The Petitioner, a business administrator, seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree, as well as a national interest waiver of the job offer requirement attached to this classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2).
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not qualify as an advanced degree professional and did not establish that a waiver ofthe required job offer, and thus of the labor certification, would be in the national interest. We summarily dismissed the Petitioner's appeal. The matter is now before us on a combined motion to reopen and reconsider. The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motion.
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F .R. § 103.5(a)(2). See Matter ofCoelho, 20 l&N Dec. 464,473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). 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). Our review on motion is limited to reviewing our latest decision, the June 2024 appeal dismissal. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit.
The Director denied the petition on March 6, 2024. The Petitioner filed an appeal on March 29, 2024, checking the box on Form I-290B, Notice of Appeal or Motion, stating, "My brief and/or additional evidence will be submitted to the AAO within 30 calendar days of filing the appeal." We summarily dismissed the appeal on June 27, 2024, stating, "To date we have not received your brief or additional evidence."
On motion, the Petitioner asserts her brief was submitted within 30 calendar days of filing the appeal and provides a delivery notification from the shipping company establishing that she mailed the brief p. 2 to the USCIS Phoenix Lockbox in Tempe, Arizona and that the date of receipt of the brief was April 29, 2024.
The instructions for the Form I-290B state:
Appeal: Provide a statement that specifically identifies an erroneous conclusion of law or fact in the decision being appealed. You must provide this information with the Form I-290B, even if you intend to file a brief later.
The Petitioner did not include such a statement with the Form I-290B. Further, both the Form I-290B and its instructions inform appellants who elect to submit a supplemental brief within 30 days of filing an appeal to mail the brief or additional evidence directly to the AAO. Every form, benefit request, or other document must be executed in accordance with the instructions on the form, which are incorporated into the regulation requiring its submission. 8 C.F.R. § 103.2(a)(l ). Further discussion of the filing requirements for these documents is found at 8 C.F.R. § 103.2(b)(l), which provides that "[e Jach benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions." See also Ramirez-Coria v. Holder, 761 F.3d 1158, 1162 (10th Cir. 2014) ( concluding that the failure to follow immigration form instructions can result in the dismissal of an application or petition); Mejia-Velasquez v. Garland, 26 F.4th 193, 201-05 (4th Cir. 2022); Sunday v. Att'y Gen. United States ofAm., 832 F.3d 211,213 (3d Cir. 2016). In this instance, the Petitioner mailed her brief to the USCIS Phoenix Lockbox, not directly to the AAO as instructed, which delayed its incorporation into the record.
The record before us at the time we summarily dismissed the Petitioner's appeal in June 2024 did not contain a brief or other basis statement specifically identifying an erroneous conclusion of law or statement of fact in the decision being appealed. 8 C.F.R. § 103.3(a)(l)(v). Therefore, the Petitioner has not established that our summary dismissal of the appeal was based on an incorrect application of law or policy warranting reconsideration of our decision; or that a new fact, supported by evidence, shows proper cause to reopen our appeal decision. As such, we affirm our previous determination. ORDER: The motion to reopen is dismissed.
FURTHER ORDER: The motion to reconsider is dismissed.