dismissed L-1A Case: Manufacturing

U.S. Department of Homeland Security 
20 Mass. N.W.. Rm. A3042 
Washington. DC 20529 
~UBCIC COW 
File: SRC 98 219 5 101 3 Office: TEXA - 
.S SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l )(L) of the Imniigration 
and Nationality Act, 8 1J.S.C. 3 1 10 1 (a)(] 5)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All docunlents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
//ili -?+ 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 98 219 51013 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
Administrative Appeals Office (AAO) dismissed the subsequently filed appeal and affirmed the director's 
decision to deny the petition. Thereafter, the petitioner filed a motion to reopen and reconsider. The AAO 
granted the motion, but affirmed the decision on appeal to deny the petition. The matter is now before the AAO 
on a second motion to reopen and motion to reconsider. The motion will be dismissed. 
The petitioner is engaged in the manufacturing of plastic chairs. It seeks to extend its authorization to employ the 
beneficiary temporarily in the United States as its chief executive officer. The director determined that the 
petitioner had not established that the beneficiary had been or will be employed in a primarily managerial or 
executive capacity, or that the U.S. entity is doing business as a qualifying organization. The AAO affirmed these 
determinations on appeal, and again upon review of the petitioner's first motion to reopen and reconsider. 
In connection with petitioner's second motion, counsel asserts that the AAO has "overlooked key pieces of 
evidence," and counsel submits a brief and the following evidence to address the grounds of the director's denial 
and the findings of the AAO: 
Exhibits 1-3 
Exhibit 4 
Exhibit 5 
Exhibit 6 
Exhibit 7 
Exhibit 8 
Exhibit 9 
Exhibit 10- 12 
Exhibit 13 
Exhibit 14 
Exhibit 15 
Letters dated in May 2000 relating to the beneficiary's role with the U.S. entity 
Brochure for PTM Incorporated 
Lease of office premises for PTM Florida Inc. 
Share certificates #1 (voided and reissued) and # 2 (cancelled) of the petitioner, 
and share certificate #1 of PTM East Coast, Inc. 
List of shareholders of the foreign entity 
Corporate tax returns of the petitioner for the years 1996, 1997 and 1998 
Photographs of the premises of PTM East Coast, Inc. 
Invoices, sale receipts and freight bills of PTM East Coast, Inc. 
Employer's Quarterly Reports for the quarter ending June 30, 1997 through 
March 3 1, 2000 for PTM East Coast, Inc. 
IRS Forms W-4 and invoices for temporary labor for personnel of PTM East 
Coast, Inc. 
Affidavit of the beneficiary, dated December 29,2000, pertaining to his 
temporary employment 
With respect to the petitioner's motion to reopen, the regulation at 8 C.F.R. 5 103.5(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." 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.' At 
the same time, however, 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. Mutter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
-- 
I The word "new" is defined as "1. having existed or been made for only a short time . . . 3. Just di.scovered, 
found, or learned new evidence . . . ." Webster's II New Riverside Uriiversity Dictionoly 792 (1 984) (emphasis 
in original). 
SRC 98 219 51013 
Page 3 
A review of the evidence that the petitioner submits on motion reveals no fact that could be considered "new" 
under 8 C.F.R. $ 103.5(a)(2). All evidence submitted on motion, to the extent they relate to the petitioner's 
eligibility for the benefit sought at the time the petition was filed initially, was previously available and could 
have been discovered or presented in the previous proceeding. In addition, it is noted that the petitioner has 
submitted evidence with this motion that was originally requested by the director in a request for additional 
evidence dated October 11. 1995. As the petitioner was previously put on notice and provided with a reasonable 
opportunity to provide the required evidence, the evidence submitted on motion will not be considered "new" and 
will not be considered a proper basis for 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. Doher&, 502 U.S. 3 14, 
323 (1992) (citing IN,'? 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 to reopen will be dismissed. 
