dismissed L-1A Case: Retail Business

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
File: SRC-02-094-50603 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101 (a)(lS)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have teen returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
4einistrative Appeals Office 
SRC-02-094-50603 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The 
Administrative Appeals Off~ce (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 to reconsider will be granted and the previous decision of the AAO will be affirmed. The petition 
will be denied. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its President as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 1 5)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of Texas that 
operates a retail business. The petitioner claims that it is the affiliate of Dairy and Milk Production, located in 
India. The beneficiary was initially granted a period of stay in L-1A status, and the petitioner now seeks to 
extend the beneficiary's stay for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. The AAO affirmed this 
determination on appeal, and hrther noted that the petitioner failed to establish that it has a qualifying 
relationship with the beneficiary's foreign employer. 
On motion, counsel for the petitioner submits a brief and a copy of an unpublished AAO decision to address the 
grounds for the director's denial and the findings of the AAO. Counsel does not furnish any new facts to be 
provided in the reopened proceeding. Counsel asserts that the AAO applied an erroneous legal standard as reason 
for reconsideration. 
The regulation at 8 C.F.R. 3 103.5(a)(2) states, in pertinent part: "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." 
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.' 
Although counsel has submitted a motion entitled "Motion to Reopen/Reconsider," counsel does not submit any 
document that would meet the requirements of a motion to reopen. Counsel has not indicated that news facts 
have come to light that were not previously available or could not have been discovered or presented in the prior 
proceeding. See 8 C.F.R. $ 103.5(a)(2). Other than the title of the motion, counsel does not assert that a motion 
to reopen should be considered as an alternative to the motion to reconsider. 
Motions for the reopening 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 (1 992)(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. With the current motion, the movant has not met that burden. The 
motion to reopen will be dismissed. 
Furthermore, 8 C.F.R. $ 103.5(a)(2) states, in pertinent part: 
' 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 I1 NEW RIVERSIDE UNIVERSI~Y DIC'I-IONARY 792 
(1984)(emphasis in original). 
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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. 
As reason for reconsideration, counsel asserts that the AAO applied an erroneous legal standard on several points. 
Specifically, counsel states that the AAO "erred in requiring proof that the Petitioner will sustain the Beneficiary 
in a strictly managerial or executive capacity." (emphasis in original). Counsel correctly asserts that the Act 
merely requires a petitioner to show that a beneficiary will be primarily engaged with managerial or executive 
duties. See sections 101(a)(44)(A) and (B) of the Act. Upon review of the prior AAO decision, it is clear that 
the AAO applied the appropriate legal standard in this regard. In 13 instances, the decision references the 
petitioner's burden to show that the beneficiary will be employed in a primarily managerial or executive 
capacity. The AAO cited fully the statutory definitions for managerial and executive capacity as provided in 
sections 101 (a)(44)(A) and (B) of the Act. In a single instance, the AAO stated that "[wlhile it is apparent 
that the beneficiary's experience is an asset to furthering the petitioner's business objectives, it does not appear 
at this time that the petitioner is prepared to sustain the beneficiary in a strictly managerial or executive 
capacity." (Emphasis added.) However, a plain reading of the decision reveals that the AAO did not require 
the petitioner to meet the higher standard of showing that the beneficiary would perform strictly managerial or 
executive duties. In fact, the decision concludes with the statement that "it cannot be found that the 
beneticiary has been or will be employed in aprimarily managerial or executive capacity." (Emphasis added.) 
Counsel's assertion is not persuasive on this point. 
Counsel notes that the AAO stated that the "record does not demonstrate that the U.S. entity contains the 
organizational complexity to support the proposed managerial or executive staff position." (Emphasis in 
original.) Counsel asserts that "a requirement for 'organizational complexity' effectively re-imposes a staffing 
size threshold requirement." However, the references to organizational complexity were made in the context 
of analyzing the beneficiary's actual duties, not in reference to the petitioner's staffing level. The decision 
does not reflect that the AAO used the petitioner's staffing level as a negative factor in dismissing the appeal, 
and counsel's assertion is without merit. 
Counsel cites Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988) to stand for the proposition 
that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a 
priniarily managerial or executive capacity. It is noted that Mars Jewelers, Inc. v. INS relates to an immigrant 
visa petition, and not the extension of a "new office" nonimrnigrant visa. As the new office extension 
regulations call for a review of the petitioner's business activities and staffing after one year, Mars Jewelers, 
Inc. v. INS is distinguishable based on the applicable regulations. See 8 C.F.R. 5 214.2(1)(14)(ii). 
Additionally, in contrast to the broad precedential authority of the case law of a United States circuit court, 
the AAO is not bound to follow the published decision of a United States district court in matters arising 
within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning 
mderlying a district judge's decision will be given due consideration when it is properly before the AAO, the 
analysis does not have to be followed as a matter of law. Id. at 7 19. Counsel's reference to Mars Jewelers, 
Inc. v. INS does not constitute support of counsel's assertions by "pertinent precedent decisions." 8 C.F.R. 
$ 103.5(a)(2). 
Counsel further refers to an unpublished decision involving an employee of the Irish Dairy Board. In the 
unpublished decision, the AAO determined that the beneficiary met the requirements of serving in a 
managerial and executive capacity for L-l classification even though he was the sole employee. Counsel has 
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furnished no evidence to establish that the facts of the instant petition are analogous to those in the Irish Dairy 
Board matter. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. See Mutter of Treasure Craft of Calrfornia, 14 I&N Dec. 
190 (Reg. Comm. 1972). Furthermore, while 8 C.F.R. 3 103.3(c) provides that AAO precedent decisions are 
binding on all CIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. Counsel's reference to an unpublished AAO decision does not constitute support of counsel's 
assertions by "pertinent precedent decisions." 8 C.F.R. § 103.5(a)(2). 
Counsel makes further assertions regarding the MO's interpretation of facts in the evidence of record. Yet, such 
assertions to not constitute the statement of new facts, or an identification of erroneous legaldstandards applied in 
the prior proceeding. 
Thus, counsel has neither stated sufficient reasons for reconsideration nor supported his assertions with 
pertinent precedent decisions, such to establish that the AAO's decision was based on an incorrect application 
of law or Service policy. 8 C.F.R. 8 103.5(a)(2). Accordingly, the previous decision of the AAO will be 
affirmed. 
It is hrther noted that counsel failed to address the AAO's determination that the petitioner failed to establish that 
it has a qualifying relationship with the beneficiary's foreign employer. See 8 C.F.R. 3 214.2(1)(14)(iiXA). In 
effect, counsel concedes the issue. For this reason alone, the petition must be denied. 
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). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not sustained that burden. 
ORDER: The previous decision of the AAO is affirmed. The petition is denied.