Degree or ari Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationalit~ Act, 8 U.S.C. § 1153(p)(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 dec;ided your case. Please be advised that any further inquiry that you might have concerning your case must be made'to that office. Thankyou, ,
~c7L-
Ron Rosenberg
Acting Chief, Administrative Appeals Office
DISCUSSION: The Director, Nebraska Service Center, denied the employmeQt-based immigrant visa petition. The petitioner filed a motion to reconsider the decision. The director granted the motio·n and affirmed the previous denial. The petitioner appealed the decision to the Administrative
Appeals Office (AAO). The appeal will be rejected as 'untimely filed. The AAO will return the matter to the director for consideration as a motion to reopen and reconsider.
The petitioner must appeal an unfavorable decision within 30 days of service. 8 C.P.R. § 103.3(a)(2)(i). If the unfavorable decision was mailed, the appeal must be filed within 33 days. 8 C.P.R. § 103.8(b). An untimely appeal must be rejected as improperly filed. Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend this time limit. .
The filing date is the actual date of receipt at the location designated for filing. 8 C.P.R. § 103.2(a)(7)(i). The appeal must be signed and submitted with the correct fee. /d.
The director issued the decision denying the petition on March 7, 2012. The director properly gave notice to the petitioner that it had 33 days to file the appeal. The petitioner filed the Form I-290B, Notice of Appeal or Motion, on April 10, 2012, or 34 days after the decision was issued. Accordingly, the appeal is untimely.
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.P.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.P.R. § 103.5(a)(1)(ii).
As the appeal brief and additional evidence in this matter were submitted directly to the AAO in accordance with 8 C.P.R. § 103.3(a)(2)(viii), the director did not have an opportunity to review the untimely appeal to determine whether it meets the requirements of a motion to reopen or reconsider. Therefore, the matt~r will be returned to the director. If the director determines. that the untimely appeal meets the requirements of a motion, the motion shall be granted and a new decisioQ will be issued. If the director determines that the untimely appeal does not meet the requirements of a motion, no new decision will be issued.
The untimely appeal must be rejected pursuant to 8 C.P.R. § 103.3(a)(2)(v)(B)(J).
ORDER: The appeal is rejected.