dismissed L-1A Case: Furniture

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PUBLICCOPY
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: SRC 05 070 50417 Office: TEXAS SERVICE CENTER Date:
NOV 01 2001
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. § 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~hief
Administrative Appeals Office
www.uscis.gov
SRC 05 070 50417
Page 2
DISCUSSION: On November 2, 2005, 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 March
6, 2007, the AAO summarily dismissed the appeal. On April 11, 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. §§ 1 03.5(a)(l )(i), 103.5(a)(l )(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-1A nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 110l(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of Florida and is allegedly engaged in the furniture business. The beneficiary was initially
granted a one-year period of stay to open a new office in the United States, and the petitioner now seeks to
extend the beneficiary's stay.
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) the petitioner had been
doing business during the previous year.
Citizenship and Immigration Services (CIS) regulations require that motions to reconsider be filed within 30
days of the underlying decision. 8 C.F.R. § 103.5(a)(l)(i). In this matter, the Motion to Reconsider was filed
on Wednesday, April 11,2007, 36 days after the AAO's March 6, 2007 decision. The record indicates that
the AAO's decision was mailed to both the petitioner at its business address and to its counsel of record. It is
further noted that the petitioner's address to which the AAO sent the decision is the same address identified in
the new Form G-28 appended to the instant motion which enters the appearance of the petitioner's current
counsel. Therefore, the Motion to Reconsider is untimely and must be dismissed for that reason. I
lIt is noted that counsel clearly identifies the instant Motion as a motion to reconsider. However, to the extent
the Motion could in any way be construed to be a motion to reopen, the Motion does not establish that the
failure to file the Motion within 30 days of the decision was reasonable and beyond the affected party's
control. CIS regulations require that motions to reopen be filed within 30 days of the underlying decision,
except that failure to timely file a motion to reopen may be excused in the discretion of CIS where it is
demonstrated that the delay was reasonable and was beyond the affected party's control. 8 C.F.R. §
103.5(a)(l)(i). While the AAO understands that the basis for the Motion is ineffective representation, the
Motion does not establish that this ineffective representation prejudiced the petitioner's ability to file the
instant Motion on time, especially when the AAO gave notice by mail of its decision to the petitioner at its
current business address. When a party receives notice of a decision and fails to take the required action, an
untimely motion may be denied even when the underlying unfavorable decision was the product of
ineffective, or even fraudulent re resentation b an unlicensed immigration consultant or attorney. See
generally Chen v. Gonzales, (unpublished); Oliveira v. Gonzales, 127 Fed.
Appx. 720 (5 th Cir. 2005). Finally, counsel's assertion that the instant Motion in the context of an AAO
decision is "not time barred" has no basis in law. While procedural regulations applicable to other tribunals or
circumstances may lift time limitations related to certain motions concerning ineffective assistance of counsel,
these regulations or rules do not apply to the instant matter. The regulation at 8 C.F.R. § 103.5 clearly sets
forth the time limits applicable to motions to reopen and motions to reconsider.
SRC 05 070 50417
Page 3
Furthermore, the motion shall be dismissed for failing to meet an applicable requirement. The regulation at 8
c.P.R. §§ 103.5(a)(I)(iii) lists the filing requirements for motions to reopen and motions to reconsider .
Section 103.5(a)(1)(iii )(C) requires that motions be "[a]ccompanied bya statement about whether or not the
validity of the unfavorable decision has been or is the subject of any judicial proceeding ." 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,
because the instant motion did not meet the applicable filing requirements listed in 8 C.F.R. §
103.5(a)(l)(iii)(C), it must also be dismissed for this reason.
Finally, 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 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." .· In this
matter, counsel fails to cite to any precedent decisions establishing that the AAO's decision to not consider the
brief and additional evidence submitted to the Texas Service Center in violation of both 8 C.F .R. §
103.3(a)(2)(viii) and the instructions to the Form I-290B was an incorrect application of law or CIS policy. As
such, the Motion does not meet the applicable requirements and must be dismissed. 8 C .F.R. § 103.5(a)(4),z
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 bedismissed.
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)(1)(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 reopened or reconsidered , and the previous decisions of the director and the AAO will not be disturbed.
ORDER: The motion is dismissed.
2As indicated above, 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 also 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 an insufficient basis under the regulations to
grant a motion to reopen .