dismissed EB-2 NIW Case: Unknown

identifying data deleted to 
ent clearly unw~ted 
:Vasion of personal pnvac) 
PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
U. S. Ci tizenshi p 
and Immigration 
Services 
DATE: Office: TEXAS SERVICE CENTER FILE: 
MAY 02 2011 
INRE: Petitioner: 
Beneficiary: 
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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter 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 be 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 file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~ 
0'erry RhewU . 
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 petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b)(2), as an alien of exceptional ability. 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 does not qualify for 
classification as an alien of exceptional ability and that the petitioner had not established that an 
exemption from the requirement of a job offer would be in the national interest of the United States. 
In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the 
affected party must file the complete appeal within 30 days of after service of the unfavorable 
decision. If the director mailed the decision, the affected party must file the appeal 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 record indicates that the director issued the decision on January 26,2010. The director properly 
gave notice to the petitioner that she had 33 days to file the appeal and listed the proper fee for an 
appeal. Although counsel dated the appeal February 25, 2010, the director received it with the 
proper fee on Tuesday, March 2, 2010, 35 days after the director issued the decision. Accordingly, 
the petitioner filed the appeal untimely. 
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 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 director must 
treat the appeal as a motion, and make a decision 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 
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 petitioner filed the appeal untimely, the appeal must be rejected. 
ORDER: The appeal is rejected.