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RejectedEB-2 · Appeal

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Other / unclear · decided 2013-07-26 · TSC · JUL262013_05B5203

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

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Summary sentence

The director determined that the late appeal did not meet the requirements of a motion and forwarded the matter to the AAO. See in text

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: TEXAS SERVICE CENTER JUL 2 6 2013 · IN RE: Petitioner: · Beneficiary: U.S. Department of Homeland Security U.S. Citizenship and Immigration Serviceo · Office of Admin;strative Appeals 20 Massachusetts Ave., N.W., MS 2090 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 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:

    SELF-REPRESENTED

    INSTRUCTIONS:

    Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non­ precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions.

    Thank you,

    )JOeCAdn·CJl

    (' Ron Rosen berg

    ~ Acting Chief, Administrative Appeals Office www.uscis.gov

    NON-PRECEDENT DECISION

    DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter 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 regulation at 8 C.F.R. § 1.2 explains that when the last day of a period falls on a Saturday, Sunday, or legal holiday, the period shall run until the end of the next day that is not a Saturday, Sunday, or legal holiday. The date of filing is not the date of submission, but the date of actual receipt with the proper signature and the required fee. See 8 C.F.R. § 1 03.2(a)(7)(i). The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(l) provides that an appeal which is not filed with the time allowed must be rejected as improperly filed.

    The record indicates that the service center director issued the decision on February 27, 2013. It is noted that the service center director properly gave notice to the petitioner that she had 33 days to file the appeal. Neither the Act nor the pertinent regulations grant the AAO authority to extend this time limit.

    The petitioner attempted to file the appeal on April2, 2013, but the Form I-290B was rejected by U.S. Citizenship and Immigration Services because it had not been properly signed. Appeals that are not properly signed do not retain a filing date. See 8 C.F.R. §§ I 03.2(a)(7)(i) and (iii). The petitioner resubmitted the properly signed Form I-290B on April 13, 2013, or 45 days after the director's decision was issued. Accordingly, the appeal was untimely filed.

    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. § 103.5(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.