dismissed EB-1C Case: Heavy Machinery And Engineering

invasion of persod privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY ra 
FILE: I 
 office: CALIFORNIA SERVICE CENTER 
 ~ate:AuG 0 6 2008 
WAC 97 061 50270 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
P. Wiemann, Chief 
istrative Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, initially approved the employment-based immigrant 
visa petition, and ultimately revoked the approval of the petition following the issuance of two notices of 
intent to revoke. The Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. 
The matter is now before the AAO on a combined motion to reopen and reconsider. The motion will be 
dismissed. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
tj 1153(b)(l)(C). The petitioner, a California corporation, states that it is engaged in heavy machinery and 
technologies research, development and engineering. The petitioner seeks to employ the beneficiary as its 
president. 
The director approved the employment-based immigrant petition on January 27, 1997. After interviewing the 
beneficiary in connection with his Form 1-485, Application to Register Permanent Resident Status of Adjust 
Status in 1998, and awaiting the results of an overseas investigation, the U.S. Citizenship and Immigration 
Services (USCIS) Los Angeles District Office returned the petition to the California Service Center for further 
review and action on October 10, 2003. The director subsequently issued Notices of Intent to Revoke on 
August 4,2005 and on December 23,2005. 
After reviewing the petitioner's response to the second Notice of Intent to Revoke, the director revoked the 
approval of the petition on November 03, 2006. The director concluded that the petitioner had failed to 
establish that the beneficiary would be employed in the United States in a primarily managerial or executive 
capacity. The AAO concurred with the director's findings and dismissed the petitioner's appeal in a decision 
dated August 3,2007. 
The petitioner filed the instant motion to reopen and reconsider on October 30, 2007. The regulation at 8 
C.F.R. tj 103.5(a)(l)(i) requires that any motion to reopen or reconsider an action by USCIS be filed within 30 
days of the decision that the motion seeks to reopen or reconsider, except that failure to file before this period 
expires may be excused in the discretion of USCIS where it is demonstrated that the delay was reasonable and 
was beyond the control of the petitioner. If the decision was mailed, the motion must be filed within 33 days. 
See 8 C.F.R. tj 103.5a(b). 
In accordance with 8 C.F.R. $ 103.2(a)(7)(i), an application received in a Citizenship and Immigration 
Services (CIS) office shall be stamped to show the time and date of actual receipt, if it is properly signed, 
executed and accompanied by the correct fee. For calculating the date of filing, the motion shall be regarded 
as properly filed on the date that it is so stamped by the service center. In the present matter, according to the 
date stamp on the Form 1-290B, Notice of Appeal or Motion, the motion was received by the director on 
October 30, 2007, 88 days after the AAO's decision was issued. Counsel has offered no explanation for the 
petitioner's failure to file the motion within 33 days of the AAO's adverse decision. 
Therefore, as a matter of discretion, the petitioner's failure to file the motion within the period allowed will not 
be excused as either reasonable or beyond the control of the petitioner. Accordingly, the motion will be dismissed 
as untimely filed. 
Page 3 
Although the motion will be dismissed, the AAO notes that the sole argument presented on motion is the fact 
that the beneficiary was previously granted L-1A status to work for the petitioner as a nonimmigrant 
intracompany transferee in a managerial or executive capacity. In this regard, counsel states: 
Thus, the beneficiary met the required hierarchy and levels of staffing at the petitioning entity 
as an executive or manager. Otherwise CIS would not have approved the L-1A petitions 
twice. Since US Immigration Law does not apply two different standards toward an L-1A 
status holder and an 1-140 beneficiary based on the same company's petitions for the same 
person, same job title and same duty, revoking the previous approved decision is self- 
contradictory. 
