dismissed H-1B Case: Computer Programming

PUBLICCOpy
IdentIfYIngdatadeletedto
preventclearly unwarranted
invasionof personalprivacy
U.S. Department of Homeland Secorlty
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
U.S. Citizenship
and Immigratlon
Services
FILE: WAC 04211 52087 Office: CALIFORNIA SERVICE CENTER Date: oct 0 9 2001
INRE:
PETITION:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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
WAC 04 211 52087
Page 2
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition and the
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected
pursuant to 8 C.F.R. § 103.3(a)(2XvXBX1)as untimely filed.
The petitioner is a provider of technology-based business solutions that seeks to employ the beneficiary as
a computer programmer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a
specialty occupation pursuant to section 101 (a)(15)(H)(iXb) of the Immigration and Nationality Act (the
Act), 8 U.S.C. § 1101 (a)(I5)(H)(i)(b). The director denied the petition on the basis that the proffered
position did not meet the definition of a specialty occupation.
An affected party has 30 days from the date of an adverse decision to file an appeal. 8 C.F.R. §
103.3(a)(2)(i). If the adverse decision was served by mail , an additional three-day period is added to the
30-day period. 8 C.F .R. § 103.5a(b). The record reflects that the director sent his decision of January 29,
2005 to the petitioner at its address of record. Citizenship and Immigration Services (CIS) received the
appeal 34 days later on March 4 , 2005. Therefore , 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.
§ 103.5(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 as untimely filed.