dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 07 187 52217 Office: VERMONT SERVICE CENTER Date: DEC 0 3 2009 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 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. 9 103.5 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. tj 103.5(a)(l)(i). 
V Chief, Administrative Appeals Office 
EAC 07 187 522 17 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
petitioner appealed the denial to the Administrative Appeals Office (AAO), and the AAO dismissed the 
appeal. The matter is now before the AAO on a motion to reopen and reconsider, in accordance with 8 C.F.R. 
9 103.5. The motion will be dismissed. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the beneficiary as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1 101 (a)(15)(L). The petitioner, a New Jersey corporation, claims to 
operate a restaurant. The beneficiary was previously granted a one-year period in L-1A classification to open 
a new office in the United States and the petitioner now seeks to extend his stay. 
The director denied the petition concluding that the petitioner did not: (1) establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) submit evidence of the 
financial status of the United States operation. 
The AAO dismissed the petitioner's subsequently filed appeal on October 1, 2008. 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, based on the petitioner's failure to 
submit a detailed description of the beneficiary's stated 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 further concurred with the director's determination that the 
petitioner failed to provide required evidence of the financial status of the corporation. Finally, referring to the 
regulatory requirement at 8 C.F.R. 5 214.2(1)(14)(ii)(B), the AAO found that the petitioner had failed to 
establish that the U.S. company was doing business for the previous year. 
On motion, counsel for the petitioner submits a one-page letter dated October 25, 2008, and additional 
documentary evidence. Counsel asserts: 
We believe that there is documentary evidence which is attached and may evidence that the 
business has actually been operational and running throughout the necessary time. Although this 
documentation includes a lease and evidence that the restaurant was indeed operational and has 
been sold for $145,000. Please note that the restaurant opened an[d] functioned with managers, 
supervisors and wait and kitchen staff not listed previously. Further documentation will be 
submitted as soon as possible. In addition we have ordered an evaluation from an expert as to the 
job duties and performance. The company has started the packing business and is successful in 
its operation. Additional documentation to follow. 
Please allow 60 days for additional documentation. 
Although the regulation at 8 C.F.R. 5 103.3(a)(2)(vii) states that a petitioner may be permitted additional time 
to submit a brief or additional evidence to the AAO in connection with an appeal, no such provision applies to 
a motion to reopen or reconsider. The additional evidence must comprise the motion. See 8 C.F.R $9 
103.5(a)(2) and (3). Therefore, counsel's request for 60 days in which to submit additional documentation is 
EAC 07 187 522 17 
Page 3 
denied. Nevertheless, the AAO notes that the motion was filed on November 3, 2008, and, as of this date, no 
additional documentation has been incorporated into the record of proceeding. 
The evidence submitted on motion includes: (I) an Agreement for Service between the petitioner and = 
under which the petitioner agrees to provide product packing services to a customer; (2) a 
Contract for Sale of Business dated June 17, 2008, between the petitioner and 
 under which 
the petitioner agreed to sell 
 for a purchase price of $145,000; (3) a mortgage agreement 
dated October 14, 2008 between the petitioner as lender and as borrower; (4) the petitioner's 
new lease agreement executed in August 2008; (5) a Bill of Sale for the property known as '- 
and (6) a copy of the beneficiary's resume and letter of introduction from the petitioner's 
Egyptian parent company. 
The regulation at 8 C.F.R. tj 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. fj 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. 
The regulation at 8 C.F.R. fj 103.5(a)(4) states, in pertinent part: "A motion that does not meet applicable 
requirements shall be dismissed." 
Counsel's brief statement does not directly address the AAO's decision and the specific deficiencies remarked 
upon therein, contains no new facts to support a motion to reopen, states no specific reasons for 
reconsideration, and is not supported by any pertinent precedent decisions or a claim that the decision was 
based on an incorrect application of law or USCIS policy. 
The fact that the petitioner sold its restaurant for $145,000 18 months subsequent to the filing of the instant 
petition does not in fact establish that the petitioner was doing business for the year preceding the filing of the 
petition as required by 8 C.F.R. tj 214.2(1)(14)(ii)(B). As discussed in the AAO's decision, the evidence of 
record indicates that the petitioner's restaurant opened in March 2007, only three months prior to the filing of 
the petitioner's request for an extension of the beneficiary's status, and there was no evidence that the 
petitioner had commenced operating its newly proposed packing business prior to filing the extension request. 
Similarly, copies of agreements signed subsequent to the filing of the petition are insufficient to establish that 
the financial status of the petitioning company as of the date the petition was filed, as required by 8 C.F.R. tj 
214.2(1)(14)(ii)(E). 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). 
EAC 07 187 522 17 
Page 4 
Counsel does not directly address the issue of whether the beneficiary will be employed in a primarily 
managerial or executive capacity, other than noting that the petitioner would be submitting evidence that the 
petitioner's restaurant operated with "managers, supervisors and wait and kitchen staff not listed previously." 
Even if counsel had produced the promised evidence of such staff, the AAO notes that the petitioner had 
ample opportunity to provide evidence of its staffing levels and organizational structure prior to the denial of 
the petition and the dismissal of the appeal. Such evidence would not be considered "new facts" that would 
support a motion to reopen. 
In addition, the regulation at 8 C.F.R. §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. Finally, the regulation at 8 
C.F.R. §103.5(a)(l)(iii) requires that "a motion shall be submitted on Form I-290B and may be accompanied 
by a brief." Counsel did not file the motion on Form I-290B as required by the regulation. 
Again, 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. $9 103.5(a)(l)(iii) and 103.5(a)(l)(iii)(C), it must also be dismissed for these 
reasons. 
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. 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 29 1 of the Act, 8 U.S.C. 
 136 1. 
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.