dismissed EB-2 Case: Unknown

  den ti lying cia& UCA:~~L& 
prevent clearly unwarranm 
imvasion of personal pdq 
U. S. Citizen hip 
FILE: - Office: TEXAS SERVICE CENTER 
SRC 05 054 5 1405 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions 
Degree or an Alien of Exceptional Ability Pursuant to Section 
and Nationality Act, 8 U.S.C. 9 1153(b)(2) 
ON BEHALF OF PETITIONER: 
I 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have be 
the office that originally decided your case. Any further inquiry must be made to that office. 
n a, 
i% -*,'Tm-&d 
c;- Robert P. Wiernann, Director 
t Administrative Appeals Office 
I 
DISCUSSION: The Director, Texas Service Center, denied the nonimmigrant visa 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
filed. 
In order to properly file an appeal, the regulation at 8 C.F.R. 9 103.3(a)(2)(i) provides that t 
must file the complete appeal within 30 days of after service of the unfavorable decision. If 
mailed, the appeal must be filed within 33 days. See 8 C.F.R. 5 103.5a(b). The date of filing 
mailing, but the date of actual receipt. See 8 C.F.R. fj 103.2(a)(7)(i). Every application, 
motion, request, or other document submitted on the form prescribed by this chapter shall 
filed in accordance with the instructions on the form, such instructions (including where 
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 ad ress of record. 
The director properly gave notice that the petitioner had 33 days to file the appeal. The otice reads, in 
pertinent part: "You may appeal this decision . . . by completing the enclosed Form I-290B otice of Appeal 
. . .) and filing it with this oflce" (emphasis added), i.e., the Texas Service Center. The instr tions for Form 
I-290B indicate specify: "You must file your appeal with the U.S. Citizenship and Immi ration Services 
(USCIS) office that made the unfavorable decision. . . . Do not send your appeal irectly to the 
Administrative Appeals Office (AAO)." 
i 
Notwithstanding these instructions, the petitioner submitted the Form I-290B to the 
postmarked June 4,2005. The AAO received the Form I-290B, and returned it to the 
not been properly filed at the correct address. The director did not receive the 
days after the decision was issued (along with instructions on where to file the 
3 103.2(a)(l), the appeal was not considered "filed" until it arrived at the 
appeal was untimely filed. 
The regulation at 8 C.F.R. tj 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the re uirements of a 
motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a d cision 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 service center director. See 8 C.F.R. tj 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. I 
ORDER: The appeal is rejected. 1