dismissed EB-1A Case: Unknown

idbtifying data deleted to 
prevent clearly unwarranted 
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PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OBce ofAdtninistrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER DathJ~ 1 9 2010 
IN RE: 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. 5 1153(b)(l)(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. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. 9 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
g Ff- 
Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The matter 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. 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. 
5 103.5a(b). The date of filing is not the date of mailing, but the date of actual receipt. See 
8 C.F.R. 5 103.2(a)(7)(i). 
The record indicates that the director issued the decision on July 24, 2009. It is noted that the 
director properly gave notice to the petitioner that he had 33 days to file the appeal. The appeal was 
received by the director on Friday, August 28, 2009, 35 days after the decision was issued. 
Accordingly, the appeal was untimely filed. The director annotated the appeal as untimely and 
forwarded the matter 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. The regulation at 8 C.F.R. $ 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. 5 103.5(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 shall be 
dismissed. 8 C.F.R. 5 103.5(a)(4). 
On September 24, 2009, counsel submitted a brief in support of the petitioner's untimely appeal. The 
regulation at 8 C.F.R. $ 103.3(a)(2)(vii) allows for limited circumstances in which a petitioner can 
supplement an already-submitted appeal. This regulation, however, applies only to appeals, and not to 
motions to reopen or reconsider. There is no analogous regulation whch allows a petitioner to submit 
new evidence in furtherance of a previously-filed motion. Thus, a motion must meet the requirements 
of a motion to reopen or reconsider when it is filed. 
Here, the untimely appeal did not meet the requirements of a motion to reopen or reconsider at the 
time of filing on August 28, 2009. The late appeal did not state the new facts to be proved in the 
reopened proceeding and was not supported by affidavits or other documentary evidence. Moreover, 
the untimely appeal, when filed, was unsupported by precedent decisions to establish that the 
director's decision was based on an incorrect application of law or U.S. Citizenship and Immigration 
Services policy. 
Page 3 
As the appeal was untimely filed and does not qualify as a motion, the appeal must be rejected. 
Therefore, there is no requirement to treat the appeal as a motion under 8 C.F.R. 
3 103 -3(a>(2)(v>(B)(2). 
ORDER: The appeal is rejected.