dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Mass, Rrn. A3042,425 I Street, N.W. 
Washington, DC 20529 - 
in-dmwy U.S. Citizenship 
and Immigration 
Services 
F,ILE : WAC 01 240 502 19 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lSXL) of the Immigration 
and Nationality Act, 8 U.S.C. 5 I lOl(a)(l5)(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. 
pobert P. Wiemann, Director 
TY 
ministrative Appeals Ofice 
WAC 01 240 502 19 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service 
Center. The Administrative Appeals Oftice (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 motion to reconsider. The motion will be dismissed. 
A U.S. entity was established in 1998 as a joint venture restaurant and import and export business. The 
petitioner claims that it is a continuation of the original joint venture. The petitioner seeks to extend its 
authorization to employ the beneficiary temporarily in the United States as its vice president. 
The regulation at 8 C.F.R. 5 103.5(a)(2) states, in pertinent part: 
(2) Requirements for motion to reopen. A motion to reopen must state the new facts 
to be proved in the reopened proceeding and be supported by affidavits or other 
documentary evidence . 
(3) Requirements for motion to reconsider. 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. 
(4) Processing motions in proceedings before the Service. A motion that does not 
meet applicable requirements shall be dismissed. 
The director determined that the petitioner had failed to establish that a qualifying relationship existed 
between the U.S. and foreign entities at the time the petition was filed. The director noted that neither a 
joint venture (50-50 ownership) nor an affiliate relationship existed between the petitioner - 
and the foreign entity-. The director found that the percentages of ownership 
varied and that there was a lack of affiliation between the petitioner, the newly established restaurant 
and the foreign entity. The AAO affirmed these determinations on appeal. 
On motion. counsel notes that the ioint venture aereement was entered into for the purpose of 
v A A 
establishing and operating the restaurant and thereafter expanding to an import and 
export business. Counsel restaurant business, along with its name- Lotus Thai 
Cuisine - was sold in October of 1999. ~ounsel hrther contends that two of the three original partners 
to the joint venture returned to Thailand from the United States, abandoning their plan to establish an 
import and export business. Counsel asserts that a new location was eventually found by the 
beneficiary, who established the - Counsel claims that the new restaurant is a part of the 
joint venture entered into by and , located in Bangkok. 
Thailand, and therefore retains a qualifying relationship with the foreign entitv. Counsel co~~tends that 
the letter dated November 8,2001; the 1 located in Bangkok. Thailand 
substantiates the continued existence of the joint venture and the authority of the beneficiary to manage 
the current restaurant. Counsel also claims that the proceeds from the sale of the 
and funding from the foreign entity are used to sustain the - - 
On motion, counsel submits a copy of Articles of Organization for - 
dated March 31, 2003; a statement, which purports to establish that. owns 
WAC 01 240 50219 
Page 3 
90 percent of the LLC company's shares of stock, and that the beneficiary owns the other 10 percent of 
shares of stock in the company; a list of property owned by the new company; and a business plan for 
the newly formed LLC. 
In review of the record, counsel has not stated any plausible reasons for reconsideration, nor does she 
hunish any new fact; to be provided in the reopened proceeding. Evidence pertaining to the 
incorporation of dated March 3 1, 2003, cannot be considered on 
motion. Although this evidence is considered "new" evidence, it was not in existence at the time the 
petition for extension of status was filed. Thus, it cannot be considered for purposes of establishing 
whether or not a qualifying relationship existed between the petitioner and the foreign entity at the time 
the petition was filed. A petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of 
MicheIin Tire Corp.. 17 I&N Dec. 248,249 (Reg. Comm. 1978). Citizenship and Immigration Services 
(CIS) cannot consider facts that come into being only subsequent to the filing of a petition. See Matter 
of Bardouille, 18 I&N Dec. 1 14 (BIA 198 1). Therefore, a petitioner may not make material changes to 
a petition that has already been filed in an effort to make an apparently deficient petition conform to CIS 
requirements. See Matter of lzumrni, 22 I&N Dec. 169,175 (Comrn. 1998). 
A review of the evidence submitted on motion reveals no fact or facts that could be considered "new" 
pursuant to the regulation at 8 C.F.R. 9 103.5(a)(2). The AAO's interpretation of the business 
relationship existing between the petitioner and the foreign entity at the time the petition was filed has 
not been effectively challenged. The evidence shows that a joint venture was entered into for the sole 
purpose of operating a restaurant and eventually expanding into the import and export business. The 
evidence also shows that the beneficiary and two other partners entered into a general partnership in an 
effort to effectuate the joint venture in the United States. The record demonstrates that two of the three 
partners abandoned the partnership, returning to their native country. The record also demonstrates that 
the restaurant, which was the purpose behind the joint venture, was sold, along with its name; and that 
the partners abandoned any thoughts of expanding into an import and export business. The record 
shows that one partner remained in the United States and eventually opened up a new restaurant. 
Counsel claims that the beneficiary received funding, and permission to open the new restaurant, from 
the foreign entity. In the instant case, there has been no objective documentary evidence produced to 
substantiate counsel's claims. The statements of counsel on motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter oJ 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA t 980). There has been no evidence submitted to establish that 
the general partnership continued to operate as such after all partnership assets (the original restaurant) 
had been sold. There has been no evidence submitted to establish that the "joint venture" was created 
for any other purpose than the creation and operation of the initial restaurant. There has been no 
evidence to show that the other two partners of the general partnership acquiesced to or empowered the 
beneficiary to carryout any business transactions on their behalf. The petitioner has failed to submit 
Articles of Incorporation, amendments to the partnership agreement, or amendments to the joint venture 
agreement that would demonstrate an ongoing relationship between the petitioner and the foreign entity. 
On motion, there has been no evidence submitted that reveals any facts that can be considered 'hew." 
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. § 103.5(a)(l)(iv). 
WAC 01 240 50219 
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Motions for the reopening and 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. 
INS v. Doherty, 502 U.S. 3 14,323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1 988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. The burden of proof in 
these proceedings 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. 8 103.5(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.