remanded EB-1A Case: Unknown

identifYing data deleted to 
prev~t clearly unwarranted 
invasIOn of personal privacy 
PUBLIC COpy 
c.s. Dt~partmcm uf Homeland S('curil) 
(I,S. (,iljz~nship and immig.ratinl1 Sen ites 
Administrative Appeals Onicc (AN») 
20 Massachusctt...: Ave .. N.W .. t'vlS 2090 
\Vil~hingtllIL DC 2052{)~2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: Office: TEXAS SERVICE CENTER FILE: 
JUL 1 8 20\\ 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of ExtJaordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act, 8 U.S.C. § I I 53(b)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Fonn 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § I03.5(a)(\)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
fUo I:' 
~ PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center. 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 reopen. 
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 with the office where the unfavorable decision was 
made 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. § 103.2(a)(7)(i). 
Moreover, the regulation at 8 C.F.R. § 103.2(a)(l) provides: 
General. Every application, petition, appeal, motion, request, or other document 
submitted on the form prescribed by this chapter shall be executed and filed in 
accordance with the instructions on the form, such instructions (including where an 
application or petition should be filed) being hereby incorporated into the particular 
section of the regulations in this chapter requiring its submission. 
Page 3 of the instructions for the Form 1-2908, Notice of Appeal or Motion, filed by the 
petitioner states: "You must file your appeal or motion with the USCIS [U.S. Citizenship and 
Immigration Services] office that made the unfavorable decision within 30 calendar days after 
service of the decision (33 days if your decision was mailed)." 
The record indicates that the Director, Texas Service Center, issued the decision on February 9, 
2010. It is noted that the director properly gave notice to the petitioner that she had 33 days to 
file the appeal and that her "Notice of Appeal shall be executed and filed with this office." The 
petitioner, however, incorrectly submitted the Form 1-2908 to the Vermont Service Center on 
March II, 2010. The Vermont Service Center then forwarded the Form 1-2908 to the Texas 
Service Center, which received the appeal on March 17, 20 I 0, 36 days after the decision was 
issued. The regulation at 8 C.F.R. § 103.3(a)(2)(v)(8)(l) states in pertinent part that "[a]n appeal 
which is not timely filed within the time allowed must be rejected as improperly filed." 
Accordingly, as the appeal was not filed with the Texas Service Center within the time allowed, 
it must be rejected. The untimely appeal was forwarded to the AAO. 
Neither the Immigration and Nationality Act (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)(8)(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 
Page 3 
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 United 
States Citizenship and Immigration Services (USCIS) 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. § I03.5(a)(3). A 
motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § I03.5(a)(4). 
Here, the untimely appeal meets the requirements of a motion to reopen. 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. § I03.5(a)(l)(ii). Therefore, the director must 
consider the untimely appeal as a motion to reopen and render a new decision accordingly. 
ORDER: The appeal is rejected. The matter is returned to the director for consideration as 
a motion to reopen.