dismissed O-1A Case: Unknown

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S, Citizenship 
and Immigration 
Services 
FILE: Office: VERMONT SERVICE CENTER 
EAC 03 258 52369 Date: SEP 2 8 2005 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(0)(i) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 10 1 (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. 
V Pobert P. Wiemann, Director 
Administrative Appeals Ofice 
DISCUSSION: The Acting Director, Vermont Service Center, denied the preference visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as 
untimely filed. 
In order to properly file an appeal, the regulation at 8 C.F.R. 9 103.3(a)(2)(i) provides that the affected party 
must file the complete appeal within 30 days of after service of the unfavorable decision. If the decision was 
mailed, the appeal must be filed within 33 days. See 8 C.F.R. tj 103.5a(b). 
The record indicates that the director issued the decision on November 3, 2004. It is noted that the director 
properly gave notice to the petitioner that it had 33 days to file the appeal. Citizenship and Immigration 
Services (CIS) received the appeal notice on December 27, 2004, or 44 days after the decision was issued. 
Accordingly, the appeal was untimely filed. 
Counsel for the petitioner asserts that he did not receive the decision denying the petition until December 11, 
2004. According to CIS records, the decision was mailed on November 3,2004 to the petitioner in care of his 
counsel at the address listed on the Form G-28 notice of entry of appearance as attorney or representative. 
There is no evidence that the notice was returned as undeliverable. 
The regulation at 8 C.F.R. 5 103.3(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 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. 5 103.5(a)(l)(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. 
ORDER: The appeal is rejected.