remanded EB-1C Case: Hair Salon

i-hg data deleted (0 
pmmt clearly unwMIllted 
invasion of penom1 privw 
U.S. Department of flomeland Security 
20 Mass. Ave.. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
SRC 05 107 50859 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1 153(b)(l)(C) 
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. 
Robert P. Wiemann, 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. 
The petitioner filed the instant petition to classify the beneficiary as a multinational manager or executive 
pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(C). 
The petitioner is a limited liability company organized under the laws of the State of Florida that is operating 
as a hair salon. The petitioner seeks to employ the beneficiary as its president. The director denied the 
petition concluding that the petitioner failed to demonstrate that the beneficiary had been employed by the 
foreign entity or would be employed by the United States entity in a primarily managerial or executive 
capacity. 
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. 5 103.5a(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 rendered a decision on September 28, 2005. However, based on the 
information contained in the appeal filed by counsel on November 3, 2005, which included a copy of a 
November 2,2005 search of Citizenship and Immigration Services (CIS) records for the adjudication status of 
the instant petition, as of the date of the appeal, the director's decision had not yet been issued to the petitioner 
or counsel. Nonetheless, the director erroneously forwarded the untimely-filed appeal 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. § 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. 8 103.5(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 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. 5 103.5(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.