dismissed EB-2 NIW Case: Fashion Model

.. 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAR 3 0 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. 
If you believe the law was inappropriately applied by 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 filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~ 
~perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) rejected the petitioner's untimely appeal. The 
matter is now before the AAO on a motion to reopen and reconsider. The AAO will dismiss the 
motion. 
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 fashion model. 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 failed to establish that she qualifies 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. 
The petitioner filed the Form 1-140 petition on her own behalf on September 9, 2008. The director 
denied the petition on Tuesday, January 26,2010. The director received the petitioner's appeal 35 days 
later, on Tuesday, March 2, 2010. On May 2, 2011, the AAO rejected the appeal as untimely, as 
required by the U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. 
§ 103.3(a)(2)(i). The AAO also concluded that the petitioner's untimely appeal did not meet the 
requirements of a motion to reopen or to reconsider, and therefore the AAO declined to treat the appeal 
as a motion under the USCIS regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2). 
The USCIS regulation at 8 C.F.R. § 103.5(a)(1)(iii)(C) requires that a motion must include a statement 
about whether or not the validity of the unfavorable decision has been or is the subject of any judicial 
proceeding and, if so, the court, nature, date, and status or result of the proceeding. The petitioner's 
filing does not include this required statement. 
On motion from the AAO's decision, counsel states: 
The decision of the Director advising Petitioner of the late filing comes as a 
tremendous shock and surprise. Significantly, FedEx confirmed that the documents 
were shipped on February 25, 2010 .... Petitioner requested next day delivery of the 
documents. Therefore the Notice of Appeal should have been received on February 
26, 2010, the following business day. However, FedEx, inexplicably and 
unbeknownst to counsel, did not deliver the package until March 2, 2011, contrary to 
counsel's explicit shipping instructions and reasonable expectation of next day 
delivery .... 
[I]t is respectfully submitted that the Notice of Appeal was sent to the AAO by 
overnight courier several days in advance of the filing deadline. Additionally ... the 
33rd day (February 28, 2010) actually fell on the intervening weekend. Hence the 
appeal time should be automatically extended to the next business day which was 
actually March 1,2010. Thus, the Notice of Appeal was received a mere one (1) day 
after the 33rd day from the Director's written decision - and due to no fault of 
Petitioner or counsel. ... 
Page 3 
We submit that the instant appeal should be adjudicated on its merits rather than 
decided based solely on a procedural defect inexplicably caused by the courier, 
FedEx. 
(Emphasis in original.) On Form I-290B, counsel refers to the latest filing as a motion to reopen and 
a motion to reconsider the AAO's decision. 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.F.R. § 103.5(a)(2). Counsel states no new facts on motion, and provides no new evidence. The 
petitioner submits a copy of the FedEx airbill from February 25, 2010, but this document was 
already part of the record, having accompanied the initial filing of the appeal. Likewise, the 
chronology of the appellate filing does not comprise new facts. Instead, counsel simply repeats 
information already available in the record of proceeding. Therefore, the petitioner's filing does not 
meet the requirements of a motion to reopen. 
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). 
Under the regulation quoted above, the petitioner must successfully "establish that the decision was 
incorrect." It cannot suffice for the petitioner simply to attempt to establish it. Counsel cites case 
law in support of the motion, but the filing does not qualify as a motion to reconsider unless 
counsel's assertions are persuasive and supported by the case law counsel cites. 
Counsel cites Zhong Guang Sun v. us. Dep't of Justice, 421 F.3d 105,108 (2nd Cir. 2005), which, 
counsel states, "held that the BIA can consider an untimely appeal if 'extraordinary and unique 
circumstances' interfered with timely filing." Counsel claims: "The facts in Zhong Guang Sun are 
strikingly similar to the case at bar," because the plaintiff in that case had submitted an appeal by 
overnight mail which the courier "delivered ... five days late." Counsel also cited subsequent 
decisions from various circuit courts, stating that they followed the same logic: Khan v. Department 
of Justice, 494 F.3d 255 (2d Cir. 2007), Siby v. Gonzales, (2d Cir. 2007), Oh v. Gonzales, 406 F.3d 
611,612-12 (9th Cir. 2005) and Salazar v. Mukasey, F.3d 643 (6th Cir. 2008). Counsel also asserts: 
FedEx's failure to achieve timely delivery, which is a rare occurrence since they are 
known for their tremendous reliability and ability to deliver parcels in a timely 
manner, "may well, indeed, fall within the realm of the 'extraordinary' if not the 
'unique.'" See Siby v. Gonzales, 230 F. App'x 538, 541 (6th Cir. 2007) (quoting 
Zhong Guang Sun, 421 F.3d at 111). 
