dismissed EB-1A Case: Unknown

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PTmucCOpy 
DATE: NOV 1 4 2011 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Inunigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
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)(1)(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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion. with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
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 or the attorney or representative of record must file the complete appeal "with the 
office where the unfavorable decision was made within 30 days after service of the 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. § l.l(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 regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(l) provides 
that an appeal which is not filed with the time allowed must be rejected as improperly filed. 
Moreover, the regulation at 8 C.F.R. § 103.2(a)(l) provides: 
General. Every 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, such instructions (including where an 
application or petition should be filed) being hereby incorporated into the particular 
section of the regulations in this chapter requiring its submission. 
Page 3 of the instructions for the Form I-290B, Notice of Appeal or Motion, filed by the 
petitioner states: "You must file your appeal or motion with the USCIS [U.S. Citizenship and 
Immigration Services 1 office that made the unfavorable decision within 30 calendar days after 
service of the decision (33 days if your decision was mailed)." 
The record indicates that the Director, Texas Service Center, issued the decision on April 5, 
2010. It is noted that the director properly gave notice to the petitioner that he had 33 days to file 
the appeal and that his appeal "must be filed with this office at the address at the top of this 
page." Counsel, however, incorrectly submitted Form I-290B to the AAO on May 6, 2010. On 
May 7, 2010, the AAO returned Form I-290B with fee to counsel based on his incorrect 
submission of the appeal to the AAO. Counsel submitted the appeal to the Texas Service Center 
on May 12, 2010, 37 days after the decision was issued. The regulation at 8 C.F.R. 
§ 103.3(a)(2)(v)(B)(l) states in pertinent part that "[a]n appeal which is not timely filed within 
the time allowed must be rejected as improperly filed." Accordingly, as the appeal was not 
properly filed within the time allowed, it must be rejected. 
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time 
limit for filing an appeal. See Matter of Liadov, 23 I&N Dec. 990 (BIA 2006). Even if the 
appeal was delayed by the overnight delivery service, the error would not warrant special 
consideration of the appeal. Id 
Page 3 
The regulation at 8 C.F.R. § I03.3(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. The official having jurisdiction 
over a motion is the official who made the last decision in the proceeding, in this case the 
Director of the Texas Service Center. See 8 C.F.R. § I03.5(a)(l)(ii). 
The matter will therefore be returned to the director. If the director determines that the late 
appeal meets the requirements of a motion, the motion shall be granted and a new decision will 
be issued. 
As the appeal was untimely filed, the appeal must be rejected. 
ORDER: The appeal is rejected.