dismissed EB-3 Case: Skilled Worker

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PUBLfCCOPY
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
~(
FILE:
EAC-04-145-50053
Office: VERMONT SERVICE CENTER Date:
NOV 2 8 ZOO6
INRE: Petitioner:
Beneficiary
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section
203(b)(3) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(3)
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.
Robert P. Wiemann, Chief
Administrative Appeals Office
'..
www.uscis.gov
Page 2
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected.
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 of 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 record indicates that the director issued the decision on January 12, 2005. It is noted that the director
properly gave notice to the petitioner that it had 33 days to file the appeal. Although the beneficiary dated the
appeal February 10, 2005, it was received by Citizenship and Immigration Services (CIS) on February 15,
2005,34 days after the decision was issued. Accordingly, the appeal was untimely filed.
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. 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. § l03.5(a)(1)(ii). The
director declined to treat the late appeal as a motion and forwarded the matter to the AAO.
As the appeal was untimely filed, the appeal must be rejected.
ORDER: The appeal is rejected.