dismissed L-1A Case: Pipeline Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5671482 
Motion on Administrative Appeals Office Decision 
Form I-129, Petition for Nonimmigrant Worker (L-lA) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 3, 2020 
The Petitioner, a provider of solutions to detect pipeline leaks, intrusions, or obstructions , seeks to 
temporarily employ the Beneficiary in the United States as its president under the L-lA nonimmigrant 
classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the Vermont Service Center denied the petition concluding that the Petitioner did not 
establish that it was doing business as defined by the regulations . The Director further determined 
that the Petitioner did not demonstrate that the Beneficiary would be employed in the United States in 
a managerial or executive capacity. 
The Petitioner later appealed the Director's decision and we summarily dismissed the appeal. The 
Petitioner then filed a motion to reopen and a motion to reconsider and we denied both as untimely. 
The matter is now before again on a motion to reopen and a motion to reconsider. 
On motion, the Petitioner contends that it untimely filed the prior motion to reopen and motion to 
reconsider because of circumstances beyond its reasonable control related to the "diligent care of one's 
nuclear family." 
Upon review, we will dismiss the motion to reopen and the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner asserts that it filed untimely motions to reopen and reconsider due to family 
issues and "delicate rules of parenting and child welfare." The Petitioner states that the Beneficiary 
"is the head of the family ... consisting of his wife and five children," and that due to this, he "traveled 
back tol I Arkansas from [the Petitioner's] office location id I LA" for three 
weeks leading up to the week of Thanksgiving 2018. The Petitioner also stated the following: 
That approaching holiday was one of an enormous stress for [the Beneficiary's] wife 
who since July 2017 had provided the most parenting needs for all five children as [the 
Beneficiary] kept much time ensuring [ the Petitioner's] success. It was indeed 
reasonable and beyond the control for [ the Beneficiary] who had to have ~ 
proceeding three weeks to be out ofl land to work remotely at L_J 
I I. .so he could equally spend time with his family. 
[The Beneficiary] was out of town to visit his family from the week of October 22, 
2018 until right after Thanksgiving week in 2018. It is in our estimation that the 
[United States Citizenship and Immigration] USCIS initial notice letter, needip.g....1L, 
timel response, had arrived immediately after [the Beneficiary's] departure froml__J 
.__~ _ ___._.._T=h=e=-=.Beneficiary] wasn't aware the USCIS letter had arrived until his return 
to.__ ___ ____.about November 26, 2018. 
In support of these assertions, the Petitioner provides additional evidence, including a letter from a 
security company overseeing its office i~ I stating that the Beneficiary was absent from 
October 26, 2018, through November 23, 2018; a residential lease for his residence inl I 
Arkansas; and a letter from a clergyman indicating that the Beneficiary frequently commutes back and 
forth between! I andl I In addition, the Petitioner submits a letter froml I 
confirming the Beneficiary's use of an executive suite and resubmits documentation, such as emails 
and other transactional documents, it contends demonstrate that it is doing business and that the 
Beneficiary acts in an executive capacity. 
1. Facts 
Our previous appeal decision was issued on October 23, 2018 and the cover page included instructions 
stating the following: 
Motions must be filed on a Form I-290B, Notice of Appeal or Motion, within 33 days 
of the date of this decision. This time period includes three days added for service by 
mail. 
Therefore, any motion was due on Sunday, November 25, 2018; but, if the last day of the designated 
33 days to file a motion falls on a weekend, as in this case, the regulations allow us to extend the 
deadline to file a motion to the first business day following this date. As such, the last date by which 
a motion to reconsider or motion to reopen could have been filed timely was Monday, November 26, 
2018. However, the current motion to reopen and motion to reconsider were received on December 
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7, 2019. As such, there is no doubt as to their lack of timeliness, since the motions were filed 45 days 
after our previous decision on October 23, 2018. 
2. Timeliness of the Motion to Reconsider 
The regulations require that a motion to reconsider be filed within 30 days of the decision that the 
motion seeks to reconsider, including three days for service by mail. 8 C.F.R. § 103.5(a)(l)(i); 
8 C.F.R. § 103.8(b). There is no exception to this requirement. 1 As such, consistent with the 
regulations, the Petitioner's motion to reconsider was filed untimely, and our previous decision 
denying this motion on that basis was correct. 
