dismissed L-1A Case: Marble And Granite Import/Export

U.S.Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
PUBUCCOPy
u.s.Citizenship
and Immigration
Services
File: WAC 05 12650123 Office: CALIFORNIA SERVICE CENTER Date: FEB 0 22007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
IN 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.
'--'''~'~'''r-~~~ ,-- ' :::-:r-",....
Robe~iemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 12650123
Page 2
DISCUSSION: The Director of the 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)(2)(v)(B)(l).
The petitioner is a California corporation and is allegedly an importer and exporter of marble and granite.
The petitioner is seeking to extend the employment of the beneficiary as its general manager as an L-IA
nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.C. § lI01(a)(l5)(L). The director denied the petition after concluding that the petitioner
failed to establish that the beneficiary will be employed primarily in a managerial or executive capacity.
The record indicates that the decision of the director was mailed to the petitioner on September 5,2005. A Form
I-290B, Notice of Appeal to Administrative Appeals Unit (AAU), was received by the California Service Center
on October 7, 2005, 32 days after the decision was mailed. However, the Form I-290B included the incorrect
filing fee of$110.00. A new filing fee of$385.00 became effective on September 28,2005. 70 Fed. Reg. 50954­
50957 (Aug. 29, 2005); 8 C.F.R. § 103.7. On October 11,2005, the California Service Center returned the Form
I-290B to the petitioner and indicated that it included the incorrect filing fee. The California Service Center
received the resubmitted Form 1-290B with the proper $385.00 filing fee on October 24, 2005, along with a letter
from the petitioner dated October 19, 2005. In the letter, the petitioner specifically makes reference to the appeal
instructions in the director's September 5, 2005 decision, which identify the filing fee as $110.00.
The regulation at 8 C.F.R. § 103.3(a)(2) requires an affected party to file the complete appeal within 30 days after
service of the decision, or, in accordance with 8 C.F.R. § 103.5a(b), within 33 days if the decision was served by
mail. Title 8 C.F.R. § 103.2(a)(7)(i) requires Citizenship and Immigration Services (CIS) to reject any petition or
application filed with the incorrect filing fee. Likewise, filings which were rejected because they were submitted
with incorrect filing fees do not retain filing dates. Therefore, in this matter, CIS is required to reject the appeal as
untimely filed. Although the petitioner submitted the I-290B within 33 days of service of the decision, this
submission included the incorrect filing fee. Therefore, as this filing did not retain a filing date, the actually filing
date for the Form I-290B is October 24, 2005, 49 days after the decision was served by mail. Thus, the appeal
was not timely filed and must be rejected on these grounds pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(l).
While the AAO notes that the instructions in the California Service Center's September 5, 2005 decision
identified the proper filing fee for the appeal as $110.00, this decision was dated and mailed 23 days before
the effective date of the filing fee change to $385.00. Moreover, as the fee change properly appeared in the
Federal Register in accordance with law, the petitioner was charged with notice of the appropriate fee change.
See 70 Fed. Reg. 50954-50957 (Aug. 29, 2005). Finally, as CIS, which includes both the California Service
Center and the AAO, lacks the authority to authorize an untimely appeal which failed to hold a filing date due
to the submission of an incorrect filing fee, CIS is compelled to reject the appeal. Title 8 C.F.R. §
103.3(a)(2)(v)(B)(l) states in pertinent part that "[ajn appeal which is not timely filed within the time allowed
must be rejected as improperly filed." Therefore, under the regulations, CIS lacks the power to consider the
untimely appeal.
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 as described in 8 C.F.R. § I03.5(a)(2) or a motion to reconsider as described in 8 C.F.R.
WAC 05 12650123
Page 3
§ 103.5(a)(3), 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)(l)(ii). The director declined to treat the late appeal as a
motion and forwarded the matter to the AAO.
ORDER: The appeal is rejected.