Date of Decision: August 5, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Engineering
Petitioner Information
Profession: Software Engineer
Field: Information Technology
Nationality: Not specified
Summary of Decision
Initial Decision: Approved (November 21, 2006)
Appeal Outcome: Denied
Motion to Reopen and Motion to Reconsider: Denied
Evidentiary Criteria Analysis
Criteria Met:
Initial Approval: The Petitioner initially met the criteria for approval as a software engineer under the EB-2 classification.
Motion Requirements: The Petitioner submitted a motion to reopen and reconsider, including a declaration from counsel and a statement from UPS.
Criteria Not Met:
Timely Filing: The Beneficiary’s motion to reopen and reconsider was not filed within the required timeframe.
Excusable Neglect or Good Cause: The Beneficiary’s arguments citing “good cause” and “excusable neglect” based on delayed mail service were not accepted under the relevant regulations governing USCIS filings.
Key Points from the Decision
Proposed Endeavor:
The Petitioner aimed to employ the Beneficiary as a software engineer. This position involves developing and maintaining software solutions for various clients.
Substantial Merit and National Importance:
The decision did not specifically address the substantial merit and national importance of the Beneficiary’s proposed endeavor, focusing primarily on procedural compliance and the timeliness of the motions.
Supporting Evidence:
Initial Submission: Included the Form I-140 petition and necessary supporting documents.
Further Submission on Motion to Reopen: Included a signed declaration from counsel and a statement from UPS confirming no information was available for pick-ups made 120 or more days prior to the inquiry.
Inconsistencies in Proposed Endeavor:
The primary issue was not related to inconsistencies in the proposed endeavor but rather the procedural compliance regarding the timely filing of the motion to reopen and reconsider.
Supporting Documentation
Letters of Intent:
Not applicable in this case.
Business Plan:
Not applicable in this case.
Advisory Letter:
Not applicable in this case.
Any other supporting documentation:
Declaration from Counsel: Detailed the timeline and circumstances of the motion’s filing.
Statement from UPS: Confirmed the lack of information on the pick-up time due to the time elapsed.
Conclusion
Final Determination: The motion to reopen and motion to reconsider were denied.
Reasoning:
The Beneficiary failed to meet the burden of proof required to establish eligibility for the benefit sought due to the untimely filing of the motion to reopen and reconsider. The regulations governing USCIS filings do not accommodate for “good cause” or “excusable neglect” as presented in the Beneficiary’s argument. The Petitioner did not demonstrate that the delay in filing was reasonable and beyond the Beneficiary’s control. As a result, the prior decision to deny the motion as untimely was upheld, and the motions to reopen and reconsider were denied. The burden of proof remains with the petitioner in revocation proceedings, and the Petitioner did not meet that burden in this case.
