dismissed EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 12, 2025 In Re: 36611204 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks second preference immigrant classification, as well as a national interest waiver 
of the job offer requirement attached to this EB-2 immigrant classification. See Immigration and 
Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
qualified for the classification as a member of the professions holding an advanced degree, he had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The Petitioner appealed the Director's decision, which we summarily dismissed 
because the Petitioner did not submit a brief and/or additional evidence within 30 days of filing the 
appeal as he indicated he would. Nor did he otherwise identify any specific legal or factual error in 
the Director's decision. We also dismissed a subsequent combined motions to reopen and reconsider. 
The matter is now before us on a second combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Because the scope of a motion is limited to the prior decision, we will only review the 
latest decision in these proceedings . 8 C.F.R. § 103.5(a)(l)(i), (ii). We may grant motions that satisfy 
these requirements and demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 
I&N Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the 
outcome). 
On motion, the Petitioner claims that he timely filed his brief and submits a copy of a FedEx shipping 
label as proof of delivery. However, this shipping label demonstrates that the Petitioner misfiled the 
brief to an incorrect address and therefore does not aid his case. The Form I-290B instructions 
specifically require that any appeal brief and/or evidence submitted after filing a Form I-290B "must 
be sent directly to the AAO." See USCIS Form I-290B, Instructions for Notice of Appeal or Motion 
(rev. 05/31/24). But instead of filing the brief to our office as instructed, the Petitioner instead elected 
to send it to a different address altogether. As such, the brief was not before us when we adjudicated 
the appeal. And since there was no brief, and the record contained no other basis statement upon 
which to base the appeal, we summarily dismissed it. The motion to reopen therefore must be 
dismissed. 
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). Because the scope of a motion is limited to the 
prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), 
(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested 
benefit. 
On motion, the Petitioner contests the correctness of our prior decision. In support of the motion, the 
Petitioner relies on the FedEx shipping label and asserts that we acknowledge his appeal brief as timely 
filed. The Petitioner further contends that it was impossible to determine the correct address for 
submitting supplemental briefs due to ambiguous filing instructions. But as we just discussed, the 
Form I-290B instructions specifically require that any appeal brief and/or evidence submitted after 
filing a Form I-290B must be directly sent to the AAO. The Petitioner's shipping label directly 
undermines the Petitioner's argument because it demonstrates that the Petitioner misfiled the brief. 
And it was that error that resulted in there being no brief in the file when we adjudicated the appeal. 
The Petitioner therefore has not demonstrated that our summary dismissal decision was based on an 
incorrect application oflaw or USCIS policy and that our decision was incorrect based on the evidence 
in the record at the time of the decision. The motion to reconsider therefore must be dismissed as well. 
While the shipping label does arguably constitute new evidence, it does not demonstrate that our 
decision to summarily dismiss the appeal was erroneous in any way. To the contrary, it confirms there 
was no brief in the file when we adjudicated the appeal. The motion to reopen therefore must be 
dismissed. The motion to reconsider fails for similar reasons. Again, the fact that there was no brief 
in the file at the time of our adjudication was due to the fact that the Petitioner misfiled it to the wrong 
address. It was that filing error, not any error on the AA O's part, that led to the brief' s absence. Had 
the Petitioner followed the form instructions and sent us the brief as instructed, the brief would have 
been in the file when we adjudicated the appeal, and the Petitioner would have received a merits 
decision. Instead, there was no brief (or any other basis statement), and so we summarily dismissed 
the appeal as 8 C.F.R. § 103.3(a)(l)(v) mandates. The Petitioner, therefore, has not established that 
our previous decision was based on an incorrect application of law or policy at the time we issued our 
decision. Accordingly, the motions 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. 
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