dismissed L-1A Case: Agriculture

identifyingdatadeletedto
preventclearlyunwarranted
invasionofpersonalprivacy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLICcopy
File: WAC 07 131 52189 Office: CALIFORNIA SERVICE CENTER Date: FEB 0 I 2008
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN 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.
( ~~r
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 07 131 52189
Page 2
DISCUSSION: The Director of the California Service Center denied the nonimmigrant visa petition and the
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as
untimely pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(1).
The petitioner is a Nevada corporation and is allegedly in the agriculture business. The petitioner seeks to
employ the beneficiary as its executive vice president of sales and marketing as an L-1A nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(15)(L). The director denied the petition concluding that the petitioner failed to establish (1)
that the beneficiary was employed abroad in a primarily managerial or executive capacity; (2) that the
beneficiary will be employed in the United States in a primarily managerial or executive capacity; or (3) that
the petitioner has a qualifying relationship with the foreign employer.
The record indicates that the decision of the director was mailed to the petitioner and its counsel on July 9, 2007.
An unsigned Form I-290B, Notice of Appeal to Administrative Appeals Unit (AAU) , was received by the
California Service Center on August 9, 2007, 31 days after the decision was mailed. However, the Form I-290B
was returned to counsel on or about August 10,2007 because it included the incorrect filing fee. A new filing fee
of $585.00 became effective on July 30,2007. 72 Fed. Reg. 29851-29874 (May 30,2007); 8 C.F.R. § 103.7.
The California Service Center received a resubmitted, and signed, Form I-290B with the proper $585.00 filing fee
on August 22,2007,44 days after the decision was mailed.
The regulation at 8 C.F.R. § 103.3(a)(2) requires an affected party to file the complete appeal within 30 days after
service of the decision, or, in accordance with 8 C.F.R. § 103.5a(b), within 33 days if the decision was served by
mail. Title 8 C.F.R. § 103.2(a)(7)(i) requires Citizenship and Immigration Services (CIS) to reject any petition or
application filed with the incorrect filing fee. Likewise, filings which were rejected because they were submitted
with incorrect filing fees do not retain filing dates. Id. Therefore, in this matter, CIS is required to reject the
appeal as untimely filed. Although counsel submitted the I-290B within 33 days of service of the decision, this
submission included the incorrect filing fee. Therefore, as this filing did not retain a filing date, the actually filing
date for the Form I-290B is August 22,2007,44 days after the decision was served by mail. Thus, the appeal was
not timely filed and must be rejected on these grounds pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(1).
It is noted that, while the instructions in the California Service Center's July 9, 2007 decision identified a
filing fee for the appeal of $385.00, this decision was dated and mailed 21 days before the effective date of
the filing fee change to $585.00. Moreover, as the fee change properly appeared in the Federal Register in
accordance with law over one month prior to the director's decision, counsel was charged with notice of the
appropriate fee change. See 72 Fed. Reg. 29851-29874 (May 30, 2007). As noted in the Federal Register,
"[a]pplications or petitions mailed, postmarked, or otherwise filed, on or after July 30, 2007 must include the
new fee." Finally, as CIS, which includes both the California Service Center and the AAO, lacks the
authority to authorize an untimely appeal which failed to hold a filing date due to the submission of an
incorrect filing fee, CIS is compelled to reject the appeal. Title 8 C.F.R. § 103.3(a)(2)(v)(B)(1) states in
pertinent part that" [a]n appeal which is not timely filed within the time allowed must be rejected as improperly
filed."
WAC 07 131 52189
Page 3
Finally, as noted above, the Form 1-290B submitted to the California Service Center on August 9,2007 was also
unsigned. The regulation at 8 C.F.R. § 103.2(a)(7)(i) provides that "[a]n application or petition which is not
properly signed ... shall be rejected as improperly filed." Likewise, filings which are rejected because they are
not signed do not retain filing dates. Id. Therefore, although not noted by the director, the director's return of the
Form 1-290B to counsel was also proper because the form was not properly signed. For this additional reason, the
1-290B submitted to the California Service Center on August 9, 2007 did not retain a filing date.
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 as described in 8 C.F.R. § 103.5(a)(2) or a motion to reconsider as described in 8 C.F.R.
§ 103.5(a)(3), 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 service center director. See 8 C.F.R. § 103.5(a)(l)(ii). Here, the untimely appeal does not meet the
requirements of a motion to reopen or a motion to reconsider. The petitioner failed to cite any pertinent precedent
decisions establishing that the director's decision was based on an incorrect application of law or policy.
Therefore, it does not meet the requirements of a motion to reconsider.
Likewise, the petitioner failed to state any "new facts" which could be considered in a reopened proceeding.
Based on the plain meaning of "new," a new fact is found to be evidence that was not available and could not
have been discovered or presented in the previous proceeding.1 While the petitioner submitted documents in
support of the appeal dated after the director's decision, these are self-generated documents which could have
been presented in response to the director's Request for Evidence or with the initial petition. As such, there is no
evidence submitted on appeal that may be considered "new" under 8 C.F.R. § 103.5(a)(2) and that could be
considered a proper basis for a motion to reopen.
ORDER: The appeal is rejected.
IThe 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'SII NEW RIVERSIDEUNIVERSITYDICTIONARY792 (1984)(emphasis
in original).