dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-L-H-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 27, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a teacher, seeks second preference 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. § l 153(b)(2). After a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, grant 
a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed 
endeavor has both substantial merit and national importance; (2) that the foreign national is well 
positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien Worker, 
finding 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 dismissed the Petitioner's appeal and 
denied his subsequent motion to reconsider. 1 The Petitioner then filed a motion to reopen, and we 
denied that motion as untimely. 
The matter is now before us on combined motions to reopen and reconsider. With the motions, the 
Petitioner submits additional documentation and a brief asserting that the delay in filing his previous 
motion to reopen was reasonable and beyond his control. For the reasons discussed below, we will 
deny the motions. 
I. LAW 
A motion to reconsider is based on an incorrect application of law or policy, and a motion to reopen 
is based on documentary evidence of new facts. The requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
1 See Matter of K-L-H-. ID# 478723 (AAO Sep. 22, 2017) and Matter of K-L-H-, ID# 1102545 (AAO Mar. 13. 2018). 
Matter of K-L-H-
In order to properly file a motion, the regulation at 8 C.F .R. § 103 .5( a )(1 )(i) provides that the petitioner 
must file the motion within 30 days of the decision. With respect to a motion to reopen, "failure to 
file before this period expires, may be excused in the discretion of the Service where it is demonstrated 
that the delay was reasonable and was beyond the control of the applicant or petitioner." Id. If the 
decision was mailed, the motion must be filed within 33 days. See 8 C.F.R. § 103.8(b). The date of 
filing is not the date of submission, but the date of actual receipt with the proper signature and the 
required fee. See 8 C.F.R. § 103.2(a)(7)(i). 
II. ANALYSIS 
The record reflects that we denied the Petitioner's motion to reconsider on March 13, 2018. His 
motion to reopen that decision was filed more than three months after the service date of the 
unfavorable decision. Accordingly, we denied the motion to reopen as untimely filed. 2 
In the current motion, the Petitioner does not contest our finding that the June 2018 motion was 
untimely filed. Instead, he asserts that the "delay in filing was reasonable and beyond [his] control 
because he had to retain new counsel after his former attorney refused to assist him." 3 The Petitioner 
contends that he contacted present counsel on April 26, 2018, and retained counsel's services on May 
7, 2018. He requests that we reopen the matter, reconsider our previous decision, and approve his 
petition. 
With the motion, the Petitioner presents a statement explaining the circumstances under which he 
retained present counsel. He attributes the delay in filing his previous motion to being "unaware of 
the time it would take to gather all of the pertinent evidence" and "financial difficulty." In addition, 
he provides a copy of his April 2018 inquiry for legal services and email communications with present 
counsel. This information and evidence, however, is not sufficient to demonstrate that the delay in 
filing the June 2018 motion was reasonable and beyond the control of the Petitioner to warrant 
excusing the untimely filing as a matter of discretion. 
The Petitioner has not met the requirements for a motion to reconsider as he has not shown that we erred 
in finding that the June 2018 motion was untimely or in concluding that he had not demonstrated that 
the filing delay was reasonable and beyond his control. Further, the current motion to reconsider does 
not establish that our previous determination was based on an incorrect application of the law, regulation, 
or USCIS policy. In addition, the current motion to reopen does include new facts or evidence 
establishing that the June 2018 motion was timely or that the Petitioner's delay in filing that motion 
was reasonable and beyond his control. 
2 We also denied the Petitioner's request to excuse the filing delay because he had not demonstrated that the delay was 
reasonable and beyond his control. See 8 C.F.R. § 103.S(a)(l )(i). 
'The ,ccmd includes mu\liplc Maceh-17' 2018 rr communications between the Petition« and his formcc attorney, 
I I in which u dated the Petitioner about his case and responded to his questions. 
For instance, an April 2, 2018 email rrom advised the Petitioner against "filing another motion" because of the 
unlikelihood ofUSCIS "reversing the denial." The Petitioner has not asserted an ineffective assistance of counsel claim 
agains~ lnor has he provided sufficient information and evidence to support such a claim. See Matter of Lozada, 
19 I&N Dec. 637 (BIA 1988). affd. 857 F.2d 10 (1st Cir. 1988). 
2 
Matter of K-L-H-
III. CONCLUSION 
The Petitioner has not established that our previous decision was incorrect based on the record before 
us, nor does his new evidence on motion overcome the grounds underlying our previous decision. In 
visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 
806 (AAO 2012). Here, that burden has not been met. 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
Cite as Matter of K-L-H-, ID# 3773802 (AAO June 27, 2019) 
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