PetitionLens
All decisions
MotionNational Interest Waiver · Motion to reopen & reconsider

Aircraft mechanic

Aviation & transport · decided 2024-03-21 · TSC · MAR212024_04B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided
    The Director's denial rested on this
    The Director of the Texas Service Center denied the petition, concluding that the record did not establish that the Petitioner qualified for the underlying EB-2 classification or that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. p. 1
  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The Director of the Texas Service Center denied the petition, concluding that the record did not establish that the Petitioner qualified for the underlying EB-2 classification or that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. See in text

What the AAO decided

  • Accordingly, we will dismiss the motions. See in text
  • ORDER: The motion to reopen is dismissed. See in text
  • FURTHER ORDER: The motion to reconsider is dismissed. See in text

Main reasons given

  • Here, the Petitioner does not provide an explanation for the untimely filing of the motion; therefore, he has not met this burden. See in text
  • Accordingly, the Petitioner has not shown that his delay in filing his motion to reopen was reasonable and beyond his control, such that his untimely filing should be excused in users' discretion under 8 e.F.R. § 103.5(a)(l)(i). See in text
Read the full decision (2 pages)

Objections found (0)

Automated tags. Each shows the sentence that triggered it.

No catalog objection was detected in the analysis section.

    Full decision

    OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

    Highlighted: Outcome (6) AAO finding (2)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: MAR. 21, 2024 · In Re: 30587450 · Motion on Administrative Appeals Office Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner, an aircraft mechanic, seeks classification as a member of the professions holding an advanced degree and an individual of exceptional ability in the sciences, arts or business. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). The Petitioner also seeks a national interest waiver ofthe job offer requirement that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, when it is in the national interest to do so.

    The Director of the Texas Service Center denied the petition, concluding that the record did not establish that the Petitioner qualified for the underlying EB-2 classification or that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. We dismissed the Petitioner's subsequent appeal. The matter is now before us on combined motions to reopen and reconsider.

    The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 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). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit. See Matter of Coelho, 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. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit.

    Motions to reopen or reconsider must be filed within 30 days ofthe decision, or 33 days ifthe decision is served by mail. 8 C.F.R. § 103.5(a)(l)(i), 103.8(b). The date of filing is not the date of mailing, but the date users received the intended motion: (1) completed, signed, and accompanied by the required fee as specified by the Form r-290B, Notice of Appeal or Motion, instructions; and (2) at the location that those instructions designate for filing motions. See 8 e.F.R. §§ 103.2(a)(l) and 103.2( a)( 6). users may, in its discretion, excuse the untimely filing of a motion to reopen where the record demonstrates that the delay was reasonable and beyond the control of the applicant. 8 e.F.R. § 103.5(a)(l)(i). There is no comparable authority to excuse an untimely filed motion to reconsider. See id.

    We dismissed the Petitioner's appeal on August 28, 2023. The Petitioner was afforded 30 days plus three days for service by mail to file a motion to reopen and/or reconsider our decision. users did not receive the completed and signed Form r-290B with the required fee at the designated users location until October 6, 2023, 39 days after our decision was issued.

    As noted, the late filing of the Petitioner's motion to reconsider may not be excused. 8 C.F.R. § 103.5(a)(l)(i). With respect to his motion to reopen, the Petitioner has the burden to establish that the late filing was reasonable and beyond his control and should therefore be excused. Here, the Petitioner does not provide an explanation for the untimely filing of the motion; therefore, he has not met this burden. We therefore will not exercise our discretion to excuse the late filing of his motion to reopen.

    Accordingly, the Petitioner has not shown that his delay in filing his motion to reopen was reasonable and beyond his control, such that his untimely filing should be excused in users' discretion under 8 e.F.R. § 103.5(a)(l)(i). Moreover, we have no authority to excuse the late filing of his motion to reconsider. Accordingly, we will dismiss the motions.

    ORDER: The motion to reopen is dismissed.

    FURTHER ORDER: The motion to reconsider is dismissed.