dismissed L-1A Case: Electrical Engineering

U.S. Department of Homeland Seeurity
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
PUBLIC COpy
File: SRC 02 149 53394 Office: TEXAS SERVICE CENTER Date: NOV 01 l007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(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.
RO~f
Administrative Appeals Office
www.uscis.gov
SRC 02 14953394
Page 2
DISCUSSION: On December 31, 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 June
5, 2007 , the AAO dismissed the appeal. On July 5 , 2007, 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)(I)(iii)(C), 103.5(a)(3), and 103.5(a)(4).
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the beneficiary as an
L-IA 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 petitioner is a business entity organized under the
laws of Kenya, which claims to have a qualifying relationship with the United States entity, Hatari 2000, Inc.,
a Georgia corporation. The petitioning organization is allegedly engaged in the electrical engineering
consulting business.
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 or executive capacity. In denying the petition, the
director noted that she could not consider the petitioner's alleged acquisition of a dry-cleaning business , and
the resultant employment of five additional people, both of which occurred after the filing of the instant
petition, in considering whether the beneficiary will perform qualifying duties.
The AAO subsequently dismissed the appeal concluding that the petitioner failed to establish that the
beneficiary will be employed in a primarily managerial or .executive capacity. The AAO also indicated that
the beneficiary's alleged performance of qualifying duties in the operation of a dry-cleaning business acquired
after the filing of the instant petition could not be considered. A visa petition may not be approved based on
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts.
See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg . Comm. 1978) ; Matter ofKatigbak, 14 I&N Dec.
45, 49 (Comm. 1971). The petitioner must establish eligibility at the time of filing the nonimmigrant visa
petition. Finally, beyond the decision of the director, the AAO denied the petition because the petitioner
failed to establish that it had been doing business during its first year in operation. 8 C.F.R. §
214.2(l)(l4)(ii)(B).
The petitioner filed a Motion to Reconsider the AAO's decision on July 5, 2007. Counsel asserts that both the
director and the AAO erred , that the petitioner established that the beneficiary will primarily perform
qualifying duties , and that both the director and the AAO should have considered the beneficiary's operation
of the dry-cleaning business even though it was acquired after the filing of the instant petition. Counsel
argues that the record establishes that the petitioner had an equitable interest in the business even though
actual closing did not occur until after the filing of the instant petition on April 15 , 2002.
Upon review, the motion shall be dismissed for failing to meet applicable requirements. The regulation at 8
C.F.R. §§ 103.5(a)(I)(iii) lists the filing requirements for motions to reopen and motions to reconsider .
Section 103.5(a)(l)(iii)(C) requires that motions be "[ajccompanied by a statement about whether or not the
validity of the unfavorable decision has been or is the subject of any judicial proceed ing.n In this matter, the
motion does not contain the statement required by 8 C .F.R. § 103.5(a)(I)(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,
SRC 02 14953394
Page 3
because the instant motion did not meet the applicable filing requirements listed m 8 C.F.R. §
103.5(a)(1)(iii)(C), it must be dismissed for this reason.
Furthermore, upon review , the AAO will dismiss the motion for failure to meet the applicable requirements
for motions to reconsider set forth in 8 C.F .R. § 103.5(a)(3). This regulation states, in pertinent part, that "[a]
motion to reconsider must state the reasons for recons ideration and be supported by any pertinent precedent
decisions to establish that the decision was based on an incorrect application of law or [Citizenship and
Immigration Services (CIS)] policy." In this matter, counsel fails to cite to any pertinent precedent decisions
establishing that the AAO's decision was an incorrect application of law or CIS policy . To the contrary, and as
correctly noted by the AAO, a visa petition may not be approved based on speculation of future eligibility or
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire
Corp., 17 I&N Dec. 248; Matter ofKatigbak, 14 I&N Dec. at 49. The petitioner must establish eligibility at
the time of filing the nonimmigrant visa petition, and the beneficiary's operation of a subsequently purchased
dry-cleaning business is not relevant to the analysis . As such, the Motion does not meet the applicable
requirements and must be d ismissed. 8 C.F .R. § 103.5(a)(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. The motion will be dismissed.
Finally, it should be noted for the record that, unless CIS directs otherwise, the filing of a motion 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)(I)(iv).
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361.
The petitioner has not sustained that burden. Accordingly, the motion will be dismissed, the proceedings will not
be reconsidered, and the previous decisions ofthe director and the AAO will not be disturbed.
ORDER: The motion is dismissed.
'Counsel clearly identifies the instant Motion as a motion to reconsider. However , to the extent the Motion
could be construed to be a motion to reopen , it is noted that the Motion does not meet the applicable
requirements in 8 C .F.R. § 103.5(a)(2). This regulation states 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 ." In this matter, the petitioner offers no new evidence . Counsel simply summarizes the
evidence previously submitted in support of the appeal. This is insufficient under the regulations to support a
motion to reopen. .