3. Timeliness of the Motion to Reopen 
As discussed, in contrast to the regulations related to the timely filing of a motion to reconsider, the 
regulations specific to a motion to reopen indicate that untimeliness may be excused "where it is 
demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner." 
8 C.F.R. § 103.5(a)(l)(i). There is no question that the Petitioner filed the motion to reopen in response 
to our appeal decision untimely, as it was filed 45 days after the date of the appeal decision. However, 
consistent with the regulations, we will consider whether this delay should be excused; namely, 
whether the untimely filing was reasonable and beyond the control of the Petitioner. 
Upon review, we conclude that we were correct in denying the motion to reopen as untimely. The 
Petitioner has not sufficiently articulated and documented that its untimely motion to reopen was 
reasonable and beyond its control. The Petitioner contends that the Thanksgivinr holiday and the 
Beneficiary spending time with, and caring for, his wife and children in!.._ ___ ___,_ caused him to be 
away from his office inl I and thus, resulted in him not being aware of USCIS' denial of 
its motions to reopen and reconsider prior to the due date for filing additional motions. However, the 
Petitioner does not properly articulate why the Beneficiary's circumstances were beyond its reasonable 
control. In fact, the Petitioner submits additional evidence with the motion to reorn indicating that 
the Beneficiary has been regularly commuting back and forth between I _ and I I 
since December 2017. As such, it does not appear that it was beyond its reasonable control for the 
Beneficiary to return tol land check correspondence or for the Petitioner to make other 
arrangements for another employee or individual to manage or monitor the Petitioner's 
correspondence during Beneficiary's approximate month long absence. Further, we do not believe 
that regular and reasonably foreseeable family and martial obligations of a Beneficiary were 
contemplated as events "beyond the control of the applicant or petitioner" referenced in the 
regulations. 
Therefore, we conclude that our previous decision to deny the motion to reopen as untimely was 
correct. 
B. Motion to Reconsider 
1 This is in contrast to the regulations related to the timely filing of a motion to reopen which provide that untimeliness 
may be excused "where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or 
petitioner." 8 C.F.R. § 103.S(a)(l )(i). 
3 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). However, as we have noted, the Petitioner filed the 
previous motion to reopen and motion to reconsider 45 days after the date the prior decision had been 
issued. Further, as discussed, there is no provision in the regulations excusing an untimely motion to 
reconsider; as such, our prior decision to deny this as untimely was correct. 
The only remaining issue is whether we applied the law correctly in denying the Petitioner's previous 
motion to reopen as untimely based on the evidence available at the time of this decision in March 
2019. We note that along with the motion to reopen the Petitioner submitted a letter from the 
Beneficiary requesting that we pardon the lateness of the filing stating that he had "travelled out of 
town to be with my family" and indicating that he did not see the denial until after the due date to file 
additional motions. As indicated, we denied the motion to reconsider as untimely. 
However, pursuant to the current motion to reconsider, the Petitioner does not articulate how our 
previous decision was inconsistent with applicable law or policy based on the facts at the time of this 
denial. At that time, the Petitioner did not sufficiently articulate why it had filed the motion to 
reconsider as untimely or why this untimely filing was beyond its reasonable control. Regardless, as 
we have noted above, we do not find that the Beneficiary's time spent away visiting family is sufficient 
to justify an untimely filing; for instance, it is common for businesses to make arrangements for 
correspondence to be monitored and processed without the presence of their president. In fact, the 
Petitioner's inability to process and respond to correspondence in the absence of the Beneficiary only 
leaves further uncertainty as to whether it is doing business and operating sufficiently to support him 
in an executive capacity. Indeed, the Petitioner's reliance on the Beneficiary to handle these 
administrative matters indicates that he is likely exclusively performing the day-to-day non-qualifying 
operational tasks of the business. 2 
As such, the Petitioner has not established that our previous decision to deny the motion to reopen and 
motion to reconsider as untimely was based on an incorrect application of law or policy based on the 
evidence in the record of proceedings at the time of that decision. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
our prior decision. The motion to reopen and motion to reconsider will be dismissed for the above 
stated reasons. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
2 We may only grant a motion that satisfies the motion requirements and which demonstrates eligibility for the requested 
immigration benefit. 
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