dismissed L-1A Case: Industrial Supplies

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Irnrnigration 1 
FILE: WAC 02 247 50732 Office: CALIFORNIA SERVICE CENTER Date: , ., C i Lb 5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 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 orignally decided your case. Any further inquiry must be made to that office. 
P 1. sa, --- -, ., /2 IdU 
f> 
i Robert P. Wiemann, Director 
,: Administrative Appeals Office 
\ 1 
WAC 02 247 50732 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant 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. The motion will be 
dismissed. 
The petitioner seeks to employ the beneficiary temporarily in the United States as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (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 is engaged in 
the import, export and wholesale of industrial supplies. The petitioner claims that it is the subsidiary of Juteng 
Real Estate Development, located in Tianjin, China, and seeks to employ the beneficiary as its president. 
The director denied the petition concluding that the beneficiary did not possess one continuous year of 111- 
time employment with a qualifying organization abroad within the three years preceding the filing of the 
petition. The AAO affirmed this determination on appeal, and further concluded that the petitioner had not 
established: (1) that the beneficiary would be employed in a managerial or executive capacity in the United 
States; (2) that the beneficiary would be employed in the United States for a temporary period and transferred 
to an entity abroad upon completion of his assignment; or (3) that the petitioner has a qualifying relationship 
with the foreign entity. 
The petitioner filed a motion to reopen on October 27, 2004. On motion, counsel for the petitioner submits 
the following statement on Form I-290A: 
The petitioner will provide new facts in the reopened proceeding to overcome the grounds 
provided by the Service for denial of the petition. First, the beneficiary has been employed in 
a full-time capacity for the foreign parent company for at least one year within the previous 
three years. The formal payroll records and the degree of control that the foreign parent 
company has over the beneficiary are sufficient to determine he is really a de facto employee 
of the company. Second, the beneficiary will be employed by the U.S. entity in a primarily 
executive or managerial capacity as defined at section 101(a)(44) of the Immigration and 
Nationality Act ("INA). While staffing levels of the business are not crucial in determining 
whether or not an individual is acting in an executive or managerial capacity, it is 
nevertheless a factor in such a determination. However, the WA specifically states that if 
staffing levels are used as a factor, the reasonable needs of the organization, component or 
function in light of the overall purpose and stage of development of the organization, 
component or function must be taken into account. The petitioning company has reached 
such a stage of organizational development and is of such complexity that it can be 
realistically concluded that the individual seehng transfer will be primarily engaged in 
executive or managerial duties. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 3 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
WAC 02 247 50732 
Page 3 
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 or other documentary evidence." 
Counsel's statement suggests that the petitioner intended to submit "new facts" in support of the motion to 
reopen a later date. However, no affidavits or other evidence were submitted with the Form I-290A. The 
AAO notes that, although the regulation at 8 C.F.R. 5 103.3(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. $5 103.5(a)(2) and (3). 
Based on the plain meaning of "new," a new fact is found to be evidence that was not available and could not 
have been discovered or presented in the previous proceeding.' 
Counsel's brief statement contains no fact that could be considered "new" under 8 C.F.R. $ 103.5(a)(2), nor is 
it supported by 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 llVS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503 (BIA 1980). The petitioner has not met the requirements for filing a motion to reopen. 
Motions for the reopening 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. INS v. Doherty, 502 U.S. 
314, 323 (1992)(citing INS v. Abudzl, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a 
"heavy burden." INS v. Abudu, 485 U.S. at 100. With the 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 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. 
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. 5 103,5(a)(l)(iv). 
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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's II New Riverside University Dictionary 792 (1984) 
(emphasis in original). 
WAC 02 247 50732 
Page 4 
In visa petition proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has not sustained that burden. 8 C.F.R. 3 103.5(a)(4) states that "[a] motion that does not 
meet applicable requirements shall be dismissed." Accordingly, the motion will be dismissed, the proceedings 
will not be reopened, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.