dismissed L-1A Case: Sales And Marketing

U.S.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
PUBLIC COpy
FILE: EAC 06 240 51809 Office: VERMONT SERVICE CENTER Date: NOV 0 5 Z007
INRE:
PETITION:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
rpOWi=n,€
A~ministrative Appeals Office
www.uscis.gov
EAC 06 240 51809
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the immigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely
filed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its sales and marketing
manager as an L-IA nonimmigrant intracompany transferee pursuant to section lOl(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The director denied the petition
concluding that the beneficiary would not be employed by the petitioner in a primarily managerial or
executive capacity.
The petitioner subsequently filed the instant appeal. On appeal, the petitioner asserts that the beneficiary
would be employed in a managerial capacity under the extended petition. The petitioner submits a brief letter
and additional evidence in support of the appeal.
In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party
must file the complete appeal within 30 days of after service of the unfavorable decision. If the decision was
mailed, the appeal must be filed within 33 days. See 8 C.P.R. § 103.5a(b). In accordance with 8 C.P.R. §
103.2(a)(7)(i), an application received in a Citizenship and Immigration Services (CIS) 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 appeal shall be regarded as properly filed on the date that it
is so stamped by the service center. It is noted that the director properly gave notice to the petitioner that it
had 33 days to file the appeal.
The AAO notes that Form I-290B, Notice of Appeal to the AAO, was initially submitted on March 29, 2007;
however, the Form I-290B was not properly signed as required by the regulations at 8 C.P.R. § 103.2(a)(7)(i),
and was thus rejected and returned to the petitioner. The petitioner subsequently re-filed a properly executed
Form I-290B on May 7, 2007, 68 days after the director's decision was issued. Consequently, the appeal in
this matter was untimely filed. Any appeal that is not filed within the time allowed must be rejected as
improperly filed. 8 C.P.R. § 103.3(a)(2)(v)(B)(1). The director erroneously annotated the appeal as timely
and forwarded the matter to the AAO.
Neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit for
filing an appeal. The regulation at 8 C.P.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the
requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a
decision must be made on the merits of the case.
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. 8 C.P.R. § 103.5(a)(2). 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. 8 C.P.R. § 103.5(a)(3). A motion that does not meet
applicable requirements shall be dismissed. 8 C.P.R. § 103.5(a)(4).
EAC 06 240 51809
Page 3
Here, the untimely appeal does not meet the requirements of a motion to reopen or a motion to reconsider.
The evidence submitted on appeal, which consists of a revised U.S. organizational chart and position
descriptions for the beneficiary and other employees, was previously requested by the director and therefore
cannot be considered "new" for the purposes of a motion to re-open. Further, the petitioner has not stated the
reasons for reconsideration, nor indicated that the director's decision was based on an incorrect application of
law or service policy. Therefore, there is no requirement to treat the appeal as a motion under 8 C.F.R. §
103.3(a)(2)(v)(B)(2).
As the appeal was untimely filed and does not qualify as a motion, the appeal must be rejected.
ORDER: The appeal is rejected.
--~