dismissed L-1A Case: Business

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PUBIJ-CCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: LIN 02 146 54653 Office: NEBRASKA SERVICE CENTER Date: fEB 0 5 Zool
INRE: 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)
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.
.'-- '--~"'=-:?_._ L~ ./
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Ro~e#.P:-Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN 02 146 54653
Page 2
DISCUSSION: The Director, Nebraska Service Center denied the nonimmigrant visa petition. The
petitioner filed an appeal and a subsequent motion with the Administrative Appeals Office (AAO). Each was
ultimately dismissed. The matter presently before the AAO is the petitioner's second motion. The motion
will be granted. The AAO's prior decision will be withdrawn in part and affirmed in part.
The petitioner is an Oregon entity seeking to temporarily employ the beneficiary as its vice president.
Accordingly, the petitioner endeavors to classify the beneficiary as an L-IA nonimmigrant intracompany
transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act) , 8 U.S.C.
§ 1101(a)(l5)(L) . The director determined that the petitioner had not established that the beneficiary would
be employed in a primarily managerial or executive capacity and denied the petition in a decision dated
January 22, 2003. The AAO affirmed the director's finding , dismissing the petitioner's appeal and in addition
found that the petitioner failed to provide sufficient evidence of a qualifying relationship and to establish that
the beneficiary was employed abroad in a qualifying managerial or executive capacity.
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. The petitioner subsequently filed a motion before the AAO seeking reopening of the case and
reconsideration of the AAO's decision dismissing the appeal.
The regulations at 8 C.F.R. § 103.5(a)(3) state, in pertinent part:
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 [CIS] 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 AAO dismissed the petitioner's motion concluding that the petitioner failed to submit new evidence or
state reasons for reconsideration supported by pertinent precedent decisions establishing that the prior
decision was based on an incorrect application of law or policy.
The petitioner has since filed a second motion seeking to reopen and reconsider the AAO's prior decision.
Upon review of the documentation submitted thus far , the AAO concludes that the petitioner has submitted
sufficient evidence to establish its qualifying relationship with the beneficiary's foreign employer. Therefore,
the AAO hereby withdraws its prior adverse finding regarding the issue of a qualifying relationship.
Notwithstanding the favorable finding regarding one of three previously cited grounds for the petitioner's
ineligibility , the AAO concludes that the petitioner remains ineligible based on the two remaining grounds.
With regard to the original ground for ineligibility , i.e., the beneficiary's proposed position in the United
States, counsel reiterates her dismay at the AAO's conclusion and provides documentation of employees
retained by the petitioner in 2004 . However , as stated in the AAO's prior decision , the petitioner must
establish eligibility at the time of filing the nonimmigrant visa petition . A visa petition may not be approved
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
LIN 02 146 54653
Page 3
Counsel also provides a letter dated August 2, 2005 from Iwho stated that
based on the information provided by the petitioner it is his professional opinion that the beneficiary would be
employed in a qualifying managerial or executive capacity. However, the professor clearly states that his
professional opinion is directly based on information provided by the petitioner, not based on his own
personal knowledge or based on his review of the evidence of record before the director. The AAO may, in
its discretion, use as advisory opinion statements submitted as expert testimony. However, where an opinion
is not in accord with other information or is in any way questionable, the AAO is not required to accept or
may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). In
this case, the professor's opinion is a third-party attestation that in affect appears to be no different than any
claim made by the petitioner. As such, the professor's statements must be supported by documentary
evidence much like the petitioner's own claim. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972».
As previously conveyed in the AAO's decisions, a fair assessment of the beneficiary's proposed employment
capacity with the U.S. petitioner requires a detailed description of the beneficiary's duties as well as an
analysis of the petitioner's staffing composition at the time the Form 1-129 was filed. A detailed job
description lets the AAO know the actual duties the beneficiary would perform on a daily basis and the
staffing structure indicates whether the petitioner was adequately staffed at the time of filing such that the
beneficia would be relieved from having to primarily perform non-qualifying tasks. Neither.1
opinion nor the petitioner's 2004 staffing establish the petitioner's ability to employ the
beneficiary in a primarily managerial or executive capacity in 2002.
With regard to the beneficiary's employment abroad, the AAO determined that counsel's restatement of the
beneficiary's job description and claims that the beneficiary was a function manager were insufficient to
overcome the AAO's adverse findings.
On motion, counsel provides a list of the beneficiary's general job responsibilities and submits an
organizational chart of the foreign entity during the beneficiary's employment abroad. However, the broad
overview of the beneficiary's responsibilities is insufficient to overcome the AAO's prior findings. Specifics
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros.
Co., Ltd. v. Sava, 724 F. Supp. 1103. More importantly, the information and documentation provided is not
new, as it could have been submitted on prior motion. Nor has counsel supported her assertions with
precedent case law that establishes the factual or legal impropriety of the AAO's prior determination
regarding this issue. Therefore, the petitioner has not met the regulatory requirements for a motion to reopen,
as discussed in 8 C.F.R. § 103.5(a)(2), or a motion to reconsider, as discussed in 8 C.F.R. § 103.5(a)(3).
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden.
ORDER: The motion is dismissed.