dismissed EB-2 Case: Systems Engineering

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PUBL1CCOpy 
DATE~IM ~ lS ~m~ Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.c. § 1153(b)(2) 
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 
information 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 Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Uill) 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
· ) 
DISCUSSION: On March 2,2007, the petitioner filed a Form 1-140, Immigrant Petition for Alien 
Worker, seeking the beneficiary's services as a systems engineer pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.c. §1l53(b)(2). On October 18, 2008, the 
Director, Nebraska Service Center (NSC), revoked the approval of the petition finding the 
beneficiary was not eligible for the benefit sought. The petitioner's motion to reopen and motion to 
reconsider was denied by the NSC director. The petitioner filed an appeal of that decision with the 
Administrative Appeals Office (AAO). 
In order to properly file an appeal, the regulation at 8 c.F.R. § 103.3(a)(2)(i) provides that the 
affected party or the attorney or representative of record must file the complete appeal within 30 
days of 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). 
The record indicates that the NSC director denied the petitioner's motion to reopen and motion to 
reconsider on January 22,2009 and gave notice to the petitioner that it had 33 days to file the appeal. 
Neither the Immigration and Nationality Act nor the pertinent regulations grant the AAO authority to 
extend this time limit. 
Although counsel dated the Form 1-290B February 24, 2008, it was not received by the service 
center until February 25, 34 days after the decision was issued. Accordingly, the appeal was 
untimely filed. 
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. The official having jurisdiction over a 
motion is the official who made the last decision in the proceeding, in this case the NSC director. 
See 8 C.F.R. § 103.5(a)(l)(ii). 
The matter will therefore be returned to the director. If the director determines that the late appeal 
meets the requirements of a motion, the motion shall be granted and a new decision will be issued. 
As the appeal was untimely filed, the appeal must be rejected. 
ORDER: The appeal is rejected.