dismissed O-1A Case: Science

identifying data deleted to 
prevent c~:a:- . -:r~warranted 
invasian of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 08 191 5 1348 
 Office: VERMONT SERVICE CENTER 
 Date: 
 OCT 1 6 2009 
Petition: 
 Petition for a Nonimmigrant Worker under Section 10l(a)(15)(0)(i) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 101(a)(15)(0)(i) 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
vrry Rhew 
Chief, Administrative Appeals Office 
PAC 08 191 51348 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected 
pursuant to 8 C.F.R. 8 103.3(a)(2)(v)(B)(l). 
The petitioner filed this petition seelung to classify the beneficiary as an 0-1 nonimmigrant pursuant to 
section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), as an alien with extraordinary 
ability in the sciences. The petitioner, a university, seeks to employ the beneficiary in the position of clinical 
research coordinator for a period of three years. 
The director denied the petition, concluding that the petitioner failed to demonstrate that the beneficiary has 
received sustained national or international acclaim and recognition for achievements in her field of expertise, 
pursuant to the evidentiary criteria set forth at 8 C.F.R. $8 214.2(0)(3)(iii)(A) and (B). 
The regulation at 8 C.F.R. 8 103.3(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. 8 103.5a(b), within 33 days if the decision was 
served by mail. The record indicates that the director's decision was mailed to the petitioner on November 21, 
2008. The AAO notes that, based on the date of service, the petitioner was required to file the appeal on or 
before December 24,2008. 
Counsel for the petitioner filed the instant appeal with the Vermont Service Center on December 29,2008, 38 
days after the director issued the adverse decision. The record shows that the appeal was sent via Federal 
Express on December 24, 2008 and therefore would not have been timely filed even if it had been delivered 
within one business day by the courier. The date of filing is not the date of mailing, but the date of actual 
receipt. See 8 C.F.R. 8 103.2(a)(7)(i). 
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit for 
filing an appeal. Thus, the appeal was not timely filed and must be rejected on these grounds pursuant to 8 
C.F.R. 5 103.3(a)(2)(v)(B)(l). 
The regulation at 8 C.F.R. 8 103.3(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. 8 103.5(a)(2) or a motion to reconsider as described in 8 C.F.R. tj 
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. 8 103.5(a)(l)(ii). 
It is noted that the appeal does not meet the applicable requirements of a motion to reopen or reconsider. 8 
C.F.R. 8 103.5(a). 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. 8 103.5(a)(2). A motion to reconsider 
must 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 Service policy. A motion to reconsider a 
decision on an application or petition must, when filed, also establish that the decision was incorrect based on 
the evidence of record at the time of the initial decision. 8 C.F.R. 8 103.5(a)(3). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. 8 103.5(a)(4). 
EAC 08 191 51348 
Page 3 
Here, the petitioner offers no "new" evidence, which could not have been presented in the initial proceeding. 
Likewise, counsel fails to cite to any pertinent precedent decisions establishing that the director's decision 
was based on an incorrect application of law or USCIS policy. Counsel has attached a brief statement to 
Form I-290B, Notice of Appeal or Motion, in which he alleges that the director's decision contained a 
misstatement of fact and failed to analyze all of the submitted evidence. Although counsel indicated that a 
brief andlor evidence would be submitted to the AAO within 30 days, no additional evidence has been 
incorporated into the record of proceeding as of this date. Although the regulation at 8 C.F.R. 
5 103.3(a)(2)(vii) states that a petitioner may be permitted additional time to submit a brief or additional 
evidence to the AAO in connection with an appeal, no such provision applies to a motion to reopen or 
reconsider. The additional evidence must comprise the motion. See 8 C.F.R $8 103.5(a)(2) and (3). 
The untimely appeal does not meet the requirements of a motion to reopen or a motion to reconsider. 
Therefore, there is no requirement to treat the appeal as a motion under 8 C.F.R. 8 103.3(a)(2)(v)(B)(2). 
As the appeal was untimely filed, the appeal must be rejected. 
ORDER: The appeal is rejected.