dismissed EB-2 Case: Unknown

DATE 
NOV 0 3 2012 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
u.s. Department of Homeland Security 
U.S. Citil.cnship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.\\! .. MS 2090 
\Vashinglon. 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. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. Please note that all documents have 
been returned to the office that originally decided your case. Please also note that any further inquiry must be 
made to that office. 
Thank you, 
Perry Rhew 
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 as 
untimely filed. The AAO will return the matter to the director for consideration as a motion to 
reopen and reconsider. 
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. § 103.8(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 service center director issued the decision on September 12, 2011. It is 
noted that the service center director properly 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 October 4, 2011, it was not received by the service center 
until October 18. 20 lIar 36 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 Director of the 
Texas Service Center. See 8 C.F.R. § 1 03.5(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.