dismissed EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 08, 2023 In Re: 28838664 
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 a member of the professions 
holding an advanced degree, as well as a national interest waiver of the job offer requirement attached 
to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ l l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish that a waiver of the required job offer and thus of the labor certification would be in the 
national interest upon application of the analytical framework we first explicated in Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). We summarily dismissed a subsequent appeal because the 
Petitioner did not submit a brief or additional evidence specifying any erroneous conclusion oflaw or 
statement of fact in our summary dismissal. The matter is now before us on 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 I&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). 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 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
On motion, the Petitioner submits USCIS Form 1-797, Notice of Action, Receipt Notice for USCIS 
Form I-290B, Notice of Appeal or Motion filed in connection with the Petitioner's appeal and United 
States Postal Service (USPS) Click-n-Ship label records indicating delivery of the Form I-290B and 
appeal brief. The Petitioner asserts that these new facts establish they timely submitted a brief or 
additional evidence in support of their appeal. The Petitioner's assertions are not well taken. At the 
outset, we note that the Petitioner sent the brief or additional evidence in support of their appeal to the 
USCIS Texas Service Center and not the Administrative Appeals Office as instructed in the Form 
I-290B instructions. But even if the Petitioner had sent the brief or additional evidence directly to our 
office in accordance with the Form 1-290B instructions, it would still not have been timely. The 
Petitioner mistakenly asserts that USCIS' COVID-19 related flexibilities in effect at that time 
permitted filing of the brief or additional evidence within 60 days of filing their appeal. USCIS' 
COVID-19 related flexibilities did not apply to the 30-day time period within which a Petitioner must 
submit a brief or additional evidence to the AAO if they do not file it with their appeal. The form 
instructions require submission of a brief or additional evidence within 30 days of filing an appeal on 
Form 1-290B. The Petitioner filed Form 1-290B to appeal the Director's decision on December 13, 
2022, and was required to submit their brief within 30 days, or before January 12, 2023. The 
Petitioner's brief was delivered over 30 days later on February 15, 2023. So the Petition has not shown 
proper cause to reopen and has not overcome the grounds for summary dismissal of their appeal. 
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.S(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. But the Petitioner did not state any reasons for the 
reconsideration of our most recent prior decision to deny their motion to reopen accompanied by any 
pertinent precedent decision establishing that our decision was incorrect based on an erroneous 
application of law of USCIS policy to the existing evidence of record. So, for that reason, the 
Petitioner has not shown proper cause for reconsideration and has not overcome the grounds for 
summary dismissal of their appeal. 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has not established eligibility. 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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