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Date: Office: TEXAS SERVICE CENTER
FEB 2 1 2013
IN RE: Petitioner:
Beneficiary:
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO)
20 MasSachusetts Ave.,
N.W., MS 2090
Washim!lon. DC 20529-2090
U.S. Citizenship and Immigration
Servi<:es
FILE:
PETITION: Immigrant Petition for Alien Worker as a Professional Holding an Advanced Degree or an Alien of Exceptional Ability pursuant to section 203(b )(2) of the Immigra~ion and Nationality Act, 8 U .S.C. § 1153(b )(2)
ON BEHALF OF PETITIONER :
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that· you might have concerning your case must be made to that office. !Yrn'
~~nberg
Acting Chief, Administr~tive Appeals Office www.us~is.gov
DISCUSSION: The Director, Texas Service Center, denied the·immigrant visa petition as well as a subsequent motion to reopen and reconsider. On June 13, 2012, the Administrative Appeals Office (AAO) dismissed an appeal to the denial ofthe motion to reopen and reconsider. The matter is now before the AAO again on appeal. The appeal will be rejected.
The petitioner is a tax consulting and bookkeeping business. It seeks to classify the beneficiary as an management analyst pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C.. § 1153(b)(2) as a member of the professions holding an advanced degree. As required by statute, the petition was filed with an ETA Form 9089, Application for Permanent Employment Application, approved by the Department of Labor (DOL). The director determined that the petitioner failed to establish that it had continuing ability to pay the proffered wage to the beneficiary since the. priority date. The director denied the petition and a subsequent motion to reopen and reconsider accordingly.
Counsel subsequently filed a timely appeal on the petitioner's behalf on June 28, 2010. The AAO upheld the director's determination that the petitioner failed to establish that that it had continuing ability to pay the proffered wage to the beneficiary since the priority date and dismissed the appeal on June 13, 2012. The cover page o[ the AAO's decision instructed the petitioner that it may file either a motion to reopen or a motion to reconsider the decision pursuant to the requirements found at 8 C.F.R. § 103.5, and that any motion must be filed with the office that originally decided the case within 30 days of the decision that the motion seeks to reconsider or reopen as required by 8 C.F.R. § 103.5(a)(1)(i). ·
The petitioner subsequently attempted to file another appeal on July 9, 2012. The AAO, however, does not exercise appellate jurisdiction. over its own decisions. The AAO only exercises appellate jurisdiction over matters that were specifically listed at 8 C.F.R. § 103.1(t)(3)(iii) (as in effect on February 28, 2003). 1 For instance, in the event that a petitioner disagrees with an AAO decision, the petitioner can file a motion to reopen or a motion to reconsider in accordance with 8 C.F.R. § 103.5. In. this· matter, counsel did not check box D ("I am filing a motion to reopen a decision"), box E ("I am filing a motion to reconsider a decision"), or box F ("I am filinKa motion to reopen and a motion to reconsider a decision") on the Form I-290B, Notice of Appeal or Motion. In this case; the petitioner checked box A ("I am filing an appeal"), instead. Therefore, the appeal is improperly filed and rriust be rejected on this basis pursuant to 8 C.F.R. § 103.3(a)(2)(v)(A)(J). -1 In the process of reorganizing the immigration regulations~ . the Department of Homeland Sec.urity (DHS) deleted the list of the AAO's appellate jurisdiction that was previously found at former 8 C.F.R. § 103.1(t)(3)(iii) (2002). 68 FR 10922 (March 6, 2003). DHS replaced the appellate jurisdiction provision with a general . delegation of authority, granting U.S. Citizenship and Immigration Services (USCIS) the authority to adjudicate the appeals that had been previously listed in the regulations as of February 28, 2003. See DHS Delegation No. 0150.1 para. (2)(U) (Mar. 1, 2003); 8 C .F.R. § 103.3(a)(iv). As a result, there Is no generally accessible list of the AAO's jurisdiction that· may be cited i~ immigration proceedings or ·in federal court.
Therefore, as the appeal was not prope'rly filed, it will be rejected.
ORDER: The appeal is rejected. The AAO's previous decision dated June 13, 2012 shall not be disturbed.