remanded EB-3 Case: Skilled Worker

identifying ,&ta deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
EAC 01 259 50829 
PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the lmrmgration and Nationality Act, 8 U.S.C. 5 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. 
Administrative Appeals Office 
DISCUSSION: The director, Vermont Service Center, initially approved the employment-based preference 
visa petition. The petitioner's Immigrant Petition for Alien Worker (Form 1-140) was filed with CIS on 
August 21, 2001, and was approved on January 28, 2002.' In a Notice of Revocation (NOR), the director 
ultimately revoked the Form 1-140. An application for lawful permanent residence (Form 1-485) in connection 
with the approved Form 1-140 was also denied at the time the director issued the rev~cation.~ The matter is 
now before the Administrative Appeals Office (AAO) on appeal. In his decision to the petitioner, the director 
erroneously provided instructions to the petitioner that the petitioner could appeal the decision within 30 days 
(33 days if mailed) from the date of his decision. However, the regulations at 8 C.F.R. $ 205.2 (d) state that 
the petitioner may appeal the decision to revoke the approval within 1 5 days after the service of notice of the 
revocation. Therefore, while the petitioner, in following the written guidance of the director, filed a timely 
appeal; based on 8 C.F.R. $ 205.2(d), the instant appeal is untimely. 
Nevertheless, 8 C.F.R. $ 103.3(a)(2)(v)(B)(2) states: 
Untimely appeal treated as motion. If an untimely appeal meets the requirements of a motion to 
reopen as described in $ 103.5(a)(2) of this part or a motion to reconsider as described in $ 
103.5(a)(3) of ths part, the appeal must be treated as a motion, and a decision made on the merits 
of the case. 
The appeal submitted by the petitioner qualifies for consideration under 8 C.F.R. $ 103.5(a)(3) because the 
petitioner's counsel asserts that the director made an erroneous decision through misapplication of law or 
policy. 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). Therefore the AAO will 
remand the petition to the director for consideration of the untimely appeal as a motion. 
ORDER: 
 The appeal is remanded to the director for consideration of the appeal as a motion. 
1 
 The director issued a request for evidence but ultimately approved the petition. 
2 
 Based on the 1-485 visa petition, the director interviewed the beneficiary and subsequently served the 
petitioner with notice of intent to revoke the approval of the petition (NOIR).