remanded EB-2 Case: Unknown

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: JUL 2 3 2009 
LIN 08 022 5 1328 
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 further inquiry must be made to that office. 
/USp kdrd~ 
b 
John F. Grissom 
Acting Chief, Administrative Appeals Office 
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. €j 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. 
€j 103.5a(b). The date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R. 
€j 103.2(a)(7)(i). 
The record indicates that the director issued the decision on May 22, 2008. It is noted that the 
director properly gave notice that the petitioner had 33 days to file the appeal. The appeal was 
postmarked June 24, 2008 (the last possible day for timely filing) and received by the director on 
Wednesday, June 25, 2008, 34 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. 5 103.3(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 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. 8 103.5(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. 6 103.5(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.