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RejectedEB-2 · Motion to reopen

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Other / unclear · decided 2013-01-11 · NSC · JAN112013_04B5203

Official PDF on uscis.gov

Decided under the old NYSDOT test, replaced by Matter of Dhanasar on Dec 27, 2016. Useful for background only.

How each part of the test was decided

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  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

The decision in brief

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What the AAO decided

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    Full decision

    OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

    Highlighted: Outcome (2)Matter of X citation
    Decision header
    DATE: . Office: NEBRASKA SERVIC::E CENtER JAN 1 1 2013 · INRE: Petitioner: · Beneficiary: U.S. Department of Homeland Security U.S. Citizenship and Immigration Service~ Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 . V· S. Citiz~nship and Inumgratlon Services FILE: · PETITION: Immigrant Petition for Alien Worker as a Member of 'he Professions Holding an

    Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 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 origina~ly decided your case. Please be advised that any further inqui,ry that you might have concerning your case must be made to that office. Thank you, crm

    Ron Rosenberg .

    Acting Chief, Administrative Appeals Office www.uscis.gov

    DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition, which 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. § 103.3(a)(2)(i) provides that the affected party or the attorney or representative of record must submit the complete appeal within 30 days of service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F:R. § 103.8(b ). The date of filing is not the date of submission, but the date of actual receipt with the required fee. See 8 C.F.R. § 103.2(a)(7)(i). The director issued the decision on August 29, 2011. The director properly gave notice to the petitioner that it had 33 days to file the appeal. Neither the Act noi the pertinent regulations grant the AAO authority to extend this time limit.

    Although counsel dated the Form I-290B, Notice of Appeal, September 30, 2011, it was filed on October 4, 2011, or 36 days after the decision was issued. Accordingly, the appeal was untimely filed.

    If an untimely appeal meets the requirements of a motion to reopen or reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. 8 C.F.R. § 103.3(a)(2)(v)(B)(2). The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director, Nebraska Service Center. 8 C.F.R. § 103.5(a)(1)(ii). As required by 8 C.F.R. § 103.3(a)(2)(ii)-(iv), the director reviewed the appeal prior to forwarding it to the AAO, and did not conclude that it met the requirements of a motion or otherwise warrant favorable action. -

    The untimely appeal must be rejected pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(i).

    ORDER: The appeal is-rejected.