dismissed EB-2 NIW Case: Music

identifying data deleted to 
prevent clearly unw~ntect 
invasion of personal pnvac} 
PUBUC cOPy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. llcpartment of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (1\1\0) 
20 Massachusetts Ave .. N.\'\.i .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: fEa 1 1 2.011 
PETITION: Immigrant Petition for Alien Worker as a Member ofthe 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. § IIS3(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
rclated to this maller have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must bc made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision. or you have additional 
information that you wish to have considered, you may tile a motion to reconsider or a motion to reopen. The 
specitic requirements for tiling such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the oflice that originally decided your case by tiling a Form 1-290B, Notice of Appeal or Motion. 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be tiled 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~\~~'1C 
~ryRhlJ 
Chief, Administrative Appeals Ollice 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska 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 petitioner seeks classification pursuant to section 203(b )(2) ofthe hnmigration and Nationality Act 
(the Act), 8 U.S.C § 1153(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a musician. The petitioner asserts 
that an exemption from the requirement of a job offer, and thus of an alien employment certification, is 
in the national interest of the United States. The director found that the petitioner qualifies for the 
classification sought, but that the petitioner had not established that an exemption from the requirement 
of ajob offer would be in the national interest of the United States. 
In order to properly file an appeal, the regulation at 8 CF.R. § 103.3(a)(2)(i) provides that the 
affected party must file the complete appeal within 30 days after service of the unfavorable decision. 
If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F.R. § 103.5a(b). The 
date of filing is not the date of mailing, but the date of actual receipt with the required fee. See 
8 C.F.R. § 103.2(a)(7)(i). The affected party filing the appeal must pay the required fee. 8 C.F.R. 
§ 103.3(2)(i). An application or petition is properly filed if it is signed and executed and the 
requiredfilingfee is attached. See 8 CF.R. § 103.2(a)(7)(i). 
The record indicates that the director issued the decision on November 30, 2009. It is noted that the 
director properly gave notice to the petitioner that it had 33 days to file the appeal and listed the 
proper fee for an appeal. Although counsel dated the appeal December 26, 2009, it was received 
with the proper fee by the director on Wednesday, January 5, 2010, 36 days after the decision was 
issued. Accordingly, the appeal was untimely filed. 
On appeal, counsel asserts that the petitioner initially filed the appeal timely with the incorrect fee 
amount provided in the director's notice of decision. We acknowledge that the notice of decision 
erroneously stated that the appellate fee was $385. Nevertheless, the director's error does not supersede 
the pertinent regulations. We note that the instructions to the Notice of Appeal, Form I-290B contain an 
updated fee and advise on multiple ways to verify the current fee. 
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit 
for filing an appeaL The regulation at 8 CF.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. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and, when 
filed, be supported by affidavits or other documentary evidence. 8 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 Service 
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 
Page 3 
decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet applicable requirements when filed 
shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
Here, the untimely appeal did not meet the requirements of a motion to reopen or a motion to 
reconsider when it was filed. Therefore, there is no requirement to treat the appeal as a motion under 
8 C.F.R. § 103.3(a)(2)(v)(B)(2). 
As the appeal was untimely tiled and does not qualify as a motion, the appeal must be rejected. 
ORDER: The appeal is rejected.