remanded EB-2 NIW Case: Science Education

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DATE: JAN 0 3 201J OFFICE: TExAS SERVICE CENTER . . '~ . . . ' 
. . _petitioner: 
· · · Benef~ciary: 
p.~; .Pepa~tnieli~ "of llolilel~n~. secutity 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
.20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20521}-2090 
u~ s .. Citizenship 
and Immigration 
Services 
FILE: 
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PETITION:· . -· . . ~ . 
. Im,migrailt Petition for Alien Worker as a Member of the Professions Holding an Advanced 
p~gre~ · or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and ~ationality Act, 8 U.S.C. § 1153(b)C2) 
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lNSTRUCfiONS: 
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Encloseo ple~e find the decisio~ of the Administrative Appeals Office in your case. All of the documents 
related to this matter h~ve been returned to the office that originally _decided your case. Please be advised that • , . I 
any f~rthednquity that Y()l! might have concerning your case must be made to that office. 
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Thank you, · 
(\~ ·- . ~·-' ' '' . 
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~on ~ose~o-ehJ · · .. ·: · 
· 1;\.ct_ing ~hief? ~qrnini~trative Appeals Office 
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])lSPJ~~~P~;- . Th,e· p~ectot, Texas Service .Center, denied tpe employment-based immigrant visa 
petitiop.. · 'fhe petitio11~r filed a motion to reopen and reconsider, that decision. The director dismissed 
the motibp.. 1)le matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO 
will rejecfthe ~pp~al-as untimely filed and return the matter to the;! director for consideration as a motion · 
to reopen ~J1d £~ConSider.. . ' . . 
. The pe~ition~rseeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 li.$.c: ~ p53(b)(2), as a member of the professions with post-baccalaureate experience 
equ~va}e:n.f; to an advanced degree. The' petitioner seeks employment as an elementary school science 
teacher {ot the At present, U.S. Citizenship and 
lmmigratigll Seivices · (USCIS) records indicate that the petitioner works at 
. ' . ' The petitioner asserts that an exemption from the requirement of a job 
offer, and thus of a labor certification, is in the national interest. of the United States. The director found 
that the p~tltioner qualifies for classification as a member of i the professions holding an advanced 
degree, b:u,t that the p~titioner has not established that' an exempti,on from the requirement of a job offer 
· wop.ld b~ in. the n"'tional interest. of the United States. The director dismissed the petitioner's 
subsequent mo!ion, stating that it did not meet the requirements of a motion set forth in the USCIS 
regulation~ at 8 C.F.~. §§ 103.5(a)(2) and (3). , . ,. , , 'I . . 
'' Th6 qitecior, 'indism~ssing the motion, stated: "There is no appeal to this decision." The director cited 
no regu~a#op. o~ other authority to support this assertion. This assertion amounts to harmless error, 
· however,' becaus~ the Texas Service Center accepted the petitioner's appeal from the dismiss~. 
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In order J() · pr~perly file an appeal, the U.S. Citizenship and Immigration Services (USCIS) 
regulation ~t 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party or the attorney or . 
represen~~tiv~ of r((COrd . must submit the complete appeal! within 30 days of service ()f the 
unf~vorable decision. Jf the director mailed the decision, the petitioner must file the appeal within 
33 days.· . .See B. C.P.R. § 103.S(b). The date of filing is not the date of submission, but the date of· 
act~al re¢eip(~ith the required fee. See 8 C.F.R. § 103.2(a)(7)(i). · · 
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The r~cord iridj~ate~ that the service center director issued the decision on Thursday, June 7, 2012. 
Counsel dateq the Forin I-290B, Notice of Appeal or Motion Wednesday, July 11, 2012, which was 
34 days aft~r the tissuance of the decision, already ·past the filing deadline. The Service Center did 
not·· recei~e the appeal until Friday, July 12, 2012, 35 days after the decision was issued. 
Accordip.gly, the appeal was untimely filed. · 
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The regul'!~ion at .8. C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the 
tequirem.ents of a motion to reopen or a motion to reconsider, USCIS must treat the appeal as a 
m,C>tion, ti.Ii4 make a decision on the ·merits of the case. The official having jurisdiction_ over a motion · 
is t,he of!j~i~i who made the last decision in the proceeding, in this case the Director of the Texas 
·. $~1Vi~ Cefl.t~r. 'See:8 C.F.R. § 103.5(a)(1)(ii). · 
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·. Here, ~~ the petitioiler submitted the brief in this matter directly to the AAO in accordance with 
· 8 C.F.R. § id3.3(a)(2)(viii), it is apparent that -the director did not ·have an opportunity to fully 
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review ~he.~ar~ app~al to ·determine whether it meets .the requirements of either a motion to re~pe~ or 
a 1llbtion to reconsiqer. Therefore, the AAO will return the $atter to the director. If the director 
· det~r:rn~ne~ ·. ~b.at the iate appeal meets the requirements of a ·motion, the director shall grant the 
motion and Issue a new deCision. . 
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As th~ ':lPPeahvas u~timely filed, USCIS must reject the appeai;. 
ORDER:· '· .·' ·.· ... The appeal is rejected. 
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