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IN RE: Petitioner: 
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US. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
MAR 072011 
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. § I I 53(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 matter have been retunwd 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. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion. with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days oflhe decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry R ew 
Chief Administrative Appeals Office 
www.uscis.go\, 
. . 
-Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The 
matter is now before the Administrative Appeals Ot1ice (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. § 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 tiling 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 23, 20 I O. It is noted that the 
director properly gave notice to the petitioner that it had 33 days to file the appeal. A Form 1-
290B, Notice of Appeal or Motion. was received by the Nebraska Service Center on April 26, 20 I O. 
However. the Form 1-290B included the incorrect filing tee of $110.00. On the same day, the 
Nebraska Service Center returned the Form 1-290B to the petitioner and indicated that it included 
the incorrect filing tee. The Nebraska Service Center received the Form 1-290B with the proper 
$585.00 filing fee on June 14,2010, 82 days atter the decision was issued. Accordingly, the 
appeal was untimely tiled. The director erroneously annotated the appeal as timely and 
forwarded the matter to the AAO. 
Neither the Immigration and Nationality Act (the Act) nor the pertinent regulations grant the 
AAO authority to extend the 33-day time limit for filing an appeal. 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. 
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 United 
States Citizenship and Immigration Services (USC IS) policy. A motion to reconsider a decision 
on an application or petition must, when tiled, also establish that the decision was incorrect 
based on the evidence of record at the time: "I' 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 reconsider because counsel 
claims that the director was negligent in mailing its request for evidence and initial denial decision 
and the petitioner and counsel have never received them. The ot1icial having jurisdiction over a 
motion is the ot1icial 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 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.