dismissed L-1A Case: Retail Convenience Stores

&tti@hg data deleted to 
clearly unwarranted 
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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 08 134 50839 Office: VERMONT SERVICE CENTER Date: 0 CT 0 8 2009 
JN RE: 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(] 5)(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. 
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. 5 103.5 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. 9 103.5(a)(l)(i). 
/' 
hief, Administrative Appeals Office 
EAC 08 134 50839 
+ Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on October 29, 2008, the 
AAO dismissed the appeal. The matter is now before the AAO on a motion to reconsider, in accordance with 
8 C.F.R. $ 103.5. The motion will be dismissed. 
The petitioner seeks to employ the beneficiary temporarily in the United States as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. $ 1101(a)(15)(L). The petitioner, a limited liability company organized in the State of Texas that 
claims to be engaged in the purchase and management of retail convenience stores with gas stations, seeks to 
employ the beneficiary as the president of its new office in the United States. The petitioner claims that it is 
the affiliate of Vijay Engineers & Contractors in India. 
The director denied the petition concluding that the petitioner did not establish that (1) the U.S. entity would 
be able to support the beneficiary in a primarily managerial or executive position within one year of the 
petition's approval; or (2) that the petitioner has employed the beneficiary abroad in a primarily managerial 
capacity. Specifically, the director found that the petitioner failed to submit adequate documentation to 
establish its proposed business plan and the manner in which the beneficiary would be relieved from 
performing non-managerial or non-executive duties by the end of the first year of operations in the United 
States, and further noted that the petitioner had not sufficiently documented the beneficiary's employment 
abroad in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner asserted that the petitioner fully complied with the evidentiary 
requirements for a new office. She further asserted that the director applied the wrong standard in evaluating 
the petitioner's eligibility for the benefit sought. In support of these contentions, counsel submitted a detailed 
brief. 
The AAO dismissed the petitioner's appeal on October 29, 2008. The AAO disagreed, in part, with the 
director's analysis in regard to the beneficiary's foreign employment, but ultimately affirmed the denial of the 
petition on both stated grounds. The AAO thoroughly addressed counsel's objections to the denial of the 
petition and devoted a full five pages of discussion to clarifying exactly why the petitioner's evidence fell 
short of meeting the evidentiary requirements for a new office petition as set forth at 8 C.F.R. $ 
2 14.2(1)(3)(v)(C). 
The petitioner subsequently filed the instant motion to reconsider. The regulation at 8 C.F.R. $ 103.5(a)(l)(i) 
requires that any motion to reopen or reconsider an action by U.S. Citizenship and Immigration Services (USCIS) 
be filed within 30 days of the decision that the motion seeks to reopen or reconsider, except that failure to file 
before thls period expires may be excused in the discretion of USCIS where it is demonstrated that the delay was 
reasonable and was beyond the control of the petitioner. If the decision was mailed, the motion must be filed 
within 33 days. See 8 C.F.R. 5 103.5a(b). 
In accordance with 8 C.F.R. tj 103.2(a)(7)(i), an application received in a USCIS office shall be stamped to 
show the time and date of actual receipt, if it is properly signed, executed and accompanied by the correct fee. 
For calculating the date of filing, the motion shall be regarded as properly filed on the date that it is so 
EAC 08 134 50839 
, Page 3 
stamped by the service center. In the present matter, according to the date stamp on the Form I-290B, Notice 
of Appeal or Motion, the motion was received by the director on January 22, 2009, 85 days after the AAO's 
decision was issued. Counsel has offered no explanation for the petitioner's failure to file the motion within 
33 days of the AAO's adverse decision. The AAO notes that counsel initially attempted to file the Form I- 
290B, Notice of Appeal or Motion, directly with the AAO on January 15, 2009, but the filing was 
appropriately returned to counsel with instructions to file the motion with the Vermont Service Center. The 
appeal would have been late even if it had been properly filed with the correct office on that date. 
Therefore, as a matter of discretion, the petitioner's failure to file the motion withn the period allowed will not 
be excused as either reasonable or beyond the control of the petitioner. Accordingly, the motion will be dismissed 
as untimely filed. 
The AAO notes that, even if the motion had been timely filed, the AAO would not disturb its previous decision. 
On motion, counsel submits a brief which is identical in substantive content to the brief submitted in support of 
the petitioner's appeal. Although counsel acknowledges the AAO's dismissal of the petitioner's appeal, the brief 
contains no direct reference to the specific findings made in the AAO's 13-page decision issued on October 29, 
2008. Rather, counsel essentially requests that the AAO conduct a de novo review of the record and overturn the 
director's origmal decision dated May 30,2008. 
The regulation at 8 C.F.R. 5 103.5(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. tj 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. 
 103.5(a)(4) states, in pertinent part: "A motion that does not meet applicable 
requirements shall be dismissed." 
The instant motion consists of counsel's brief dated January 12, 2009 and copies of previously submitted 
evidence. There is no reference made to the findings made in the AAO's decision and the specific 
deficiencies remarked upon therein, no new facts provided to support a motion to reopen, and no reasons 
stated for reconsideration. Accordingly, the motion will be dismissed for failing to meet the applicable 
requirements. 
The purpose of a motion to reopen or motion to reconsider is different from the purpose of an appeal. While 
the AAO conducts a comprehensive, de novo review of the entire record on appeal, a review in the case of a 
J 
EPIC 08 134 50839 
Page 4 
motion to reopen is strictly limited to an examination of any new facts, which must be supported by affidavits 
and documentary evidence. A motion for reconsideration must state the reasons for re-consideration and be 
supported by pertinent precedent decisions establishing that the decision was based on an incorrect 
application of law or USCIS policy. As such, counsel's previously submitted arguments based on the Service 
Center director's original decision cannot be considered "new" facts or provide a reason for reconsideration of 
the AAO's appellate decision. The AAO previously conducted a de novo review of the entire record of 
proceeding and has already addressed the arguments contained in counsel's brief. There is no regulatory or 
statutory provision that allows a petitioner more than one appellate decision per petition filed. In the present 
matter, an appellate decision was issued and the deficiencies were expressly stated. 
Rather, the AAO's review in this matter is limited to the narrow issue of whether the petitioner has presented 
and documented new facts or documented sufficient reasons, supported by pertinent precedent decisions, to 
warrant the re-opening or reconsideration of the AAO's decision issued on October 29, 2008. In the current 
proceeding, counsel has not even explicitly acknowledged the grounds stated for dismissal of the appeal, 
much less attempted to overcome them. 
In addition, the regulation at 8 C.F.R. §103.5(a)(l)(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." The petitioner's motion does not contain this statement. The regulation at 8 C.F.R. fj 
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. § 
103.5(a)(l)(iii)(C), it must also be dismissed for this reason. 
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same reasons as 
petitions for rehearing and motions for a new tial on the basis of newly discovered evidence. See AVS 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 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 or reconsidered, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.