dismissed L-1A Case: Building Materials

US. Department of Homeland Security 
U.S. Citizenshiv and Immigl-ation Services 
identifying data ddeletcd to 
 OBce of ~drnrAistrative ~Geals, MS 2090 
prevenr clearly unwarranted 
Washington, DC 20529-2090 
invasion of personal privacy 
 U. S. Citizenship 
and Immigration 
File: WAC 08 007 52428 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
AUG 1 1 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U. S.C. 8 1 10 1 (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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
oh F. Grissom 
!/ A ing Chief, Administrative Appeals Office 
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WAC 08 007 52428 
Page 2 
DISCUSSION: On November 28, 2007, the Director of the California Service Center denied the 
nonimmigrant visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), 
and, on August 1, 2008, the AAO dismissed the appeal. On September 8, 2008, counsel for the petitioner 
filed a Motion to Reconsider the AAO's decision in accordance with 8 C.F.R. 5 103.5. The AAO dismissed 
the motion on March 4, 2009, pursuant to the regulations at 8 C.F.R. 5s 103.5(a)(l)(i), 103.5(a)(l)(iii)(C), 
and 103.5(a)(4). 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). The petitioner is a limited liability company organized under the 
laws of the State of California and is allegedly an importer of tiles, frames, and other building materials. It 
seeks to employ the beneficiary in the position of "art frame department manager" for a period of three years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial capacity. The AAO dismissed the subsequently filed 
appeal on the basis that the petitioner failed to establish that the beneficiary would be primarily employed in a 
managerial or executive capacity and further determined that the petitioner failed to establish that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. 
The petitioner subsequently filed a motion to reconsider the AAO's adverse decision on September 8, 2008, 
38 days after the AAO's August 1, 2008 decision.' The AAO dismissed the motion as untimely filed pursuant 
to the regulation at 8 C.F.R. 5 103.5(a)(l)(i), which requires the affected party to file a motion to reconsider 
within 30 days of the underlying decision. The AAO also dismissed the previous motion for failing to meet 
an applicable filing requirement. Specifically, the AAO found that the motion filed on September 8,2008, did 
not contain a statement about whether or not the validity of the unfavorable decision has been or is the subject 
of any judicial proceeding, as required by 8 C.F.R. 5 103.5(a)(l)(iii)(C). 
Counsel for the petitioner timely filed the instant motion to reopen on April 1,2009. On motion, counsel submits 
a brief which is identical in substantive content to the brief submitted in support of the previous motion to 
reconsider, and the brief submitted in support of the petitioner's appeal. Although counsel acknowledges the 
AAO's dismissal of the petitioner's appeal and the subsequent motion, the brief contains no direct reference to the 
specific findings made in the AAO's decisions dated August 1,2008 or March 4, 2009. Rather, counsel requests, 
' In dismissing the motion, the AAO acknowledged that counsel had attempted to file the instant motion 
directly with the AAO on August 28, 2008. However, the AAO immediately, and appropriately, returned the 
motion and the filing fee to counsel. The AAO emphasized that the regulations clearly require that all 
motions be "submitted to the office maintaining the record upon which the unfavorable decision was made for 
forwarding to the official having jurisdiction." 8 C.F.R. 
 103.5(a)(l)(iii)(E). Likewise, the instructions on 
the first page of the AAO's August 1, 2008 decision indicated that all further inquiries be made to the office 
which originally decided the case. The AAO noted that all documents filed with USCIS must be filed "in 
accordance with the instructions on the form," which includes where the documents should be filed, and 
improperly filed documents shall not retain filing dates. See 8 C.F.R. 5 103.2. Accordingly, the AAO 
determined that counsel's attempt to file the motion directly with the AAO did not establish a receipt date of 
August 28,2008. 
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WAC 08 007 52428 
Page 3 
for the third time, that the AAO conduct a de novo review of the record, and either approve the petition or remand 
the matter to the Service Center for further review. 
