remanded EB-1A Case: Unknown

U.S. Departnient of tlomeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
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Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 06 197 51059 
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: 
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. 
7 John F. ~rissom, Acting 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. 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. 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 August 2, 2007. It is noted that the director 
properly gave notice to the petitioner that it had 33 days to file the appeal. Although counsel dated the appeal 
September 4, 2007, it was, according to www.fedex.com (accessed on January 15, 2009 and incorporated into 
the record of proceedings) shipped on September 5, 2007 and received by the director on September 6, 2007, 
35 days after the decision was issued. Accordingly, the appeal was untimely filed. 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. 9 103.3(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. tj 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. tj 103.5(a)(3). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F .R. t$ 1 03.5 (a)(4). 
Here, based on the assertions on the Form I-290B, the untimely appeal met the requirements of a motion to 
reconsider at the time it was filed.' 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 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. 
I 
 Counsel subsequently supplemented the record with an in depth brief and additional evidence. A request for 
a motion must meet the regulatory requirements for a motion to reopen or reconsider at the time it is filed; no 
provision exists for U.S. Citizenship and Immigration Services (USCIS) to grant an extension in order to 
await future correspondence that may or may not include evidence or arguments.