dismissed EB-3 Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 06, 2024 In Re: 33606821 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Beneficiary sought to obtain lawful permanent resident status based on a job offer as a "business 
manager." The Petitioner, a wholesale and retail importing business, requested his classification as a 
professional under the third-preference immigrant visa classification. See Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment­
based 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 revoked the approval of the petition, concluding that the 
record did not establish that the Beneficiary is qualified for the offered position. The Beneficiary filed 
an appeal, which we dismissed, concluding that be did not overcome the grounds for revocation. 1 The 
Beneficiary subsequently filed combined motions to reopen and motion to reconsider, which we 
dismissed as untimely filed. The matter is now before us on combined motions to reopen and 
reconsider. 
As a movant in revocation proceedings, the Beneficiary bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. Matter ofChawathe, 25 l&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). 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). 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). 
Our review on motion is limited to reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii) . 
Therefore, the issue before us is whether the Beneficiary has established that our decision to dismiss 
his prior motion was based on an incorrect application of law or U.S. Citizenship and Immigration 
1 The Director determined that under Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), the 
Beneficiary is eligible to be treated as an affected party in revocation proceedings. 
Services (USeIS) policy and incorrect at the time we issued the decision. We will determine whether 
he has submitted new facts, supporting by documentary evidence, that would warrant reopening. 
We dismissed the Beneficiary's prior combined motions after determining that the Form I-290B, 
Notice of Appeal or Motion, was not timely filed. A motion on an unfavorable decision must be filed 
within 33 calendar days of the date the decision was mailed. 8 e.F.R. § 103.5(a)(l)(i), 103.8(b). The 
date of filing is the date of actual receipt at the designated filing location. See 8 e.F.R. § I 03.2(7)(i). 
We mailed our decision dismissing the Beneficiary's appeal on October 12, 2023. The Beneficiary's 
Form I-290B seeking reopening or reconsideration of our decision was received at the designated 
filing location on November 15, 2023, which is 34 days after the date of our unfavorable decision. 
In a brief submitted with the instant motion, the Beneficiary emphasizes that, pursuant to 8 e.F.R. 
§ 103.5(a)(l)(i), users has the discretion to excuse the untimely filing of a motion to reopen ifit is 
demonstrated that the delay was reasonable and beyond the control of the affected party. The 
Beneficiary asserts that he mailed the Form I-290B for next-day delivery on November 13, 2023, it 
was received at a Phoenix, Arizona postal facility on November 14, 2023, but it was not delivered to 
the designated filing location in Phoenix until November 15, 2023. He states: 
It is important to note that the arrival of the package at the city's postal facility is 
significant as it demonstrates that my mail was under the control of the delivery service 
and effectively within the intended delivery area before the filing deadline. This arrival 
meets the procedural requirements of being 'in service' in the appropriate jurisdiction 
within the prescribed timeframe, aligning with users regulation 8 e.F.R. 103.8(b), 
which states, "Service by mail is complete upon mailing." 
The Beneficiary maintains that he mailed the previous Form I-290B in good faith, adhered to expected 
time lines, and that "the slight delay was due to circumstances entirely beyond my control." In support 
of the motion, he submits a USPS Tracking Plus Statement showing his package was accepted for 
mailing on November 13, 2023, arrived at a USPS facility in Phoenix on November 14, 2023, and was 
delivered on November 15, 2023. 
Upon review, the Beneficiary has not shown proper grounds for reopening or reconsideration. 
Although the Beneficiary submits new facts related to the mailing of the prior motion, the record does 
not support his claim that the late filing was reasonable and beyond his control, or corroborate his 
suggestion that USPS was responsible for the claimed delay in delivery. Although he states that he 
mailed the prior motion using next-day delivery, the record shows that the package was mailed on 
November 13, 2023, using USPS Priority Mail, with an expected delivery date of November 15, 2023, 
printed on the shipping label. He did not provide evidence that the package was expected to be 
delivered on or before November 14, 2023, at the time he mailed it. 
Moreover, the Beneficiary's reliance on 8 e.F.R. § 103.8(b) is misplaced, as that regulation applies to 
the service of decisions and other notices by users, and not to forms and other benefit requests filed 
with users. As noted, the date of filing is not the date of mailing but the date of actual receipt at the 
designated filing location. 8 e.F.R. § 103.2(7)(i). 
2 
While the Beneficiary has submitted new facts in support of the motion to reopen, he has not shown 
that the untimely filing of the previous motion was reasonable and beyond his control or otherwise 
provided proper cause for reopening. On motion to reconsider, the Beneficiary has not established 
that our decision to dismiss his prior motion as untimely filed was based on an incorrect application 
of USCIS law or policy or that the decision was incorrect based on the evidence in the record at the 
time of 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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