dismissed EB-2 Case: Unknown

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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prevent clearly unwa- 
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U. S. Citizenship 
and Immigration 
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Office: TEXAS SERVICE CENTER Date: 1 O 2005 
IN RE: 
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. 5 1 I53(b)(2) 
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. 
:L *d 
4- Robert P. Wiernann, Director 
Administrative Appeals Office 
1 
DISCUSSION: The Director, Texas Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Ofice (AAO) on appeal. The appeal will be rejected as untimely 
filed. 
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 I03.5a(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). 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). 8 C.F.R. 5 103.2(a)(l). 
The director issued the decision on May 5, 2005, and sent the denial notice to counsel's address of record. 
The director properly gave notice that the petitioner had 33 days to file the appeal. The notice reads, in 
pertinent part: "You may appeal this decision . . . by completing the enclosed Form I-290B (Notice of Appeal 
. . .) and filing it with this of/ice" (emphasis added), i.e., the Texas Service Center. The instructions for Form 
1-290B indicate specify: "You must file your appeal with the U.S. Citizenship and Immigration Services 
(USCIS) office that made the unfavorable decision. . . . Do not send your appeal directly to the 
Administrative Appeals Off~ce (AAO)." 
Notwithstanding these instructions, the petitioner submitted the Form I-290B to the AAO in an envelope 
postmarked June 4,2005. The AAO received the Form I-290B, and returned it to the petitioner because it had 
not been properly filed at the correct address. The director did not receive the appeal until June 27, 2005,53 
days after the decision was issued (along with instructions on where to file the appeal). Pursuant to 8 C.F.R. 
5 103.2(aXl), the appeal was not considered "filed" until it arrived at the correct address. 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 oficial who made the 
last decision in the proceeding, in this case the service center director. See 8 C.F.R. $ 103.5(a)(l)(ii). The 
director erroneously annotated the appeal as timely and forwarded the matter to the AAO. 
As the appeal was untimely filed, the appeal must be rejected. 
ORDER: The appeal is rejected.