dismissed H-1B Case: Transportation Services

ickmtifyingdatadeletedto
Pl"'ventclearly i.U1warranted
invasionofpersonalprivacy
PUBLICCOpy
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm.3000
Washington, DC 20529
U.s. Citizenship
and Immigration
Services
FILE: WAC 04 261 50279 Office: CALIFORNIA SERVICE CENTER Date: OCT 2. 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 26150279
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and on May 2, 2006 , the
Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the AAO on
a"motion to reconsider. The motion will be dismissed and the AAO decision, dated May 2 , 2006, will be
affirmed.
The petitioner is an international express courier and transportation services business 1 that seeks to employ
the beneficiary as an assistant operations manager. The petitioner endeavors to classify the beneficiary as a
nonimmigrant worker in a specialty occupation pursuant to section 10l(a)(15)(H)(i)(b) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(H)(i)(b). The director denied the petition on the basis that
the proffered position did not meet the definition of a specialty occupation and the beneficiary was not
qualified to perform a specialty occupation . The AAO determined that although the beneficiary was qualified
to perform the duties of the proffered position, the petitioner had failed to establish that the proffered position
was a specialty occupation, and dismissed the appeal accordingly.
An affected party has 30 days from the date of an adverse decision to file a motion to reopen or reconsider a
proceeding before Citizenship and Immigration Services (CIS). 8 C.F.R . § 103.5(a)(1)(i). If the adverse
decision was served by mail, an additional three-day period is added to the 30-day period. 8 C.F.R.
§ 103.5a(b). Any motion that does not meet applicable requirements shall be dismissed. 8 C.F.R.
§ 103.5(a)(4).
The petitioner's motion does not meet applicable requirements because it was not timely filed. The AAO
mailed its decision to the petitioner on May 2, 2006. CIS received the petitioner 's motion 41 days later on
June 12, 2006. Neither counsel nor the petitioner presents any evidence for CIS to consider regarding the
delay in timely filing the motion. 8 C.F.R. § 103.5(a)(1)(i).
Further, the AAO notes that counsel's assertions on motion would have no merit had they been timely
submitted because they do not satisfy either the requirements of a motion to reopen or a motion to reconsider.
The unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled to
any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter ofRamirez-Sanchez ,
17 I&N Dec . 503 (BIA 1980). A motion to reopen must state the new facts to be proved in the reopened
proceeding and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to
reconsider must: (1) 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; and (2)
establish that the decision "was incorrect based on the evidence of record at the time of the initial decision.
8 C.F.R. § 103.5(a)(3).
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WAC 04 261 50279
Page 3
On motion, counsel states that the AAO's decision is incorrect. Counsel's statement, however, is not
persuasive. As previously stated, a motion to reopen must state the new facts that will be proven if the matter
is reopened , and must be supported by affidavits or other documentary evidence. The Master of Business
Administration in International Business degree that counsel submits on motion pertains to the beneficiary's
qualifications and was issued to the beneficiary after the filing date of the petition. First , the AAO did not
conclude that the beneficiary was not qualified for the proffered position and , second, the petitioner must
establish eligibility at the time of filing the non immigrant visa petition. A visa petition may not be appro ved
at a future date after the petitioner or beneficiary becomes elig ible under a new set of facts. Matter of
Michelin Tire Corp ., 17 I&NDec. 248 (Reg. Comm. 1978).
Generally, the new facts must be material and unavailable previously, and could not have been discovered
earlier in the proceeding. See 8 C.F.R. § l003 .23(b)(3). Here, the motion conta ins no e vidence entailing new
facts that are material and were previously unava ilable. Further, the record does not contain affidavits or other
documentary evidence in support of a motion to reopen . 8 C .F.R. § 103.5(a)(2). As referenced above ,
counsel's letter in support of the motion is not evidence but simpl y assertions and as mere assertions are not
entitled to any evidentiary weight. See INS v. Phinpath ya , 464 U .S. at 188-89 n.6 (1984); Matter of
Ramirez-Sanchez, 17 I&N Dec. at 503. Accordingly, the motion will be dismissed.
As always, the burden of proving eligibility for the benefit sought remains entirely with the petitioner . Section
291 ofthe Act, 8 U.S.c. § 1361.The petitioner has not met that burden.
ORDER: The motion is dismissed . The AAO 's decision dated May 2 ,2006 is affirmed, The petit ion is
denied.