dismissed EB-2 NIW Case: Research Science

identifyinlI 0?tq ddeted to 
prevent c!"<'J .",warranted 
invasion of personal pnvacy 
PfmucCOpy 
DATE: JAN J 7 lOQ 
IN RE: 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. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Innnigrant 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 nS,c, § lI53(b)(2) 
ON BEHALF OF PETITIONER: 
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. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) rejected the subsequent appeal as improperly filed. 
The matter is now before the AAO on a motion to reopen and reconsider. The AAO will dismiss the 
motion. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1 I 53(b)(2), as a member of the . . an advanced The 
petitioner seeks employment as a research scientist at Missouri. 
The petitioner asserts 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 found that the petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner has not established that an exemption from the requirement of a job offer would be in the 
national interest ofthe United States. 
The U.S. Citizenship and Immigration Services (USerS) regulations at 8 C.F.R. § 103.5, which govern 
motions to reopen and to reconsider, contain no provision to allow motions on rejected appeals. 
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). 
The petitioner filed the Form 1-140 petition on July 10, 2007. The director denied the petition on June 
11,2008. On July II, 2008, a person claiming to be attome~ filed Form I-290B, Notice 
of Appeal or Motion. AAO inquiries, however, revealed that an unnamed third party had use~ 
_ name without his knowledge or consent. 
In a notice issued January 27,2010, the AAO rejected the appeal, stating: 
There is no credible evidence that the individual who signed the Form I -290B, Notice 
of Appeal, is in fact an Rather, we conclude that an 
unknown individual at III 
this proceeding and filed the appeal under false pretenses. 
An appeal filed by a person or entity not entitled to file it must be rejected as 
improperly filed. In such a case, any filing fee the Service has accepted will not be 
refunded. 8 C.F.R. § 103.3(a)(2)(v)(A)(l). 
Because the alleged attorney of record, who pUI-porte,dly Siglled 
disavowed any knowledge of proceedings arising 
Page 3 
we cannot find that the appeal was properly filed by a qualified attorney or 
representative. We therefore reject the appeal as improperly filed. 
On motion, counsel maintains that the petitioner should not bear the consequences of another's actions. 
Counsel asserts that the petitioner was unaware of the impersonation committed by the party that filed 
the appeal (but counsel acknowledges that the petitioner does not claim ever to have met _ 
_ in person, working instead through an intermediary identified as_ 
Only certain parties may file an appeal. The petitioner, as the affected party with standing in the 
proceeding, can file an appeal, and the uscrs regulation at 8 C.F.R. § 103.3(a)(I)(iii)(8) states that an 
affected party may be represented by an attorney or representative in accordance with 8 C.F.R. § 292. 
Anyone filing on the petitioner's behalf must, therefore, qualifY as an attorney or representative under 
the pertinent regulations. This procedural requirement insures professional accountability on the part of 
those acting on behalf of affected parties in immigration proceedings. These safeguards are 
meaningless ifUSCIS agrees to accept filings by anonymous or pseudonymous individuals under false 
pretenses. Likewise, ifthe AAO were to agree to accept filings by an unqualified party simply based on 
the petitioner's claim to have been unaware of the party's deceitful conduct, such a practice would 
invite abuse. There exists no provision to allow an unqualified party to file an appeal provided that the 
party has falsely convinced the petitioner of his or her credentials as an attorney or representative, and 
there exists no provision to allow USCIS to accept such a filing. 
Counsel does not identifY any erroneous conclusion of fact or law in the AAO's rejection notice. 
Counsel simply maintains that, given the unusual circumstances, the AAO should disregard the 
regulatory provisions that limit who may lawfully file an appeal. 
The regulations are binding on uscrs employees, including AAO officers, in their administration of 
the Act, and USCIS employees do not have the authority to allow for appeal rights where none exist. 
See, e.g., Panhandle Eastern Pipe Line Co. v. Federal Energy Regulatory Commission, 613 F.2d 
1120 (C.A.D.C., 1979) (an agency is bound by its own regulations); Reuters Ltd. v. F.CC, 781 F.2d 
946, (C.A.D.C.,1986) (an agency must adhere to its own rules and regulations; ad hoc departures 
from those rules, even to achieve laudable aims, cannot be sanctioned). An agency is not entitled to 
deference if it fails to follow its own regulations. us. v. Heffner, 420 F.2d 809, (C.A. Md. 1969) 
(government agency must scrupulously observe rules or procedures which it has established and 
when it fails to do so its action cannot stand and courts will strike it down). The AAO cannot and 
will not construe mandatory compliance with USCIS regulations as an error of law. Therefore, the 
present filing does not meet the requirements of a motion to reconsider at 8 C.F.R. § 103.5(a)(3). 
Counsel's only new claim of fact is that the petitioner was unaware that_ had fraudulently 
used~ame and legal credentials. Counsel provides no affidavits or other evidence 
to support this claim. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 r&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. I, 3 n.2 (BIA 1983); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (8IA 1980). Therefore, the present filing does not meet the 
requirements of a motion to reopen at 8 C.F.R. § 103.5(a)(2). 
Page 4 
Because the filing does not qualify as either a motion to reopen or a motion to reconsider, the AAO 
must dismiss the filing under the regulation at 8 C.F.R. § 103.5(a)(4). 
The AAO notes that the petitioner has subsequently filed a new petition seeking the same 
classification (also with a national interest waiver of the job offer requirement). The petitioner filed 
the new petition, receipt number with the Nebraska Service Center on November 
10, 2010. The Director, Nebraska Service Center, approved that petition on April 7, 2011. The 
petitioner, therefore, has received the classification (and waiver) that he originally sought. The 
dismissal of the present motion is without prejudice to any future proceedings arising from the 
approved petition. 
ORDER: The motion is dismissed.