remanded EB-1A Case: Unknown

identifying data deleted to 
prevent clearly unwarranted 
invasion of i;asos.-l priv wy 
U.S. Department of Bo~neland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Office: NEBRASKA SERVICE CENTER 
 Date: S E p 0 3 2009 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
mdncli 
PJohn F. Grissom 
P~cting Chief, 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. 
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 October 15, 2008. It is noted that the 
director properly gave notice to the petitioner that it had 33 days to file the appeal. The petitioner 
dated the appeal November 18, 2008, sent it via Express Mail on November 18, 2008 and it was 
received by the director on November 19, 2008, thirty-five days after the decision was issued. 
Although the Form I-2990B contains a second receipt date of December 19, 2008, it is unclear why 
the initial filing of the appeal was rejected. Such a determination has no impact on our decision 
however as both dates render the appeal untimely filed. 
Despite the fact that the appeal was late, the director erroneously annotated the appeal as timely 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. As the appeal was untimely filed, the 
appeal must be rejected. Nevertheless, the regulation at 8 C.F.R. 5 103.3(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). 
Here, the untimely appeal meets the requirements of a motion to reconsider. 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. 3 103.5(a)(l)(ii). Therefore, the director must consider the 
untimely appeal as a motion to reconsider and render a new decision accordingly. 
ORDER: 
 The appeal is rejected. The matter is returned to the director for consideration as a 
motion to reconsider.