dismissed L-1A Case: Restaurant Business

Identifyingdata ~to
preventclearlyunwarranted
iDvuianofpenooal privacy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLICCOpy
File: LIN 03 01652947 Office: NEBRASKA SERVICE CENTER Date: S£P 0 6 2DOl
IN RE: Petitioner:
Beneficiary:
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)(l5)(L)
IN 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 JK..tlIl:Chief
Administrative Appeals Office
www.uscis.gov
LIN 03 016 S2947
Page 2
DISCUSSION: On January 16, 2003, the Director of the Nebraska Service Center denied the nonimmigrant
visa petition. On April 9, 2003, the director reopened the matter on motion by the petitioner and affirmed his
prior decision. On May 9, 2003, the petitioner appealed this denial to the Administrative Appeals Office
(AAO) and, on June 29, 2004, the AAO summarily dismissed the appeal. On July 29, 2004, previous counsel
to the petitioner filed a Motion to Reopen and Reconsider the AAO's decision. On July 14, 2006, the AAO
dismissed the motion. On December 27, 2006, current counsel to the petitioner filed a Motion to Reopen with
the AAO in accordance with 8 C.F.R. § 103.S. The motion will be dismissed pursuant to 8 C.F.R. §§
103.S(a)(l)(i), 103.S(a)(l)(iii)(C), 103.S(a)(1)(iii)(D), and 103.S(a)(4).
The petitioner is a Kansas corporation which is allegedly in the restaurant business. I The petitioner seeks to
extend the employment of the beneficiary as its president as an L-IA nonimmigrant intracompany transferee
pursuant to section 101(a)(lS)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(lS)(L). The director denied the petition after concluding that the petitioner failed to establish that the
beneficiary will be employed primarily in a managerial or executive capacity. The AAO subsequently
summarily dismissed the appeal.
Citizenship and Immigration Services (CIS) regulations require that motions to reconsider be filed within 30
days of the underlying decision. 8 C.F.R. § 103.S(a)(1)(i). Likewise, CIS regulations require that motions to
reopen be filed within 30 days of the underlying decision, except that failure to timely file a motion to reopen
may be excused in the discretion of CIS where it is demonstrated that the delay was reasonable and was
beyond the affected party's control. Id. In this matter, the Motion to Reopen was filed on December 27,
2006, 166 days after the AAO's July 14, 2006 decision. The record indicates that the AAO's prior decision
was mailed to both the petitioner at its business address and to its previous counsel. Therefore, to the extent
the Motion to Reopen could in any way be construed to be a motion to reconsider, it is untimely and must be
dismissed for that reason. To the extent the Motion is a motion to reopen, as it is named, the Motion does not
establish that the failure to file the Motion within 30 days of the decision was reasonable and beyond the
affected party's control. While the AAO understands that the basis for the Motion is ineffective
representation by counsel, the Motion does not establish that this ineffective representation prejudiced the
petitioner's ability to timely file the instant Motion, especially when the AAO gave notice by mail of its
decision to the petitioner at its business address. When a party receives notice of a decision and fails to take
the required action, an untimely motion to reopen may be denied even when the underlying unfavorable
decision was the product of ineffective, or even fraudulent, representation. See generally Chen v. Gonzales,
131 Fed. Appx. 734 (1 st Cir. 200S) (unpublished); Oliveira v. Gonzales, (Sth Cir. 200S).2
'u is noted that, according to Kansas state corporate records, the petitioner's corporate status in Kansas was
"forfeited" on July IS, 2003. Therefore, as the State of Kansas has forfeited the petitioner's corporate
privileges, the company can no longer be considered a legal entity in the United States. If this motion were
not being dismissed for the reasons described herein, this would call into question the petitioner's continued
eligibility for the benefit sought.
2Counsel indicates in the motion that the petitioner is filing the motion "within 180 days of receipt of the
decision." However, it must be noted that a 180-day deadline to file a motion does not apply to the instant
petition. Rather, the requirements, deadlines, and standards set forth in 8 C.F.R. § 103.S apply.
LIN 03 01652947
Page 3
Furthermore, the motion shall be dismissed for failing to meet two other applicable requirements. The
regulation at 8 C.F.R. §§ 103.5(a)(1)(iii) lists the filing requirements for motions to reopen and motions to
reconsider. Section 103.5(a)(1)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether
or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding." Section
103.5(a)(1)(iii)(D) requires that motions be "[a]ddressed to the official having jurisdiction." In this matter,
the motion does not contain the statement described in 8 C.F.R. § 103.5(a)(I)(iii)(C) nor was it addressed to
the official having jurisdiction, i.e., the AAO. To the contrary, the motion was addressed to the Nebraska
Service Center.
As the motion did not meet the applicable requirements, it must be dismissed. 8 C.F.R. § 103.5(a)(4).
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.
Finally, it should be noted for the record that, unless CIS directs otherwise, the filing of a motion to reopen 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)(1)(iv).
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.