remanded EB-3 Case: Farming

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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. 4 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 orignally decided your case. Any futher inquiry must be made to that office. 
V 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
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 remanded to the director. 
The petitioner is a farm. It seeks to employ the beneficiary permanently in the United States as a tree fruit 
and nut farming supervisor. 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 7,2005. A Form I-290B, 
Notice of Appeal to Administrative Appeals OMice, was received by the Texas Service Center on October 4, 
2005, 27 days after the decision was mailed. However, the Form I-290B included the incorrect filing fee of 
$1 10.00. 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:lliiwebgate5.access.~o.nov/c~binlwais~ate.cni?WA1SdocIDc04921783362+1+0 
+O&WAISaction+retrieve; 8 C.F.R. 8 103.7. The Texas Service Center returned the Form I-290B to the 
petitioner and indicated that it included the incorrect filing fee. The Texas Service Center received the 
resubmitted Form I-290B with the proper $385.00 filing fee on October 24,2005. 
The regulation at 8 C.F.R. 3 103.3(a)(2) requires an affected party to file the complete appeal within 30 days after 
service of the decision, or, in accordance with 8 C.F.R. 3 103.5a(b), within 33 days if the decision 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, CIS is required to reject the appeal as 
untimely filed. Although the petitioner initially submitted the I-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 I-290B is October 24, 2005, 37 days aRer 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. 3 103.3(a)(2)(v)(B)(l). 
While the AAO notes that the instructions in the director's September 7, 2005 decision identified the proper 
filing fee for the appeal as $1 10.00, this decision was dated and mailed 21 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 Texas 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. 3 103.3(a)(2)(v)(B)(l) states in pertinent part that "[aln 
appeal which is not timely filed within the time allowed must be rejected as improperly filed." Therefore, under 
the regulations, CIS lacks the authority to consider the untimely appeal. 
The regulation at 8 C.F.R. 3 103.3(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. 3 103.5(a)(2) or a motion to reconsider as described in 8 C.F.R. 
5 103.5(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. 3 103.5(a)(l)(ii). The record does not show that the director has 
considered this appeal as untimely, and thus to treat as a motion to reopen/reconsider before forwarding to the 
AAO. In addition, counsel claims that the petitioner's timely response to the notice to intent to deny was not 
properly considered before the decision of the director. Therefore, the AAO will reject the appeal as untimely 
and remand to the director to be considered as a motion to reopen. 
Page 3 
ORDER: 
 The appeal is rejected as untimely filed but remanded to the director for further consideration 
as a motion to reopen.