DATE:JAN 30 2013 ' OFFICE: TEXAS SERVICE CENTER
IN RE: Petitioner:
Beneficiary:
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (Ai\0)
,· 20 Massachusetts Ave., N.W .. MS 2090
Washington, DC 20529-20')0
U.S. Citizenship and Immigration
Services.
FILE:
PETITION: Immigrant Petition for Alien Worker as a Member of the -Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(h)(2)(A) of 1hc Immigration and Nationality Act,8 U.S.C. §'11S3(b)(2)(A) 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 advis~.:d that any further inquiry that you might have concerning your case must be made to that office. Thank you,
Ron Rosenberg ,
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition, which is now before the Administrative Appeals Offi,ce {AAO) onappeal. 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 c.omplete appeal. within 30 days of service of the unfavorable decisi~n. 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 record indicates that' the service center director issued the decision on March 30, 2011 by facsimile, not mail. It is noted that the service center director properly gave notice to the petitioner that it had 30 days to file the appeal, as the denial was sent via facsimile. Neither the Act nor the · pertinent regulations grant the AAO authority to extend this time limit.
I
Form 1-2908 was not received by the service center until Monday, May 2, 2011, or 33 days after the decision was issued. Accordingly, the appeal was untimely filed.
I
The regulation at 8 C.F.R. § 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 Director of the· Texas Service Center. See 8 C.F.R. § 10~.5(a)(l)(ii). The director determined that the late appeal did not meet the requirements of 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.