remanded EB-2 NIW Case: Unknown

. . identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC C.OPY 
U.S. Department of Homeland Security 
US. Citizenship and Immigration Services 
Offlee qfAdminisrrarive Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: 
AUG 0 6 2010 
IN RE: 
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. 9 1153(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. 8 103.5. 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 $585. Please be aware that 8 C.F.R. 5 103,5(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, 
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 
reconsider. 
In order to properly file an appeal, the regulation at 8 C.F.R. 5 103.3(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 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. See 8 C.F.R. 
5 103.2(a)(7)(i). 
The record indicates that the director issued the decision on July 13, 2009. While counsel for the 
petitioner asserts in an affidavit that he did not receive the decision until November 4, 2009, the 
decision is addressed to the petitioner at his current address of record and is notated to show that a 
copy was also sent to counsel at counsel's address of record. Had either decision been returned to 
U.S. Citizenship and Immigration Services as undeliverable or for any other reason, it would have 
been incorporated into the record of proceeding. The record does not contain a returned decision 
that might have supported counsel's affidavit. It is noted that the director properly gave notice to the 
petitioner that it had 33 days to file the appeal. Counsel dated the appeal November 25,2009 and it 
was received by the director on December 1, 2009, more than four months after the decision was 
issued. Accordingly, the appeal was untimely filed. 
Neither the 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 appeal must be rejected. Nevertheless, 
the regulation at 8 C.F.R. 5 103,3(a)(2)(v)(B)(Z) 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 be 
supported by affidavits or other documentary evidence. 8 C.F.R. 5 103.5(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. 5 103.5(a)(3). A motion that does not meet applicable requirements shall be 
dismissed. 8 C.F.R. § 103.5(a)(4). 
Here, the untimely appeal meets the requirements of a motion to reconsider. The official having 
jurisdiction over a motion, including whether or not it is timely, is the official who made the last 
decision in the proceeding, in this case the service center director. See 8 C.F.R. 5 103.5(a)(l)(ii). 
Therefore, the director must consider the untimely appeal as a motion to reconsider and render a new 
decision accordingly. 
Page 3 
ORDER: The appeal is rejected. The matter is returned to the director for consideration as a 
motion to reconsider.