dismissed EB-3 Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-S-&S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a roofing contractor, seeks to employ the Beneficiary as a construction foreman. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based "EB-3" immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition on the ground that it was not 
accompanied by a complete labor certification, a form of required initial evidence. The Petitioner 
filed a motion to reopen, 1 which, after being initially rejected for being filed on the wrong form 
version, was ultimately dismissed by the Director on the ground that it was not filed within the 30-
day time period prescribed by the regulation at 8 C.F.R. § 103.S(a)(l)(i). 2 Since 43 days had passed 
between the date of the decision and the receipt of the properly filed motion to reopen, the Director 
found that the motion was not timely filed. The matter is now before us on appeal. Upon de nova 
review, we will dismiss the appeal. 
The decision before us on appeal is the decision on the Petitioner's motion to reopen, rather than the 
merits of the underlying petition. As such, the only issue before us is whether the Director properly 
found that the motion was untimely. 
On appeal, the Petitioner asserts that the Director should have exercised his discretionary authority 
under 8 C.F.R. § 103.S(a)(l), which allows USCIS to excuse the failure to file a motion to reopen by 
the regulatory deadline if a petitioner demonstrates that the delay was reasonable and beyond its 
control. According to the Petitioner, its late filing should be excused in this case because the 
outdated Form I-290B it initially used had only recently expired, USCIS had not posted an alert 
about the updated Form I-290B, and the rejection notice from USCIS was received too late for a 
timely motion to be filed. The Petitioner also asserts that USCIS should have accepted its original 
1 A motion to reopen must state new facts and be supported by documentary evidence . 8 C.F.R. § 103.5(a)(2). 
2 The regulations actually allowed 33 days for the filing since the Petitioner was served the denial decision by mail. See 
8 C.F.R. § 103.S(b). 
Matter of J-S-&S-, Inc. 
submission, as a timely filing of the motion to reopen because neither the Act nor the regulations 
mandate that the current version of the Form I-290B be used. 
As noted, it is in the Director's discretion to accept a late filed motion to reopen, if the Director finds 
the delay to be reasonable and beyond the petitioner's control. Here, the Director declined to 
exercise his discretion to accept the late motion to reopen. The Petitioner has not demonstrated that 
the Director erred in that determination. We will therefore not disturb the Director's decision. 
The Petitioner further argues that if we do not agree that the Director should have accepted the late 
motion, we should nonetheless exercise our authority under 8 C.F.R. § 103.5(a)(5) to reopen this 
proceeding on our own motion. We have reviewed the matter thoroughly, and based on the record at 
hand, we decline to exercise our authority under 8 C.F.R. § 103.5(a)(5). 3 
The appeal will be dismissed for the above state reason. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-S-&S-, Inc., ID# 654 7045 (AAO Oct. 31, 2019) 
3 The Petitioner has not demonstrated that the Director denied the petition in error. According to the Petitioner, the 
Director improperly "relied on the new October 1, 2018 USCTS policy memo" allowing petitions to be denied if the 
initial evidence was insufficient to show eligibility, instead of issuing a request for evidence allowing the Petitioner to 
remedy any deficiencies in its initial evidence. The Petitioner's contention that the Director improperly relied on a 
USCTS memorandum dated October 1, 2018, is unfounded. No reference to this memorandum appears anywhere in the 
decision. To the contrary, the Director clearly indicated in his decision that the grounds for denying the petition rested in 
the federal regulations at 8 C.F.R. ~~ I 03.2(a)( I) and I 03.2(b )(8)(ii) which specify that every benefit request to the 
Department of Homeland Security must be executed in accordance with the form instructions and if all required initial 
evidence is not submitted with a benefit request to USCIS, USCIS has the discretion to deny the benefit request for lack 
of initial evidence. The record shows that the Petitioner's 1-140 petition was not accompanied by all required initial 
evidence because the labor certification was incomplete. The Director properly exercised his authority under the 
regulations to deny the petition for failure to comply with the regulatory requirements for initial evidence. 
2