remanded EB-2 Case: Unknown

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Admi~~istrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: JAN 2 1 2018 
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 tharyou 
wish to have considered, you may file a motion to reconsider or a motion to reopen. Please refer 
to 8 C.F.R. 3 103.5 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, as requireg by 8 C.F.R. 5 103.5(a)(l)(i). 
\ chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service 
Center, and 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. 
 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 October 2, 2007. It is noted 
that the director properly gave notice to the petitioner that it had 33 days to file the 
appeal. The AAO notes that, on appeal, counsel originally mailed the appeal on October 
30, 2007. However, the initial appeal was submitted with the wrong filing fee, and 
returned to the petitioner. 8 C.F.R. 5 103.2(a)(7)(i) states in pertinent part: 
An application or petition received in a USCIS office shall be stamped to 
show the time and date of actual receipt and, unless otherwise specified in 
part 204 or part 245 or part 245a of this chapter, shall be regarded as 
properly filed when so stamped, if it is signed and executed and the 
required filing fee is attached or a waiver of the filing fee is granted. An 
application or petition which is not properly signed or is submitted with 
the wrong filing fee shall be rejected as improperly filed. Rejected 
applications and petitions, and ones in which the check or other financial 
instrument used to pay the filing fee is subsequently returned as non- 
payable will not retain a filing date. . . . 
In the instant case, the appeal was improperly filed as it was filed with the wrong filing 
fee. Counsel resubmitted the appeal, which was received and filed on November 14, 
2007,43 days after the decision was issued. Accordingly, the appeal was untimely filed. 
The director 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 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 the 
petitioner 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.