dismissed L-1A Case: Computer Education

identifying datadeletedto
preventclearlyun~ted
invasionofpersonalpnvacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLIC COpy
~
.
. . . .~..•... ,-. ~.,.... " . '::.
"'''. ..
0(.... .
FILE: WAC 03 16250514 Office: CALIFORNIASERVICE CENTER Date: NOV 13 2006
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALFOF 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.
obert P. Wiemann, ief
dministrative Appeals Office
www.usels.gov
WAC 03 16250514
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for anonimmigrant visa. The
Administrative Appeals Office (AAO) dismissed the subsequently filed appeal and affirmed the director's
decision to deny the petition. The matter is now before the AAO on motion to reopen and reconsider. -The
motion will be dismissed.
The petitioner -seeks to employ the beneficiary temporarily in the United States as an L-IA nonimmigrant
intracompany transferee pursuant to section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. 1101(a)(15)(L). The petitioner is a corporation organized in the State of California that claims to be a
computer education service provider. The petitioner states that it is an affiliate of Innovative Training Works,
Inc., located in the Philippines. The beneficiary was initially granted a one-year period of stay to open a new
office in the United States a~d the petitioner now seeks to extend the beneficiary's stay.
The director denied the petition on August 29, 2003, concluding that the petitioner failed to establish that the
beneficiary would be employed in primarily managerial or executive capacity under the extended petition.
The petitioner subsequently filed an appeal. In a .decision dated May 11, 2005, the AAO affirmed the
director's decision, and further concluded that the petitioner had not established that the u.s. entity had been
doing business for the previous year as required by 8 C.F.R. § 214.2(1)(14)(ii)(B).
The petitioner filed the instant motion to reopen and reconsider on June 20, 2005..1 On motion, counsel for
the petitioner provides a brief statement on Form 1-290B,jn which he provides an overview of the petitioner's
business activities and the beneficiary's duties, and asserts that as of June 2005, the petitioning company has
five employees and year-to-date revenues of $250,000. Counsel further states: "Evidence of the same will be
produced pursuant to regulation within 30 days. The above information was not available a.t the time this
matter was submitted and is material to the determination of eligibility for the benefit sought."
1 The regulation at 8 C.F.R. § I03.5(a)(1)(i) requires that any motion to reopen or reconsider an action by
Citizenship and Immigration Services (CIS) be filed within 30 days of the decision that the motion seeks to
reopen or reconsider, 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 petitioner.
In accordance with 8 C.F.R. § I03.2(a)(7)(i), an application received in a Citizenship and Immigration
Services (CIS) office shall be stamped to show the time and date of actual receipt) if it is properly signed,
executed and accompanied by the correct fee. For calculating thedate of filing, the motion shall be regarded
as properly filed on the date that it is so stamped by-the service center. It is noted that the AAO properly gave
notice to the petitioner that it had 30 days to file the motion, and advised the petitioner that the motion, with
the appropriate filing fee, must be filed with the office that originally decided the case, as required by 8
C.F.R. § l03.5(a)(iii). In the present matter, according to the date stamp on the motion, the motion was
- received by the director on June 20, 2005, forty days after the AAO's decision was issued. It appears that the
motion was improperly submitted to the AAO on June 10, 2005, and was subsequently returned to counsel
with notice that the motion must be filed with the California Service Center. Therefore, in addition to not
meeting the requirements of a motion to reopen or a -motion to reconsider, the AAO finds that the instant motion
was untimely filed.
WAC 03 162 50514
Page 3
On July II, 2005, counsel for the petitioner submitted a brief and additional evidence consisting of: (1) a sale
and purchase contract pertaining to the petitioner's claimed purchase of the assets of an unrelated company
with six employees effective on November 1,2003, six months subsequent to the filing of the instant petition;
and (2) the petitioner's California Form DE-6, Quarterly Wage and Withholding Report, fo~ ~he first quarter
of2005, which identifies six employees.
The AAO notes that, contrary to counsel's .assertions, the petitioner was not afforded 30 additional days in
which to supplement its motion to reopen and reconsider with additional documentation. Although the
regulation at 8 C.F.R. § l03.3(a)(2)(vii) allows a petitioner additional time to submit a brief or evidence to the
AAO in connection with an appeal, no such provision applies to a motion to reopen or reconsider. The
additional evidence must comprise the motion. See 8 C.F.R. §§ 103.5(a)(2) and (3). Therefore, in this case,
the petitioner's motion consists solely of a Form 1-290B containing a statement from counsel and no
supporting brief or evidence. The brief and evidence submitted by counsel 30 days subsequent to the filing of
motion need not and will not be considered.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three .years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a .subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 103.5(a)(2) states, in pertinent part: "A motion to reopen must state the new facts
to be provided in the reopened proceeding and be supported by affidavits orother 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 beendiscovered or presented in the previous proceeding.'
Counsel's brief statement contains no fact that could be considered "new" under 8 C.F.R. § I03.5(a)(2), nor
was it properly supported by timely-filed affidavits or documentary evidence as required by the regulations.
The unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled to
any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter ofRamirez-Sanchez,
17 I&N Dec. 503 (BIA· 1980). furthermore, counsel seeks to rely upon the petitioner's 2005 staffing levels,
business activities, and financial status to establishthe beneficiary's eligibility for the benefit sought Even if
properly supported with documentary evidence, counsel's arguments regarding the petitioner's and beneficiary's
eligibility as of 2005 are not relevant, as the instant petition was filed in May 2003. Any new evidence submitted
in support of a motion to reopen 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). -
2The word "new" is defined as HI. having existed or been made for only a short time. "..3. Just discovered)
found, or learned <new evidence> ..." Webster's II New Riverside University Dictionary 792 (1984)
(emphasis in original).
WAC 03 162 50514
Page 4
Furthermore, counsel has not acknowledged,nor submittedevidence to rebut, the AAO's determination that the
petitioner had failed to establishthatthe petitionerwas 'doing business in the United Statesin a regular, systematic
and continuous manner as ofMay 2003.
Motions for the reopening of immigration proceedings are disfavored for the same reasons as petitions for
rehearing andmotions for a new trial on the basis of newly discovered evidence. 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 100. Withthe current motion, the movant has not met that burden.
Furthermore, 8 C.F.R. § 103.5(a)(2) states, 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 Service policy. A motion to reconsider a decision on an application of:
petition must, when filed, also establish that the decision was incorrect based on the evidence
of record at the time of the initial decision.
Counsel for the petitioner does not submit any evidence that would meet the requirements of a motion to
reconsider. Counsel does not state any reasons for reconsideration nor cite any precedent decisions in support
of a motion to reconsider. Again, the unsupported 'statements of counsel on appeal or in a motion are not
evidence and thus are not entitled to any evidentiary weight See INS v, Phinpathya, supra; Matter of
Ramirez-Sanchez, supra. The AAO will not grant a motion to reconsider based on counsel's brief statement.
Finally, it should be noted for the record that, unless CIS directs otherwise, the filing of a 'motion to reopen or
reconsider does not stay the execution of any decision in a case or extend a previously set departure date. 8
C.F.R. § I03.5(a)(1)(iv).
In visa petition proceedings, the burdenof proof rests solely with the petitioner. Section 291of the Act, 8 U.S.C.
§ 1361. The petitionerhas not sustainedthat burden. 8 C.F.R. § I03.5(a){4)states that "[a] motion that does not
meet applicable requirements shall bedismissed." Accordingly, the motion will be dismissed, the proceedings
will not be reopened, and the previousdecisionsof the directorand the AAO will not bedisturbed.
ORDER: The motion is dismissed.