The regulation at 8 C.F.R. $ 103.5(a)(2) states: 
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. 
The regulation at 8 C.F.R. 5 103.5(a)(3) states: 
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 [U.S. Citizenship and Immigration Services (USCIS)] 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. 
The regulation at 8 C.F.R. tj 103.5(a)(4) states, in pertinent part: "A motion that does not meet applicable 
requirements shall be dismissed." 
The instant motion consists of counsel's brief dated March 3 1, 2009. There is no reference made to the 
findings made in the AAO's most recent decision and the specific deficiencies remarked upon therein, no new 
facts provided to support a motion to reopen, and no reasons stated for reconsideration. Accordingly, the 
motion will be dismissed for failing to meet the applicable requirements. 
The purpose of a motion to reopen 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 reopen is 
strictly limited to an examination of any new facts, which must be supported by affidavits and documentary 
evidence. As such, counsel's previously submitted arguments based on the Service Center director's original 
decision cannot be considered "new" facts. The AAO previously conducted a de novo review of the entire 
record of proceeding and has already addressed the arguments contained in counsel's brief. There is no 
regulatory or statutory provision that allows a petitioner more than one appellate decision per petition filed. 
In the present matter, an appellate decision was issued and the deficiencies were expressly stated. 
Rather, the AAO's review in this matter is limited to the narrow issue of whether the petitioner has presented 
and documented new facts warranting re-opening of the AAO's most recent decision issued on March 4,2009. 
As noted above, the AAO's most recent decision dated March 4,2009, ordered the dismissal of the petitioner's 
motion to reconsider because it was untimely filed, and because it failed to include a statement indicating 
whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding. 
Upon review, the AAO finds that both grounds for dismissal were correct. 
In the current proceeding, counsel has not even acknowledged these grounds for dismissal, much less 
attempted to overcome them. The petitioner has neither claimed that the previous motion was timely filed, 
nor submitted documentary evidence to establish the previous motion was timely filed, such as evidence 
I 
WAC 08 007 52428 
Page 4 
documenting that the AAO's decision dated August 1, 2008 was mailed to the wrong address. Absent such 
evidence, the AAO must conclude that the AAO's decision was properly served to the petitioner and counsel 
by mail on August 1, 2008, and the motion to reconsider was due to be filed with the California Service 
Center on or before Wednesday, September 3,2008 in order to be considered timely filed. 
As noted in the AAO's decision dated March 4, 2009, the regulation at 8 C.F.R. 4 103.5(a)(l)(iii) lists the 
filing requirements for motions to reopen and motions to reconsider. Section 103.5(a)(l)(iii)(C) requires that 
motions be "[alccompanied by a statement about whether or not the validity of the unfavorable decision has 
been or is the subject of any judicial proceeding." The petitioner's previous motion to reconsider did not 
contain the statement required by 8 C.F.R. 5 103.5(a)(l)(iii)(C), nor does the current motion to reopen. The 
regulation at 8 C.F.R. 4 103.5(a)(4) states that a motion which does not meet applicable requirements must be 
dismissed. Therefore, because the instant motion does not meet the applicable filing requirements listed in 8 
C.F.R. 4 103.5(a)(l)(iii)(C), it must also be dismissed for this reason. 
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 movant has not met that 
burden. The motion will be dismissed. 
Finally, the AAO notes for the record that the only issue addressed in either motion is whether the petitioner 
established that the beneficiary will be employed by the U.S. entity in a primarily managerial or executive 
capacity. This was the sole issue addressed in the director's decision dated November 28,2007. As noted above, 
the AAO entered a second ground of ineligibility in its decision dated August 1,2008, in which it determined that 
the petitioner had not established that the beneficiary had been employed by the foreign entity in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 4 214.2(1)(3)(iv). 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (noting that the AAO reviews appeals on a de novo 
basis). When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated 
grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 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.