dismissed EB-3 Case: Automotive Parts

MATTER OF J-H-O-S-, LLC 
Non~Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 25, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a seller of aftermarket car parts, seeks to employ the Beneficiary as its advertising 
and promotions director. It requests classification of the Beneficiary as a professional under the 
third preference immigrant classification. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § 1 l 53(8)(3)(A)(ii). This employment-based "EB-3" immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition on two grounds. The Director 
found that the Petitioner did not establish its continuing ability to pay the proffered wage of $78,458 
per year from the priority date of the petition, March 24, 2016, up to the present, and did not 
establish that the Beneficiary had the specific skills required by the labor certification. The 
Petitioner filed an appeal, which we dismissed on the grounds that the evidence submitted on appeal 
did not establish the Petitioner's ability to pay the proffered wage in 2016 and 2017 or the 
Beneficiary's qualifications for the job under the terms of the labor certification. The Petitioner then 
filed a motion to reopen and a motion to reconsider, which we denied as untimely filed. The matter 
is now before us on another motion to reopen and motion to reconsider. Upon review, we will deny 
the motions. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ l 03.5(a)(2). A motion to reconsider must establish that our 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). A motion to reconsider must be 
supported by a pertinent precedent or adopted decision, a statutory or regulatory provision, or a 
statement of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland 
Security (OHS) policy. Id. We may grant a motion that satisfies these requirements and 
demonstrates eligibility for the requested immigration benefit. 
Matter of J-H-O-S-, LLC 
II. ANALYSIS 
Our denial of the previous combined motions was based on the fact that they were filed 34 days after 
the service of our dismissal of the appeal, which did not comply with the regulatory requirement that 
a motion be filed within_ 33 calendar days of the service date of our unfavorable decision. See 
8 C.F.R. §§ 103.S(a)(l )(i), 103.8(b). The Petitioner was specifically ·advised of the 33-day filing 
period for motions on the cover page of our decision dismissing the appeal. Because the Petitioner 
did not meet this filing deadline, we did not consider the brief or additional evidence submitted with 
the motions. 1 
With its current motion to reconsider, the Petitioner does not allege that our decision denying the 
previous motions on the ground that they were late filed was based on any incorrect application of 
law or policy, as required by 8 C.F.R. § 103.5(a)(3). Nor does the Petitioner cite any precedent or 
adopted decision, any statutory or regulatory provision, or any statement of USCIS or OHS policy in 
suppor:t of its motion to reconsider. Therefore, we will_ deny this motion. 
On motion to reopen, the Petitioner submits new facts stating that the reason it was late by a day in 
filing its prior motions was because it waited for one additional paycheck to the Beneficiary to clear 
the bank and be available as additional evidence of its ability to pay the proffered wage. The 
Petitioner asks that we excuse the prior late motion to reopen and reexamine our prior eligibility 
determination. While the regulation at 8 C.F.R. § 103.S(a)(l )(i) does give us the discretion to excuse 
the late filing of a motion to reopen "where it is demonstrated that the delay was reasonable and was 
beyond the control of the applicant or petitioner," no such demonstration has been made by the 
Petitioner in this case. The Petitioner submitted copies of eight paychecks with its initial motion, so 
even without that final paycheck the Petitioner could have submitted seven paychecks with a timely 
filed motion. The Petitioner's choice to delay its motion filing was not reasonable and was not 
beyond its control. Therefore, we will not exercise our discretion to excuse the late filing of the 
initial motion to reopen. 2 
1 The brief did not allege any incorrect application of law or policy in our decision, and thus provided no grounds for a 
motion to reconsider. The new evidence that accompanied the brief related to the Beneficiary's qualifications for the job 
offered and the Petition~r•s salary payments to the Beneficiary in 2018. • 
2 Even if we did exercise our discretion to excuse the late filing of the initial motion to reopen and review that motion 
and the current motion to reopen on the merits, the evidence submitted is still insufficient to establish the Petitioner's 
continuing ability to pay the proffered wage from the priority date of March 24, 2016, onward. The Petitioner has 
supplemented the eight paychecks submitted with the initial motion with one additional paycheck from 2018, a series of 
sales records and shipping invoices from 2018, and a web page extract in 2018 about its business operation. The prior 
years of 2016 and 2017 are not addressed, and the Petitioner has still not submitted any annual report, federal tax return, 
or audited financial statement, the required types of evidence identified in 8 C.F.R. § 204.5(g)(2). 
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Matter of J-H-O-S-. LLC 
III. CONCLUSION 
The Petitioner has not shown proper cause for reopening or reconsideration of our prior decision. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
qte as Matter of J-H-O-S-, LLC, ID# 1829564 (AAO Sept. 25, 2018) 
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