dismissed L-1A Case: Beauty And Surgical Instruments

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLIC COpy
File: EAC 06 144 52331 Office: VERMONT SERVICE CENTER Date: FEB 0 1 ZODB
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
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Robe . lemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 14452331
Page 2
DISCUSSION: On October 20,2006, the Director of the Vermont Service Center denied the nonimmigrant
visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on
September 6, 2007, the AAO dismissed the appeal. On October 17, 2007, a motion to reopen and reconsider
the AAO's decision was filed with the Vermont Service Center. The motion will be dismissed pursuant to 8
C.F.R. §§ 103.5(a)(1)(i), 103.5(a)(1)(iii)(E), 103.5(a)(2), 103.5(a)(3), and 103.5(a)(4).
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-l A 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 petitioner, a New York corporation, claims to be a distributor of pedicure,
manicure, beauty, and surgical instruments.
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be
employed in a primarily managerial or executive capacity. The petitioner appealed to the AAO. On
September 6, 2007, the AAO dismissed the appeal and further denied the petition because the petitioner failed
to establish that it has a qualifying relationship with the foreign employer. On October 17, 2007, a motion to
reopen and reconsider was filed. Counsel asserts that the AAO and the director erred and that the petitioner
sufficiently established that the beneficiary will perform qualifying duties in the United States. Counsel also
requests that the AAO grant the petitioner an additional 60 days to submit evidence addressing the qualifying
relationship issue raised by the AAO in its September 6, 2007 decision.
The regulation at 8 C.F.R. § 103.5(a)(1)(i) states in pertinent part that:
Any motion to reconsider an action by [Citizenship and Immigration Services (CIS)] filed by
an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to
reconsider. Any motion to reopen a proceeding before [CIS] filed by an applicant or
petitioner, must be filed within 30 days of the decision that the motion seeks to reopen,
except that failure to file before this period expires, may be excused in the discretion of [CIS]
where it is demonstrated that the delay was reasonable and was beyond the control of the
applicant or petitioner.
In this matter, the instant motion was filed with the Vermont Service Center on October 17, 2007, or 41 days
after the decision of the AAO. The record is devoid of evidence establishing that the petitioner's failure to
timely file the motion with the Vermont Service Center was reasonable and beyond its control. Therefore, the
motion must be dismissed for failing to meet applicable requirements. 8 C.F.R. § 103.5(a)(4).1
lThe record indicates that an attempt to file the instant motion was made directly with the AAO on October 9,
2007, 33 days after the decision of the AAO. It is noted that the attempt to file this motion directly with the
AAO did not establish a receipt date of October 9, 2007. As clearly explained in the AAO's decision dated
September 6, 2007, further inquiries regarding the matter should have been made to the Vermont Service
Center. Moreover, the regulation at 8 C.F.R. § 103.5(a)(1)(iii)(E) clearly requires that this motion be filed at
the office maintaining the record, i.e., the Vermont Service Center, for forwarding to the official having
jurisdiction, i.e., the AAO. Therefore, the receipt date for the instant motion was the day it was received by
the Vermont Service Center - October 17, 2007.
EAC 06 144 52331
Page 3
The motion must also be dismissed for failing to meet the requirements pertaining to motions to reopen and
motions 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." 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. 2
Likewise, the regulations at 8 C.F.R. § 103.5(a)(3) state, in pertinent part, that "[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 oflaw or [CIS] policy."
In this matter, the petitioner failed to state any new facts for the AAO to consider in the reopened proceeding.
The only evidence submitted on motion is a letter dated October 4, 2007 written by the petitioner, which reiterates
its earlier assertion that the beneficiary will perform qualifying duties in the United States. As such, there is no
evidence submitted on motion 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.3
Similarly, the petitioner has not stated any reasons for reconsideration. The petitioner failed to state the reasons
for reconsideration or to cite any pertinent precedent decisions establishing that the AAO's decision was based on
an incorrect application of law or CIS policy. Accordingly, the motion does not meet the requirements of a
motion to reconsider.
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same reasons as
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. See INS v. Doherty,
502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding
bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the petitioner has not met that
burden.
2The 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).
3As noted above, the petitioner requests 60 days to submit additional evidence addressing the AAO's decision
to further deny the petition because the petitioner failed to establish that it has a qualifying relationship with
the foreign employer. However, as explained above, a motion to reopen must "be supported by affidavits or
other documentary evidence." 8 C.F.R. § 103.5(a)(2). Unlike the regulations pertaining to appeals, the
regulations pertaining to motions to reopen and reconsider do not permit the filing of briefs or additional
evidence other than concurrently with the motion except when CIS reopens or reconsiders a decision on its
own motion. See 8 C.F.R. § 103.3(a)(2)(vii); 8 C.F.R. § 103.5(a)(5)(v)(ii). Therefore, the AAO would not
consider a brief or evidence not submitted concurrently with the instant motion, and the motion must be
dismissed for failing to be supported by affidavits or other documentary evidence.
EAC 06 14452331
Page 4
Finally, it should be noted for the record that, unless CIS directs otherwise, the filing of a motion to reopen does
not stay the execution of any decision in a case or extend a previously set departure date. 8 C.F.R. §
103.5(a)(1)(iv).
Accordingly, the motion will be dismissed, the proceedings will not be reopened or reconsidered, and the
previous decisions of the director and the AAO will not be disturbed.
ORDER: The motion is dismissed.