remanded EB-2 Case: Unknown

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
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PUBLIC COPY 
LIN 08 010 54033 
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 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. 
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. 5 103.5(a)(l)(i). 
Chief, ~dminist;ative 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. 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 May 22, 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 June 24, 2008, it was received by the director on June 25, 2008, 34 days 
after the decision was issued. Accordingly, the appeal was untimely filed. The director accepted the 
appeal as timely and forwarded the matter to the AAO. 
Neither the Act nor the pertinent regulations gr~t 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 U.S. 
Citizenship and Immigration Services (USCIS) 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 because counsel has 
submitted new evidence related to the basis of denial. 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.