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MotionNational Interest Waiver · Motion to reopen & reconsider

Optician

Other / unclear · decided 2024-10-22 · TSC · OCT222024_03B5203

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

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

  • 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 Petitioner did not establish that she qualified for the requested classification or that a waiver of the required job offer, and thus ofthe labor certification, would be in the national interest. See in text

What the AAO decided

  • Therefore, we will dismiss the motion to reopen. See in text
  • ORDER: The motion to reopen is dismissed. See in text
  • FURTHER ORDER: The motion to reconsider is dismissed. See in text
Read the full decision (2 pages)

Objections found (0)

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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 (7)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: OCT. 22, 2024 · In Re: 34494697 · Motion on Administrative Appeals Office Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner, an optician, 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 establish that she qualified for the requested classification or that a waiver of the required job offer, and thus ofthe labor certification, would be in the national interest. We dismissed a subsequent appeal and motion. 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 petitioner's motion to reconsider must be filed within 30 days of the decision that the motion seeks to reconsider. A petitioner's motion to reopen a proceeding must be filed within 30 days of the decision that the motion seeks to reopen, but we have the discretion to excuse a delay in filing if the petitioner demonstrates that the delay was reasonable and was beyond the petitioner's control. See 8 C.F.R. § 103.5(a)(l)(i). A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4).

    We dismissed the Petitioner's appeal on February 6, 2024. She filed a combined motion to reopen and reconsider on March 18, 2024, and we dismissed it as untimely. The Petitioner argues that her late filing should be excused because she mailed the motion within the required timeframe and relied on the delivery services of a government agency, the U.S. Postal Service, for timely receipt by U.S. Citizenship and Immigration Services (USCIS).

    The deadline for filing a timely motion to reopen or reconsider was March 10, 2024, accounting for the 30-day filing period and three days for mailing. See 8 C.F.R. §§ 103.5(a)(l)(i) and 103.8(b). The filing date is the date USCIS properly receives a filing in accordance with filing instructions. See generally I USCJS Policy Manual B.6(C), https://www.uscis.gov/policy-manual. The regulation at 8 p. 2 C.F.R. § 103.S(a)(l)(i) does not permit any extension of the filing deadline for motions to reconsider. Therefore, we must dismiss the motion to reconsider as untimely. The same regulation states that untimely filing of a motion to reopen may be excused in our discretion where the petitioner demonstrates that the delay was reasonable and beyond the petitioner's control. However, the Petitioner's reliance on USPS is not sufficient to establish that the delay in filing was beyond her control. Therefore, we will dismiss the motion to reopen.

    ORDER: The motion to reopen is dismissed.

    FURTHER ORDER: The motion to reconsider is dismissed.