dismissed EB-1A Case: Unknown

, 
DATE: DEC 182012 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
V.S. ()cpartm('Jlt of Homeland Sccurit~ 
l:'s' ( ili/~nship :111d 11ll11ligralion Scn in.'s 
/\dministrativ(, Appeals Oflicc (AAOl 
~o \1a"sJchuseu, .'\\\; .. '\.W .. \1'; 2{)90 
Wa:,hin~t.on. DC 2052')-2()t)() 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act, 8 U.S.c. § I I 53(b)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fee of$630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any motion 
directly with the AAO. Please be aware that 8 C.F.R. § I 03.5(a)( I )(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
)JQeldrldG 
C 
Ron Rosenberg 
. Acting Chief, Administrative Appeals Office 
www.usd~.g()v 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center. The director treated a subsequent appeal as a motion and concluded that 
the petitioner had not overcome the grounds of denial. The director reaflirmed that decision on 
his own motion. On April 28, 2010, the director withdrew his previous decisions and "restored" 
the appeal to a pending status. The Administrative Appeals Oflice (AAO) rejected the appeal as 
untimely filed. The matter is now before the AAO on motion to reopen. The motion will be 
dismissed pursuant to 8 C.F.R. §§ I 03.S(a)( I )(iii)(C), 1 03.S(a)(2), and 103 .S(a)( 4). 
According to 8 C.F.R. § \03.S(a)(2), a motion to reopen must state the new facts to be provided and 
be supported by aftidavits or other documentary evidence. Motions for the reopening of 
immigration proceedings are disfavored for the same reasons as are petitions for rehearing and 
motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, S02 U.S. 314, 
323 (I 992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears 
a "heavy burden." INS v. Abudu, 48S U.S. at 110. 
On motion, counsel requests that the AAO's January 17, 2012 decision rejecting the petitioner's 
appeal as untimely be reversed and that the 1-140 filed by the petitioner be approved. The 
petitioner's motion, however, is unsupported by any new facts or evidence demonstrating that his 
appeal was properly and timely filed at the correct oftice. 
The regulation at 8 C.F.R. § I 03.2(a)(1) provides, in pertinent part: 
Preparation and submission. Every benefit request or other document 
submitted to DHS must be executed and filed in accordance with the form 
instructions ... and such instructions are incorporated into the regulations 
requiring its submission. 
As it pertains to the proper filing of an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) 
provides: 
Filing Appeal. The affected party must submit an appeal on Form 1-290B. 
Except as otherwise provided in this chapter, the affected party must pay the 
fee required by § 103.7 of this part. The affected party must submit the 
complete appeal including any supporting brief as indicated in the applicable 
form instructions within 30 days after service of the decision. 
Page 3 of the instructions for the Form 1-290B, Notice of Appeal, filed by the petitioner in May 
2009 states: "You must file your appeal or motion with the USCIS [U.S. Citizenship and 
Immigration Services 1 oftice that made the unfavorable decision within 30 calendar days after 
service of the decision (33 days if your decision was mailed). . .. Do not send your appeal 
directly to the Administrative Appeals Oflice." (Bold emphasis in original.) 
The record indicates that the director issued the decision on April 23, 2009. It is noted that the 
director properly gave notice to the petitioner that he had 33 days to file the appeal. The notice 
further advised: "Your notice of appeal must be filed with this oflice at the address at the top of 
Page 3 
this page .... " In addition, the director's notice concluded: "The appeal may not be filed 
directly with the Administrative Appeals Office. The appeal must be filed at the address at 
the top of this page." (801d emphasis in originaL) 
If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F .R. § 103 .8(b). 
The regulation at 8 C.F .R. § 1.2 explains that when the last day of a period falls on a Saturday, 
Sunday, or legal holiday, the period shall run until the end of the next day that is not a Saturday, 
Sunday, or legal holiday. The date of filing is not the date of submission, but the date of actual 
receipt with the proper signature and the required fee. See 8 C.F.R. § 103.2(a)(7)(i). The 
regulation at 8 C.F.R. § 103.3(a)(2)(v)(8)(J) provides that an appeal which is not filed within the 
time allowed must be rejected as improperly filed. 
The petitioner dated the appeal May 14, 2009. However, despite the clear instructions in the 
director's notice and on the Form 1-2908, the petitioner sent the appeal directly to the AAO. The 
AAO received the incorrectly submitted appeal on May 20, 2009. On May 22, 2009, the AAO 
returned the appeal and filing fee to the petitioner as improperly submitted to the wrong office. 
The appeal was received by the director at the correct address on May 29, 2009, 36 days after the 
decision was issued. Accordingly. the appeal was untimely filed. 
In a February 13,2012 letter accompanying the petitioner's motion, counsel acknowledges that the 
petitioner's appeal was "unfortunately sent to the wrong address," but argues that the AAO's 
"temporar[y] accept[ance]" of the petitioner's Form 1-2908 rendered it impossible for the petitioner 
to resubmit the appeal within the regulatory timeframe. This argument is not persuasive and fails to 
provide any new facts or evidence demonstrating that the appeal was properly and timely filed at the 
correct office. I 
The regulation at 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable 
requirements shall be dismissed." Accordingly, the motion will be dismissed, the proceedings will 
not be reopened and reconsidered, and the previous decisions of the director and the AAO will not 
be disturbed. 
ORDER: The motion to reopen is dismissed, the decision of the AAO dated January 17,2012 
is affirmed, and the petition remains denied. 
I The AAO notes that the instant motion does not contain the statement about whether or not the 
validity of the unfavorable decision has been or is the subject of any judicial proceeding as required 
by the regulation at 8 C.F.R. § 103.S(a)(l)(iii)(C).