dismissed EB-2 NIW Case: Language Education

DATE: 
IN RE: 
NOV t 5 2011 
Petitioner: 
!3eneficiary: 
OFFICE: NE!3RASKA SERVICE CENTER 
V,S, Department of Homchllld Security 
u.s, Citi/(:nship and 11llllligr:llinn Services 
Adminislrative Appeals Office (AAO) 
20 M:t~sachuseIlS A\'~ .. N.\\-'" MS 2()lJO 
Washington, DC 20.'i29.::::t)90 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition /(lr Ali~n Worker as a Memher of the Prorcssions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nati()nality Act, S U.S.c. * 1153(h)(2) 
ON !3EHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed plcase find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this mailer have heen returned to the ollice that originally decided your case. Please he advised that 
any i"unhcr in4uiry that you might have concerning your case must be made to that office. 
Thank you, 
~,..Ji:(U,v.A0"----
~crry RhCW"-J . " "" 
Chid. Admll1lstratlve Appeals OUlce 
www.uscis.gov 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
reject the appeal as untimely filed. 
In order to properly file an appeal, the United States Citizenship and Immigration Services (USCIS) 
regulation at S C.F.R. * lO3.3(a)(2)(i) provides that the affected party must file the complete appeal 
within 30 days after service of the unfavorable decision. Whenever a person has the right or is 
required to do some act within a prescribed period after the service of a notice upon him and the 
notice is served by mail. 3 days shall be added to the prescribed period. Service by mail is complete 
upon mailing. 8 C.F.R. § 103.8(b). 
The record indicates that the director issued the decision on Wednesday, May 30, ZOIZ. The director 
properly notified the petitioner that he had 33 days to file the appeal. The petitioner mailed the 
appeal on June 28, ZOI2, and the director received it on Tuesday, July 3, ZOI2, 34 days after the 
decision was issued. Accordingly, the appeal was untimely filed. The director forwarded the matter 
to the AAO. Neither the Immigration and Nationality Act nor the pertinent regulations grant the 
AAO authority to extend the 33-day time limit for filing an appeal. As the appeal was untimely 
filed, the AAO must reject the appeal. 
The USCIS 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, USCIS must treat the appeal be treated 
as a motion, and a decision must be made on the merits of the case. The untimely appeal, in this 
instance, docs not meet the requirements of a motion. If the appeal had been timely filed, the AAO 
would have summarily dismissed the appeal under the regulation at 8 C.F.R. * 103.3(a)( I ltv), which 
states, in pertinent part. "[a In onicer to whom an appeal is taken shall summarily dismiss any appeal 
when the party concerned fails to identify specifically any erroneous conclusion of law or statement of 
ttlct !()f the appeal." 
The only claim the petitioner makes on appeal IS 
language classes as an adjunct faculty memher at s assertion is 
not relevant to the director's stated ground for denial. which pet I 's eligibility for 
a waiver. in the national interest, of the statutory job offer requirement at section 203(b )(2)(A) of the 
Act. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. tl C.F.R. ~ 103.5(a)(2). A motion to 
reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or USCIS 
policy. A motion to reconsider a decision On an application or petition must, when filed, also 
establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. * 103.5(a)(3). A motion that does not meet applicable requirements shall be 
dismissed. 8 C.F.R. * 103.5(a)(4). 
Page 3 
Here, the untimely appeal fails to meet the requirements of a motion to reopen or to reconsider 
because it adds no ncw information or evidence that is relevant to the denial of the petition. 
Therefore, neither the AAO nor USCIS will consider the untimely appeal as a motion. 
ORDER: The appeal is rejected.