Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions.
Thank you,
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Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, revoked the approval of the employment-based immigrant visa petition, made a finding of material misrepresentation and fraud, and invalidated the underlying labor certification. The director dismissed the subsequent motion to reopen and reconsider the decision. The petitioner then appealed to the Administrative Appeals Office (AAO). The AAO affirmed the decision of the director. The petitioner has now filed a motion to reopen and reconsider. The motion will be dismissed.
United States Citizenship and Immigration Services (USCIS) regulations require that motions to reconsider be filed within 30 days of the underlying decision. 8 C.P.R. § 103.5(a)(1)(i). Similarly, USCIS regulations require that motions to reopen be filed within 30 days of the underlying decision, except that failure to timely file a motion to reopen may be excused in the discretion of USCIS where it is demonstrated that the delay was reasonable and was beyond the affected party's control. !d. In this matter, the motion was filed on July 9, 2013, 45 days after the AAO's decision. The record indicates that the AAO's decision was mailed to both the petitioner at its business address and to its counsel of record. We do note that the petitioner initially attempted to file the instant motion on June 28, 2013. However, the filing was rejected because, according to counsel, it did not contain a Form I-290B.
The regulation at 8 C.P.R. § 103.2(a)(7)(i), provides in part:
A benefit request which is not signed and submitted with the correct fee(s) will be rejected. A benefit request that is not executed may be rejected. Except as provided in 8 CFR parts 204, 245, or 245a, a benefit request will be considered received by USCIS as of the actual date of receipt at the location designated for filing such benefit request whether electronically or in paper format. The receipt date shall be recorded upon receipt by USCIS.
The regulation at 8 C.P.R. § 103.2(a)(7)(iii) provides in part:
A benefit request which is rejected will not retain a filing date. There is no appeal from such rejection.
As the initial filing was properly rejected, the motion did not retain the filing date of June 28, 2013. The motion was filed late. The record does not establish that the failure to file the motion within 30 days of the decision was reasonable and beyond the affected party's control. The motion is untimely and must be dismissed for that reason.
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. See INS v. Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that burden. The regulation at 8 C.P.R. § 103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. Therefore, because the instant motion did not meet the applicable filing requirements listed in 8 C.F.R. § 103.5(a)(1)(iii)(C), it must be dismissed for this reason.
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not sustained that burden. Accordingly, the motion will be dismissed, the proceedings will not be reopened or reconsidered, and the previous decisions of the director and the AAO will not be disturbed.
ORDER: The motion is dismissed.