dismissed EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 10, 2024 In Re: 33898662 
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, as well as a national interest waiver of the job 
offer requirement attached to this classification. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualified as a member of the professions holding an advance degree or as 
an individual of exceptional ability, and that she had not established that a waiver of the required job 
offer, and thus of the labor certification, would be in the national interest. We summarily dismissed a 
subsequent appeal and later dismissed a subsequent combined motions to reopen and reconsider. The 
matter is now before us on a second combined motion to reopen and motion to reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
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 ofCoelho, 20 l&N Dec. 
464,473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). 
In our previous decision dismissing the combined motions to reopen and reconsider we determined it 
was untimely filed. We noted that the decision was mailed to the Petitioner on September 22, 2023, 
and the Petitioner's Form I-290B, Notice of Appeal or Motion (Form I-290B), was received at the 
designated filing location on November 14, 2023, which was 53 days after the decision. 
On motion, the Petitioner asserts that her previous combined motions to reopen and reconsider was 
"sent within the required timeframe and delivered within 33 days at [the United States Postal Service 
(USPS)]." She states that she is requesting the reopening of the case and its reconsideration, "given 
that [she] used the delivery services of a government agency, the USPS," and that once it is delivered 
to USPS, "we no longer have control over the service provided by the agency." The Petitioner then 
references "contract law" and the "mailbox rule" to argue that "receipt should be considered at the 
time the letter is sent and not when it arrives at its destination, particularly in relation to the acceptance 
deadline." She further contends that by using a federal agency like the USPS, the government is 
"already receiving" her response at the time of dropoff She also refers to various possible unforeseen 
events that may occur after dropping off documents for mailing, including misplacement by USPS or 
USCIS, "thus affecting the users of government agency services," to relieve herself of responsibility 
for delivery. 
Here, the Petitioner provides no legal authority for her assertion that a form-in this case, a 
Form I-290B for an underlying Form 1-140, National Interest Waiver-will be considered filed with 
USCIS upon the date of mailing. To the contrary, the regulation provides that USCIS considers a 
benefit request received as of the actual date of receipt at the location designated for filing such a 
request. 8 C.F.R. § 103.2(a)(7)(i). Regarding where to file, the regulation clarifies that "[a]ll benefit 
requests must be filed in accordance with the form instructions." 8 C.F.R. § 103.2(a)(6). The 
instructions for Form I-290B direct petitioners to file at the applicable location listed at 
https://www.uscis.gov/i-290b, which redirects to https://www.uscis.gov/i-290b-addresses. Although 
the Petitioner may have dropped off her Form I-290B and supporting documents at USPS for mailing 
within the required timeframe, USCIS did not receive it at the designated filing location until 53 days 
after the unfavorable decision. 
The scope of a motion is limited to "the prior decision" and "the latest decision in the proceeding." 
8 C.F.R. § 103.5(a)(l)(i), (ii). On motion to reopen, the Petitioner has not submitted new evidence to 
overcome our previous decision. Further, on motion to reconsider, the Petitioner has not established 
that our previous decision was based on an incorrect application of law or policy at the time we issued 
our decision. Therefore, 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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