remanded EB-2 Case: Unknown

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
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 U. S. Citizenship 
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Office: TEXAS SERVICE CENTER Date: AM3 22 2008 
SRC 07 064 5 1630 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
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 hrther inquiry must be made to that office. 
Administrative Appeals Office 
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. 8 103.3(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. tj 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 March 4,2008. The director properly gave notice 
that the petitioner had 33 days to file the appeal. Although the petitioner dated the appeal April 1, 2008, it 
was sent by private delivery service on April 3, 2008, and received by the director on April 9, 2008, 36 days 
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. 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. $ 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. 8 103.5(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 because the petitioner makes 
specific arguments to the effect that the director failed to take important evidence into consideration. (The 
AAO will not address the merits of those arguments here.) 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)(l)(ii). Therefore, the director must consider the untimely appeal as a motion to reconsider and 
render a new decision accordingly. 
ORDER: 
 The appeal is rejected. The matter is returned to the director for consideration as a motion to 
reconsider.