dismissed L-1A Case: International Trade

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.u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rrn. A3000
Washington, DC 20529
U.S. Citizenship
and Imm.igration
Services
File: WAC 04 047 52791 Office: CALIFORNIA SERVICE CENTER Date: MAlO 1 2007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L).
IN BEHALF OF PETITIONER:
I
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.
~
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 047 52791
Page 2
DISCUSSION: On August 18,2004, the Director of the California Service Center denied the nonimmigrant
visa petition. The petitioner appealed this denial to the Administrative Appeals Office (hAO), and, on June
1,2006, the AAO dismissed the appeal. Oh July 14,2006, the petitioner filed a motion to reopen the AAO's
decision with the California Service Center. The motion will be dismissed pursuant to 8 C.F.R. §§
103.5(a)(1)(i), 103.5(a)(1)(iii)(C) and (E), 103.5(a)(2), and 103.5(a)(4).
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president 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, a California corporation, claims a qualifying
relationship with located in Guangdong, China.
The petitioner claims to be engaged in international trade. 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 failed to establish (1) that the beneficiary will
be employed in the United States in a primarily managerial or executive capacity; or (2) that the petitioner had
been doing business as defined in the regulations. As indicated above, the AAO dismissed the subsequently
filed appeal of the director's decision on June 1, 2006, and the petitioner moved to reopen the AAO's decision
on July 14,2006.
The regulation at 8 C.F.R. § 103.5(a)(1)(i) states in pertinent part that:
Any motion to reopen a proceeding before [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 reopen, 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 ofthe applicant or petitioner.
In this matter, the petitioner filed the instant motion with the California Service Center on July 14,2006, or 43
days after the decision of the AAO. As the petitioner has not demonstrated that this delay was reasonable or
was beyond its control, CIS may not excuse the late filing, and the motion must be dismissed for failing to
meet the applicable requirements. 8 C.F.R. § 103.5(a)(4).1
lThe record indicates that the petitioner attempted to file the instant motion directly with the AAO on July 5,
2006. The AAO returned the motion to the petitioner with a letter indicating that it should file the instant
motion with the CIS office at which the petition was originally filed, i.e., the California Service Center. It is
noted that the petitioner's attempt to file this motion directly with the AAO does not establish a receipt date of
July 5, 2006. As clearly explained in the AAO'sdecision dated June 1,2006, further inquiries regarding the
matter should have been made to the California Service Center. Moreover, the regulation at 8 C.F.R. §
103.5(a)(1)(iii)(E) clearly requires that this motion be filed at the office maintaining the record, i.e., the
California· 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 California Service Center -- July 14,
2006.
WAC 04 047 52791
Page 3
In addition, the motion shall be dismissed for·· failing to meet two other applicable requirements. The
regulation at 8 C.F.R. §§ 103.5(a)(1)(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 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)(l)(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 does not contain the statement required, by: 8
C.F.R. § 103.5(a)(l )(iii)(C) .. Moreover, 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. Instead, the
petitioner .was obligated to file the motion with the California Service Center within the applicable timeframe.
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) and (E), it must also be dismissed for this reason.
Finally, upon review, the AAO will dismiss the motion for failure to meet the applicable requirements set
forth in 8 C.F.R. § 103.5(a)(2).
The regulations at8 C.F.R. § 103.5(a)(2) state, in pertinent part, that "[a] motion to reopen must state the new
facts to be p~ovided in the reopened proceeding and be supported by affidavits or other 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 been discovered or presented in the previous proceeding?
In this matter, the petitioner presented no facts or evidence on motion that may be considered "new" under 8
C.F.R. § 103.5(a)(2) and that could be considered a proper basis for a motion to reopen. The petitioner's motion
is based entirely on business growth after the filing of the initial petition. While such facts or evidence may not
have been available previously, the growth of the petitioner's business after the filing of the instant petition is
entirely irrelevant to this· proceeding and is not a proper basis for a motion to reopen. The petitioner 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 of
Michelin Tire Corp:, 17 I&N Dec. 248 (Reg. Comm. 1978).
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. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a p~oceeding l;>ears 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 to reopen 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)(l )(iv).
2The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, found,
or.leamed <new evidence> .... " WEBSTER'SII NEW RIVERSIDEUNIVERSITYDrCTIONARY 792 (1984)(emphasis
in original).
WAC 04 047 52791
Page 4
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.
Title 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable requirements shall be dismi.ssed."
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.