dismissed EB-2 NIW Case: Not Specified

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 24, 2024 In Re: 34043572 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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 anational 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. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish eligibility for a waiver of the job offer requirement in the national interest. We dismissed a 
subsequent appeal. The matter is now before us on a combined motion to reopen and reconsider. 
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 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). 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. 
Motions to reopen or reconsider must be ti led within 30 days of the decision, or 33 days if the decision 
is served by mail. 8 C.F.R. § 103.5(a)(l)(i), 103.8(b). The date of filing is the date U.S. Citizenship 
and Immigration Services (USCIS) receives the intended motion: (1) completed, signed, and 
accompanied by the required fee as specified by the Form 1-2908, Notice of Appeal or Motion, 
instructions; and (2) at the location that those instructions designate for filing motions. See 8 C.F.R. 
§§ 103.2(a)(I) and 103.2(a)(6). USCIS may, in its discretion, excuse the untimely filing of a motion 
to reopen where the record demonstrates that the delay was reasonable and beyond the control of the 
applicant. 8 C.F.R. § 103.5(a)(l)(i). There is no comparable authority to excuse an untimely filed 
motion to reconsider. See id. 
We dismissed the Petitioner's appeal on April 29, 2024. In that decision, we discussed the merits of 
the petition. Upon dismissal of the appeal, the Petitioner had 33 days to file a motion. See 8 C.F.R. 
§ 103.5(a)(1)(i). Because the 33rd day fell on a weekend, the Petitioner had until the next business 
day to file a motion. See 8 C.F.R. § 1.1. As a result, a timely motion had to be filed no later than June 
3, 2024. USCIS did not receive the completed and signed Form l-290B with the required fee at the 
designated USCIS location until June 4, 2024. Accordingly, the Petitioner did not timely file this 
motion, as it was received on June 4, 2024, 36 days after our decision was issued. 
As noted, the late filing of the Petitioner's motion to reconsider may not be excused. 8 C.F.R. 
§ 103.5(a)(l)(i). 
With respect to his motion to reopen, the Petitioner has the burden to establish that the late filing was 
reasonable and beyond his control and should therefore be excused. On motion, the Petitioner argues, 
through counsel, that we should excuse the late filing and not penalize the Petitioner "for the delay of 
less than one day (this package will be delivered in the morning following the failed attempted 
delivery) for a delay that was beyond his control, and which is reasonable under the circumstances." 
With the motion, the Petitioner submits evidence relating to the late filing and a brief with additional 
documentation relating to his motion contesting our dismissal of the appeal on the merits. 
The instructions to Form l-290B, Notice of Appeal or Motion, state on page 6: 
Where To File? 
Please use our website at www.uscis.gov/i-290b for the most current information about 
where to file this appeal or motion. 
The filing address chart mentioned above indicates that, to file a motion on an AAO decision, filers 
should send the Form l-290B to "[t]he USCIS office that made the original unfavorable decision on 
your case. Use the information in sections above to determine which address to send your Form 
l-290B to." The chart includes an illustrative example: 
Example: The USCIS Miami Field Office denied your Form 1-601. You filed an appeal 
with the AAO, but AAO dismisses the appeal. You want to file a motion asking that 
AAO reconsider its dismissal. You should file your motion with the Chicago Lockbox 
because the Miami Field Office issued the original denial on your case. 
In this case, the Texas Service Center issued the original unfavorable decision by denying the petition. 
The chart identified above specifies that filings disputing Service Center decisions should be sent to 
the "USCIS Phoenix Lockbox." 
The Petitioner claims he initially attempted to file the motion with the USCIS Dallas Lockbox on June 
3, 2024. However, the courier, On Time Couriers, could not deliver the motion because "the Dallas 
Lockbox does not accept courier deliveries from bonded couriers other than FedEx, UPS or DHL." 
(emphasis omitted). Because the initial courier could not deliver the package, the Petitioner explains 
that he sent a second package with the motion to the USCIS Dallas Lockbox via FedEx courier on 
June 3 to be delivered on June 4, 2024. With the motion, the Petitioner submits an email 
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correspondence from On Time Couriers indicating a pickup at FedEx in Lewisville, TX and a drop off 
at USCIS, 2501 S State Hwy 121 400N, Lewisville, TX 75067. The email states the "Status" of the 
order as "Delivered" and the "Received By" as "attempted, 15 minutes [ o ]n 6/3/2024 .... " The 
Petitioner also submits USCIS instructions for direct filing addresses for the Form 1-140 with Form 1-
485. 
The Petitioner's cover letter and envelope for this motion are consistent with the Petitioner mailing 
the motion to the USCIS Dallas Lockbox, instead of the USCIS Phoenix Lockbox, which is the 
designated filing location for decisions originating from the Texas Service Center. Government 
records indicate the USCIS Phoenix Lockbox received this motion on June 4, 2024, after the filing 
deadline. 
Every form, benefit request, or other document must be submitted and executed in accordance with 
the form instructions. 8 C.F.R. § 103.2(a)(1). Here, the Form I-290B instructs petitioners to send 
motions disputing a Service Center decision to the USCIS Phoenix Lockbox. Instead, the Petitioner 
sent the motion to the USCIS Dallas Lockbox, and the correct designated filing location, the USCIS 
Phoenix Lockbox, did not receive the motion until after the filing deadline. The Petitioner claims a 
misunderstanding of acceptable courier services caused the delay of timely filing; however, the 
evidence shows the Petitioner did not send the motion to the filing address designated in accordance 
with the form instructions. 
Accordingly, the Petitioner has not shown that his delay in filing his motion to reopen was reasonable 
and beyond his control, such that his untimely filing should be excused in USCIS' discretion under 
8 C.F.R. § 103.5(a)(l)(i). Moreover, we have no authority to excuse the late filing of his motion to 
reconsider. Accordingly, we will dismiss the motion to reopen and reconsider. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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