dismissed H-1B Case: Fitness

PUBLICCOpy
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U.S. Department of Homeland Security
20 Massachusetts Ave., NW, Rm. 3000
Washington, DC 20539
u.s.Citizenship
and Immigration
Services
DJ-
FILE: SRC 04 09453005 Office: TEXAS SERVICE CENTER Date: JUN 2 22007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
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.
~~.-:::g:;~~ I r:
Administrative Appeals Office
SRC 04 094 53005
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa.
The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is again before the
AAO on motion to reopen or reconsider. The motion will be dismissed as untimely filed.
The petitioner is a "private club and fitness club" that seeks to employ the beneficiary as a fitness trainer.
The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation
pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101 (a)(l5)(H)(i)(b). The director denied the petition on the basis of her determination that
the proffered position did not qualify for classification as a specialty occupation. The AAO affirmed the
director's findings.
An affected party has 30 days from the date of an adverse decision to file a motion to reopen or reconsider
a proceeding before Citizenship and Immigration Services (CIS). 8 C.F.R. § 103.5(a)(l)(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). Any motion that does not meet applicable requirements shall be dismissed.
8 C.F.R. § 103.5(a)(4).
The AAO issued its decision on November 2, 2005. Although counsel submitted a motion, he did so
using an outdated Form 1-290B; which CIS properly rejected. The motion was not received in proper
filing condition until December 12, 2005, or 40 days after the decision was issued. Accordingly, the
motion was untimely filed.
Neither counsel nor the petitioner presents any evidence for CIS to consider regarding the delay in timely
filing the motion. 8 C.F.R. § 103.5(a)(l)(i). Accordingly, the motion will be dismissed.
As always, the burden of proving eligibility for the benefit sought remains entirely with the petitioner.
Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.
ORDER: The motion is dismissed.