dismissed EB-1A Case: Not Specified

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U.S. Department of fIomeland Security 
U.S. Citizenship and Immigrat~on Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Dateuri 20D9 
LIN 06 192 50254 
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. 9 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. 
~vltll, 
Peny Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The director 
rejected a subsequent appeal as untimely and determined that the appeal did not meet the requirements of a 
motion. On motion, the director reopened that decision and forwarded the appeal to the Administrative 
Appeals Office (AAO). The matter is now before the 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. 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. $ 103.5a(b). The date of filing is not the date of 
mailing, but the date of actual receipt. See 8 C.F.R. $ 103.2(a)(7)(i). 
The record indicates that the director issued the decision on July 24, 2007. It is noted that the director 
properly gave notice to the petitioner that it had 33 days to file the appeal. Although counsel dated the appeal 
August 23, 2007, it was shipped August 24, 2007 and received by the director on Tuesday, August 28, 2007, 
35 days after the decision was issued. Accordingly, the appeal was untimely filed. The director rejected the 
appeal as late on January 10, 2008, concluding that the appeal did not meet the requirements of a motion. 
This decision was in error as the regulation at 8 C.F.R. $ 103.3(a)(2)(v)(B)(2) only allows the director to 
consider a late appeal if it meets the requirements of a motion, which the director concluded it did not. 
On motion, counsel submits a letter from Federal Express indicating that the appeal was delayed due to severe 
weather conditions throughout their sorting system, disrupting air and ground operations. The director 
concluded that "there are sufficient grounds for forgiving" the late filed appeal, reopened the appeal on March 
12,2009 and forwarded it 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.' Delivery by an overnight courier a day or two past the "guaranteed" date is not a rare or 
extraordinary event that would excuse late filing. Matter ofliadov, 23 I&N Dec. 990,992 (BIA 2006). 
As stated above, the regulation at 8 C.F.R. fj 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. $ 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 as of the date it is filed shall be dismissed. 8 C.F.R. $ 103.5(a)(4). 
Here, as concluded by the director in the January 10, 2008 decision, the untimely appeal does not meet the 
requirements of a motion to reopen or a motion to reconsider. Therefore, there is no requirement to treat the 
appeal as a motion under 8 C.F.R. $ 103.3(a)(2)(v)(B)(2). 
1 
 Compare 8 C.F.R. $ 103.5(a)(i) excusing late filed motions to reopen where the delay was reasonable and 
beyond the control of the applicant or petition. The regulation relating to appeals, 8 C.F.R. $ 103.3, does not 
include any comparable language. 
As the appeal was untimely filed and does not qualify as a motion, the appeal must be rejected. 
ORDER: The appeal is rejected.