dismissed L-1B Case: Banking

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: WAC 05 05451175 Office: CALIFORNIA SERVICE CENTER Date: FEB 0 2Z007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN 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.
.....-~ ,"-h--
R;~~~n, Chief
Administrative Appeals Office
www.uscis.gov
WAC 0505451175
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)(1).
The petitioner is a California corporation and is allegedly a provider of banking services. The petitioner
originally sought to extend the employment of the beneficiary as its president as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(15)(L). However, in response to the director's Request for Evidence, the petitioner
indicated that the beneficiary would be more appropriately classified as an L-1B nonimmigrant possessing
specialized knowledge. The director denied the petition after concluding that the petitioner failed to establish
that the beneficiary possesses such specialized knowledge.
The record indicates that the decision of the director was mailed to the petitioner on September 5,2005. A Form
1-290B, Notice of Appeal to Administrative Appeals Unit (AAU), was received by the California Service Center
on October 4, 2005, 29 days after the decision was mailed. However, the Form 1-290B 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 4,2005, the California Service Center returned the Form 1­
290B to counsel to the petitioner and indicated that the incorrect filing fee was included. The California Service
Center received the resubmitted Form I-290B with the proper $385.00 filing fee on November 2, 2005, along
with a letter from counsel dated October 24, 2005 asking that the appeal be accepted nunc pro tunc. Counsel
specifically makes reference to the appeal instructions in the Form I-290B sent by the director on September 5,
2005, 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 counsel 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 November 2, 2005, 58 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)(1).
While the AAO notes that the prior version of Form I-290B and 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 along with the Form 1-290B 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,
counsel 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)(1) states in pertinent part that "[a]n
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 authorize a "nunc pro tunc filing" as requested by counsel.
WAC 0505451175
Page 3
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.
§ 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. § I03.5(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.