remanded EB-2 NIW Case: Unknown

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 237 52643 DEC 0 1 2009 
IN RE: 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. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
A 
Peny Rhew 
Chief, Administrative Appeals Office 
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 AAO will return the matter to the director for consideration as a 
motion to reopen. 
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 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. 103.2(a)(7)(i). 
The record indicates that the director issued the decision on April 28, 2008. It is noted that the 
director properly gave notice to the petitioner that it had 33 days to file the appeal. Although the 
petitioner dated the appeal May 28, 2008, it was received by the director on June 12, 2008, 45 days 
after the decision was issued.' Accordingly, the appeal was untimely filed. 
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 appeal must 
be rejected. Nevertheless, the regulation at 8 C.F.R. 8 103.3(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 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 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. 8 103.5(a)(3). A motion that does not meet applicable requirements shall be 
dismissed. 8 C.F.R. 5 103.5(a)(4). 
Here, the untimely appeal meets the requirements of a motion to reopen. The official having 
jurisdiction over a motion 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 reopen and render a new decision accordingly. 
ORDER: The appeal is rejected. The matter is returned to the director for consideration as a 
motion to reopen. 
' The Form I-290B, Notice of Appeal or Motion, was initially submitted to U.S. Citizenship and 
Immigration Services (USCIS) on May 30,2008. However, it was rejected by the director because it 
was not submitted with the appropriate filing fee. Rejected applications do not retain a filing date. 8 
C.F.R. 5 103.2(a)(7)(i).