remanded EB-1A Case: Arts

U.5. Department of f1onteland Securitl 
U S Cltlzensh~p and Inull~grat~on 
 lccb 
Office of Adn~~nrstrntrce 4pperrI~ MS 2090 
invGsisil oi ;? ;:~~.i;: ~i~!~~~Y 
Wash~ngton, DC 20529-2090 
U. S. Citizenship 
and Immigration 
pu3CSC COPY 
LIN 06 264 52 182 
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. fj 1 153(b)((l )(A) 
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. 
V 
F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal.' The appeal 
will be rejected as untimely filed. The AAO will return the matter to the director for consideration 
as a motion to reopen and reconsider. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien 
of extraordinary ability in the arts. The director determined that the petitioner had not established the 
sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. More specifically, the director found that the petitioner had failed to demonstrate 
receipt of a major, internationally recognized award, or that she meets at least three of the regulatory 
criteria at 8 C.F.R. fj 204.5(h)(3). The director also determined that the petitioner had not submitted 
clear evidence that she would continue to work in her area of expertise in the United States as required 
by the regulation at 8 C.F.R. 5 204.5(h)(5). 
The Form 1-140, Immigrant Petition for Alien Worker, was filed on September 15, 2006. On June 1, 
2007, the director issued a request for evidence pertaining to the regulatory requirements at 8 C.F.R. 
$$ 204.5(h)(3) and (5). The record reflects that the petitioner's response was received by the service 
center on August 6, 2007. Nevertheless, on October 10, 2007, the director denied the petition stating 
that a request for evidence was issued and that "the alien petitioner was given until August 15, 2007 to 
respond," but that "[nlo response has been received by the Service." The petitioner filed her appeal on 
April 2,2008, 175 days afier the director's decision was issued. 
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 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 
regulation at 8 C.F.R. 5 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. 5 
103.2(a)(7)(i). 
The record indicates that the director issued the decision on October 10, 2007. The appeal was -not 
received by the director until April 2, 2008, 175 days after the decision was issued. Accordingly, the 
appeal was untimely filed. 
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit 
for filing an appeal. As the appeal was untimely filed, the appeal must be rejected. Nevertheless, 
the regulation at 8 C.F.R. fj 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. 
I 
 The petitioner was initially represented by . In this decision, the term "previous counsel" shall 
refer to - 
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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). 
Here, the untimely appeal meets the requirements of a motion to reopen and reconsider. 
 The 
petitioner successfully argues that the director's October 10, 2007 decision was flawed because it 
was not issued to her attorney of record and because it did not consider the evidence she submitted in 
response to the director's request for evidence. The petitioner states: 
To date, neither I nor my current attorney of record . . . has received any written notification 
that a decision had been made regarding my petition. 
[Alccording to the October 10, 2007 decision letter, the petition was denied because USCIS 
had not received my response to a . . . "Request for Evidence" before the August 15th 
deadline specified in the WE. This was an unfortunate mistake made within the Nebraska 
Service Center since my response to the WE was in fact received by the NSC on August 6, 
2007 well before the deadline date. 
The petitioner's appellate submission includes a FedEx Express tracking receipt verifying that her 
response to the director's request for evidence was received by the service center on August 6, 
2007.~ Thus, the director's October 10, 2007 decision, based on the petitioner's failure to respond, 
was clearly in error. The record also reflects that the director's decision was mailed to previous 
counsel's address rather than to counsel's address as indicated on the July 25, 2007 Form G-28, 
Notice of Entry of Appearance as Attorney, submitted in response to the director's request for 
evidence. The regulation at 8 C.F.R. 5 103.2(b)(19) states: "Notzjication. An applicant or petitioner 
shall be sent a written decision on his or her application, petition, motion, or appeal. Where the 
applicant or petitioner has authorized representation pursuant to Sec. 103.2(a), that representative 
shall also be notified." Further, notices and decisions, when served by mail, must be sent to a person 
at his or her last known address. 8 C.F.R. 8 103.5a(a)(l). In this instance, counsel did not receive a 
decision at her last known address as identified on her July 25, 2007 Form G-28. Accordingly, the 
director's decision did not comply with the regulatory requirements set forth at 8 C.F.R. 
5 103.2(b)(19) and 8 C.F.R. 5 103.5a(a)(l). 
The official having jurisdiction over a motion is the official who made the last decision in the 
proceeding, in this case the service center director. See 8 C.F.R. 5 103.5(a)(l)(ii). Therefore, the 
'The record also includes a copy of the original FedEx Express USA Airbill reflecting that counsel sent the response on 
August 3,2007. 
Page 4 
director must consider the untimely appeal as a motion to reopen and reconsider and render a new 
decision accordingly. The director's new decision must thoroughly address all of the evidence 
submitted by the petitioner in response to the director's request for evidence and shall be sent to 
counsel at her address of record. 
ORDER: 
 The appeal is rejected. The matter is returned to the director for consideration as a 
motion to reopen and reconsider.