dismissed
EB-1A
dismissed EB-1A Case: Not Specified
Decision Summary
The appeal was rejected because it was filed untimely. The director's decision was issued on August 25, 2010, but the appeal was not properly received until January 19, 2011, 117 days later and well past the 33-day deadline.
Criteria Discussed
Timeliness Of Appeal
Sign up free to download the original PDF
Downloaded the case? Use it in your next draft →View Full Decision Text
P UC COPY U.S.Departmentof HomelandSecurity U.S.CitizenshipandImmigrationServices AdministrativeAppealsOffice (AAO) 20 MassachusettsAve., N.W., MS2090 Washington,DC20529-2090 8 U.S.Citizenship and Immigration Services DATE APR 1 1 2012 Office: NEBRASKASERVICECENTER IN RE: Petitioner: Beneficiary: PETITION: ImmigrantPetitionfor Alien WorkerasanAlien of ExtraordinaryAbility Pursuantto Section 203(b)(1)(A)of theImmigrationandNationalityAct, 8 U.S.C.§ 1153(b)(1)(A) ON BEHALF OF PETITIONER: INSTRUCTIONS: This is thedecisionof theAdministrativeAppealsOfficein yourcase.Pleasenotethatall documentshave beenreturnedto theoffice that originally decidedyour case. Pleasealso notethat any further inquiry must be madeto that office. Thankyou PerryRhew Chief,AdministrativeAppealsOffice www.uscis.gov Page2 DISCUSSION: The Director,NebraskaServiceCenter,deniedthe employment-basedimmigrant visapetition,which is nowbeforetheAdministrativeAppealsOffice (AAO) on appeal.Theappeal will berejectedasuntimelyfiled. In order to properly file an appeal,the regulationat 8 C.F.R. § 103.3(a)(2)(i)providesthat the affectedparty or the attorneyor representativeof recordmustfile the completeappealwithin 30 daysof serviceof the unfavorabledecision. If the decisionwasmailed,the appealmustbe filed within 33 days.See8 C.F.R.§ 103.8(b).Thedateof filing is notthedateof mailing,but thedateof actualreceipt.See8 C.F.R.§ 103.2(a)(7)(i). The recordindicatesthat the servicecenterdirectorissuedthe decisionon August25, 2010. It is notedthatthe servicecenterdirectorproperlygavenoticeto thepetitionerthatshehad33 daysto file theappeal.NeithertheAct nor thepertinentregulationsgranttheAAO authorityto extendthis time limit. Althoughcounseldatedthe FormI-290B September24, 2010,it wasnot properlyreceivedby the servicecenteruntil January19,2011,or 117daysafterthe decisionwasissued. Accordingly,the appealwas untimely filed. Counselclaims the appealwas originally sent to the director in Septemberof 2010, however,the evidenceon record fails to demonstratethat the appealwas properlyfiled with fee until January19, 2011. Any failure by a deliveryservicedoesnot warrant specialconsiderationof theappeal.SeeMatterof Liadov,23 I&N Dec.990(BIA 2006). Evenif the AAO were to considerthe December13, 2010filing without fee, that filing was alsonot timely filed. The regulationat 8 C.F.R. § 103.3(a)(2)(v)(B)(2)statesthat, if an untimely appealmeetsthe requirementsof amotionto reopenor amotionto reconsider,theappealmustbetreatedasamotion, anda decisionmustbe madeon the meritsof the case. The official havingjurisdiction over a motion is theofficial who madethelastdecisionin theproceeding,in this casetheDirectorof the NebraskaServiceCenter. See8 C.F.R. § 103.5(a)(1)(ii). The director determinedthat the late appealdid not meettherequirementsof amotion andforwardedthematterto theAAO. As theappealwasuntimely filed, the appealmustbe rejected. ORDER: Theappealis rejected.
Avoid the mistakes that led to this denial
MeritDraft learns from dismissed cases so your petition avoids the same pitfalls. Get arguments built on winning precedents.
Avoid This in My Petition →No credit card required. Generate your first petition draft in minutes.