With respect to the petitioner's motion to reconsider, 8 C.F.R. tj 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 [Citizenship and Immigration Service (CIS)] 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 contends on motion that the petitioner has established that the beneficiary has been and will be employed 
in a primarily managerial or executive capacity. Counsel asserts that the AAO failed to take into consideration 
additional evidence submitted with the petitioner's first motion to reopenlreconsider, specifically the letters that 
counsel resubmits with the present motion as Exhibits 1-3. Counsel argues that, contrary to the AAO's opinion, 
such evidence demonstrates what the beneficiary has been and will be doing on a daily basis. Insofiir as these 
letters were not part of the evidence of record before the director, the AAO does not find that the petitioner has 
established in the present motion that this aspect of the AAO's decision was "incorrect based on the evidence of 
record at the time of the initial decision." 
Counsel also challenges the AAO's finding in the December 5, 2000 decision that the petitioner has failed to 
demonstrate that the U.S. and foreign entity are qualifying organizations engaged in the regular, systematic 
and continuous provision of goods and services. The AAO's finding in that instance was based upon certain 
inconsistencies relating to the ownership of the U.S. entity, which the petitioner failed to address. First, the 
AAO noted that accordin to the 1997 corporate tax return of the U.S. entity, all of the company's stock is 
owned b dthe beneficiary, while the Form 1-129 and the share certificates indicate that the 
foreign entity owns-100% of the U.S. entity. Second, the AAO noted that the petitioner has failed to 
adequately explain the issuance and cancellation of stock certificates #1 and #2, and the apparent reissuance 
of certificate #1, of the U.S. entity. 
SRC 98 219 51013 
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In the present motion, the petitioner has once again failed to reconcile the inconsistency regarding the 
ownership of the U.S. entity as disclosed in the company's tax returns as compared to other evidence of 
record. Further, the petitioner still has not provided sufficient evidence to establish that the foreign entity 
owns all of the U.S. entity's shares, and that the new share certificate #I represents all of the issued and 
outstanding shares of the company, as the petitioner claimed. As general evidence of a petitioner's claimed 
qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder 
maintains ownership and control of a corporate entity. The corporate stock certificate ledger, stock certificate 
registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also be examined to 
determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must disclose 
all agreements relating to the voting of shares, the distribution of profit, the management and direction of the 
subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, 
Inc., 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all relevant documents, the elements of 
ownership and control cannot be determined. The AAO therefore finds no error in its previous determination 
of this issue. 
Counsel also asserts on motion that the AAO has overlooked evidence that the U.S. entity is engaged in the 
regular, systematic and continuous rovision of goods and services. In the April 28, 2000 decision, the AAO 
found, "While it appears that - Inc.. is a subsidiary of the U.S. entity and is doing business, 
the petitioner has not established that the U.S. entity is doing business throug 
qualifying organization." On motion, counsel simply resubmits evidence relating t 
business, and does not provide any further explanation or evidence on motion that would establish how the 
U.S. entity is doing business as a qualifying organization through or demonstrate how 
the AAO's decision was in error in light of applicable law or policy, or the evidence of record. 
Finaily, the AAO notes that while counsel asserts on motion that the beneficiary's employment in ihe United 
States is temporary, and the motion includes an affidavit from the beneficiary to that effect, counsel has 
identified no error in the AAO's previous conclusion that it cannot be determined based on the evidence of 
record whether the beneficiary's position in the U.S. is temporary, and that upon completion of his 
assignment, he will be transferred abroad. 
Based on the foregoing, the AAO does not find that the petitioner has established that the previous decisions 
of the director and the AAO were based on an incorrect application of law or CIS policy. or that such 
decisions were incorrect based on the evidence of record at the time of the initial decision. Therefore, the 
petitioner has not met the applicable requirements for a motion to reconsider, and the motion to reconsider 
will be dismissed. 
The petitioner should note 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). 
Finally, it is noted for the record that the beneficiary has a denied Fonn 1-140 (SRC 97 166 52006) filed by this 
petitioner and also has an approved Form 1-140 (A76 472 113) that was filed on his behalf by a different 
SRC 98 219 51013 
Page 5 
employer, Paul's Tarpaulins and Merchandise, Inc. If the approved Form 1-140 is based on claims or evidence 
similar to that of this petition, the director would be warranted in reviewing the petition for possible revocation. 
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. 8 C.F.R. 5 103.5(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. 
ORDER: The motion is dismissed.