dismissed L-1A Case: Building Materials

U.S. Department of .Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
File: WAC 08 007 52428 Office: CALIFORNIA SERVICE CENTER Date: MAR 0 4 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(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. 
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. 5 103.5 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). 
r/ 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
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 to the petitioner filed 
a Motion to Reconsider the AAO's decision in accordance with 8 C.F.R. § 103.5. The Motion will be 
dismissed pursuant to 8 C.F.R. §§ 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 its "art frame 
department manager" as an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 4 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. 
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. 
U.S. Citizenship and Immigration Services (USCIS) regulations require that motions to reconsider be filed 
within 30 days of the underlying decision. 8 C.F.R. 103.5(a)(l)(i). In this matter, the motion was filed on 
Monday, September 8,2008, 38 days after the AAO's August 1,2008 decision. The record indicates that the 
AAO's decision was mailed to both the petitioner at its business address and to its counsel of record. 
Accordingly, the motion is untimely and must be dismissed for that reason.' 
Furthermore, the motion shall be dismissed for failing to meet an applicable requirement. The regulation at 8 
C.F.R. $8 103.5(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." In this matter, the 
motion does not contain the statement required by 8 C.F.R. § 103.5(a)(l)(iii)(C). The regulation at 8 C.F.R. 
103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. Therefore, 
because the instant motion did not meet the applicable filing requirements listed in 8 C.F.R. 9 
103.5(a)(l)(iii)(C), it must also be dismissed for this reason. 
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It is noted that counsel 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 
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. 5 
103.5(a)(l)(iii)(E). Likewise, the instructions on the first page of the AAO's August 1,2008 decision indicate 
that all further inquiries be made to the office which originally decided the case. It is 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, counsel's attempt to file the motion directly with the AAO did not establish a receipt date of 
August 28,2008. 
' WAC 08 007 52428 
Page 3 
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 llVS 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. 
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.