Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nation a lity 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 deci sions.
Thank you, btPAd>ldL n Rosenberg ief, Administrative Appeals Office
I • www.usc1s.gov
NON-PRECEDENTDEC~ION
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.P.R. § 1 03.3(a)(2)(i) provides that the affected pm1y 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.P.R.§ 103.8(b). The regulation at 8 C.P.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.P.R. § 103.2(a)(7)(i). The regulation at 8 C.P.R. § 103.3(a)(2)(v)(B)(l) provides that an appeal which is not filed within the time allowed must be rejected as improperly filed.
The record indicates that the service center director issued the decision on June 3, 2013. The service center director properly gave notice to the petitioner that he 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 July 10, 2013, but the Form I-290B, Notice of Appeal or Motion, was rejected by U.S. Citizenship and Immigration Services. 1 A benefit request which is rejected will not retain a filing date. 8 C.P.R.§ 103.2(a)(7)(iii).
Although the petitioner dated the Form I-290B, Notice of Appeal or Motion, July 3, 2013, the resubmission was not received until August 6, 2013, or 64 days after the director's decision was issued. Accordingly, the appeal was untimely filed.
The regulation at 8 C.P.R. § 103.3(a)(2)(v)(B)(2) states that, if an w1timely appe<d 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.
The petitioner's initial attempt to tile the Form 1-2908 , 37 days after the director's decision was issued , was also untimely. Had the tiling been accepted for tiling by the lockbox, it would still have been rejected as untimely filed .