dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 27, 2023 In Re: 29222014 
Motion on Administrative Appeals Office Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an information technology (IT) entrepreneur, seeks classification as a member of the 
professions holding an advanced degree. See Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer 
requirement that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the 
Act. U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the 
required job offer, and thus of a labor certification , when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish: (1) the national importance of his proposed endeavor, and (2) that, on balance, the United 
States would benefit from waiving the job offer requirement. We dismissed a subsequent appeal. The 
matter is now before us on a motion to 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 
motion. 
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). 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. 
Any motion to reconsider an action by the Service filed by an applicant or petitioner must be filed 
within 30 days of the decision that the motion seeks to reconsider. 8 C.F.R. § 103.5(a)(l)(i). A motion 
that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). The regulations 
make no provision for accepting an untimely filed motion to reconsider. 
We dismissed the Petitioner's appeal on May 2, 2023. The Petitioner filed the present motion more 
than two months later, on July 5, 2023 . On motion, the Petitioner shows that he did not receive our 
dismissal notice at his overseas address until June 8, 2023, by which time the deadline for filing a 
motion had passed. The Petitioner asks that we therefore excuse the untimely filing of the motion, 
although he cites no authority that would allow us to do so. The regulation at 8 C.F .R. § I 03 .5( a)( I )(i) 
gives us discretion to accept an untimely motion to reopen if the delay was reasonable and was beyond 
the petitioner's control, but there is no comparable provision for motions to reconsider. 
The Petitioner has not established that we did not properly issue the appellate decision. Routine 
service consists of mailing the notice by ordinary mail addressed to the affected party and his or her 
attorney or representative ofrecord at his or her last known address. 8 C.F.R. § I 03.8(a)(l )(i). When 
we dismissed the Petitioner's appeal, we sent copies of the dismissal decision by regular mail to the 
Petitioner and to the Petitioner's then-attorney ofrecord, at the addresses provided for both. There is 
no evidence, and the Petitioner does not claim, that the attorney's copy was delayed or returned as 
undeliverable. Therefore, the record before us indicates that we properly issued the dismissal notice 
to the Petitioner's then-attorney ofrecord as well as the Petitioner. 
Our appellate decision was properly mailed to the Petitioner's then-attorney of record as well as the 
Petitioner, and as noted above the regulation at 8 C.F.R. § 103.5(a)(1 )(i) does not allow us discretion 
to accept the untimely filing. Furthermore, the Petitioner has not established that our previous decision 
was based on an incoITect application oflaw or policy at the time we issued our decision. Therefore, 
the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 1 
ORDER: The motion to reconsider is dismissed. 
1 Fmihermore, the Petitioner has not established that he would have prevailed on the me1its. The Petitioner states that the 
Director's request for evidence, the Director's denial decision, and our appellate decision all disregarded the Petitioner's 
emphasis on business intelligence. The scope of the motion is limited to the appellate decision, which is "the latest decision 
in the proceeding." 8 C.F.R. § 103.S(a)(l)(i), (ii). 
The purpose of an appeal is to identify specific errors of fact or law in the denial notice. See 8 C.F .R. § 103.3(a)(1 )(v). 
The Petitioner's brief on appeal mentions the phrase "business intelligence" in the context of capsule descriptions of the 
Petitioner's business activities, but does not emphasize his work in business intelligence as a basis for the national interest 
waiver. Instead, that brief indicated that the national importance of the proposed endeavor lay in the potential employment 
of U.S. workers and "the ripple effects of his professional activities." The Petitioner states, on motion, that the term 
"Information Technology" involves much more than "simply a technician installing computers," but our appellate decision 
did not characte1ize infmmation technology in that way. The Petitioner has not shown an incorrect application of law or 
policy and that we would have sustained the appeal ifwe had discussed the proposed endeavor in greater detail. 
The Petitioner also contends that we did not give sufficient weight to policy guidance concerning the importance of fields 
in the sciences, technology, enginee1ing, and mathematics (STEM). The Petitioner cites 6 USC IS Policy Manual F .5(0)(2), 
https://www.uscis.gov/policy-manual, which lays out "specific evidentiary considerations relating to STEM degrees and 
fields." In our appellate decision, we stated: "We acknowledge the importance of IT and STEM fields, and also of 
addressing the nation's shortage ofIT professionals; however, the Petitioner has not sufficiently explained how his work 
as an entrepreneur would resolve the shortage or produce an impact rising to the level of national importance." The 
existence of policy guidance relating to STEM professionals does not overcome our conclusions, which already took that 
guidance into account. The Policy Manual does not indicate that STEM professionals qualify for the waiver in all cases. 
Rather, it emphasizes "proposed endeavors that aim to advance STEM technologies and research." See generally 6 USCIS 
Policy Manual, supra, at F.5(D)(2). The Petitioner's proposed endeavor entails provision of IT services to individual 
clients, which has a more limited impact, and his business plan does not indicate that the Petitioner is engaged in developing 
new business intelligence technology. Rather, his "customized software ... [is] based on existing and operational tools." 
2