remanded EB-1B Case: Research

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U.S. Department of -Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: 
 Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(l)(B) of the Imrmgration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(B) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
a+Esa\ 
h~obert P. Wiernann, Chief 
/ Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition, which 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. 
§ 103.5a(b). The date of filing for an appeal is not the date of mailing, but the date of actual receipt. 
See 8 C.F.R. 5 103.2(a)(7)(i). 
On appeal, the petitioner asserts that the director's decision was "undated" and submits a copy of the 
denial notice showing no date. The decision is stamped as received by the petitioner on April 3, 
2007. The regulation at 8 C.F.R. 
 103.5a(a)(l) provides that routine service consists of mailing a 
copy by ordinary mail. Thus, the period in which to file an appeal begins on the day the denial is 
mailed, not received. 
The record indicates that the director issued the decision on March 29, 2007.' On appeal, the 
petitioner does not submit the postmarked envelope or other evidence that the decision was actually 
mailed after March 29, 2007. It is noted that the director properly gave notice to the petitioner that it 
had 33 days to file the appeal. The petitioner dated the cover letter submitted with the appeal May 1, 
2007 and the envelope in which the appeal was mailed was postmarked the same day. The appeal 
was received by the director on May 2,2007,34 days after the decision was issued. Accordingly, the 
appeal was untimely filed. The director 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. 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 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. 8 C.F.R. 103.5(a)(3). 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. Id. A motion that does not meet applicable requirements 
shall be dismissed. 8 C.F.R. 8 103.5(a)(4). 
1 
On appeal, the petitioner submitted copies of the director's decision denying the beneficiary's Form 1-485, 
Application to Register Permanent Residence or Adjust Status, due to the denial of the underlying Form I- 
140 petition. The denial of the beneficiary's adjustment application is dated March 29,2007. 
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 1 03.5(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.