dismissed L-1A Case: Jewelry

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U.S. Department of HomeJand Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
us, Citizenship
and Immigration
Services
File: EAC 00 275 51560 Office: VERMONT SERVICE CENTER Date: FEB 0 2ZOO?
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. § IlOl(a)(l5)(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.
/.-c:::>,~
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 00 275 51560
Page 2
DISCUSSION: On February 6,2001, the Director of the Vermont Service Center denied the nonimmigrant
visa petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO) and, on
October 15, 2002, the AAO dismissed the appeal. On November 14, 2002, the petitioner filed a motion to
reopen the AAO's decision. On November 28,2005, the AAO granted the motion to reopen and affirmed the
previous decision of the AAO. On December 30, 2005, the petition filed a motion to reopen or reconsider the
AAO's decision of November 28, 2005. The motion will be dismissed pursuant to 8 C.F.R. §§
103.5(a)(l)(iii)(C) and (D), 103.5(a)(2), 103.5(a)(3), and 103.5(a)(4).
The petitioner states that it is engaged in the import and retail sale of jewelry. It seeks to extend its
authorization to employ the beneficiary temporarily in the United States as its executive director 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 Virginia corporation, claims to have a qualifying
relationship with of New Delhi, India. 1
The regulation at 8 C.F.R. §§ 103.5(a)(l)(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)(1)(iii)(D) requires that motions be "[a]ddressed to the official having jurisdiction." In this
matter, the motion does not contain the statement required by 8 C.F.R. § 103.5(a)(l)(iii)(C). Moreover, the
motion is addressed to the Vermont Service Center. Because the AAO is the office which made the latest
decision in the proceeding, it properly has jurisdiction and not the Vermont Service Center. 8 C.F.R. §
103.5(a)(1 )(ii). Therefore, because the motion is not addressed to the AAO, it does not meet the filing
requirement set forth in 8 C.F.R. 103.5(a)(l)(iii)(D). 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 does not meet the applicable filing requirements listed in 8 C.F.R. § 103.5(a)(l)(iii)(C) and (D), it
must be dismissed for this reason.
Moreover, upon review, the AAO will also dismiss the motion for failure to meet the applicable requirements
set forth in 8 C.F.R. §§ 103.5(a)(2) and (3).
The regulations at 8 C.F.R. § I 03.5(a)(2) state, 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." 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.2
lIt should be noted that, according to the corporate records of the Commonwealth of Virginia, the corporate
status of the petitioner has been terminated. As the petitioner has ceased to be a legal entity in the United
States, this calls into question its continued eligibility for the benefit sought.
2Theword "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, found,
or learned <new evidence> .... " WEBSTER'SII NEW RIVERSIDEUNIVERSITYDICTIONARY792 (1984)(emphasis
in original).
EAC 00 27551560
Page 3
The regulations at 8 C.F.R. § 103.5(a)(3) state, 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 [Citizenship and Immigration Services (CIS)] policy."
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. Likewise, the petitioner
has not stated any reasons for reconsideration. While counsel states in the motion that the AAO "missed" the
beneficiary's job description in its decision affirming it prior decision, the AAO quoted and considered a job
description materially identical to the one which counsel asserts the AAO allegedly "missed." The AAO properly
considered the underlying record and all of the evidence presented to it by counsel in the context of the previous
appeal and 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. 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 to reopen 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. Title 8 C.F.R. § 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 or reconsidered, and the previous decisions of the director and the AAO will not be
disturbed.
As the motion did not meet the applicable requirements, it will be dismissed. 8 C.F.R. § 103.5(a)(4).
ORDER: The motion is dismissed.