dismissed EB-2 NIW Case: Opticianry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 22, 2024 In Re: 34494697 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an optician, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree, 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 Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that she qualified for the requested classification or that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. We dismissed a subsequent appeal 
and motion. 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 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 petitioner's motion to reconsider must be filed within 30 days of the decision that the motion seeks 
to reconsider. A petitioner's motion to reopen a proceeding must be filed within 30 days of the 
decision that the motion seeks to reopen, but we have the discretion to excuse a delay in filing if the 
petitioner demonstrates that the delay was reasonable and was beyond the petitioner's control. See 
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). 
We dismissed the Petitioner's appeal on February 6, 2024. She filed a combined motion to reopen 
and reconsider on March 18, 2024, and we dismissed it as untimely. The Petitioner argues that her 
late filing should be excused because she mailed the motion within the required timeframe and relied 
on the delivery services of a government agency, the U.S. Postal Service, for timely receipt by U.S. 
Citizenship and Immigration Services (USCIS). 
The deadline for filing a timely motion to reopen or reconsider was March 10, 2024, accounting for 
the 30-day filing period and three days for mailing. See 8 C.F.R. §§ 103.5(a)(l)(i) and 103.8(b). The 
filing date is the date USCIS properly receives a filing in accordance with filing instructions. See 
generally I USCJS Policy Manual B.6(C), https://www.uscis.gov/policy-manual. The regulation at 8 
C.F.R. § 103.S(a)(l)(i) does not permit any extension of the filing deadline for motions to reconsider. 
Therefore, we must dismiss the motion to reconsider as untimely. The same regulation states that 
untimely filing of a motion to reopen may be excused in our discretion where the petitioner 
demonstrates that the delay was reasonable and beyond the petitioner's control. However, the 
Petitioner's reliance on USPS is not sufficient to establish that the delay in filing was beyond her 
control. Therefore, we will dismiss the motion to reopen. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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