dismissed L-1A Case: Unknown

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
'and Immigration
Services
PUBLICCopy
FILE: SRC 03 244 56921 Office: TEXAS SERVICE CENTER Date: DEC 2 6 l007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuantto Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L)
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.
R~
Administrative Appeals Office
www.uscis.gov
SRC 03 244 56921
Page 2
-DISCUSSION: The' Director, Texas Service Center denied the nonimmigrant visa petition and a sub sequent
appeal was rejected by the Administrative Appeals Office (AAO) for being untimely filed. The AAO also
rejected the petitioner's subsequent motion , stating that the properly rejected appeal left no decision for the
AAO to reconsider or reopen. .The matter presently before the AAO is an appeal of the rejected motion. The
appeal will be rejected pursuant t08 C.F.R. § 103.3(a)(2)(v)(A)(I).
The AAO notes that counsel filed the petitioner's most recent appeal using Form EOIR-29, Notice of Appeal
to the Board of Immigration Appeals from a Decision of an INS Officer , it must be noted that the Board of
Immigration Appeals does .not have jurisdiction over this matter. See 8 C.F.R. § 1003.I(b). The AAO .
properly has jurisdiction to review any appeal in this matter. I Based on the petitioner's untimely filing, the
AAO rejected the,appeal, thereby denying the petitioner's request to review the director's underlying denial of
the nonimmigrant petition. Accordingly, the petitioner's subsequent motion was rejected, as the AAO did not
issue an appellate decision. Despite counsel's filing of an appeal in response to the AAO's rejection of the
petitioner's motion, there are no regulatory provis ions that allow a petitioner to appeal an AAO decision on an
appeal or motion. Rather, the petitioner may file a motion pursuant to 8 ~.F.R. § 103.5(a)(8) . However, even
if the AAO were to treat the petitioner's most recently filed appeal as a motion , the motion would be
dismissed due to its improper and untimely filing .
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 accompani ed by the correct fee . . In the instant matter, the record shows that the petitioner's
latest filing was accompanied by a fee of$IIO . .However, 8 C.F.R. § 103.7 states that the filing fee for an
appeal'or motion is $385 . Thus, the petitioner submitted an insufficient filing fee with its latest submission.
Additionally , in order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(l)(i) provides that the
affected party must file the motion within 30 days of service of the unfavorable decision. If the decision was
mailed, the appeal must be filed within 33 days. SeeS C.F.R.§ 103.5a(b). The failure to file before this
period expires may be excused at the discretion .of the AAO where it is demonstrated that the delay was
reasonable and beyond the control of the petitioner : 8 C.·F.R. § 103.5(a)(l)(i).
In -accordance with 8 C.F.R. § 103.2(a)(7)(i) , an application received in a 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 f~e. For
calculating the date of filing, the motion.shall be regarded as properly filed on the date that it is so stamped by
the service center or district office. '
In the instant matter , the record shows that the AAO's latest decision regarding the L-IA petition was issued
on March I, 2006. Although the petitioner 's initial attempt to file the second appeal was in March .of 2006,1
'the AAO returned the submission with a notice informing counsel that the AAO does not directly accept or
.process appeals or fees. The notice provided counsel with information regarding proper filing procedures. ' .
J The authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland Security .
(DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L. 107 -296. See DHS
Delegation Number 0150 .1 (effective March 1, 2003) ; see also 8 C.F.R. § 2.1 (200 3). The AAO exercises appellate
jurisdiction over the matters described at 8 C.F.R. § 103.1(t)(3)(iii) (as in effect on February 28,2003). See DHS
Delegation Number OISO.I(U) supra; 8 C.F.R. § 103.3(a)(iv) .
2 The exact date of the initial filing attempt is not clear.
SRC 03 244 56921
Page 3
The petitioner ultimately resubmitted the appeal, with an improper filing fee, on April 10,2006, or 40 days
after the AAO issued its latest notice. Therefore, the appeal was untimely and improperly filed and would
have been dismissed ifit had been treated as a motion. See 8 C.F.R. § 103.3(a)(2)(v)(B)(1).
As the appeal was not properly filed, it will be rejected .:
ORDER: The appeal is rejected.