dismissed EB-2 NIW Case: Unknown

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U.S. Department of Homeland Security
20 Mass, Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
EAC 04 196 50486 Date: FEB .2 8 2008
INRE: Petitioner:
Beneficiary:
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. § 1153(b)(2)
ON BEHALF OF PETITIONER:
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.
~~~
·~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Vennont Service Center, denied the employment-based immigrant visa
petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now
before the AAO on a motion to reopen. The motion will be rejected as untimely filed.
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability or 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 an alien employment certification, is in the national interest of the United States. The
director found that the petitioner does not qualify for the classification sought or a waiver of the alien
employment certification. The AAO upheld the director's ultimate decision. On motion, counsel's
sole assertion is that the precedent decision on which the director and the AAO relied pursuant to
8 C.F.R. § 103.3(c) was issued in violation of the Administrative Procedure Act (APA).
According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be provided and be
supported by affidavits or other documentary evidence. According to 8 C.F.R. § 103.5(a)(3), a motion
to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent
decisions to establish that the decision was based on an incorrect application of law or CIS policy.
Counsel asserts that the AAO's decision was based on an incorrect application of law. Counsel does
not support his brief with any precedent or federal court decisions striking down any part of Matter of
New York State Dep't of Transp., 22 I&N Dec. 215 (Commr. 1998), the precedent decision he claims
violates the APA,I but does cite federal cases relating to the APA in general. Thus, the motion, as
characterized by counsel, is a motion to reconsider.
The regulation at 8 C.F.R. § 103.5(a)(l )(i) provides, in pertinent part, that any motion to reconsider an
action by Citizenship and Immigration Services (CIS) filed by an applicant or petitioner must be filed
within 30 days of the decision that the motion seeks to reconsider. The AAO dismissed the appeal on
August 3, 2007. That decision advised the petitioner that the record was being returned to the office
that originally decided the petitioner's case, the Vennont Service Center. Regardless of the infonnation
counsel claims to have received from the CIS customer service telephone line, the regulation at
8 C.F.R. § 103.5(a)(l)(iii)(E) provides that motions must be submitted "to the office maintaining the
record upon which the unfavorable decision was made for forwarding to the official having
jurisdiction." The regulation at 8 C.F.R. § 103.2(a)(7) provides that an application or petition is
properly filed when received with the required filing fee. The Vennont Service Center received the
motion with proper fee on September 21, 2007, 49 days after the AAO's decision. Thus, it was
untimely filed.
ORDER: The motion is rejected as untimely filed.
1 See Talwar v. INS, No. 00 elY. 1166 JSM, 2001 WL 767018 (S.D.N.Y. July 9, 2001)(rejecting a claim that
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 215 violates the APA).