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DismissedNational Interest Waiver · Motion to reopen & reconsider

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Other / unclear · decided 2024-09-26 · TSC · SEP262024_02B5203

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 the Petitioner had not established eligibility for the underlying immigrant classification and 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

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 (3)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: SEP. 26, 2024 · In Re: 33376976 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner seeks second preference immigrant classification as a member of the professions holding an advanced degree or as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this EB-2 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 the Petitioner had not established eligibility for the underlying immigrant classification and that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. The Director dismissed a subsequent motion to reopen and reconsider as untimely. The matter is now before us on appeal. 8 C.F.R. § 103.3.

    The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.

    As an initial matter, we note that our review on appeal is generally limited to the basis for the underlying adverse decision. Thus, we consider whether the Director properly dismissed the Petitioner's motion to reopen and reconsider as untimely.

    Any motion must be filed within 30 days of the unfavorable decision (or 33 days if the decision is mailed). Id.; 8 C.F.R. § 103.8(b). U.S. Citizenship and Immigration Services (USCIS) may excuse failure to timely file a motion to reopen if the applicant demonstrates that the delay was reasonable and was beyond his or her control. 8 C.F.R. § 103.5(a)(l)(i). However, the regulations do not provide a corresponding discretion to excuse an untimely motion to reconsider.

    The Director denied the petition on December 8, 2022, and the Petitioner filed her motion on June 13, 2023. Consequently, the Director dismissed the Petitioner's motion as untimely. On appeal, the Petitioner does not allege USCIS error or provide evidence that her motion below was improperly dismissed. Rather, the Petitioner asserts that she is eligible for the underlying immigrant p. 2 classification and a national interest waiver. Therefore, the Petitioner has not addressed the reason for the dismissal ofher motion. After de novo review, we agree with the Director's determination that the motion was untimely filed. Furthermore, as the Petitioner did not provide an explanation for the delay in filing the motion, she also did not establish that the delay was reasonable and that the late filing should be excused as a matter of discretion. Consequently, we will dismiss the appeal.

    ORDER: The appeal is dismissed.