dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 28, 2025 In Re: 35830998 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a lawyer, seeks employment-based second preference (EB-2) immigrant classification 
as a member of the professions holding an advanced degree or as an individual of exceptional ability, 
and a national interest waiver of the job offer requirement attached to this classification. 
See section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner had not 
established a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. We dismissed the appeal and three subsequently filed motions to reconsider. The 
matter is now before us on a fourth motion to reconsider. 8 C.F.R. § 103.5(a)(3). 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&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). The scope of a motion is limited to "the prior 
decision" and "the latest decision in the proceeding." 8 C.F.R. § 103.5(a)(l)(i), (ii). We may grant 
motions that satisfy these requirements and demonstrate eligibility for the requested benefit. 
The issue on motion is whether we erred in dismissing the Petitioner's prior motion to reconsider as 
untimely because it was filed 58 calendar days after the date we mailed the decision he requested we 
reconsider. See 8 C.F.R. §§ 103.5(a)(l)(i) (providing a motion on an unfavorable decision must be 
filed within 30 calendar days of the date of the decision), 103.8(b) (providing 3 days shall be added to 
the prescribed period when notice is served by mail). 
The Petitioner asserts his motion was not timely filed because of "misinformation received after the 
unexpected and abrupt withdrawal of prior counsel," which resulted in his being unaware of the recent 
increase of filing fees. 1 He further asserts that our failure to consider his extraordinary circumstances 
1 Notably, in resubmitting the prior motion after it was rejected for the incorrect fee, the Petitioner stated that "[b]efore 
and due diligence and rigidly adhering to aprocedural rule would be arbitrary, capricious, and an abuse 
of our discretion. 
While 8 C.F.R. § 103.5(a)(1)(i) allows U.S. Citizenship and Immigration Services (USCIS) to excuse 
a late motion to reopen "where it is demonstrated that the delay was reasonable and was beyond the 
[the affected party's] control," there is no similar regulation for a late filed motion to reconsider. 
Rather, any motion to reconsider must be filed within 30 days of the unfavorable decision. 8 C.F.R. § 
103.5(a)(1)(i) (emphasis added).2 
We acknowledge the Petitioner's statements that, but for his motion being rejected for the incorrect 
fee amount, it would have been timely filed. However, each form, benefit request, or other document 
requiring a fee payment by regulation must be filed with the correct fee(s). 8 C.F.R. § 103.2(a)(1), 
(a)(7)(D); see generally 1 USCIS Policy Manual B.3, https://www.uscis.gov/policy-manual 
(providing, as guidance, requestors must include the required fee amount, which is controlled by 
regulation, with the submission of a benefit request to USCIS). USCIS' fee schedule is publicly 
available information and the fee increase went into effect more than two months before the Petitioner 
filed the prior motion.3 
Moreover, we do not agree that our prior decision was arbitrary, capricious or an abuse of discretion. 
Immigration regulations carry the force and effect of law. United States ex rel. Accardi v. 
Shaughnessy, 347 U.S. 260, 265 (1954). The regulations do not provide for an exception to the 
requirement that a motion to reconsider be filed within 30 days and we lack the authority to waive the 
requirements of the regulation. See United States v. Nixon, 418 U.S. 683, 695-96 (1974) (holding that 
both governing statutes and their implementing regulations hold "the force of law" and must be adhered 
to by government officials). 
The Petitioner further asserts that courts have consistently held that withdrawal of counsel constitutes 
an extraordinary circumstance warranting equitable tolling, particularly when it leaves the petitioner 
without essential legal guidance at a critical moment, citing to a Supreme Court case analyzing 
criminal proceedings, a First Circuit case dealing with the Federal Tort Claims Act, and a Fifth Circuit 
case analyzing removal proceedings. However, we have no authority to apply the doctrine of equitable 
estoppel. See Matter of Hernandez-Puente, 20 l&N Dec. 335, 338-39 (BIA 1991). The Petitioner 
also cites to a number of federal cases claiming federal courts have consistently recognized that 
equitable tolling applies in immigration cases. However, while the federal courts may apply the 
doctrine against USCIS, we may not. Id. The Petitioner has not cited to any legal binding precedent 
supporting his assertion that USCIS may apply the doctrine of equitable estoppel. 
mailing the check, I diligently checked the internet for the updated fee information multiple times," and while he also 
stated that he "navigated this process without the assistance of an immigration attorney," he did not make any mention of 
the "unexpected and abrnpt withdrawal of prior counsel." 
2 Further, even if we could consider the circumstances around the Petitioner's late filed motion, and we cannot, the 
Petitioner does not explain when counsel withdrew representation or how the timing of the withdrawal affected his filing 
of the instant motion. We note that the Petitioner was unrepresented by counsel both when he filed the untimely motion 
to reconsider and in his previously filed second motion to reconsider. 
3 USCIS' fee schedule can be located on Form G-1055, Fee Schedule, accessible through USCIS' website at 
https://www.uscis.gov/forms/fiIing-fees. 
2 
The Petitioner has therefore not established 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. Therefore, the motion will be dismissed. 8 C.F.R. 
§ 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
3