In Matter of Liadov, 23 I&N Dec. 990 (BIA 2006), the Board of Immigration Appeals (BIA) cited 
Sun and Oh (Id. at 990) and stated: 
\ 
Page 4 
In Sun v. Us. Dep't of Justice, supra, the Second Circuit agreed with the Ninth 
Circuit that an overnight delivery service's failure to timely deliver a Notice of 
Appeal can constitute an extraordinary circumstance excusing an alien's failure to 
comply with the 30-day time limit for filing an appeal. The alien in that case placed 
his Notice of Appeal with an overnight delivery service 1 day before the deadline for 
filing the appeal. The court stated that an alien's use of an overnight delivery service 
is recognized as a way of insuring timely delivery and "strongly suggests to us that 
the failure of such an effort to achieve timely filing may well, indeed, fall within the 
realm of the 'extraordinary.'" fd. at 111. The court did not find that such an 
extraordinary circumstance existed in that case, but rather remanded the record for us 
to reconsider the issue. 
The BIA noted that the court in Oh cited the BfA Practice Manual, which states, at section 
3.1(b)(iv): 
Delays in delivery.-Postal or delivery delays do not affect existing deadlines, nor 
does the Board excuse untimeliness due to such delays, except in rare circumstances. 
Parties should anticipate all Post Office and courier delays, whether the filing is made 
through first class mail, priority mail, or any overnight or other guaranteed delivery 
service. 
The BIA then reasoned: 
although a delivery delay might excuse untimeliness in a rare case, such as where the 
delivery was very late or caused by "rare" circumstances, the Practice Manual makes 
clear that, in general, such delays do not affect deadlines. The parties cannot point to 
such delays to excuse untimely filings, but should instead anticipate the possibility 
that the guaranteed delivery might fail. In a case such as the one before us, where the 
appeal was placed with an overnight courier service, at most, 48 hours before the 
filing deadline, we do not find the fact that delivery was a day or 2 past the 
"guaranteed" date to be a "rare" circumstance that would excuse the late filing. Such 
delays are not "extraordinary" events. 
Meaningful filing deadlines are as critical to the smooth and fair administration of the 
Board as they are to the courts, particularly given the extraordinary volume of 
appeals, motions, and other filings that must be efficiently processed, tracked, and 
adjudicated .... 
The Supreme Court has clearly held that filing deadlines must be strictly applied. 
United States v. Locke, 471 U.S. 84 (1985). While recognizing that such deadlines 
"necessarily operate harshly and arbitrarily with respect to individuals who fall just 
on the other side of them," the Court has emphasized that if the deadlines are to have 
any meaning, they must be enforced. fd. at 101. According to the Court, "A filing 
Page 5 
deadline cannot be complied with, substantially or otherwise, by filing late-even by 
one day." [d. 
The regulations governing appeals to the Board, the statute governing administrative 
appeals in asylum cases, and the authority of the Supreme Court all require that filing 
deadlines be strictly enforced and thus that appeals be timely filed. Neither the 
statute nor the regulations grant us the authority to extend the time for filing appeals. 
We therefore do not agree with the court's suggestion in Oh v. Gonzales, supra, that 
we have the authority to extend the appeal time. See Matter of Ponce de Leon, 
21 I&N Dec. 154, 158 (BIA 1996; A.G., BIA 1997) (stating that we only have such 
authority as is provided by statute or delegated to us by the Attorney General in the 
regulations) .... 
[S]hort delays by overnight delivery services, while certainly not the norm, are not in 
and of themselves "rare" or "extraordinary" events, and appellants must take such 
possibilities into account and act accordingly. 
Matter of Liadov, 23 I&N Dec. 992-93. The BIA distinguished between the plaintiff in Oh and the 
alien in Liadov. In Oh, the alien, through counsel, mailed an appeal on February 4, 2003, six days 
before the filing deadline, and the courier service did not deliver the filing until 20 days later, on 
February 24, 2003. Oh v. Gonzales at 612. 
