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RejectedEB-2 · Motion to reopen & reconsider

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Other / unclear · decided 2013-01-30 · TSC · JAN302013_02B5203

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

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

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

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The director determined that the late appeal did not meet the requirements of a motion . See in text

What the AAO decided

Read the full decision (2 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    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: JAN 3 Q 2013 OFFICE: TEXA'S SERVICE CENTER -, · IN RE: Petitioner: · Beneficiary: U.S. Department of Homeland Security U.S. Citizenship ~nd Immigration Services Administrativ~ Appeals Orri.:c (A/\0) 20 Massachusetts Ave., N.W., MS 201)0 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services FILE : · PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advam.:ed

    Degree or . an Alien of Exceptional Ability Pursuant to Section 203(h)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) I

    ON BEHALF OF PETITIONER:

    INSTRUCTIONS:

    Enclosed please find the decis.ion of the Administrative Appeals Office in your case. All of the documents related to this maller have been returned to the office that originally decided your case. Please be advised that any further in,quiry that you might have concerning your case must be made to that office. Thank you,

    Ron Rosenberg I

    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 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 . I . 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 May 9, 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 '-Yas sent via facsimile. Neither the Act· nor the pertinent regulations grant the AAO authority to extend this time limit.

    Form I-2908 was not received by the serv~ce center until Friday, June 10, 2011, or 32 days after the decision was issued. Accordingly, the app~al was untimely filed.

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    The regulation at 8 C.F.R. § 103.3(a)(~)(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 qecision in the proceeding, in this case the Director of the Texas Service Center. See 8 C.F.R. § 10?.5(a)(1)(ii). The director determined that the late appeal did not meet the requirements of a motion .and forwarded the matter to the AAO.

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    As the appeal was untimely filed, the appe~l must be rejected.

    I

    ORDER: The appeal is rejected.