dismissed L-1A Case: Business Management

u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
PUBLICCOPY
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u.s.Citizenship
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Date: ~G 0 2, 2.001Office: NEBRASKA SERVICE CENTERLIN 02 14654653FILE:
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.
~;:eI~~:ef
Administrative Appeals Office
www.uscis.gov
LIN 02 14654653
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 The AAO's prior decision will be withdrawn in part and affirmed in part.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-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 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
finding that the petitioner failed 1) to provide sufficient evidence of a qualifying relationship and 2) to
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity. The
petitioner subsequently filed a motion with 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)(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 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.
Upon reviewing the facts and evidence presented with the petitioner's second motion, the AAO withdrew its
prior adverse finding regarding the issue of a qualifying relationship and upheld a finding of ineligibility
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 reaffirms the prior claims made and provides additional information in the form of percentage
breakdowns attributed to the beneficiary's various job responsibilities. However, this breakdown of vague
responsibilities cannot be deemed a new fact, as it could have provided at any time prior to this motion. Not
only is the breakdown not a new fact, it is also not supported by documentary evidence, as it relies, in part, on
the assumption that the beneficiary was adequately supported by subordinates who were assigned with the
petitioner's daily operational tasks at the time the Form 1-129 was filed. In the present matter, the petitioner
has provided information regarding a support staff that did not come into existence until after the petition was
1 The 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 NEWRIVERSIDEUNIVERSITYDICTIONARY792
(1984)(emphasis in original).
LIN 02 146 54653
Page 3
filed. As stated previously, 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
Counsel's assertions regarding the beneficiary's purported executive responsibilities are not supported by
evidence in the record. Moreover, counsel cites a number of unpublished AAO decisions in an effort to
establish a similarity between this petitioner and those petitioners whose nonimmigrant petitions were
approved. However, counsel's unsupported statements regarding the beneficiary's employment with the U.S.
petitioner do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
Furthermore, the regulations at 8 C.F.R. § 103.5(a)(3) require that the petitioner present precedent decisions
to support the claim that the prior decision was based on an incorrect application of law or CIS policy. The
unpublished decisions cited in counsel's motion are not considered precedent decisions and, therefore, do not
meet the requirements for a motion to reconsider.
In conclusion, 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 findings in its latest decision. 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).
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.F.R.
§ 103.5(a)(1)(iv).
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.