remanded EB-1A Case: Unknown

U.S. Department of Homeland Security 
I identifying data deleted to 
 U. S. Citizenship and Immigration Sewices 
, 
Office of Adrnrn~stratrve Appeals MS 2090 
prevent ~karly iJ"l,Jv,ananted 
Washington, DC 20529-2090 
of personal privacy 
U.S. citizenship 
and Immigration 
Services 
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Office: TEXAS SERVICE CENTER Date: AUG 2 5 2009 
SRC 08 252 50368 
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. 
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. $ 103.5(a)(l)(i). 
#"."c, ohn F. Grissom 
T~ctin~ 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 
reopen. 
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. 
$ 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 regulation at 8 C.F.R. (j 103.2(a)(7)(i) further states, in pertinent part: "An application or 
petition which is not properly signed or is submitted with the wrong filing fee shall be rejected as 
improperly filed. Rejected applications and petitions.. .will not retain a filing date." 
The record indicates that the director issued the decision on March 30, 2009. It is noted that the 
director properly gave notice to the petitioner that he had 33 days to file the appeal. The petitioner 
submitted the Form I-290B, Notice of Appeal, on April 29, 2009. However, the appeal was not 
accepted because it had not been properly filed. More specifically, Part 4 of the Form I-290B was 
not signed. 
The regulation at 8 C.F.R. 5 103.2(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. 
The instructions for Part 4 of Form I-290B state: "You or your legal representative must sign and 
submit Form I-290B." 
On April 30, 2009, the director issued a notice to the petitioner requesting that the Form I-290B be 
signed and resubmitted. On May 5, 2009, the petitioner submitted a properly signed Form I-290B, 
36 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. 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. fj 103.5(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. fj 103.5(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.