remanded EB-2 Case: Unknown

iW@ing data deleted to 
prevent clearly unwarrantec 
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U.S. Department of itIomeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
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. 5 1 153(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 concerning your case must be made to that 
office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
chief, ~dministrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which 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. 5 103.3(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. 5 103.5a(b). The 
date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R. 5 103.2(a)(7)(i). 
The record indicates that the director issued the decision on February 20, 2008. It is noted that the 
director properly gave notice to the petitioner that it had 33 days to file the appeal. Although 
counsel dated the appeal March 18, 2008 and the certified mail- was 
postmarked the same day, the appeal was received by the director on March 26, 2008, 35 days after 
the decision was issued. U.S. Citizenship and Immigration Services (USCIS) record confirms that 
the Form I-290B was received on March 26, 2008. The United States Postal Service (USPS) does 
See USPS website at 
ssed on March 3 1, 2010). 
The record does not contain any evidence showing that the instant appeal was received on or before 
March 24, 2008. ~ccordin~l~, the appeal was untimely filed. ~hd director erroneously annotated 
the appeal as timely and forwarded the matter to the AAO. 
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. 5 103.5(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. 5 103.5(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.