dismissed EB-2 NIW Case: Visual Arts/Writing/Sociology

(b)(6)
DATE: 
OCT 2 8 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S . .Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
SELF -REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
/2. ~on Rosenberg 
· 9""Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The AAO dismissed the petitioner's appeal from that decision. The AAO later granted the 
petitioner's motion to reopen the proceeding, and reaffirmed the dismissal of the appeal. The matter is 
now before the AAO on a motion to reconsider. The AAO will dismiss the motion. 
The petitioner filed the Form I-140 petitiqn on October 3, 2011, seeking classification under 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 in the arts and/or a member of the professions holding an advanced degree. The 
petitioner initially described his occupation as that of a "visual artist/writer/sociologist." The petitioner 
asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the 
national interest of the United States. The director denied the petition on February 6, 2012, stating that 
that the petitioner qualifies for classification as a member of the professions holding an advanced 
degree, but that the petitioner has not established that an exemption from the requirement of a job offer 
would be in the national interest ofthe United States. In its initial dismissal notice of October 11, 2012, 
the AAO affirmed the director's finding regarding the 
national interest waiver, but withdrew the finding 
that the petitioner qualifies for classification as a member of the professions holding an advanced 
degree. The AAO affirmed that decision on February 20, 2013. 
Any motion to reconsider an action by the Service filed by an applicant or petitioner must be filed 
within 30 days of the decision that the motion seeks to reconsider. 8 C.F.R. § 103.5(a)(l)(i). The 
motion must include the proper required fee. 8 C.F.R. § 103.5(a)(1)(iii)(B). 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 Service policy. A motion 
to reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. 
§ 103.5(a)(3). A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. 
§ 103.5(a)(4). 
The cover page to the AAO's February 20, 2013 decision indicated that the petitioner "may file a 
motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice 
of Appeal or Motion, with a fee of $630 .... 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen." Factoring in three days 
for service by mail (see 8 C.F.R. § 103.8(b)), The petitioner had to file the motion, with the proper fee, 
no later than Monday, March 25, 2013. The filing date is not the date the petitioner mailed the motion, 
but the date that the designated USCIS office received the motion. See 8 C.F.R. § 103.2(a)(7)(i). 
USCIS received the petitioner's Form I-290B on Tuesday, March 26, 2013, 34 days after the AAO 
issued its decision. The motion was, therefore, untimely. Furthermore, the March 26 submission did 
not include the proper fee. A benefit request filed without the required fee must be rejected. See 
8 C.F.R. § 103.2(a)(7)(i). USCIS rejected the filing and returned it to the petitioner. A rejected benefit 
request does not retain a filing date. See 8 C.F.R. § 1 03.2(a)(7)(iii). The petitioner did not properly file 
the motion with the requisite fee until Friday, April 12, 2013, 51 days after the date of the AAO 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
decision for which the petitiOner seeks reconsideration. Therefore, the regulation at 8 C.F.R. 
§ 103.5(a)(4) requires that the motion shall be dismissed. 
The AAO will dismiss the motion as untimely. In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that 
burden. · 
ORDER: The motion is dismissed.