dismissed EB-2 NIW Case: Law

identifying data deleted to 
p!'event clearly unwarr?nted 
invasion of personal privacy 
PUBLlCCOPY 
DATE: fEB' 1 '1.0\'1. OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. Ci tizenshi p 
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. § I 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
infonnation 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 Fonn 1-290B, 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, 
t\lCLu-~~ '7 PerryRhew 
Chief, Administrative Appeals Office 
www.llscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The petitioner filed a motion to reopen and reconsider the director's decision. The director 
dismissed the motion. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The AAO will dismiss the appeal. 
The petitioner filed a Form 1-140 petition on August 3, 2009, seeking to classify himself as a member of 
the professions holding an advanced degree under section 203(b )(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.c. § 1153(b)(2). That classification normally requires a job offer and labor 
certification from a United States employer, but allows for an exemption from the job offer requirement 
in the national interest. A precedent decision, Matter of New York State Dept. of Transportation 
(NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), includes guidelines for the national interest 
waiver of the job offer requirement. 
The petitioner seeks employment as an attorney. The petitioner asserted 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 denied the petition on March 11, 2010, based on the finding that the petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner had not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. The petitioner filed Form I-290B, Notice of Appeal or Motion, on 
April 2, 2010, as a motion to reopen and to reconsider the 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). 
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). 
A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
On July 7, 2010, the director dismissed the petitioner's motion. The director quoted the above 
regulations and stated that the motion did not meet the applicable requirements. 
The petitioner appealed the director's decision on August 6, 2010. On appeal, the petitioner submits 
several exhibits and makes the following assertions: 
The constitutional right of being a self-employed lawyer is deprived from the petitioner. 
Nothing in the precedent decision (Matter of New York State Dept. of Transportation) 
was against a beneficiary being self-employed. . . . The said precedent decision 
-Page 3 
specifically requires adjudicating officers to give due consideration in such appropriate 
cases .... 
The Director, Texas Service Center, ignored the petitioner and beneficiary's special and 
unique situation and the Service's own policies .... 
The Director, Texas Service Center, ignored the conventional standard of proof -
"preponderance ofthe evidence." ... 
On the one hand, the Director acknowledges that the labor certification process is 
inapplicable and unavailable in this case .... On the other hand, the Director keeps on 
insisting that all the unique skills and attributes the petitioner and beneficiary 
demonstrates should be articulated in an application for labor certification. 
The appeal under consideration by the AAO is not an appeal of the director's initial decision on the 
merits of the petition. The petitioner did not appeal that decision, but chose to file a motion instead. 
The director, in tum, dismissed that motion. On appeal, therefore, is not the denial of the petition but 
rather the dismissal of the motion. Before the AAO can give any consideration to the merits of the 
underlying petition, the petitioner must first establish that the director erred by dismissing the motion. 
The director's dismissal notice quoted extensively from the regulations at 8 C.F.R. § 103.5(a), including 
the requirements of motions to reopen and to reconsider. The director's July 7, 2010 decision included 
a brief discussion of the NYSDOT precedent decision, but the director did not reopen the petition and 
then re-deny it on the merits. Rather, the director dismissed the motion for failure to meet the 
requirements of a motion. On appeal, the petitioner does not even address, much less rebut, the 
director's finding that the motion failed to meet applicable requirements. Instead, the petitioner offers 
mUltiple assertions to the effect that the director should have approved the petition in the first place. 
The petitioner cannot overcome the dismissal of his motion by fi ling a new appeal that seeks 
readjudication of the underlying petition, as though the motion and its dismissal never happened. The 
petitioner's opportunity to dispute the original decision was the 30-day period immediately following 
the service of that decision. See 8 C.F.R. §§ 103.3(a)(2)(i) and 103.5(a)(1)(i). During that period, the 
petitioner chose to file a motion instead of an appeal, and his April 2010 filing was therefore subject to 
the requirements of a motion under the regulations quoted previously. The dismissal of the motion did 
not reset the clock for the petitioner to appeal the original decision. When the petitioner filed his appeal 
in August 2010, he could only properly appeal the director's dismissal notice of July 2010, not the 
denial notice of March 2010. 
Issues not briefed on appeal by a pro se litigant are deemed abandoned. Timson v. Sampson, 518 
F.3d 870, 874 (J Ith Cir.2008) (per curiam). When an appellant fails to offer argument on an issue, 
that issue is abandoned. Sepulveda v. u.s. Atty. Gen., 401 F.3d 1226, 1228 n. 2 (lith Cir.2005). In 
this instance, the petitioner, on appeal, did not contest or address the director's finding that the filing 
failed to meet the requirements of a motion. The petitioner has, therefore, abandoned that issue. 
Page 4 
The AAO cannot consider the merits of the underlying appeal unless the petitioner first establishes 
that the director improperly dismissed the motion. The petitioner failed to do so, and therefore the 
AAO will not rule on the merits of the director's first denial notice or on the petition itself. 
The petitioner has failed to demonstrate, or even to allege, that the director erred by dismissing the 
petitioner's earlier motion to reopen and reconsider. The AAO will therefore dismiss the appeal. 
ORDER: The appeal is dismissed.