dismissed L-1A Case: Medical Products Distribution

U.S. Department of fXome1and Security 
20 ~assachusetts Ave , N.W , Rrn. 3000 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 03 134 50796 Office: VERMONT SERVICE CENTER Date: 
 DEC 0 8 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 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 originally decided your case. Any further inquiry must be made to that office. 
- Robert P. Wiemann, C ef 
ai 
Administrative Appeals Office 
EAC 03 134 50796 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant 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 and reconsider. The 
motion will be dismissed. 
The petitioner seeks to employ beneficiary in the United States 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. tj 
1101(a)(15)(L). The petitioner, a New York corporation, operates as an importer and distributor of 
acupuncture and related medical products and devices. The petitioner claims to be a subsidiary of - 
, located in Tianjin, China. 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 as its president for an additional two years. 
The director denied the petition on October 1, 2003, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
The petitioner subsequently filed an appeal. In a decision dated August 1, 2005, the AAO affirmed the 
director's decision, and further concluded that the petitioner had not established that the U.S. entity 
maintained a qualifying relationship with the foreign entity as required by 8 C.F.R. tj 214.2(1)(14)(ii)(A). 
The petitioner filed the instant motion to reopen and reconsider on August 31, 2005. On motion, counsel 
disputes the director's October 1, 2003 decision, but makes no specific references to the AAO's eleven-page 
decision dated August 1, 2005 or the findings therein with respect to the petitioner's failure to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. Counsel states that the 
director's decision "ignores the extensive record of the growing size and scope of the operations and the 
growing staff," and asserts that "extensive and ample evidence and information have been provided" to 
establish the beneficiary's employment in a managerial capacity. Counsel re-iterates the job description that 
was submitted by the petitioner in response to a request for evidence issued on May 8, 2003, and asserts 
"there is no reasonable basis whatsoever for concluding that these job duties, in a company with 5 employees 
and an annual revenue in excess of $512,000.00 that this company has not established that it has a need for 
the services of a President who will serve in a managerial capacity." 
Counsel does acknowledge the fact that "a question has been raised" regarding the petitioner's qualifying 
relationship with its claimed parent company. Counsel asserts that the petitioner's accountant erroneously 
identified the beneficiary as thesole owner of the U.S. company on the petitioner's 2002 IRS Form 1120, U.S. 
Corporation Income Tax Return. The petitioner submits its 2004 Form 1120 and asserts that the error has 
been corrected to reflect ownership by the claimed foreign parent company. The petitioner also submits the 
following evidence in support of the motion: (1) its Form 941, Employer's Quarterly Federal Tax Return, for 
the first quarter of 2005; (2) its Form NYS-45, Quarterly Combined Withholding, Wage Reporting, and 
Unemployment Insurance Return for the first quarter of 2005; and (3) its Forms W-2, Wage and Tax 
Statement, for 2003 and 2004. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
EAC 03 134 50796 
Page 3 
/ 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
\ 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 9 103.5(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.' 
The pet~tioner's motion contains no fact that could be considered "new" under 8 C.F.R. 5 103.5(a)(2). 
Counsel seeks to rely upon the petitioner's 2004 and 2005 staffing levels, business activities, and financial 
status to establish the beneficiary's employment in a managerial or executive capacity. However, the instant 
petition was filed in March 2003. Any new evidence submitted in support of a motion to reopen must establish 
eligibility at the time of filing the nonimmigrant visa petition. A vlsa petition may not be approved at a future 
date after the petitloner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
The AAO acknowledges receipt of the petitioner's 2004 federal tax return which identifies the claimed foreign 
parent company as the sole owner of the petitioning company. The submitted evidence cannot be considered 
"new." The petitioner's 2004 tax return is dated August 22, 2005, is un-signed, and is not accompanied by 
evidence that it has actually been filed with the Internal Revenue Service. Further, slnce the petitioner's 2002 
income tax return indicated that the beneficiary, and not the foreign entity, in fact owns the petitioner, the 
appropriate method for correcting the claimed error would be for the petitioner to file an amended tax return for 
the 2002 tax year. The petitioner's 2004 tax return does not establish that the claimed error has been "corrected." 
The petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Simply asserting that the reported ownership 
of the company was a clerical or accounting error does not qualify as independent and objective evidence. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure CraB of ~al$ornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, evidence that the 
petitioner creates after CIS points out the deficiencies and inconsistencies in the petition will not be 
considered independent and objective evidence. Necessarily, independent and objective evidence would be 
evidence that is contemporaneous with the event to be proven and existent at the t~me of the director's notice. 
Finally, the AAO. also found that there was insufficient evidence to establish that the foreign entity was 
continuing to do business in China. Neither counsel nor the petitioner addresses this issue on motion: 
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 100. With the current motion, the movant has not met that burden. 
1 
 The word "new" is defined as "1. having ex~sted 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). 
CI 
EAC 03 134 50796 
Page 4 
Furthermore, 8 C.F.R. 5 103.5(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. With respect to the petitioner's failure to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity, counsel does not even acknowledge, much less 
attempt to overcome, the deficiencies discussed at length in the AAO's decision. Counsel's. reliance on a 
position description which has already been determined to be inadequate by both the director and the AAO, 
without more, is not sufficient to warrant reconsideration of this matter. As noted above, the petitioner's 
2004 and 2005 staffing levels and financial status are not relevant to a determination as to whether the 
beneficiary was employed in a qualifying capacity at the time the instant petition was filed. 
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. 9 103.5(a)(l)(iv). 
In visa petition proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. 8 C.F.R. 9 103.5(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.