dismissed H-1B Case: Software Development

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U.S. Depart~nent of Homeland Sec~~rity 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: EAC 05 002 53869 Office: VERMONT SERVICE CENTER Date: 3 1 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(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, Director 
Administrative Appeals Office 
EAC 05 002 53869 
Page 2 
DISCUSSION: The service center director 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. 
9 103.3(a)(2)(v)(B)(l) as untimely filed. 
The petitioner is a software products and services marketing and development company that seeks to employ 
the beneficiary as a programmerlanalyst and to classify him as a nonirnmigrant worker in a specialty occupation 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1101 
(a)(lS)(H)(i)(b). The director denied the petition on the basis that the beneficiary was not qualified to 
perform services in 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 her decision of November 23, 2004, to the 
petitioner at its address of record. Citizenship and Immigration Services (CIS) received the appeal 35 days later 
on December 28,2004. Therefore, the appeal was untimely filed. 
An appeal that is not filed within the time allowed must be rejected as improperly filed. 8 C.F.R. 
$ 103.3(a)(2)(v)(B)(I). If, however, an untimely appeal meets the requirements of a motion to reopen or 
reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. 
8 C.F.R.9 103.3(a)(2)(v)(B)(2). A motion to reopen must state the new facts to be proved in the reopened 
proceeding and be supported by affidavits or other documentary evidence. 8 C.F.R. $ 103.5(a)(2). A motion 
to reconsider must: (1) 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; and 
(2) establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 
8 C.F.R. tj 103.5(a)(3). 
The official that has jurisdiction over a motion to reopen or reconsider 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). The 
director declined to treat the late appeal as a motion and forwarded the matter to the AAO. 
As always, the burden of proving eligbility for the benefit sought remains entirely with the petitioner. Section 
291 of the Act, 8 U.S.C. 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is rejected as untimely filed.