dismissed
EB-2
dismissed EB-2 Case: Unknown
Decision Summary
The appeal was rejected for procedural reasons. It was filed untimely, 42 days after the decision was issued, exceeding the 33-day deadline. Additionally, the appeal was improperly filed and signed by the beneficiary, who does not have legal standing to file an appeal.
Criteria Discussed
Timely Filing Standing To Appeal
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PUBLICCOPY U.S.Departmentof HomelandSecurity U.S.CitizenshipandImmigrationServices AdministrativeAppealsOffice (AAO) 20MassachusettsAve.,N.W.,MS2090 Washington,DC 20529-2090 U.S.Citizenship and Immigration Services DATE APR 0 3 2012 Office: TEXASSERVICECENTER IN RE: Petitioner: Beneficiary: PETITION: ImmigrantPetitionfor Alien Workerasa Memberof theProfessionsHoldinganAdvanced Degreeor anAlien of ExceptionalAbility Pursuantto Section203(b)(2)of theImmigration andNationalityAct,8 U.S.C.§ 1153(b)(2) ONBEHALFOFPETITIONER: INSTRUCTIONS: This is thedecisionof theAdministrativeAppealsOffice in yourcase.Pleasenotethatall documentshave beenreturnedto theofficethatoriginallydecidedyourcase.Pleasealsonotethatanyfurtherinquirymustbe madeto thatoffice. Thankyou, PerryRhew Chief,AdministrativeAppealsOffice www.uscus.gov Page2 DISCUSSION: TheDirector,TexasServiceCenter,deniedtheimmigrantvisapetition. Thematter is now beforetheAdministrativeAppealsOffice (AAO) on appeal.The appealwill berejectedas untimelyfiled andbecausetheappealwasfiled andsignedby thebeneficiary. In order to properly file an appeal,the regulationat 8 C.F.R. § 103.3(a)(2)(i)providesthat the affectedparty or the attorneyor representativeof recordmustfile the completeappealwithin 30 daysof serviceof the unfavorabledecision. If the decisionwasmailed,the appealmustbe filed within 33days. See8 C.F.R.§ 103.8(b).Thedateof filing is notthedateof mailing,but thedateof actualreceipt. See8 C.F.R. § 103.2(a)(7)(i). Therecordindicatesthattheservicecenterdirectorissuedthedecisionon May 29,2009. It is noted thatthe servicecenterdirectorproperlygavenoticeto the petitionerthat it had33 daysto file the appeal. Neither the Immigration andNationality Act (theAct) nor thepertinentregulationsgrantthe AAO authority to extendthis time limit. Althoughthe FormI-290B wasdatedJune29, 2009,it wasnot receivedby the servicecenteruntil July 10,2009,or 42daysafterthedecisionwasissued.Accordingly,theappealwasuntimelyfiled. The regulationat 8 C.F.R. § 103.3(a)(2)(v)(B)(2)statesthat, if an untimely appealmeetsthe requirementsof amotionto reopenor amotionto reconsider,theappealmustbetreatedasamotion, anda decisionmustbe madeon the meritsof the case. The official havingjurisdiction over a motionis theofficial who madethe lastdecisionin the proceeding,in this casethe Directorof the TexasServiceCenter.See8 C.F.R.§ 103.5(a)(1)(ii). However,astheappealis alsobeingrejected assignedby the beneficiary,the appealneednot be consideredasa motionby the servicecenter. Theappealis rejected.8 C.F.R.§ 103.3(a)(2)(v)(B)(1). In addition,theappealwassignedandfiledby whoisthebeneficiaryin thismatter. U.S. CitizenshipandImmigrationServices(USCIS)regulationsspecificallyprohibit a beneficiaryof a visapetitionfrom filing anappeal. 8 C.F.R.§ 103.3(a)(1)(iii)(B). Accordingly,the appealis also rejectedfor this reason. 8 C.F.R. § 103.3(a)(2)(v)(A)(1). Theappealhasnot beenfiled by thepetitioner,an authorizedrepresentativeor anyentity with legal standingin theproceeding,but ratherby thebeneficiary. It is alsountimely. Therefore,theappealhas notbeenproperlyfiledandmustberejected. ORDER: Theappealis rejected.
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