The Petitioner 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. § 1 l 53(b )(2).
The Director of the Texas Service Center denied the petition, concluding that the record did not establish that the Petitioner qualified as a member of the professions holding an advance degree or as an individual of exceptional ability, and that she had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. We summarily dismissed a subsequent appeal and later dismissed a subsequent combined motions to reopen and reconsider. The matter is now before us on a second combined motion to reopen and motion to 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 motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). 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. See Matter ofCoelho, 20 l&N Dec. 464,473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). In our previous decision dismissing the combined motions to reopen and reconsider we determined it was untimely filed. We noted that the decision was mailed to the Petitioner on September 22, 2023, and the Petitioner's Form I-290B, Notice of Appeal or Motion (Form I-290B), was received at the designated filing location on November 14, 2023, which was 53 days after the decision.
On motion, the Petitioner asserts that her previous combined motions to reopen and reconsider was "sent within the required timeframe and delivered within 33 days at [the United States Postal Service p. 2 (USPS)]." She states that she is requesting the reopening of the case and its reconsideration, "given that [she] used the delivery services of a government agency, the USPS," and that once it is delivered to USPS, "we no longer have control over the service provided by the agency." The Petitioner then references "contract law" and the "mailbox rule" to argue that "receipt should be considered at the time the letter is sent and not when it arrives at its destination, particularly in relation to the acceptance deadline." She further contends that by using a federal agency like the USPS, the government is "already receiving" her response at the time of dropoff She also refers to various possible unforeseen events that may occur after dropping off documents for mailing, including misplacement by USPS or USCIS, "thus affecting the users of government agency services," to relieve herself of responsibility for delivery.
Here, the Petitioner provides no legal authority for her assertion that a form-in this case, a Form I-290B for an underlying Form 1-140, National Interest Waiver-will be considered filed with USCIS upon the date of mailing. To the contrary, the regulation provides that USCIS considers a benefit request received as of the actual date of receipt at the location designated for filing such a request. 8 C.F.R. § 103.2(a)(7)(i). Regarding where to file, the regulation clarifies that "[a]ll benefit requests must be filed in accordance with the form instructions." 8 C.F.R. § 103.2(a)(6). The instructions for Form I-290B direct petitioners to file at the applicable location listed at https://www.uscis.gov/i-290b, which redirects to https://www.uscis.gov/i-290b-addresses. Although the Petitioner may have dropped off her Form I-290B and supporting documents at USPS for mailing within the required timeframe, USCIS did not receive it at the designated filing location until 53 days after the unfavorable decision.
The scope of a motion is limited to "the prior decision" and "the latest decision in the proceeding." 8 C.F.R. § 103.5(a)(l)(i), (ii). On motion to reopen, the Petitioner has not submitted new evidence to overcome our previous decision. Further, on motion to reconsider, the Petitioner has not established that our previous decision was based on an incorrect application of law or policy at the time we issued our decision. Therefore, the motions will be dismissed. 8 C.F.R. § 103.5(a)(4).
ORDER: The motion to reopen is dismissed.
FURTHER ORDER: The motion to reconsider is dismissed.