dismissed H-1B Case: Early Childhood Education

ideatifyingdatadeletedto
preventclearlyun~ted
invasionofpersonalprivacy
PUBLIC COpy
U.S. Department or Homeland Security
20 Mass. Ave., N.W., Rm.3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: EAC 0617350218 Office: VERMONT SERVICE CENTER Date: OCT 2 g 2001
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § llOl(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the AdministrativeAppeals 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
EAC 0617350218
Page 2
DISCUSSION: The Director, Texas Service Center, denied the nonimmigrant visa petition. The matter is now
before the Administrative Appeals Office (AAO) on appeal. The appeal is rejected as untimely filed.
The petitioner operates a day care and early childhood development center for preschool children. It seeks to
employ the beneficiary as a group teacher. Accordingly the petitioner endeavors to classify the beneficiary as
a nonimmigrant pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § llOl(a)(15)(H)(i)(b).
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 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) . In accordance with 8 C.F.R.
§ 103.2(a)(7)(i), an application received in a Citizenship and Immigration Services (CIS) office shall be
stamped to show the time and date of actual receipt, if it is properly signed, executed, and accompanied by the
correct fee. For calculating the date of filing, the appeal shall be regarded as properly filed on the date that it
is so stamped by the service center or district office .
The record indicates that the director issued the decision on November 30,2006. It is noted that the director
properly gave notice to the petitioner that it had 33 days to file the appeal. According to the date stamp on the
Form I-290B Notice of Appeal, it was received by CIS on January 3,2007 , or 34 days after the decision was
issued. Accordingly , 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 ofa
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 .
An untimely-filed appeal must meet specific requirements to be treated as a motion. The regulation at
8 C.F.R. § 103.5(a)(2) requires that a motion to reopen state the new facts to be provided in the reopened
proceeding, supported by affidavits or other documentary evidence. Furthermore, 8 C.F.R. § 103.5(a)(3)
requires that a motion to reconsider must state the reasons for reconsideration and be supported by any
pertinent precedent decisions to establish that the decision was based on an incorrect application of law or
CIS policy.
Review of the record indicates that the appeal does not meet either of these requirements . On appeal, counsel
for the petitioner submits essentially the same brief and evidence submitted in response to the director's
request for further evidence . The petitioner does not provide any new facts to be considered in the reopened
proceeding, nor does the petitioner provide new documentary evidence. Furthermore, the petitioner neither
states a clear reason for reconsideration nor provides any precedent decision to establish that the decision was
based on an incorrect application of law or CIS policy. For these reasons , the director properly declined to
treat the appeal as a motion to reopen or reconsider.
As the appeal was untimely filed and the petitioner has failed to provide any new facts or evidence that
support a motion to reopen or reconsider, the appeal must be rejected.
EAC 0617350218
Page 3
ORDER: The appeal is rejected as untimely filed. The petition is denied.