dismissed EB-2 Case: Unknown

identifying data deleted to 
prevent ch.;"rly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U,S. Citil.cllship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetls Ave .. N.\V .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: JUL 0 5 2011 
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 USc. § I I 53(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 becn 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 1-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
" . J /00 iJ. rJ f'(};--J \ '1>'tny R);"e~ 
't Chief, Administrative Appeals Office 
www.uscis.gov 
• 
Page 2 
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. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(2). 
Noting that the record was deficient, the director issued a notice dated January 25, 2010, 
requesting that additional evidence be submitted in support of the petition. After the petitioner 
failed to submit the requested evidence. the director denied the petition citing the petitioner's 
failure to respond to the request for evidence as the sole basis for denial. Thus, the petition was 
dismissed for abandonment, pursuant to 8 C.F.R. § 103.2(b)(l3)(i), which states the following: 
If the petitioner or applicant fails to respond to a request for evidence or to a 
notice of intent to deny by the required date, the application or petition may be 
summarily denied as abandoned, denied based on the record, or denied for both 
reasons. 
Pursuant to 8 C.F .R. § 103 .2(b)( 15), a denial due to abandonment may not be appealed. 
Although the director properly advised the petitioner that there is no appeal from a denial based 
on abandonment, counsel filed an appeal anyway. I As there is no appeal from the director's 
denial, the petitioner's appeal must be rejected. 
Furthermore, 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 aller 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 
record indicates that the director issued the decision on March 23, 2010. Although counsel 
claims that he did not receive a copy of the decision, a review of the record reflects that counsel 
was issued a copy of the decision. While counsel dated the appeal on April 23, 2010, it was not 
received by the director until Monday. March 3. 2010,41 days after the decision was issued. 
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). Accordingly, in the alternative, the appeal would be rejected as 
untimely pursuant to the regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(1)? 
I The Fonn 1-2908 and counsel's "appeal brief" refer to the filing as both an appeal and motion. The instructions to 
the Form 1-2908 as well as the form itself are clear that only one box may be checked, indicating either an appeal or 
motion. not both. Given counsel's reference to an "appeal brief' and the fact that 8 C.F.R. § 103.S(a)(I)(iii). while 
allowing for a brief to accompany the filing of a motion, does not provide for extra time to submit a brief. the filing 
must be considered as an appeal. Compore 8 C.F.R. § 103.3(a)(2)(vii) which allows for additional time to submit a 
brief in support of an appeal. 
2 The AAO notes that the regulation at 8 C.F.R. § 103.3(a)(i)(v). provides that an appeal shall be summarily dismissed 
if the party concerned fails to identity specifically any erroneous conclusion of law or statement of fact for the appeal. 
On the Fonn 1-2908, counsel indicated that a brief would be submitted within 30 days. Howcvcr, as of the date of this 
• 
Page 3 
ORDER: The appeal is rejected. 
decision, the AAO has received nothing further. As counsel did not specifically address the reasons stated for denial and 
did not provide any additional evidence, the appeal would be summarily dismissed were it not being rejected.