dismissed H-1B Case: Unknown

U.S. Department ofHomelarid Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
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FILE: WAC 04 20252717
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Office: CALIFORNIA SERVICE CENTER Date: DEC 042006
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)(l5)(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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
(i'
I WAC 04 202 52717
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.
§ 103.3(a)(2)(v)(B)(1) as untimely filed.
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).
The record indicates that the director issued the decision on November 18, 2004. It is noted that the director
properly gave notice to the petitioner that it had 33 days to file the appeal. Although the petitioner initially filed a
motion on December 14, 2004, it was returned as improperly filed. The instant appeal was received by
Citizenship and Immigration Services (CIS) on January 5, 2005, or 48 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 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 ofthe 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.
ORDE'R: The appeal is rejected.