dismissed
EB-1A
dismissed EB-1A Case: Not Specified
Decision Summary
The appeal was rejected because it was untimely filed. The initial submission was rejected for having an incorrect check amount, and the subsequent re-filing occurred 49 days after the decision was issued, exceeding the 33-day deadline.
Criteria Discussed
Not specified
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(J.S.Departmentof HomelandSecurity U.S.CimenshipandImmiermionService AdmmistrmiveAppealsOmce i ·\AOï 20 Massacluiscus Ave.. N ¼.. Nls 2(M Washinut<>il. DC 2(62') 2I)'J() U.S.Citizenship and Immigration Services DATE DEC 2 0 2012 OFFICE:NEBRASKASERVICECENTER FILE IN RE: Petitioner: Beneficiary: PETITION: ImmigrantPetitionfor Alien WorkerasanAlien of ExtraordinaryAbihtv Pursuantto Section203(b)(1)(A)of theImmigrationandNationalityAct, 8 U.S.C.s 1153(b)(l )(A) ON BEHALF OFPETITIONER: INSTRUCTIONS: This is the decision of the Administrative Appeals Office in your case. Pleasenote that all documents have been returned to the office that originally decided your case. Pleasealso note that any further inquiry mustbemadeto thatoffice. Thankyou. RonRosenberg ActingChief,AdministrativeAppealsOffice www.uscis.gov Page2 DISCUSSION: The Director, NebraskaService Center, denied the employment-based immigrant visa petition, which is now beforethe AdministrativeAppealsOffice (AAO) on appeal.Theappealwill berejectedasuntimelyfiled. In orderto properlyfile anappeal,the regulationat 8 C.F.R.§ 103.3(a)(2)(i)providesthatthe affectedparty or the attorneyor representativeof recordmustfile the completeappealwithin 30 daysof serviceof theunfavorabledecision. If thedecisionwasmailed,theappealmustbefiled within 33days. 8 C.F.R.§ 103.8(b).Thedateof filing is not thedateof mailing,but theactual dateof receiptatthedesignatedfiling location. 8 C.F.R.§ 103.2(a)(7)(i). The record indicatesthat the servicecenterdirector issuedthe decision on October 31, 2011. The petitioner had 33 daysfrom the dateof the decisionto file the appeal. Neither the Act nor thepertinentregulationsgranttheAAO authority to extendthis time limit. The recordreflectsthat the Form I-290B. Notice of Appeal or Motion, was initially submittedon November30. 2011but wassubsequentlyrejectedby United StatesCitizenshipand Immigration Services on December 14, 2011 because"the check amount is incorrect. or has not been provided." The regulation at 8 C.F.R. § 103.2(a)(7)(iii) providesthat a benefit requestthat is rejectedwill not retaina filing date. Counselre-filed the Form I-290B with the requiredfiling fee on December19.2011.or 49 days afterthedecisionwasissued. Accordingly. theappealwasuntimely filed. The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2)statesthat, if an untimely appealmeetsthe requirementsof a motion to reopenor a motion to reconsider,the appealmust be treatedas a motion, anda decisionmustbe madeon the merits of the case. The official havingjurisdiction over a motion is the official who made the last decision in the proceeding.in this casethe Director of the Nebraska Service Center. See 8 C.F.R. § 103.5(a)(lhii). The director determinedthat the late appealdid not meet the requirementsof a motion and forwarded the matterto theAAO. As theappealwasuntimely filed, theappealmustberejected. ORDER: The appealis rejected.
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