dismissed EB-3 Case: Unskilled Worker

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U.S. Department of Homeland Security
20 Mass, N.W. Rm. A3000
Washington, DC 20529
U.S. Citizenship'
and Immigration
Services
PUBLIC COpy
FILE:
EAC 05 093 51235
Office: VERMONT SERVICE CENTER Date: OCT J. 0 Z006
IN RE: Petitioner:
Beneficiary: .
PETITION: Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to
§ 203(b)(3) ofthe 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 beeri
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, Vermont 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. § 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 August 8, 2004. The director properly
 gave
notice to
 the petitioner that it had 33 days to file the appeal. Although counsel dated the appeal September 9,
2005, Citizenship and Immigration Services (CIS) received the appeal on September 12, 2005, 36 days
 after
the decision was issued. Accordingly, the appeal was
 untim,ely 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. § 103.5(a)(l)(ii). The
director declined to treat thelateappeal 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.