dismissed EB-2 NIW Case: Telecommunications

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
identifying data deleted to 
U. S. Citizenship 
and Immigration 
prevent clearly onwarrmted 
invssion d personal privacy 
PUBLIC COPY 
FILE: - Office: NEBRASKA SERVICE CENTER Date: JUN 1 3 2905 
LIN 99 176 50346 
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. 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
,/' Administrative Appeals Office 
1 
DISCUSSION: The Director, Nebraska Service Center, denied the employment based immigrant visa. The 
Administrative Appeals Office (AAO) dismissed a subsequent appeal and affirmed that decision on motion. 
The matter is now before the AAO on a new motion. The motion will be dismissed as untimely. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 3 1153(b)(2), a member of the professions holding an advanced degree. 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 had not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. The AAO has twice affirmed 
the director's findings. 
The regulation at 8 C.F.R. § 103.5(a)(i) provides, in pertinent part: 
Any motion to reconsider an action by the Service filed by an applicant or petitioner must be 
filed within 30 days of the decision that the motion seeks to reconsider. Any motion to reopen 
a proceeding before the Service filed by an applicant or petitioner, must be filed within 30 days 
of the decision that the motion seeks to reopen, except that failure to file before this period 
expires, may be excused in the discretion of the Service where it is demonstrated that the delay 
was reasonable and was beyond the control of the applicant or petitioner. 
If the decision was mailed, the motion must be filed within 33 days. See 8 C.F.R. 5 103.5a(b). 
The AAO's notice, dated September 29, 2003 was mailed to the petitioner at his address of record. On 
November 3, 2003, the petitioner submitted a letter, without fee, asserting that he did not receive the decision 
until October 17, 2003 and requesting an additional 30 days in which to file a motion. The director responded 
on April 10, 2004 that there is no "appeal" from the September 29, 2003 decision. On May 17, 2004, almost 
eight months after the AAO's decision, the director received the instant motion to reopen. The motion includes 
a May 7, 2004 job offer accepted by the petitioner on May 10, 2004. The petitioner's motion does not address 
the AAO's conclusion that the record lacked "evidence of the petitioner's influence in the field, such as letters 
from independent experts in the field of telecommunications explaining the significance of the petitioner's work 
in the field or evidence of widely cited articles published in engineering journals." 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are petitions for 
rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherry, 502 U.S. 3 14, 
323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy 
burden." INS v. Abudu, 485 U.S. at 1 10. 
The petitioner's May 2004 job offer does not relate to his eligibility as of the date of filing. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 
Page 3 
(Reg. Comrn. 1971).' Thus, the petitioner cannot rely on waiting for the job offer as a reason for the delay in 
filing a timely motion. 
As the AAO's decision was sent to the correct address and the May 2004 evidence cannot be considered an 
excuse for a delay in filing the motion, the petitioner has not demonstrated that the filing of a motion nearly 
eight months after the AAO's decision was reasonable and beyond his control. 
ORDER: The appeal is dismissed. 
1 
The petitioner also implies that his employer is seeking a labor certification in his behalf. Any approved 
labor certification would need to be the basis of a new petition not seeking a waiver of that requirement.