remanded EB-3 Case: Wholesale Trade

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave. N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Date: 
a3 202006 
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. 3 1 153(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. 
I 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 05 0 17 50047 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The case will be 
remanded to the director for review as a motion to reopen. 
The petitioner, a wholesale wig and hairpiece firm, sought to permanently employ the beneficiary in the United 
States as a secretary. As required by statute, the petition was accompanied by certification from the Department 
of Labor. The director determined that the petitioner had failed to establish its continuing financial ability to pay 
the proffered wage and denied the petition on March 22,2005. 
The appeal was not properly filed until May 2,2005. 
In order to properly file an appeal, the regulation at 8 C.F.R. 9 103.3(a)(2)(i) provides that the affected party 
must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was 
mailed, the appeal must be filed within 33 days. See 8 C.F.R. 5 103.5a(b). 
The record indicates that the director issued the decision on March 22, 2005. The properly filed appeal1 was 
not received by Citizenship and Immigration Services (CIS) until May 2, 2005, or 41 days after the decision 
was issued. Accordingly, the appeal was untimely filed. 
The regulation at 8 C.F.R. 9 103.3(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. 9 103.5(a)(l)(ii). 
Here, it is not clear whether the director reviewed the late appeal as a motion, before the record was 
forwarded to the AAO. For that reason, the case will be remanded to the director for consideration as a 
motion to reopen. 
ORDER: 
 The late-filed appeal is remanded to the director for consideration as a motion to reopen. 
I 
 The appeal was initially submitted without an authorized signature.