remanded EB-2 Case: Unknown

DATE DEC 1 8 2012 OFFICE NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington, DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Dcgree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and N,"ionality Act. 8 USc. ~ 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 maller 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. 
Thank you, 
Ron Rosenherg 
Acting Chief. Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition, which 
is now beforc 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 and reconsider. 
In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the 
affected party or the attorncy or reprcsentative of record must submit the complete appeal within 30 
days of service of the unfavorable decision. If the decision was mailed, the appeal must be filed 
within 33 days. See 8 C.F.R. ~ 103.8(b). The date of filing is not the date of submission, but the 
date of actual receipt with the required fee. See 8 C.F.R. § 103.2(a)(7)(i). 
The director issued the decision on October 5, 2011. The director properly gave notice to the 
petitioner that it had 33 days to file the appeal. Neither the Immigratio and Nationality Act nor the 
pertinent regulations grant the AAO authority to extend this time limit. It is noted that the record 
indicates that the decision was mailed to counsel's correct address as listed on the Form G-28. 
The Form 1-2908. Notice of Appeal or Motion, was received by the service center on January 30, 
2012. or one hundcrcd and fifty two days after the decision was issued. Accordingly, the appeal was 
untimely filed. 
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 a decision must be made on the merits of the case. The official having jurisdiction over a 
motion is the official who made the last decision in the proceeding, in this case the Director, 
Ncbraska Service Center. See 8 C.F.R. § 103.5(a)(l )(ii). I 
Therefore. the matter will be returned to the director. If the director determines that the late appeal 
mcets the rcquircmcnh of a motion. the motion shall be granted and a new decision will be issued. 
As thc appeal was untimely filed, the appeal must be rejected. 
ORDER: The appeal is rejected. 
I Cllumc1 asscrt.' that the appeal was late due to "Excusable Neglect." See Soccer Exports, Ltd., 1989 
INA 226 (Mar. 29 1(90). However. counsel does not state how the United States Department of 
Labor's (DOL) Board of Alien Labor Certification Appeals (BALCA) precedent is binding on the 
AAO. While 8 C.F.R. * 103.3(c) provides that precedent decisions of USCIS are binding on all its 
employees in the administration of the Act, BALCA decisions are not similarly binding. Precedent 
decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 
~ 103.9(a).