dismissed EB-2 NIW Case: Dance

(b)(6)
DATE: 
JUN 1 0 2013 
OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachu setts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree 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 BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank 
you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
reject the appeal as untimely. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the arts. The petitioner seeks 
employment as a dancer and capoeirista. 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 found that the petitioner did not qualify for classification as an alien of exceptional ability in the 
arts, or that an exemption from the requirement of a job offer would be in the national interest of the 
United States. 
In order to properly file an appeal, the United States Citizenship and Immigration Services (USCIS) 
regulation at 8 C.P.R. § 103.3(a)(2)(i) requires the affected party to file the complete appeal within 
30 days after service of the unfavorable decision. Whenever a person has the right or is required to 
do some act within a prescribed period after the service of a notice upon him and the notice is served 
by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing. 
8 C.P.R.§ 103.8(b). 
The record indicates that the director issued the decision on January 9, 2013. The director properly 
notified the petitioner that he had 33 days to file the appeal. USCIS received the appeal on Friday, 
February 15, 2013, 37 days after the decision was issued. Accordingly, the appeal was untimely 
filed. The director noted the untimely filing and declined to treat the appeal as a motion under the 
USCIS regulation at 8 C.P.R.§ 103.3(a)(2)(v)(B)(2). 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.P.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 USCIS 
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.P.R. § 103.5(a)(3). 
The petitioner's appeal does not meet the above requirements. On the Form I-290B Notice of Appeal, 
counsel indicated that a brief would be forthcoming within thirty days. To date, four months later, 
careful review of the record reveals no subsequent submission; all other documentation in the record 
predates the issuance of the notice of decision. 
On the appeal form, counsel states that the petitioner "has met the requirements of a petitioner who 
meets the exceptional ability standard .... He has also proven that a waiver of the job offer and labor 
certification requirement will be in the national interest of the United States." Counsel makes these 
statements as conclusions offered without support. 
(b)(6)
Page 3 
The USCIS regulation at 8 C.F.R. § 103.3(a)(l)(v) states, in pertinent part, "[a]n 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." The bare assertion 
that the petitioner is eligible for the benefit sought is not sufficient basis for a substantive appeal. 
Because counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact 
as a basis for the appeal, the AAO would have summarily dismissed the appeal, had it been timely filed. 
ORDER: The appeal is rejected.