dismissed EB-3 Case: Broadcasting

identify!ngdata deletedto
preventc1earlyunwarranted
invasionofpersoualpriVICJ
. l'UBLICCO?Y
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Wa~hington, DC 20529
u.s.Citizenship
and Immigration
Services.
File: Office: CALIFORNIA SERVICE CENTER Date:
WAC-04-204-53515 APR 2 '2Ull
IN RE: Petitioner:
Beneficiary:
Petition: Immigrant Petition forAlien Worker as a Skilled Worker or Professional Pursuant to
Section 203(b) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)
IN 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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
"
Page 2
DISCUSSION: The Director of the California Service Center denied the preference visa petition that is now
before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed
pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(1).
The petitioner is a Korean language radio station. It seeks to employ the beneficiary permanently in the
United States as a broadcast technician (studio engineer). As required by statute, the petition is accompanied
by a Form ETA 750, Application for Alien Employment Certification, approved by the U.S. Department of
Labor (DOL). The director determined that the petitioner had not established that it had the continuing ability
to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. Therefore, the
director denied the petition.
The record indicates that the director mailed the decision to the petitioner on September 8, 2005. A Form 1-290B,
Notice ofAppeal to Administrative Appeals Office, was received by the California Service Center on October 6,
2005, 28 days after the decision was mailed. However, the Form 1-290B included the incorrect filing fee of
$110.00. A new filing fee of $385.00 became effective on September 28,2005. See 70 Fed. Reg. 50954, 50954
(Aug. 29, 2005), found at http://frwebgate5.access.gpo.gov/cgibin/waisgate.cgi?WAISdocID= .
04921783362+ 1+0+0&WAISaction+retrieve; 8 C.F.R. § 103.7. On October 6, 2005, the California Service
Center retwned the Form 1-290B to the petitioner and indicated that it included the incorrect filing fee. The
California Service Center received the resubmitted Form 1-290B with the proper $385.00 filing fee on October
24, 2005, 46 days after the decision was mailed.
The regulation at 8 C.F.R. § I03.3(a)(2) requires an affected party to file the complete appeal within 30 days after
service of the decision, o~, in accordance with 8 C.F.R. § 103.5a(b), within 33 days if the de~ision was served by
mail. Title 8 C.F.R. § 103.2(a)(7)(i) requires Citizenship and Immigration Services (CIS) to reject any petition or
application filed with the incorrect filing fee. Likewise, filings which were rejected because they were submitted
with incorrect filing fees do not retain filing dates. Therefore, in this matter, CISis required to reject the appeal as
untimely filed. Although the petitioner initially submitted the 1-290B within 33 days of service of the decision,
this submission included the incorrect filing fee. Therefore, as this filing did not retain a filing date, the actual
filing date for the Form 1-290B is October 24, 2005, 49 days after the decision was ,served by mail. Thus, the
appeal was not timely filed and must be rejected on these grounds pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(l).
While the AAO notes that the instructions in the director's September 8, 2005 decision identified the proper
filing fee for the appeal as $110.00, this decision was dated and mailed 20 days before the effective date of
the filing fee change to $385.00. The petitioner was put on notice of the change in fee in that this fee change
and its effective date appeared in the Federal Register during August 2005. See 70 Fed. Reg. 50954 (Aug. 29,
2005). CIS, which includes both the California Service Center and the AAO, has no authority to accept an
untimely appeal which failed to hold a timely filing date due to the submission of an incorrect filing fee. CIS
,is compelled to reject such an appeal. Title 8 C.F.R. § 103.3(a)(2)(v)(B)(1) states in pertinent part that "[a]n
appeal which is not timely filed within the time allowed must be rejected as improperly filed." Therefore, under
the regulations, qs lacks the authority to consider the untimeiy 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 as described in 8 C.F.R. § 103.5(a)(2) or a motion to reconsider as described in ·8 C.F.R.
Page 3
§ 103.5(a)(3), the appeal must be treated as a motion, and a decision must be made on the merits of the case. 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. § 103.5(a)(l)(ii). The director declined to treat the late appeal as a
motion and forwarded the matter to the AAO.
,I·
ORDER: The appeal is rejected.