dismissed EB-2 NIW Case: Software Development

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
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. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
'wbert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. 
The petitioner filed a subsequent appeal. The Administrative Appeals Office (AAO) determined that the 
appeal was not filed in a timely manner. The AAO rejected the appeal without rendering a decision. The 
matter is now before the AAO on a motion to reopen. The motion will be rejected. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1153(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks employment as a 
software developer. 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 has not 
established that he qualifies for classification as an alien of exceptional ability in the sciences, or that an 
exemption from the requirement of a job offer would be in the national interest of the United States. 
The petitioner has now filed a motion seeking to reopen the appeal that was rejected as untimely filed. 
As the appeal was rejected by the AAO, there is no decision on the part of the AAO that may be reopened in 
this proceeding. According to 8 C.F.R. 5 103.5(a)(l)(ii), jurisdiction over a motion resides in the official who 
made the latest decision in the proceeding. The AAO did not enter a decision on this matter. Because the 
disputed decision was rendered by the director, the AAO has no jurisdiction over this motion and the motion 
must be rejected. 
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit for 
filing an appeal. The regulation at 8 C.F.R. $ 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the 
requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a 
decision must be made on the merits of the case. 
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. 5 103.5(a)(3). 
Here, the untimely appeal did not meet the requirements of a motion to reopen or a motion to reconsider. The 
motion, as filed, consisted of a request for additional time to supplement the record. The regulations offer no 
provision to allow a petitioner to supplement a previously-filed motion. Therefore, there is no requirement to 
treat the petitioner's skeletal appeal as a motion under 8 C.F.R. $ 103.3(a)(2)(v)(B)(2). 
ORDER: The motion is rejected.