remanded
EB-2
remanded EB-2 Case: Unknown
Decision Summary
The appeal was rejected because it was filed one day late, on the 34th day after the decision was issued, exceeding the 33-day filing deadline. Although the appeal itself was rejected as untimely, the AAO returned the case to the service center director to be treated as a motion to reopen and reconsider, per regulations.
Criteria Discussed
Timeliness Of Appeal
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U.S. Department 01 Homeland Security U.S.CitizenshipandImmiurationServices AdmintsliativeAppealsOrfice (AAO) 20 MassachusettsAve.. N.W MS2090 Washineton.DC 20529-2090 U.S.Citizenship . and ImmigratiOn . Services Date: Office: NEBRASKA SERVICECENTER FII.E: DEC052012 IN RE: Petitioner: Beneficiary: PETITION: Immigrant petition for Alien Worker as a Memberof the ProfessionsHolding an Advanced Degreeor anAlien of ExceptionalAbility pursuantto section203(b)(2)of theImmigrationand Nationality Act, 8 U.S.C. § 1153(b)(2) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosedpleasefind thedecisionof theAdministrativeAppealsOffice in yourcase. All of thedocuments related to this matter 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. nk you. Ron Rosenberg ActingChief,AdministrativeAppealsOffice www.uscis.gov Paee2 DISCUSSION: The Director, NebraskaService Center,deniedthe immigrant visa petition. The matteris now beforethe AdministrativeAppealsOffice (AAO) on appeal. The appealwill be rejcetedas untimely filed. The AAO will return the matter to the director for considerationas a motionto reopenandreconsider. In order to properly file an appeal,the regulationat 8 C.F.R. § 103.3(a)(2)(i)providesthat the affected party or the attorney or representativeof record must file the complete appealwithin 30 days of service of the unfavorabledecision. If the decision was mailed, the appealmust be filed within 33days. See8 C.F.R.§ 103.8(b).Thedateof filing is notthedateof mailing,butthedateof actualreceipt. See8 C.F.R. § 103.2(a)(7)(i). The director issuedthe decision on March 25, 2011. It is noted that the service center director properlygavenoticeto thepetitionerthatit had33daysto file theappeal.Neitherthe Immigration and Nationality Act (the Act) nor the pertinentregulationsgrant the AAO authority to extendthis time limit. The Form I-2908, Notice of Appeal or Motion, was not receivedby the servicecenteruntil Thursday.April 28,2011,or thirty-fourdaysafterthedecisionwasissued.Accordingly.theappeal wasuntimelyfiled, The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirementsof a motion to reopenor a motion to reconsider,theappealmustbe treatedasa motion, and a decisionmustbe madeon the meritsof the case. The official havingjurisdiction over a motionis theofficial who madethe lastdecisionin the proceeding,in this casethe Directorof the NebraskaServiceCenter. See8 C.F.R. § 103.5(a)(1)(ii). The matter will thereforebe returnedto the director. If the director determinesthat the late appeal meetsthe requirementsof a motion, the motion shall begrantedanda new decisionwill be issued. As theappealwasuntimely filed, theappealmustberejected. ORDER: Theappealis rejected.
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