Counsel's argument is not persuasive. With regard to the beneficiary's L-1 nonimmigrant classification, it 
should be noted that, in general, given the permanent nature of the benefit sought, immigrant petitions are 
given far greater scrutiny by CIS than nonimmigrant petitions. The AAO acknowledges that both the 
immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and executive 
capacity. See $5 10 1(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 10 1 (a)(44). Although the statutory definitions 
for managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
There are significant differences between the nonimmigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. CJ: §tj 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also $ 3 16 of the 
Act, 8 U.S.C. $ 1427. 
In addition, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. See 8 C.F.R. $ 103.8(d); 8 C.F.R. $ 
1032(b)(16)(ii). USCIS is not required to assume the burden of searching through previously provided 
evidence submitted in support of other petitions to determine the approvability of the petition at hand in the 
present matter. The approval of a nonimmigrant petition in no way guarantees that CIS will approve an 
immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions 
after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. 
Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Despite any number of previously approved 
petitions, CIS does not have any authority to confer an immigration benefit when the petitioner fails to meet 
its burden of proof in a subsequent petition. See section 291 of the Act. 
Page 4 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
200 I), cert. denied, 122 S.Ct. 5 1 (200 1). 
It is noted that counsel makes no direct reference to the detailed findings made in the AAO's decision dated 
August 3, 2007 and the specific deficiencies in the petitioner's evidence, which were remarked upon and 
discussed at length therein. In an attempt to establish that the beneficiary's employment in the United States is 
in a qualifiing capacity, counsel restates the statutory definitions of managerial and executive capacity and 
provides a brief position description for the beneficiary which paraphrases the definition of "executive capacity" 
at section 101(a)(44)(B) of the Act. However, with regard to a motion to reconsider, the regulations at 8 C.F.R. 
$ 103.5(a)(3) state the following, in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or CIS policy. A motion to reconsider a decision on an application or 
petition must, when filed, also establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 
Thus, the purpose of a motion is different from the purpose of an appeal. While the AAO conducts a 
comprehensive, de novo review of the entire record on appeal, a review in the case of a motion to reconsider 
is strictly limited to an examination of any purported misapplication of law of USCIS policy, which must be 
supported by precedent case law. As such, counsel's most recent recitation of the beneficiary's proposed 
employment does not meet the requirements of a motion to reconsider. The AAO previously conducted a de 
novo review of the entire record of proceeding. Any information regarding the beneficiary's proposed 
employment, particularly his job duties, should have been provided on appeal. There is no regulatory or 
statutory provision that allows a petitioner more than one appellate decision with respect to the same petition. 
In the present matter, an appellate decision was issued and the deficiencies were expressly stated. The instant 
motion fails to indicate how the decision was based on an incorrect application of law or CIS policy, nor is it 
supported by pertinent precedent decisions. Accordingly, had the motion been timely filed, it would fail to 
meet the regulatory requirements for a motion to reconsider. 
The regulations at 8 C.F.R. $ 103.5(a)(2) state, in pertinent part, that a motion to reopen must state the new 
facts to be provided in the reopened proceeding and be supported by affidavits or other documentary 
evidence. 
With regard to the motion to reopen, it is noted that that the petitioner has failed to submit any fact that can be 
deemed new.' No new facts are discussed in counsel's latest brief, and the only supporting documentation 
provided consists of excerpts from the petitioner's parent company's web site printed in October 2007. The 
claimed "continuous growth" of the petitioner's parent company has no bearing on the issue of whether the 
petitioner established that the beneficiary would be employed in a managerial or executive capacity as of 
' The word "new" is defined as " 1. having existed or been made for only a short time . . .3. Just discovered, found, or learned 
<new evidence> . . . ." WEBSTER'S I1 NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (1 984)(emphasis in original). 
Page 5 
December 1996, when the instant petition was filed. Furthermore, a petitioner must establish eligibility at the 
time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 197 1). Accordingly, had 
the motion been timely filed, it would fail to meet the regulatory requirements for a motion to reopen. 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.F.R. 
8 103 .S(a)(l)(iv). 
ORDER: The motion is dismissed as untimely filed.