dismissed
EB-1A
dismissed EB-1A Case: Unknown
Decision Summary
The appeal was rejected on procedural grounds, which is functionally a dismissal. The AAO determined it does not have appellate jurisdiction over its own prior decisions. The AAO also noted that even if the filing were construed as a motion to reconsider, it was submitted well after the 33-day deadline and would have been dismissed as untimely.
Criteria Discussed
Appellate Jurisdiction Motion To Reconsider Timely Filing
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identifyine aataJacwo to pwvent arrantea mvæsw 1privacy PUBLICCOPY U.S.DepartmentofHomelandSecurity U.S.CitizenshipandImmigrationServices AdministrativeAppealsOffice(AAO) 20MassachusettsAve.,N.W.,MS2090 Washington,DC 20529-2090 U.S.Citizenship and Immigration Services DATE: APR 2 0 20fffice: TEXASSERVICECENTER FILE: IN RE: Petitioner: Beneficiary: PETITION: ImmigrantPetitionfor Alien Workerasan Alien of ExtraordinaryAbility Pursuantto Section203(b)(1)(A)of theImmigrationandNationalityAct; 8 U.S.C.§ 1153(b)(1)(A) ONBEHALFOFPETITIONER: INSTRUCTIONS: Enclosedpleasefind thedecisionof theAdministrativeAppealsOfficein yourcase.All of the documentsrelatedto this matterhavebeenreturnedto the office that originally decidedyour case.Pleasebeadvisedthatanyfurtherinquirythatyou might haveconcerningyour casemust bemadeto thatoffice. Thankyou, Pen-yRhe Chief,AdministrativeAppealsOffice www.uscus.gov Page2 DISCUSSION: TheDirector,TexasServiceCenter,deniedtheemployment-basedimmigrant visapetition. TheAdministrativeAppealsOffice (AAO) dismisseda subsequentappeal. The matterisnowbeforetheAAO onasecondappeal.Theappealwill berejected. The AAO dismissedthe petitioner'sappealon May 23, 2011. On July 15, 2011, counsel submittedFormI-290B,Noticeof Appealor Motion,andmarkedbox A in Part2 indicatingthat shewas"filing anappeal[emphasisadded]." However,the AAO doesnot exerciseappellate jurisdiction over its own decisions.The AAO exercisesappellatejurisdiction over only the mattersdescribedat 8 C.F.R.§ 103.1(f)(3)(iii)(asin effecton February28, 2003). SeeDHS DelegationNumber0150.1(effectiveMarch 1,2003). Accordingly,the appealis not properly within theAAO'sjurisdiction. It is noted that while counselindicatedin her cover letter that shewas filing a motion to reconsider,thereis no indicationthat counsel'sappealmeetsthe requirementsof a motion to reconsider. In order to properly file a motion to reconsider,the regulation at 8 C.F.R. § 103.5(a)(1)(i)providesthatthepetitionermustfile themotionwithin 30 daysof the decision. If the decisionwasmailed,the motionmustbe filed within 33 days. See8 C.F.R.§ 103.5a(b). The date of filing is not the date of mailing, but the date of actual receipt. See8 C.F.R. § 103.2(a)(7)(i).Theregulationat 8 C.F.R.§ 1.1(h)explainsthatwhenthelastdayof a period falls on a Saturday,Sunday,or legalholiday,the periodshallrun until the endof the next day thatis not a Saturday,Sunday,or legalholiday. Counselattemptedto file the appealon June20, 2011,but the appealwasnot acceptedby the servicecenterinitially becausecounselfailed to completePart 2 of the form. Specifically, counselfailed to indicatethe reasonfor filing Form I-290B. Counselsubmitteda completed FormI-290B on July 15,2011,53 daysafterthe director'sdecision. A motionthat doesnot meetapplicablerequirementsshallbedismissed.See8 C.F.R.§ 103.5(a)(4).Here,theuntimely appealdoesnot meettherequirementsof a motionto reconsiderandwouldhavebeendismissed in thealternative. ORDER: Theappealis rejected.
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