dismissed EB-1A Case: Unknown

deletedto
identifyingdfunwarranted
preve~t clearYrsona\ privacY
;nvas1on of ~
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
SRC 07 012 53483
Office: TEXAS SERVICE CENTER Date: JAN 30 2008
INRE: Petitioner:
Beneficiary:
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. § 1153(b)(l)(A)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
\~d~~lA---'
7~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service
Center, and is now before the Administrative Appeals Office (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. § 103.3(a)(2)(i) provides that the affected party
must file the complete appeal along with the correct fee 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
regulation at 8 C.F.R. § 1.1(h) 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 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 November 22, 2006. It is noted that the director
properly gave notice to the petitioner that he had 33 days to file the appeal. The Form I-290B, Notice of
Appeal to the AAO, was postmarked December 22, 2006, but not received by the Texas Service Center until
December 27, 2006, 35 days after the decision was issued. Accordingly, the appeal was untimely. Further,
the Form I-290B included an incorrect filing fee of $110.00. A new filing fee of $385.00 became effective on
September 28,2005. 70 Fed. Reg. 50954-50957 (Aug. 29, 2005); 8 C.F.R. § 103.7. On December 27,2006, the
Texas Service Center returned the Form I-290B to the petitioner and indicated that his appeal included an
incorrect filing fee. The Texas Service Center received the resubmitted Form I-290B with the proper $385.00
filing fee on January 26, 2007, along with a letter from the petitioner dated January 22, 2007. In the letter, the
petitioner specifically makes reference to the appeal instructions in the director's November 22, 2006 notice of
decision, which incorrectly identify the filing fee as $110.00.
The regulation at 8 C.F.R. § 103.2(a)(7)(i) requires Citizenship and Immigration Services (CIS) to reject any
petition or application filed with the incorrect filing fee. Likewise, filings which were rejected because they were
submitted with incorrect filing fees do not retain filing dates. Therefore, in this matter, CIS is required to reject
the appeal as untimely filed. As the Form I-290B submitted by the petitioner on December 27, 2006 did not
retain a filing date, the actual filing date for the Form I-290B is January 26, 2007, 65 days after the decision was
served by mail. As such, the appeal was not timely filed and must be rejected pursuant to 8 C.F.R.
§ 103.3(a)(2)(v)(B)(1). The director, however, erroneously annotated the appeal as timely and forwarded the
matter to the AAO.
The AAO acknowledges that the instructions in the Texas Service Center's November 22, 2006 decision
incorrectly identified the filing fee for the appeal as $110.00. Nevertheless, the initial appellate submission
with the incorrect fee was untimely. Further, as the fee change properly appeared in the Federal Register in
accordance with law, the petitioner was charged with notice of the appropriate fee change. See 70 Fed. Reg.
50954-50957 (Aug. 29, 2005). The regulation at 8 C.F.R. § 103.2(a)(1) provides that "[e]very application,
petition, appeal, motion, request, or other document submitted on the form prescribed by this chapter shall be
executed and filed in accordance with the instructions on the form." In this instance, the instructions on the
l back of the Form I-290B submitted by the petitioner specifically state: "You must pay only one fee of
$385.00 to file this form." Finally, the regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(1) states in pertinent part that
"[a]n appeal which is not timely filed within the time allowed must be rejected as improperly filed."
Page 3
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit for
filing an appeal. The regulation at 8 C.F.R. § l03.3(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. § l03.5(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. § l03.5(a)(3). A motion that does not meet
applicable requirements shall be dismissed. 8 C.F.R. § l03.5(a)(4).
Here, the untimely appeal does not meet the requirements of a motion to reopen or a motion to reconsider.
The petitioner's submission includes no discussion of the new· facts to be proved in the reopened proceeding.
Nor is there a statement addressing the reasons for reconsideration or information indicating the director's
decision was incorrect based on the evidence of record at the time of the initial decision. Therefore, there is
no requirement to treat the appeal as a motion under 8 C.F.R. § l03.3(a)(2)(v)(B)(2).
As the appeal was untimely filed and does not qualify as a motion, the appeal must be rejected.
ORDER: The appeal is rejected.