dismissed L-1A Case: Retail

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
t'tmuccoPY 
DATE: 
MAY 1 1 2011 
INRE: Petitioner: 
Beneficiary: 
Office: VERMONT SERVICE CENTER FILE: 
PETITION: Petition for a Nonimmigrant Worker under Section 10 I (a)(lS)(L) of the Immigration and 
Nationality Act, 8 U.S.C. § 1101(a)(IS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered. you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.S. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Vennont Service Center, denied the nonimmigrant visa petition, and the 
Administrative Appeals Office (AAO) summarily dismissed the petitioner's subsequent appeal. The matter is 
now before the Administrative Appeals Office (AAO) on a combined motion to reopen and motion to 
reconsider. The motion will be dismissed. 
The petitioner filed a nonimmigrant visa petition seeking to extend the beneficiary'S employment as an L-I A 
nonimmigrant intracompany transferee pursuant to section 101 (a)(1S)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 110 l(a)( \S)(L). 
The director denied the petition on February 14,2008 concluding that the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner requested that the petitioner be given additional time to file a new or 
amended petition establishing that the beneficiary will be employed in a primarily managerial or executive 
capacity. Counsel explained the petitioner was unable to develop the United States export enterprise as 
originally described in the petition and is now planning to operate a "retail food outlet." On April 2, 2009, 
the AAO summarily dismissed the petitioner's appeal, pursuant to 8 C.F.R. § \03.3(a)(\)(v). The AAO 
detennined that the petitioner failed to identify an erroneous legal conclusion or factual statement in the 
director's decision as a basis for the appeal. The AAO advised the petitioner that it is not precluded from filing 
a new petition on behalf of the beneficiary if it believes a change in circumstances now renders it eligible for 
the benefit sought under this visa classification. 
The petitioner timely filed a combined motion to reopen and motion to reconsider on May S, 2009. On the 
Form I-290B, Notice of Appeal or Motion, counsel asserts that "[the beneficiary] is requesting that the 
Service to re-consider an amended "new office" petition to his original L-IA petition under 8 C.F.R. 
2l4.2(l)(7)(i)(C) which states in part "where there are changes in the approved relationships, additional 
qualifying organizations and any infonnation which would affect the beneficiary's employment and [sic] 
amended petition must be filed." Counsel indicates that the petitioner is submitting with the motion "an 
amended 1-129L extension of status petition." 
The regulation at 8 C.F.R. § I 03.5(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. § 103.S(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 (USClS)] 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. 
[n addition, in order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(I)(iii) requires that the 
motion must 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 and, if so, the court, nature, date, and status or result of 
the proceeding." Furthermore, the regulation at 8 C.F.R. § 103.5(a)(4) requires that "[a] motion that does not 
meet applicable requirements shall be dismissed." [n this case, the petitioner failed to submit a statement 
regarding whether the validity of the decision of the AAO has been or is subject of any judicial proceeding. 
As such, the motion must be dismissed pursuant to the regulation at 8 C.F.R. § 103.5(a)(4). 
As a preliminary matter, we note that the critical facts to be examined are those that were in existence at the 
actual time of filing the petition. It is a long-established rule in visa petition proceedings that a petitioner 
must establish eligibility as of the time of filing. A visa petition may not be approved based on speculation of 
future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 [&N Dec. 45, 49 (Comm. 
1971); Matter of Izummi, 22 [&N Dec. 169, 176 (Assoc. Comm. 1998). 
Here, the petitioner states on motion that it is requesting that USC[S reconsider an amended new office 
petition pursuant to 8 C.F.R. § 2 14.2(l)(7)(i)(C), due to the petitioner's investment in a new business entity in 
2008. The petitioner submits for review a Form [-290B with the required filing fee; an amended, un-executed 
Form [-129, Petition for a Nonimmigrant Worker; a copy of the beneficiary's resume; a copy of the initial 
approval notice granting the beneficiary L-IA classification for the period September 29,2005 until January 
2, 2007; copies of Pennsylvania Form UC-2A, Employer's Quarterly Report of Wages Paid to Each 
Employee, and [RS Form 941, Employer's Quarterly Federal Tax Return, for the first quarter of 2009; a Bill 
of Sale of Business dated October 2, 2008 which identifies the petitioner as the buyer of a Sunoco Gas Station 
and Convenience Store located in Riverside, Pennsylvania; a lease agreement for the gas station premises; an 
asset purchase agreement related to the same business; the petitioner's 2009 cigarette dealer license; the 
petitioner's 2008 [RS Form 1120, U.S. Corporation Income Tax Return; and the company's recent bank 
statements. 
