remanded EB-1A Case: Unknown

U.S. Department of Homeland Security 
Iden~\fying data ddeted 
20 Massachusetts Ave., N.w., R~. 3000 
Washn%on, DC 20529-2090 
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c\earl~ u**mtea 
of pe~~nak ViVaGy 
 U. S. Citizenship 
and Immigration 
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Office: NEBRASKA SERVICE CENTER 
   ate: MAR 4) 4 ~fl~~ 
EAC 06 024 50747 
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. 8 1 153(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 huther inquiry must be made to that office. 
sin F. ~rissom, \)i cting Chief 
Administrative Appeals Office 
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. 
8 103.5a(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 March 26,2007. 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 April 26,2007, it was received by the director on May 2,2007,37 days 
after the decision was issued. Accordingly, the appeal was untimely filed. 
In a May 15, 2007 decision, the director correctly noted that the appeal was untimely filed and 
advised the petitioner that the late appeal would be treated by the director as a motion to reopen. 
The petitioner was advised that he had 30 days in which to submit evidence in support of the 
motion. In response, the petitioner submitted a June 6, 2007 statement from DHL shipping 
service, in which the company advised that, due to its error, the petitioner's letter had been 
delayed in transit. The director then 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. See Matter of Liadov, 23 I&N Dec. 990 (BIA 2006). Delay in delivery 
does not warrant special consideration of the appeal. Id. 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. 8 103.5(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. 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.