remanded EB-2 Case: Unknown

PUBLICCOpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.s.Citizenship
and Immigration
Services
LIN 06 084 51756
Office: NEBRASKA SERVICE CENTER Date: ::i£P 1 4 1lIl
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. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All docwnents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~/?z-~ Robert P. Wiemann, Chief
/ .- Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Nebraska Service Center, initially approved the immigrant visa
petition. On the basis of new information received and on further review of the record, the director
detennined that the petitioner was not eligible for the benefit sought. Accordingly, the director properly
served the petitioner with notice of intent to revoke the approval of the visa petition, and his reasons
therefore, and ultimately revoked the approval of the petition on March 21, 2007. 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.
The appeal was filed on April 23, 2007, 33 days after the decision was rendered. According to the
pertinent regulations, the appeal was not timely filed. 8 C.F.R. § 205.2(d) states that revocations of
approvals must be appealed within 15 days after the service of the notice of revocation. If the decision
was mailed, the appeal must be filed within 18 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 notice of
revocation erroneously failed to advise the petitioner that it could file an appeal or of the appropriate
period in which to file an appeal. Nevertheless, the director's error does not supersede the pertinent
.regulations. The director erroneously annotated the appeal as timely and forwarded the matter to the
AAO.
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 18-day time limit
for filing an appeal from the revocation of an approval. As the appeal was untimely filed, the appeal
must be rejected. Nevertheless, 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 appeal
must be treated as a motion, and adecision 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 evideRce. 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 shall be
dismissed. 8 C.F.R. § 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. § 103.5(a)(1)(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.