dismissed EB-2 NIW Case: Surgery

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCCOPy 
DATE: 
JUL 1 6 2012 
INRE: 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: NEBRASKA SERVICE CENTER 
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. § 1153(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. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The director then dismissed a motion to reconsider. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the Form 1-140 petition on August 27, 2010. The petitioner seeks classification 
under section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1 153(b)(2), as a 
member ofthe professions holding an advanced degree. The petitioner seeks employment as a surgeon. 
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 denied the petition on January 12, 2011, finding that the petitioner qualifies for 
classification as a member ofthe 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. On February 10, 2011, the petitioner filed a timely motion to reconsider the decision. 
The director dismissed the motion on September 3, 2011, stating that the motion did not meet the 
requirements ofa motion to reconsider. On October 3,2011, the petitioner filed a timely appeal to the 
director's decision. 
On appeal, the petitioner submits a brief and several supporting exhibits. 
An appeal, a motion to reopen and a motion to reconsider are distinct from one another and serve 
different purposes; they are not simply interchangeable means by which a petitioner may contest an 
adverse decision. 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). 
In the decision dismissing the petitioner's motion, the director stated that the "motion neither . 
provides precedent decisions to consider, nor establishes that the decision was incorrect based upon the 
evidence ofrecord at the time." The director therefore dismissed the motion, and advised the petitioner 
of his appeal rights. It is the petitioner's subsequent appeal that is now before the AAO. 
The appeal under consideration by the AAO is not an appeal of the director's initial decision on the 
merits of the petition. The petitioner did not appeal that decision, but chose to file a motion instead. 
The director, in turn, dismissed that motion. On appeal, therefore, is not the denial of the petition but 
rather the dismissal of the motion. Before the AAO can give any consideration to the merits of the 
underlying petition, the petitioner must first establish that the director erred by dismissing the motion. 
The appellate process does not provide the petitioner with an indefinite or open-ended period in which 
to dispute the denial of a petition. The U.S. Citizenship and Immigration Services (USCIS) regulation 
at 8 C.F.R. § 103.3(a)(2)(i) requires the petitioner to file the appeal within 30 days after service of the 
Page 3 
decision. The time to file an appeal to the original decision elapsed in February 2011. The petitioner's 
October 2011 filing was only timely in relation to the director's second decision, issued in September 
2011. Therefore, the AAO cannot consider the merits of the underlying petition until and unless the 
petitioner establishes that the director erred by dismissing the motion to reconsider. The petitioner 
cannot establish that error simply by reasserting the merits of the underlying petition. 
In a short introductory statement on appeal, counsel states: "USCIS ignored the great weight of 
evidence that supported the immigrant petition 1-140, and committed clear error in denying the 
petition." Counsel does not comment on the dismissal of the motion. A subsequent brief is largely 
identical to the brief previously submitted on motion, apart from newly inserted passages and 
additional language describing the petitioner's research and citation of his published work. 
Counsel's first brief, on motion, included no specific discussion of the director's first denial 
decision. This deficiency led to the dismissal of the motion. Now, on appeal, counsel has added 
language disputing that first decision, but the only reference to the dismissal of the motion is a new 
sentence in the "Procedural Facts" section, acknowledging that the director "denied [the motion to 
reconsider] on September 3,2011." 
Counsel, on appeal, does not discuss or rebut the director's finding that the petitioner's previous 
filing did not meet the requirements of a motion to reconsider. The petitioner does not demonstrate, 
or even attempt to explain, that the director should have accepted the February 2011 filing as a motion 
to reconsider. The petitioner simply filed an appeal of the initial decision, as though the intervening 
motion (and the director's dismissal thereof) had never happened. 
Issues not briefed on appeal by a pro se litigant are deemed abandoned. Timson v. Sampson, 518 F.3d 
870, 874 (11th Cir. 2008) (per curiam). When an appellant fails to offer argument on an issue, that 
issue is abandoned. Sepulveda v. Us. Atty. Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005). In this 
instance, the petitioner, on appeal, does not contest or address the director's finding that the February 
2011 filing failed to meet the requirements of a motion. The petitioner has, therefore, effectively 
abandoned that issue. 
The petitioner, on appeal, does not address or contest the sole stated ground for the director's most 
recent decision (the failure of the petitioner's motion to meet the requirements of a motion to 
reconsider). The petitioner's appeal does not establish, or attempt to establish, that the director's most 
recent decision was in error. Therefore, the AAO will dismiss the appeal. 
ORDER: The appeal is dismissed.