remanded EB-2 Case: Unknown

U.S. Department of Ifomeland Security 
b 
u.S. citizenship and Immigration senices 
identifying data deleted to 
 Ofice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
prevent clearly unw-ted 
invasion of personal privacy 
 U. S. Citizenship 
and Immigration 
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. 
 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 must be made to that 
\ 
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. 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. § 
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 January 29, 2008. It is noted that 
the director properly gave notice to the petitioner that it had 33 days to file the appeal, 
however the director misadvised the amount of the filing fee. 
The petitioner initially submitted an appeal that was rejected on February 29, 2008, as the 
petitioner submitted the wrong filing fee. The petitioner then re-submitted its appeal, received 
on March 10, 2008, which was improperly filed under 8 C.F.R. 5 103.5. (See 8 C.F.R. 
103.2(2)(7)(i); an application or petition shall be stamped to show time and date of receipt and 
properly filed if it is signed and executed and the required filing fee is attached.) It was 
received by the director 41 days after the director issued the decision. 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 U.S. Citizenship and Immigration Services 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 additional 
new evidence was submitted directly related to th4e basis for the 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.