dismissed L-1A Case: Investment/Retail

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 07 21 1 5 1302 
 Office: VERMONT SERVICE CENTER 
 Date: 
DEC 0 2 2083 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (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 originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
U 
Perry Rhew 
Chief, Administrative Appeals Office 
EAC 07 211 51302 
Page 2 
DISCUSSION: 
 The Director, Vermont Service Center, denied the nonimrnigrant visa petition and the 
Administrative Appeals Office (AAO) dismissed the petitioner's appeal. The matter is now before the AAO on a 
motion to reopen and reconsider. The motion will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a Mississippi corporation, states that it is a private 
investment company. It operates a gas stationlconvenience store and a discount tobacco store. The petitioner 
claims to be a subsidiary of, located in Mumbai, India. The beneficiary was initially 
granted a one-year period of stay to open a new office in the United States in 2002 and was subsequently 
granted two extensions of status. The petitioner now seeks to extend the beneficiary's L-1A status for two 
additional years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The AAO dismissed the petitioner's appeal on February 3, 2009. The AAO concurred with the director's 
determination that the petitioner failed to establish that the beneficiary would be employed in a primarily 
managerial or executive capacity under the extended petition. The AAO conclusions were based on the 
petitioner's failure to submit a detailed description of the beneficiary's duties, and its failure to establish that it 
employs sufficient subordinate staff to relieve the beneficiary from performing the day-to-day administrative 
and operational functions of the business. The AAO devoted more than ten pages of text to a discussion of 
these deficiencies. 
On motion, counsel for the petitioner submits a brief, in which he states that the motion is "based on recent 
business expansion by [the petitioner] which will clearly demonstrate the beneficiary will be employed in an [sic] 
managerial capacity." The petitioner submits evidence pertaining to the petitioner's acquisition of a business, 
"Papa's Pizza of McCom," in the spring of 2009, and payroll records for the newly-acquired business. 
The regulation at 8 C.F.R. 5 103.5(a)(2) states: 
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. 
The regulation at 8 C.F.R. 5 103.5(a)(3) states: 
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 [U.S. Citizenship and Immigration Services (USCIS)] 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. 
EAC 07 21 1 51302 
Page 3 
The regulation at 8 C.F.R. 5 103.5(a)(4) states, in pertinent part: "A motion that does not meet applicable 
requirements shall be dismissed." 
The instant motion consists of a Form I-290B, Notice of Appeal or Motion, counsel's brief, and documentary 
evidence related to the petitioner's acquisition of a business in the spring of 2009. 
The petitioner does not provide any new facts to be considered in the reopened proceeding. The instant 
petition was filed in July 2007. 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). The 
petitioner's acquisition of a business nearly two years after the petition was filed is not a "new fact'' that could 
establish eligibility as of the date the petition was filed. Accordingly, the petitioner's motion does not meet 
the requirements of a motion to reopen. 
Furthermore, counsel neither states a clear reason for reconsideration nor provides any precedent decision to 
establish that the decision was based on an incorrect application of law or USCIS policy. Counsel makes no 
reference to the detailed findings made in the AAO's decision and the specific deficiencies remarked upon 
therein. Rather, the basis for the motion is to request a new determination regarding the beneficiary's 
employment capacity based on the petitioner's business operations and staffing levels as of 2009. As noted 
above, 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. Accordingly, the 
motion does not meet the requirements of a motion to reconsider. 
In addition, the regulation at 8 C.F.R. 5 103.5(a)(l)(iii)(C) requires that motions be "[alccompanied by a 
statement about whether or not the validity of the unfavorable decision has been or is the subject of any 
judicial proceeding." The petitioner's motion does not contain this statement and will be dismissed for this 
additional reason. 
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. 3 14, 323 (1 992)(citing INS v. Abudu, 485 U.S. 94 (1 988)). 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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 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.