remanded EB-1A Case: Unknown

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
- - 
LIN 07 150 53857 
IN RE: 
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. 9 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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. 
'\"-* 
2obert P. Wiemann, Chief 
I 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The matter 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 reconsider. This 
decision, however, in no way evaluates the merit of the appeal. 
In order to properly file an appeal, the regulation at 8 C.F.R. 9 103.3(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. 9 103.5a(b). 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. 
9 103.3(a)(2)(i) provides that the affected party shall file the complete appeal "with the office where the 
unfavorable decision was made." 
The record indicates that the director issued the decision on September 18, 2007. It is noted that the director 
properly gave notice to the petitioner that it had 33 days to file the appeal. The director further advised the 
petitioner that the notice of appeal "must be filed with the Nebraska Service Center." Although counsel dated 
the appeal October 16, 2007, it was received by the Sewice Center on October 29, 2007, 41 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. 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. 9 103.5(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. 9 103.5(a)(3). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. 
 103.5(a)(4). 
Here, the untimely appeal met the requirements of a motion to reconsider at the time it was filed because 
counsel asserted that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 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. 9 103.5(a)(l)(ii). Therefore, the director 
must consider the untimely appeal as a motion to reconsider and render a new decision accordingly. We 
emphasize that our conclusion that the appeal meets the requirements of a motion to reconsider is not an 
evaluation of the appeal on its merits. More specifically, our determination that the appeal meets the 
requirements of a motion to reconsider does not imply or suggest that that the petitioner has overcome the 
director's grounds for denial. 
ORDER: 
 The appeal is rejected. The matter is returned to the director for consideration as a motion to 
reconsider. 
I 
 The regulation at 8 C.F.R. 9 103.3(a)(2)(v)(B)(2) is separate and distinct from the regulation at 8 C.F.R. 
9 103.3(a)(2)(iii), which allows the reviewing official to treat any appeal (including timely appeals) as a motion for 
purposes of issuing a favorable decision.