Enclosed please find the decision of the· Administrative Appeals Office in your case. All of the documents related to this matter, have been returned to the office that.originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the AAO inappropriately ,applied the law J reach~g its decision, or you have additional information that you wish to have considered, you may file ~ motion tO reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice df Appeal or Motion, with a fee of $630. The I . specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103l5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or bopen. nRosenberg
/ · Acting Chief, Administrative Appeals Office
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on February 17, 2012, the AAO dismissed the appeal. Counsel to the petitioner filed a motion to reopen and a motion to reconsider on March 26, 2012 the AAO's de~ision. The director Issued a dismissal. The director's decision will be withdrawn. The petitioner'~ motion to reopen and motion to reconsider will be dismissed as untimely filed. ·
The AAO dismissed the appeal on February 17, 2012, finding that the petitioner had not established its continuing financial ability to pay the proffered ~age and additionally concluding that the petitioner had not demonstrated that the beneficiary poJsessed the requisite employment experience as set forth on the labor certification. It is noted that jthe cover sheet of the AAO's February 17, 2012, decision, instructed the petitioner about the process to file a motion to reconsider or to reopen with inStructions to file any motion with· the office· that :originally decided the case if it believed the law was inappropriately applied by the AAO in adjudicating the appeal. (Emphasis added). The re~ord indicate.s that the petitioner inco.rrectly filed its Jmotion to reop~n and ~?tion to reco.~ider With the AAO instead of the Texas Serv1ce Center that ~ndered the ongmal dec1s1on. The petitioner subsequently submitted it to the Service Center on March 26,2012, or 38 days past the deadline. . . . . I . . .
United States Citizenship and Immigration Services GJSCIS) regulations require that motions to reconsider be filed within 30 days of the underlying deJision.· 8 C.F.R. § 103.5(a)(l)(i). Similarly, USCIS regulations require that motions to reopen be fil~d within 30 days of the underlying decision, except that failure to timely file a motion to reopen ti..ay be excused in the discretion of USCIS where it is demonstrated that the d.~lay was reasonable b~twas beyond the affected party's control. Id A timely motion to reopen must· state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidenJe. 8 C.F.R. § 103.5(a)(2). A timely motion to reconsider must state the reasons for reconsideration knd be supported by any pertinent precedent decisions to establish that the decision was based on J an incorrect application of law or US CIS policy. A motion that does not meet the applicable requirements will be dismissed. 8 C.F.R. § I 03.5(a)( 4).
It is noted that the Texas Service Center director erroneously determined the timeliness of the petitioner's March 26, 2012 motion to the AAO and is~ued a dismissal on June 13, 2012. As the director has no jurisdiction to determine the timeline~s of a motion to the AAO, 1 the director's decision will be withdrawn. It is observed that the petitibner's corresponding July 10, 2012, motion to reconsider the director's decision of June 13, 2012, J.mch was filed with the director, would also have no effect.
It is finally noted that the AAO has no authority to accept the petitioner's March 26, 2012, untimely motion.on the February 17, 2012, decision by the··AAO as the motion fails to hold a timely filing date due to its submission to the wrong jurisdictiorl. Further, there has been no persuasive demonstration that the failure to file a timely motion to ieopen was re~onable or beyond the control 1 The regulations only give the director .the jurisdiction to determine the timeliness of an appeal io the AAO insofar as the director may treat an untimely appeal as a motion. 8 C.F .R. § 103.3(a)(2)(v)(B)(2). I · · · p. 3 of the party. As indicated above, the motion was due 01;1 March 21, 2012, but was not.properly filed until March 26, 2012, or 38 days past the AAO's F~bruary 17, 2012 decision. The petitioner's motion to reopen and motion to reconsider will be dismi~sed as untimely.2 The burden of proof in th~ proceedings rests. solely ~th the petitioner: Section 291 ~f the. Act, 8 U.S. C. § 1361. The petitioner has not sustaiiied that burden. ·Accordingly, the motion will be dismissed as untimely, the proceedings·Will not be reopenbd or reconsidered, and the previous decisions of the director and the AAO will ~ot be disturbed.
ORDER: ·The motion to reopen and reconsider is dismissed as untimely.
2 It is noted that even if not dismissed for untimeliness, the AAO does not concur· with the petitioner's assertions on motion that the petitioner'~ net assets are somehow shown on the petitioner's tax returns submitted to the record. Accoriting to Ba"on 's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of itefus having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current liabilities" are obligations payable (m most cases) within one year,! such accounts payable, short-term notes payable, and accrued expenses (such as taxes and salari~s). Id at 118. These specific delineations are not set forth on the kind of tax returns submitted b~ the petitioner. Nor were audited. financial statements ever submitted to the record as permitted in the regulation at 8 C.F.R. § 204.5(g)(2). The AAO's decision relevant to the petitioner's ability tO pa1 the proffered wage remains~ rendered. With regard to the petitioner's interpretation of the Form ETA 750's related occupation work experience requirement of "public performance expJriences" as meaning some indeterminate number of performance experiences during a five-yeat period rather than five full-time years of performance experiences, the AAO would not change its decision in this regard without examining the petitioner's recruitment materials and correspondehce With DOL that would affirm how this requirement was actually presented to DOL and to· otherwise qualified U.S. workers. Such documentation haS never been submitted ..