dismissed EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APRIL 29, 2024 In Re: 30870786 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a financial manager, seeks employment-based second preference (EB-2) 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 classification. See Immigration and Nationality 
Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
qualified for the classification as a member of the professions holding an advanced degree, 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 summarily dismissed a subsequent appeal because the Petitioner did not submit 
a timely brief or additional evidence specifying any erroneous conclusion of law or statement of fact 
in the Director's decision. 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. 
Matter of Chawathe, 25 I&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). 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). Because the scope of a motion is 
limited to the prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. 
§ 103.5(a)(l)(i) , (ii). We may grant motions that satisfy the requirements and demonstrate eligibility 
for the requested benefit. 
In our decision summarily dismissing the Petitioner's appeal, we noted that although the Petitioner 
indicated that a brief and/or additional evidence would be submitted to the AAO within 30 calendar 
days of filing the appeal, the record did not show that the AAO received those materials within that 
period. An 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. 8 C.F.R. § 103.3(a)(l)(v). 
On motion, the Petitioner contends that he did in fact deliver his brief and additional evidence to the 
AAO within the 30 calendar days of filing his appeal. The Petitioner submits United States Postal 
Service tracking records indicating delivery of the brief to USCIS on June 26, 2023. The Petitioner 
asserts that these new facts establish he timely submitted a brief or additional evidence in support of 
his appeal. However, the Petitioner misfiled the brief to the Vermont Service Center and not to the 
AAO as instructed in the Form I-290B instructions. 
Relating to the location filing parties are required to submit any follow-on briefs, the instructions for 
the Form I-290B state: 
For appeals, you must file any brief and/or additional evidence within 30 calendar days 
of filing Form I-290B. Any brief and/or evidence submitted after you file Form 1-
290B must be sent directly to the AAO, even if the appeal has not yet been transferred 
to the AAO. 
For the AA O's mailing address, visit www.uscis.gov/aao. The submission must clearly 
identify the appeal it relates to. 
(Emphasis in original). Additionally, the Petitioner filed the Form I-290B indicating he would submit 
his "brief and/or additional evidence to the AAO within the 30 calendar days of filing the appeal." 
(Emphasis added.) 
Since the brief was misfiled, the AAO did not receive it until after having summarily dismissed the 
Petitioner's appeal on September 19, 2023. Because the Petitioner failed to follow the form's 
instructions regarding where to submit the appeal brief, and there consequently was no brief before 
us, we conclude that our decision to summarily dismiss the appeal was a correct one. Furthermore, 
the Petitioner has not demonstrated that our summary dismissal decision was based on an incorrect 
application of law or USCIS policy and that our decision was incorrect based on the evidence in the 
record at the time of the decision. In addition, the Petitioner has not offered new evidence or facts on 
motion to overcome the stated grounds for dismissal in our appellate decision. 
Even if the supplemental brief had been properly filed, we would likely still find it insufficient to carry 
the Petitioner's burden because it generally reiterates the previously submitted evidence the Director 
had already found deficient. It does not contain evidence and arguments that have not been addressed 
by the Director, nor does it identify specifically any erroneous conclusion of law or statement of fact 
in the Director's decision. See 8 C.F.R. § 103.3(a)(l)(v). 
The Petitioner has not established facts relevant to our appellate decision that would warrant reopening 
of the proceedings, nor has he shown that we erred as a matter oflaw or USCIS policy. Consequently, 
we have no basis for reopening or reconsideration of our decision. Accordingly, the motions will be 
dismissed. 8 C.F.R. § 103.5(a)(4). The Petitioner's appeal therefore remains dismissed, and his 
underlying petition remains denied. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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