The Director of the Nebraska Service Center denied the petition and dismissed the Petitioner's following, combined motions to reopen and reconsider. We dismissed the company's appeal and its second round of combined motions to reopen and reconsider. See In Re: 10343862 (AAO Oct. 1, 2020). The matter is before us again on the Petitioner's motion to reconsider. Upon review, we will dismiss the motion as untimely.
The Motion's Untimeliness and Nature
The Petitioner acknowledges that its motion is untimely. Under special rules that U.S. Citizenship and Immigration Services (USCIS) implemented during the current, COVID-19 pandemic, a petitioner may generally file a motion up to 63 days after the issuance of a mailed decision. USCIS Alert, "USCIS Extends Flexibility for Responding to Agency Requests," (Mar. 24, 2021), https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-4 (last visited May 20, 2021); see also 8 C.F.R. § 103.S(b) (adding three days to filing deadlines if USCIS serves decisions or notices by mail). The Petitioner's filing arrived 75 days after we mailed our dismissals of the company's prior motions.
Counsel states that, about a week before the motion's deadline, she: tested positive for covid-19 and ha[s] been unable to work. As a solo practitioner, I did not have an attorney able to file cases during my temporary quarantine and recovery period. AslateasDecember4th[,2020,adayafterthemotion'sfilingdeadline,]Iwas still testing positive for covid-19.
Underthesecircumstances,thePetitionerasksustoexcusethemotion'suntimelyfiling. Asproofof counsel's COVID-19 diagnosis, the company submits a letter from a government health department.
We may excuse the untimely filing of a motion to reopen "where it is demonstrated that the delay was reasonableandbeyondthecontroloftheapplicantorpetitioner." 8C.F.R.§103.5(a)(l). Department of Homeland Security (DRS) regulations, however, do not similarly authorize us to excuse the untimely filing of a motion to reconsider.
Pursuant to requirements for motions to reopen, the Petitioner's filing states new facts supported by documentary evidence. See 8 C.F.R. § 103.5(a)(2). But a petitioner must file each benefit request according to form instructions, which are incorporated into DHS regulations. 8 C.F.R. § I 03 .2(a)(l ). USCIS must dismiss "[a] motion that does not meet applicable requirements." 8 C.F.R. § 103.5(a)(4).
The instructions to Fonn I-290B, Notice of Appeal or Motion, required the Petitioner to indicate its filing of an appeal or a motion and, if a motion, to indicate which type of motion. The instructions stated requirements for both motions to reopen and reconsider and cited the applicable regulations at Applicantsandpetitionersmaynotmakematerialchangestobenefitrequestsaftertheirfilings. See 8 C.F.R. § 103.2(b)(1) (requiring an applicant or petitioner to establish eligibility for a requested benefit "at the time of filing the benefit request" and continuing throughout its adjudication). Thus, USCIS generally limits amendments on benefit-request forms to corrections of clerical errors. See, e.g., USCIS, Petition Filing and Processing Procedures/or Form 1-140, "Requesting or Changing Visa Categories," https://www.uscis.gov/forms/petition-filing-and-processing-procedures-for-form-i- 140-immigrant-petition-for-alien-worker#Requesting (last visited May 20, 2021) (stating that "you may request that we change the visa classification to correct a clerical error"). The Petitioner must establish eligibility for a requested benefit by a preponderance of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burdenofproof);see alsoMatterofChawathe, 25 I&NDec. 369, 375 (AAO 2010) (discussing the standard of proof). The company has not demonstrated that its designation of the filing as a motion to reconsider resulted from clerical error. We will therefore treat the Petitioner's filing as a motion to reconsider.
Conclusion
Welackauthoritytoexcusethemotion'suntimelyfiling. Thus,themotiondoesnotmeetapplicable requirements. Wemustthereforedismissit.
ORDER: The motion to reconsider is dismissed.
See USCIS, "Instructions for Notice of Appeal or Motion," 4-6, 8 C.F.R. §§ 103.5(a)(2), (3). https://www.uscis.gov/sites/default/files/ document/forms/i-290binstr.pdf (last visited May 20, 2021). In part 2 of Form I-290B, the Petitioner checked the box indicating its filing of a "motion to reconsider." The accompanying, written brief also describes the filing as a "motion to reconsider."
The form also allowed the Petitioner to file a combined motion to reopen and motion to reopen.