dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 17, 2024 In Re: 32152030 
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 either a member of the professions holding an advanced degree or as an individual of 
exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish his eligibility for EB-2 classification or for the requested national interest waiver. We 
summarily dismissed the Petitioner's appeal. The Petitioner subsequently filed combined motions to 
reopen and reconsider, which we dismissed as untimely filed. 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. 
MatterofChawathe, 25 l&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). 
We dismissed the Petitioner's first motion based on a determination that his Form I-290B, Notice of 
Appeal or Motion, was untimely filed. We mailed our decision summarily dismissing the Petitioner's 
appeal on July 7, 2023. A motion on an unfavorable decision must be filed within 33 days of the date 
U.S. Citizenship and Immigration Services (USCIS) mailed the decision. 8 C.F.R. § 103.5(a)(2), 
103.8(b). Therefore, any motion requesting reopening and/or reconsideration of our decision was due 
on or before August 9, 2023. The Petitioner's prior motion was received at the USCIS designated 
filing location on September 1, 2023, 56 days after the date of our decision. 
In a statement submitted in support of the instant motion to reopen, the Petitioner asserts that 
"according to the [USPS] label attached as proof, our response was sent within the required 
timeframe." The Petitioner provides a copy of a USPS Click-N-Ship Label Record printed on August 
9, 2023. The label record indicates a "ship date" of August 9, 2023, and an expected delivery date of 
August 11, 2023. The instrnctions accompanying this self-service shipping label state that users must 
either schedule a package pickup, take the package to a post office, or drop the package in a USPS 
collection box. Users are further instrncted to "mail your package on the 'Ship Date' you selected 
when creating this label." 
The USPS label record demonstrates that the Petitioner created a mailing label on August 9, 2023; it 
is not accompanied by evidence that the package was in fact mailed via USPS on that date and 
delivered to a users facility on the expected delivery date of August 11, 2023. The Petitioner has 
not provided a USPS delivery confirmation associated with the tracking number on this mailing label 
or other evidence of the actual date of mailing and delivery. As noted, users records reflect that the 
package was delivered at the designated filing location on September 1, 2023. 
Further, even if the Petitioner established that the package containing its prior motion was in fact 
mailed on August 9, 2023, and delivered to the designated filing location on the "expected delivery 
date" of August 11, 2023, this would not change the outcome of our prior decision. As noted, to 
properly file the motion, the Petitioner needed to ensure that it was received at the users designated 
filing location within 33 days of our July 7, 2023, decision, or no later than August 9, 2023. Here, the 
Petitioner seeks to demonstrate that he mailed the Form r-290B on August 9, 2023; he does not claim 
that users timely received its prior motion on or before that date. 
Finally, the regulation at 8 C.F.R. § 103.S(a)(l)(i) states that the untimely filing of a motion to reopen 
may be excused in the discretion of users where it is demonstrated that the delay was reasonable and 
was beyond the control of the applicant or petitioner. Here, the Petitioner did not provide an 
explanation for the untimely filing and therefore, provided no basis for users to excuse the late filing 
of the motion to reopen as a matter of discretion. 
Accordingly, the Petitioner has not provided new facts or new evidence in support of the motion to 
reopen that would overcome our decision to dismiss his prior motion as untimely filed. 
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 C.F.R. § 103.5(a)(3). Although the Petitioner filed a combined motion 
to reopen and reconsider, he does not assert that our prior decision was based on an incorrect 
application of law or policy or that it was incorrect based on the record before us when we issued our 
prior decision. The Petitioner has not met the requirements of a motion to reconsider. 
For the reasons discussed, the Petitioner has not provided proper cause for reopening or 
reconsideration of our prior decision. Therefore, the 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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