oil May 21, 2012, which the director 
dismissed on September 6, 2012, stating that it did not meet the requirements of such a motion. The 
petitioner appealed the director's dismissal of the motion to the MO on September 27, 2012. On 
appeal, the petitioner disputed the elements of the ditect<,>t's April18, 2012dertial decision. Them'!.tte.r 
on '!.ppeaJ,~ bowever, was not the director's April 18, 2012 denial of the petition, but the September 6, 
2012 dismissal of the motion to reconsider. Tbe arguments presented by counsel on appeal failed to 
overeome the director's September 6, 2012 dismissal of the motion. An officer to whom (lQ appeal is 
taken shall summarily dismiss any appeal when the party coneemed fails to identify specifically any 
erroneous ~nclus~on o! l:;tw or. st(!.tement of fact for the ap~eal. 8 C.F.R. § 103.3(a)(1Xv). ~cau~e 
counsel failed to Identify specifically an erroneous conclusiOn of law or a st(!.tement of fact m the 
director's September 6, 2012 decision, the AAO concluded that counsel had not specified the required 
b~sis for the appeal and the appeal was summarily dismissed. 
On mo~im), cou_nsel disPiltes the correctness of the director's September 6, 2012 and April 18, 2012 
decisions rather than contesting the AAO's appellate decision. However, the m'!.Jter ;:J.t issue with the 
current motion is ilot the director's earlier decisions, but rather the AAO's January 29, 2013 di.smis~ 
of the. appeal. Regarding motions to reopen or reconsider, 8 C.F.R. § 103.5(a)(1)(ii) states in relevant 
p~: ''The_ officiaL having jurisdiction is the official who made the latest decision in the proceeding 
unless the a_ff~cted party moves to a new jurisdiction." The latest decision was the AAO's decision 
dismissing the appeal. Therefore, a review of any claims or assertions that the petitioner's present 
motion raises-is limited in scope to the AAO's decision. 
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 
U$. Citiz~nsbip ;wd I_nunigration (USCIS) policy. A motion to reconsider a . decision on an 
application or petition must, when filed, also establish that the decision was incorrect b~sed on th~ 
evidence of record at the time of the initial decision. 8 C..F.R. § 103 . .5(a)(3). A motion to reconsider 
contests the correctness of the original deci_sion ba.sed on the previous factual record, as opposed to a 
(b)(6) NON-PRECEDENT DECISION · 
Page3 
motion to reopen which seeks a new heating ba&.ed .on new or previously unavailable evidence. S~e 
Matter of Cerna, 20 i&N Dec. 399, 403 (BIA 1991). A motion that does not meet applicable 
requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
A motion to reconsider 
cannot be used to raise a lega.l a.tgument that co~ld have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Ratber, the 
~'additional legal arguments" that may be raised in a motion to reconsider · should flow from new law 
or a de novo legal determination reached in its decision t_baJ could not have been addressed by the 
party. Matter ofO-S-G-, 24 I&N Dec. 56, 58.(BIA 2006). Further, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generaJly alleging error in the pqor decision. /d. instead, the moving party must 
specify the factual and legal issues taised on appeal that wete decided in error or overlooked i_n tbe 
initial decision or must show how a change in law materially affects the prior decision. /d. at 60. 
The petitioner has failed to present atgllrrtents relating to the grounds underlying the AAO's most recent 
decision. The petitioner bears the burden of establishing that the AAO's s(iinihaty dismissal of the 
petitioner's appeal was itself in error. If the petitioner can demonstrate that the AAO erred by 
sutnffiarily dismissing the appeal, then there would be gr0U11ds to reconsider the director's earlier 
decisions. The petitioner has not done so iil this proceeding. The petitioner has not established tba.,t t.h~ 
AAO's appellate decision was based on an incorrect application of law or Service policy, or that the 
decision was incorrect bas.ed ~n the evidenc::e of rec.ord. -The petitioner has not claimed or shown that 
the AAO should no.t have suminarily dismissed the .appeal, and the AAO will not consider the 
petitioner's .arguments regarding the director's de.cisions to deny the petition and to dismiss the motion. 
Therefore, the petition~r's latest motion does not meet the requirements of a motion to reconsider, and 
must be dismissed. In addition, the motion does not conta.in the 'statemem a,bout whether or not the 
validity of the unfavorable decision has been or is the subject of any judicial proceeding as teq~ired by 
the regulation at 8 C.ER. § 103.5(a)(l)(iii)(C). For this additional reason, the motion does not meet 
the regulatory requirement. 
The regulation at 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable 
· ·requirements shall be . dismissed." Accordingly, the motion will be dismissed, and the previo-us 
decision_s of the director and the AAO will not be dist1,1rbed. 
ORDER: The motion to reconsider is dismissed, the AAO's January 2.9, 2013 decision is 
affirmed, and the petition remains denied.