dismissed EB-1A Case: Not Specified

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: - Office: VERMONT SERVICE CENTER 
EAC 02 228 5 1767 Date: dCI 1 1 2005 
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 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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. 
Y~obert P. Wiemann. Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as 
untimely filed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien of extraordinary ability. 
The director determined the petitioner had not established that he qualifies for classification as an alien of 
extraordinary ability. 
In order to properly file an appeal, the regulation at 8 C.F.R. 5 103.3(a)(2)(i) provides that the affected party 
must file the complete appeal 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). 8 C.F.R. 3 l.l(h) explains that 
when the last day of a period falls on a Saturday, Sunday, or tegal holiday, the period shall run until the end of the 
next day that is not a Saturday, Sunday, or legal holiday. 
The record indicates that the director issued the decision on August 3, 2004. It is noted that the director's 
notice of denial properly gave notice to the petitioner that he had 33 days to file the appeal.' The appeal was 
received by Citizenship and Immigration Services on September 8, 2004, or 36 days after the decision was 
issued. Accordingly, the appeal was untimely filed. 
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. The official having jurisdiction over a motion is the official who made the 
last decision in the proceeding, in this case the service center director. See 8 C.F.R. 5 103.5(a)(l)(ii). The 
director declined to treat the late appeal as a motion and forwarded the matter to the AAO. 
As the appeal was untimely filed, the appeal must be rejected. 
ORDER: The appeal is rejected. 
I The Form I-290B, Notice of AppeaI, provided to the petitioner by the service center indicated that his appeal would be 
rejected as untimely if it was not "received at a Service office on or before September 8, 2004." The Form I-290B 
should have indicated that that the petitioner had until "September 7, 2004" to file a timely appeal. This error by the 
service center, however, does not supercede the regulations, which in this instance require the appeal to have been filed 
by September 7,2004 (the day after Labor Day, a legal holiday).