dismissed EB-2 NIW Case: Graphic Design

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 2, 2024 In Re: 30231657 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is a graphical design entrepreneur who seeks employment-based second preference 
immigrant classification 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. § 1153(b)(2). 
The Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding that the record did not establish that the Petitioner qualified for the underlying 
visa classification, nor did he merit a discretionary waiver of the job offer requirement in the national 
interest. The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and 
Immigration Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of 
Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de novo. 
Matter of Christa 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will 
dismiss the appeal. 
The Director decided the Petitioner met three of the regulatory criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)- (F), but noted that meeting at least three criteria did not, in and of itself, establish 
eligibility for this immigrant classification. The Director then turned to a final merits determination 
to decide whether the totality of the evidence in the record showed that the Petitioner was recognized 
as having a degree of expertise significantly above that ordinarily encountered in the field. USCIS 
has previously confirmed the applicability of this two-part adjudicative approach in the context of 
individuals of exceptional ability. See generally 6 USCIS Policy Manual B.2, 
https://www.uscis.gov/policy-manual. And in doing so, the Director determined that the Petitioner 
did not have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, 
or business. 
Ultimately, the Director included five independent grounds in the decision and denied the petition on 
four of those grounds. First, the Director addressed the categories of evidence the Petitioner must 
meet within the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A)- (F), and the Director found that he met the 
requirements of at least three categories. Second, the Director performed a final merits determination 
considering the totality of the evidence, and they decided the Petitioner did not demonstrate he enjoys 
a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 
And finally, the Director concluded the Petitioner did not meet any of the three prongs outlined in 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), with each prong serving as its own individual 
independent ground of eligibility. To summarize, the Director found the Petitioner met three criteria 
but did not show overall eligibility as an individual of exceptional ability, nor did he demonstrate he 
met any of the three Dhanasar prongs. Each of these individual issues standing alone would serve as 
an independent basis for a denial. Therefore, the appellant here, must demonstrate that every stated 
ground for the denial was incorrect. 
We observe two procedural failings in the Petitioner's appeal. First, the Petitioner did not file the 
appeal before us in a timely manner. And, he failed to address one independent basis of the denial in 
which the Director performed a final merits determination and found the totality of the evidence 
deficient. 
I. TIMELINESS 
In order to properly file an appeal, the regulation at 8 e.F.R. § 103.3(a)(2)(i) provides that the affected 
party or the attorney or representative of record must submit the complete appeal within 30 days of 
service of the unfavorable decision. If the decision was only mailed, the appeal 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 required fee. See 8 e.F.R. § 103.2(a)(7)(i). 
The Director's June 21, 2023 petition denial afforded the Petitioner until July 24, 2023, to properly 
file an appeal. Following the Director's denial, the Petitioner filed his initial appeal on the Form 
r-290B, Notice of Appeal or Motion. users rejected that appeal due to his failure to properly 
complete the form in accordance with the form instructions. Every form, benefit request, or other 
document must be executed in accordance with the instructions on the form, which are incorporated 
into the regulation requiring its submission. 8 e.F.R. § l 03.2(a)(l ). Further discussion of the filing 
requirements for these documents is found at 8 C.F.R. § 103 .2(b )(I), which provides that "[e Jach 
benefit request must be properly completed and filed with all initial evidence required by applicable 
regulations and other users instructions." Therefore, the failure to follow the form instructions are 
tantamount to not complying with the regulation. 
After we rejected the appeal, the Petitioner held onto and did not resubmit a corrected appeal for 
another 23 days meaning he filed the corrected appeal on September 6, 2023, or 77 days after the 
Director denied the petition. Within that second appeal filing, the Petitioner notes the rejected appeal 
and requests that we "retain the appeal date-July 21, 2023, as the received date on the basis of Nunc 
Pro Tune Doctrine." 
The Petitioner's reference to a nunc pro tune action appears to connote that users committed some 
procedural error resulting in us rejecting his appeal, and that we could remedy that mistake with a 
nunc pro tune action. However, it was the Petitioner's error in his failure to adhere to the Form I-290B 
instructions that resulted in his first appeal being rejected. We therefore, will not retain the original 
appeal filing date through a nunc pro tune action for the untimely filed appeal that was filed late due 
to the Petitioner's actions. 
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Appellate filing deadlines are essential for the overall working of our immigration system in order to 
bring cases to a final conclusion. Matter ofMorales-Morales 28 I&N Dec. 714, 716 (2023) recognized 
that "it is important to note that a deadline for filing a notice of appeal is essential for the overall 
working of an immigration [] system in order to bring cases to a final conclusion. Without a deadline 
for filing an appeal, a respondent[] could delay proceedings indefinitely." They further acknowledged 
that '" [ f]iling deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with 
respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is 
to have any content, the deadline must be enforced."' Id. (quoting United States v. Locke, 471 U.S. 
84, 101 (1985)). 
II. W AIYER, ABANDONMENT, OR FORFEITURE OF DISPOSITIVE ISSUE 
Within the appeal, the Petitioner incorrectly indicates that the Director decided that he did not satisfy 
at least three of the exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In making that 
flawed assumption, his appeal brief failed to address the next logical step of contesting the Director's 
final merits determination. And as we noted above, the final merits determination is a dispositive issue 
that can serve as its own independent basis to deny the petition as the second step in the adjudicative 
process. 
Any issue the Petitioner fails to contest on appeal, we consider that requirement to be waived, 
abandoned, or forfeited. Matter ofF-C-S-, 28 I&N Dec. 788, 789 n.3, 791 n.6 (BIA 2024) (finding 
issues not challenged on appeal are waived); Silberman v. Miami Dade Transit, 927 F.3d 1123, 1134 
n.6 (11th Cir. June 17, 2019). When a filing party does not address and waives an issue that is required 
for them to prevail on appeal, that failure is dispositive of the appeal. At that point, it is unnecessary 
for us to make a decision on any additional issues because it is not possible for them to fully 
demonstrate they are eligible for the benefit. 
Because the Petitioner's waiver of the issue of the Director's adverse decision regarding the final merits 
determination is dispositive of this appeal, we will not address and we reserve the Petitioner's remaining 
appellate arguments. Patel v. Garland, 596 U.S. 328, 332 (2022) ( citing INS v. Bagamasbad, 429 U.S. 
24, 25-26 ( 1976) (finding agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision)); see also Matter of Chen, 28 I&N Dec. 676, 677 n.1, 678 (BIA 
2023) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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