The BIA acknowledged: "In Oh v. Gonzales, the untimeliness of the alien's appeal could have been 
deemed to have resulted from 'rare circumstances' ... [that] did not involve an attempted 'last­
minute' filing." In contrast, the alien in Liadov had made what the BIA called an "eleventh hour" 
filing the day before the filing deadline, with a "delivery service [that] missed its guaranteed delivery 
date by, at most, 2 days." The BIA noted that the respondents in Liadov "have not established any 
'rare' or 'extraordinary' events that required waiting until the last day or 2 of the mandated filing 
period and relying so completely on the delivery company's overnight guarantee." Matter of Liadov, 
23 I&N Dec. 993. 
On the spectrum that the BIA established, the present matter lies considerably closer to the facts of 
Liadov than Oh. The petitioner's initial appellate filing consisted of an eight-sentence statement, 
including the assertion that a supplement would follow. Counsel does not explain why the petitioner 
did not file this near-skeletal appeal until 30 days after the denial date. The filing arrived two 
business days after the intended delivery date, as in Liadov. 
Turning to the more recent case law cited by counsel, Khan v. DO] involved a one-day late delivery 
of an appeal. The court stated: 
If the BIA concludes that petitioner's justification for untimely filing does not present 
extraordinary or unique circumstances, it must provide a "reasoned explanation" for 
why this is so. See Zhong Guang Sun, 421 F.3d at 111. This explanation need not be 
Page 6 
elaborate or extensive, but it should at least acknowledge the availability of relief in 
appropriate circumstances. 
Id. at 260. Significantly, the court in Khan did not find that the appeal was timely filed or that the 
BIA had to accept the untimely filing. The court found only that the BIA had not sufficiently 
explained why the untimely appeal did not involve "extraordinary or unique circumstances." 
Salazar v. Mukasey involved an appeal filed two days before the filing deadline, which took eight 
days to deliver. Id. at 644. As in Khan, the court did not find that the petitioner's appeal was timely, 
or that the BIA must universally accept appeals that are mailed before the filing deadline, regardless 
of delays. Instead, as in Khan, the court held only that the BIA must "consider whether the 
circumstances presented by \vere 'extraordinary or unique.'" [d. at 645. 
Siby v. Gonzales, also cited by counsel above, involved a delivery delay of almost two years. !d. at 
539. Even then, the 6th Circuit denied the petition for review in _ finding no procedural error by 
the BIA. 
The cited case law establishes, at most, that the appellate authority must consider whether or not 
"extraordinary or unique circumstances" prevented timely filing of the appeal. For the reasons 
stated above, the petitioner, on motion, has not shown that a delay of a few days in delivering an 
"eleventh hour" appeal constitutes "extraordinary or unique circumstances" that might compel the 
AAO to review an untimely appeal. Because the petitioner has not established that the decision was 
incorrect, the AAO must dismiss the motion to reconsider. 
In the event that the AAO declined to consider the untimely appeal as timely, counsel requests that 
"the AAO treat the appeal with its supporting Brief and annexed documentary evidence as a motion 
to reconsider and/or reopen pursuant to 8 C.F.R. §§ 103.3(a)(2)(v)(B)(2), 103.3(a)(2)(iii), and 
103.S(a)(S)(i)." There is a regulation, at 8 C.F.R. § 103.3(a)(2)(vii), that permits a petitioner to 
supplement a previously-filed appeal. There is, however, no parallel regulation to allow a petitioner 
to supplement a previously-filed motion. In order for an untimely appeal to qualify as a motion, 
therefore, it must qualify as a motion at the time of filing. 
Jurisdiction over considering the untimely appeal as a motion would rest with the director, not with 
the AAO, because the untimely appeal sought to address a decision by the director. See 8 C.F.R. 
§ 103.5(a)(1)(ii). As the AAO observed in its rejection notice, it is not apparent to the AAO that the 
untimely appeal, at the time of filing, qualified as a motion to reopen or to reconsider. The initial 
eight-sentence appellate statement contained no new facts and no new evidence, and did not 
establish that the director's decision was incorrect based on the record of proceeding at the time of 
the decision. Counsel simply claimed that the petitioner had submitted sufficient evidence to 
establish eligibility for the benefit sought. 
ORDER: The motion is dismissed. The AAO's decision of May 2, 2011 is undisturbed.