remanded EB-2 Case: Unknown

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 U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: office: NEBRASKA SERVICE CENTER Date: OCT 8 2009 
LIN 07 225 52372 
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. 9 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 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. fj 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 
Chief, 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. 
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. $ 103.2(a)(7)(i). 
The record indicates that the director issued the decision on October 5, 2007. The record also 
indicates that the director properly gave notice to the petitioner that it had 33 days to file the appeal. 
The appeal was received by the director on December 26, 2007, 76 days after the decision was 
served by first class mail. Accordingly, the appeal was untimely filed. 
Neither the Immigration and Nationality 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 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 reconsider. 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 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 reopen.