dismissed L-1A Case: Construction

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PUauCCOpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 03 005 50043 Office: TEXAS SERVICE CENTER Date: SEP 1. 2JI1
IN RE: 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. § 110l(a)(15)(L)
IN BEHALF OF BENEFICIARY:
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.
---:;aRobertP.~~
Administrative Appeals Office
www.uscis.gov
SRC 03 005 50043
Page 2
DISCUSSION: On November 18,2002, the Director of the Texas Service Center denied the nonimmigrant
visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO) , and, on
February 16, 2006, the AAO dismissed the appeal. On April 18, 2006, a motion to reconsider the AAO's
decision was filed with the Texas Service Center. The motion will be dismissed pursuant to 8 C.F.R. §§
103.5(a)(l)(i), 103.5(a)(l)(iii)(A), (C), and (E), and 103.5(a)(4).
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as a manager of
construction trade workers as an L-l A nonimmigrant intracompany transferee pursuant to section
10l(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § Il0l(a)(15)(L). The petitioner, a
Florida limited liability company, claims to be engaged in providing construction related services.
The director denied the petition concluding that the petitioner failed to establish that it has a qualifying
relationship with a foreign employer. As indicated above, the AAO dismissed the subsequently filed appeal
of the director's decision on February 16, 2006, and further determined that the petitioner failed to establish
that the beneficiary has been or will be employed in a primarily managerial or executive capacity. A motion
for reconsideration of the AAO's decision was filed on April 18, 2006.
The regulation at 8 C.F.R. § 103.5(a)(I)(i) states in pertinent part that:
Any motion to reconsider an action by [Citizenship and Immigration Services (CIS)] filed by
an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to
reconsider.
In this matter, the instant motion was filed with the Texas Service Center on April 18, 2006, or 61 days after
the decision of the AAO. Therefore, the motion must be dismissed for failing to meet applicable
requirements. 8 C.F.R. § 103.5(a)(4).1
"The record indicates that an attempt to file the instant motion was made directly with the AAO on April 10,
2006, 53 days after the decision of the AAO. It is noted that the attempt to file this motion directly with the
AAO did not establish a receipt date of April 10, 2006. As clearly explained in the AAO's decision dated
February 16, 2006, further inquiries regarding the matter should have been made to the Texas Service Center.
Moreover, the regulation at 8 C.F.R. § 103.5(a)(l)(iii)(E) clearly requires that this motion be filed at the office
maintaining the record, i.e., the Texas Service Center, for forwarding to the official having jurisdiction, i.e.,
the AAO. Therefore, the receipt date for the instant motion was the day it was received by the Texas Service
Center - April 18, 2006. Even if the inappropriate delivery of the motion to the AAO on April 10, 2006
established an earlier receipt date, the motion was still untimely because it was delivered to the AAO 53 days
after the AAO's decision. 8 C.F.R. § 103.5(a)(l)(i).
Furthermore, counsel's argument that the AAO's receipt of the motion on April 10, 2006 combined with the
alleged mailing of the decision on March 8, 2006 establishes that the motion was timely filed on the 33 rd day
is without merit. First, as explained above, the AAO's receipt of the motion did not establish a receipt date of
April 10, 2006. Therefore, even assuming a notice date of March 8, 2006, the motion was still untimely since
it was not received by the Texas Service Center until April 18, 2006, or 41 days after March 8, 2006. Second,
'. • • ••• • •• II • • • -
SRC 03 005 50043
Page 3
In addition, the motion shall be dismissed for failing to meet three other applicable requirements. The
regulation at 8 C.F.R. §§ 103.5(a)(l)(iii) lists the filing requirements for motions to reopen and motions to
reconsider. Section 103.5(a)(l)(iii)(A) requires that motions be "signed by the affected party or the attorney
or representative of record, if any." Section 103.5(a)(1)(iii)(C) requires that motions be "[a]ccompanied by a
statement about whether or not the validity of the unfavorable decision has been or is the subject of any
judicial proceeding." Section 103.5(a)(1)(iii)(E) requires that motions be submitted "to the office maintaining
the record upon which the unfavorable decision was made."
In this matter, the motion was not signed by the affected party or the attorney or representative of record. The
Form G-28, Entry of Appearance as Attorney or Representative, dated April 8, 2006, which was submitted for
the record, only entered the appearance of counsel for the beneficiary, and not for the petitioner. CIS
regulations specifically prohibit a beneficiary of a visa petition, or a representative acting on a beneficiary's
behalf, from filing a petition; the beneficiary of a visa petition is not a recognized party in a proceeding. 8
C.F.R. § 103.2(a)(3). As the beneficiary and the representative are not recognized parties, counsel is not
authorized to file a motion. 8 C.F.R. § 103.5(a)(l)(iii)(A).
Moreover, the motion does not contain the statement required by 8 C.F.R. § 103.5(a)(l)(iii)(C) and, as
explained above, the motion was originally submitted to the AAO, which is not the office maintaining the
record upon which the unfavorable decision was made. 8 C.F.R. § I 03.5(a)(l )(iii)(E). Instead, the petitioner
was obligated to file the motion with the Texas Service Center within the applicable timeframe.
The regulation at 8 C.F.R. § I03.5(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. §§ I 03.5(a)(1)(iii)(A), (C), and (E), it must also be dismissed for these reasons.
the proper date for the AAO's decision is February 16, 2006, and not March 8, 2006, as alleged by counsel.
As admitted by counsel and as indicated in the record, the AAO proper!
time the decision was made to the petitioner's last known address, i.e.,
Florida 33442. 8 C.F.R. §§ I03.5a(a)(l) and (d); 8 C.F.R. § 103.2(b)(l9). As the petitioner filed the appeal
to the AAO pro se, the AAO did not send a copy to counsel. However, this address ceased to be the
petitioner's address at some point prior to the dismissal of the appeal by the AAO on February 16, 2006, and
the decision was returned to the AAO by the United States Post Office as undeliverable. It must be noted that
the record is devoid of any evidence that the petitioner ever gave notice to CIS, including the AAO, that its
address had changed. To the contrary, the AAO properly used the address used by the petitioner in the Form
I-290B and its supporting documentation. After receiving the returned decision, the AAO then sent a copy of
the decision to the petitioner at , Boca Raton, Florida 33433 on or about March 8, 2006.
However, the AAO's gratuitous act of sending a copy of the decision to the petitioner's new address when the
petitioner had neglected to notify CIS of its change of address will not serve to "move up" the date of the
AAO's decision to March 8, 2006 for purposes of filing a timely motion. As the AAO properly gave notice of
the February 16, 2006 decision in accordance with the regulations by sending it to the petitioner's last known
address by regular mail, the date to be used in calculating the due date of the instant motion is February 16,
2006. Therefore, as the instant motion was filed with the Texas Service Center 61 days later, the motion was
untimely and must be dismissed. 8 C.F.R. § 103.5(a)(4).
SRC 03 005 50043
Page 4
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.
Finally, it should be noted for the record that, unless CIS directs otherwise, the filing of a motion to reopen does
not stay the execution of any decision in a case or extend a previously set departure date. 8 C.F.R. §
103.5(a)(1)(iv).
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.