dismissed EB-1A Case: Linguistics

identifying data deleted to 
prevent cl eec:, Lji~zrmted 
invasion of penonal p~vacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 09 104 51624 
rN RE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
% Rhew u 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as 
untimely filed. 
In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the 
affected party must file the complete appeal with the office where the unfavorable decision was 
made within 30 days of after service of the unfavorable decision. If the decision was mailed, the 
appeal must be filed within 33 days. See 8 C.F.R. 5 103.5a(b). The date of filing is not the date of 
mailing, but the date of actual receipt. See 8 C.F.R. 5 103.2(a)(7)(i). 
Moreover, the regulation at 8 C.F.R. § 103.2(a)(l) provides: 
General. Every application, petition, appeal, motion, request, or other document submitted 
on the form prescribed by this chapter shall be executed and filed in accordance with the 
instructions on the form, such instructions (including where an application or petition should 
be filed) being hereby incorporated into the particular section of the regulations in this 
chapter requiring its submission. 
Part 1 of the instructions for the Form I-290B, Notice of Appeal or Motion, filed by the petitioner 
states: "You must file your appeal with the U.S. Citizenship and Immigration Services (USCIS) 
office that made the unfavorable decision within 30 calendar days after service of the decision (33 
days if your decision was mailed)." 
The record indicates that the Director, Texas Service Center, issued the decision on July 13, 2009. It 
is noted that the director's decision clearly and properly gave notice to the petitioner that the appeal 
"must be filed with this office at the address at the top of this page." The appeal, however, was 
incorrectly submitted to the AAO on August 19, 2009, 37 days after the decision was issued. The AAO 
then forwarded the Form I-290B to the Texas Service Center, which received the appeal on August 27, 
2009, 45 days after the decision was issued. Accordingly, the appeal was untimely filed. The 
director erroneously annotated the appeal as timely and forwarded the matter to the AAO. 
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit 
for filing an appeal. The regulation at 8 C.F.R. 5 103.3(a)(2)(v)(B)(2) states that, if an untimely 
appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be 
treated as a motion, and a decision must be made on the merits of the case. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. 8 103.5(a)(2). A motion to 
reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or Service 
policy. A motion to reconsider a decision on an application or petition must, when filed, also 
establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. 5 103.5(a)(3). A motion that does not meet applicable requirements shall be 
dismissed. 8 C.F.R. 5 103.5(a)(4). 
Page 3 
Here, the untimely appeal does not meet the requirements of a motion to reopen or a motion to 
reconsider. In support of the untimely appeal, petitioner submitted documentation which was 
previously submitted at the time of filing. In addition, the petitioner submitted two letters dated 
August 5, 2009 and August 11, 2009 briefly discussing the beneficiary's skills and activities as a 
linguist. 
As previously noted, a motion to reopen must state the new facts to be provided and be supported by 
affidavits or other documentary evidence. 8 C.F.R. fj 103.5(a)(2). Based on the plain meaning of 
"new," a new fact is found to be evidence that was not available and could not have been discovered or 
presented in the previous proceeding.1 A review of the evidence that the petitioner submits in support 
of the late appeal reveals no fact that could be considered "new" under 8 C.F.R. fj 103.5(a)(2). 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314,323 (1992)(citing INSv. 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. The submitted documentation 
does not meet that burden. 
As previously noted, a motion to reconsider must state the reasons for reconsideration and be 
supported by any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or USCIS policy. 8 C.F.R. fj 103.5(a)(3). A motion to reconsider 
contests the correctness of the original decision based on the previous factual record, as opposed to a 
motion to reopen which seeks a new hearing based on new or previously unavailable evidence. See 
Matter ofCerna, 20 I&N Dec. 399,403 (BIA 1991). 
In this instance, the petitioner failed to support the motion with any precedent decisions to establish 
that the director's decision was based on an incorrect application of law or USCIS policy, 
Accordingly, there is no requirement to treat the appeal as a motion under 8 C.F.R. 
0 103.3(a)(2)(v)(B)(2). 
As the appeal was untimely filed and does not qualify as a motion, the appeal must be rejected. 
ORDER: The appeal is rejected. 
' The word "new" is defined as " 1. having existed or been made for only a short time . . .3. Just discovered, found, or learned 
<new evidence> . . . ." WEBSTER'S I1 NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (1984)(emphasis in original).