dismissed EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 10, 2025 In Re: 35108121 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a 
member of the professions holding an advanced degree and a national interest waiver of the job offer 
requirement attached to this classification. See section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien Workers 
(national interest waiver), concluding the Petitioner was not qualified for the EB-2 visa classification 
as an advanced degree professional and he had not established eligibility for the national interest 
waiver. We summarily dismissed the appeal. The matter is now before us as combined motions to 
reopen and to reconsider. 8 C.F.R. § 103.5(a)(2)-(3). 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
combined motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our prior decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). Our review on motion is limited to 
reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these 
requirements and demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 l&N 
Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned 
fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. 
8 C.F.R. § 103.3(a)(l)(v). 
The Petitioner timely filed an appeal in May 2024, which we summarily dismissed in July 2024 
because the Petitioner did not identify specifically any legal or factual error in the Director 's decision 
on his Form l-290B, Notice of Appeal or Motion, and did not submit his appeal brief and/or additional 
evidence to us within 30 days of filing the appeal as he indicated on his Form l-290B. 
On motion, the Petitioner asserts that we erred in summarily dismissing his appeal because he 
submitted a brief, which was delivered in May 2024. He submits a copy of the appeal brief he 
previously sent to the Phoenix Lockbox and a receipt indicating a delivery was made on May 24, 2024, 
to Tempe, Arizona. However, the Petitioner indicated on the Form I-290B submitted on appeal that 
he would submit, as required, his brief and/or additional evidence to the AAO within 30 calendar days 
of filing the appeal. See 8 C.F.R. § 103.3(a)(2)(i) (providing that the appealing party must submit the 
complete appeal including any supporting brief and documents as indicated in the Form I-290B 
instructions). Further, the instructions for the Form I-290B in effect at the time the Petitioner filed his 
appeal clearly states in bold type that any appeal brief and/or evidence submitted after filing a Form 
1l-290B "must be sent directly" to us. The Petitioner's evidence on motion does not establish that he 
sent his brief and/or additional evidence to our office. Rather it evidences that a package was sent to 
an address in Tempe, Arizona. 
The Petitioner also asserts on motion that he filed his brief timely, prior to the deadline. However, his 
appeal was summarily dismissed because he did not submit a brief to the AAO and otherwise failed 
to identify specifically any erroneous conclusion of law or statement of fact for the appeal, not because 
his brief was untimely. Instead of filing his brief to the AAO's office as instructed, the Petitioner sent 
his brief to the mailing location specified in the instructions for the initial filing of the Form I-290B. 
Thus, the Petitioner's brief was improperly submitted to the wrong location and not before us when 
we adjudicated his appeal. Since there was no brief submitted to us, and the record contained no other 
basis statement, we summarily dismissed his appeal. Because the Petitioner does not submit new 
evidence on motion sufficient to demonstrate that his appeal should not have been summarily 
dismissed, we find no basis to disturb our decision. 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or policy and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
On motion, the Petitioner contests the correctness of our prior decision. In support of the motion to 
reconsider, the Petitioner relies on the FedEX package tracking information and contends that he 
submitted sufficient evidence to demonstrate we erred in summarily dismissing his appeal. However, 
as discussed above, the FedEX shipping information undercuts the Petitioner's argument as it 
demonstrates that he submitted his appeal brief to an incorrect address. Instead of filing his brief with 
the AAO as the Form I-290B instructions expressly require, the Petitioner filed his brief with the 
USCIS Phoenix Lockbox' address for FedEx, UPS, and DHL deliveries. As the Petitioner did not 
follow the required form instructions, the brief did not reach the AAO, and the appeal was properly 
summarily dismissed. Therefore, the motion to reconsider must be dismissed. 
On motion to reconsider, the Petitioner has not established that our previous decision was based on an 
1 The Form l-290B was updated in May 2024, however, it similarly states, "any brief or additional evidence submitted 
after[] fil[ing] Form 1-290B must be sent directly to the AAO." 
2 
incorrect application of law or policy at the time we issued our decision. Therefore, the motion will 
be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
3