The petitioner's submission does not meet the requirements of a motion to reopen. A motion to reopen must 
state the new facts to be provided and be supported by affidavits or other documentary evidence. 8 C.F .R. § 
103.5(a)(2). 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.' However, the petitioner must still 
establish eligibility at the time of filing the nonimmigrant visa petition. Again, 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 [&N Dec. 248 (Reg. Comm. 1978). Here, the "new" evidence relates to the 
petitioner's and beneficiary's eligibility for the requested status as of the first quarter of 2009. The petitioner 
filed the instant petition on December 21, 2006, therefore, any "new" fact submitted in support of a motion to 
reopen must establish eligibility as of that date. The petitioner does not claim that the director erred in 
denying the petition as originally filed, nor has it explained how the new evidence establishes that the 
, The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> .... " Webster's II New College Dictionary 736 (2001)(emphasis in original). 
Page 4 
beneficiary was qualified for the benefit sought as of that date. Accordingly, the petitioner's motion to reopen 
will be dismissed. 
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 (USCIS) policy. 8 C.P.R. § 103.5(a)(3). A motion to reconsider contests the correctness of the 
original decision based on the previous factual record, as opposed to a motion to reopen which seeks a new 
hearing based on new or previously unavailable evidence. See Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 
1991). The moving party must specity the factual and legal issues raised on appeal that were decided in error 
or overlooked in the initial decision or must show how a change in law materially affects the prior decision. 
See Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991). 
In this case, the petitioner failed to support its motion with any legal argument or precedent decisions to 
establish that the AAO's decision to dismiss the appeal was based on an incorrect application of law or USCIS 
policy. Counsel requests that the AAO "re-consider" an amended petition, and submits a new petition with 
new supporting documentation that post-dates the filing of the original petition by as much as two years. 
Again, we emphasize that 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. 
8 C.F.R. § 103.5(a)(3). 
Counsel requests reconsideration of the petition pursuant to the regulation at 8 C.P.R. § 214.2(l)(7)(i)(C) 
which states: 
Amendments. The petitioner must file an amended petition, with fee, at the USCIS office 
where the original petition was filed to reflect changes in approved relationships, additional 
qualitying organizations under a blanket petition, change in capacity of employment (i.e., 
from a specialized knowledge position to a managerial position), or an information which 
would affect the beneficiary's eligibility under section 101(a)(15)(L). 
Counsel's request to amend the petition is not properly before the AAO, as there are no statutory or regulatory 
provisions that allow a petitioner to amend a petition during an appeal or motion proceeding. Purthermore, 
the above-cited regulation is applicable only when changes occur during the validity period of an approved 
petition, and allows USCIS to determine whether those changes affect a petitioner's or beneficiary's continued 
eligibility for the previously granted status. 
The petitioner must establish that the position offered to the beneficiary when the petition was filed merits 
classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. at 249. If the 
petitioner or beneficiary becomes eligible under a new set of facts after the petition is denied, the proper 
course of action is to file a new petition, with filing fee and required initial evidence, at the appropriate 
service center. Despite the previous denial, there is no bar to the petitioner's filing of a new petition 
supported by new evidence of eligibility. 
Page 5 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 
U.S.c. § 1361. The petitioner has not sustained that burden. Accordingly, the motion will be dismissed, the 
proceedings will not be reopened, and the AAO's previous decision dated April 2, 2009 will not be disturbed. 
ORDER: The motion to reopen and the motion to reconsider are dismissed.