remanded EB-1A Case: Unknown

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington. DC 20529-2090 
identifying data deleted tb 
- 
prevent clearly unwananted 
 U. S. Citizenship 
invasim of personal privacy 
 and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: yAR 6 
 iuui 
SRC 07 172 51716 
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 hrther inquiry must be made to that office. 
\I 
Ahn F. Grissom, Acting Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Texas 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. $ 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. § 
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 January 19,2008. It is noted that the 
director properly gave notice to the petitioner that she had 33 days in which to file the appeal. 
Although counsel dated the appeal February 18, 2008, it was received by the director on 
February 22, 2008, 34 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 Immigration and Naturalization 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. $ 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. 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.