dismissed L-1A Case: Travel And Tourism

rdentifying dab aertrea rti 
prevent clearly unwarrantec, 
of personal pdvacy 
PUBLIC COPY 
U.S. Department of IIomeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 01 257 52102 Office: VERMONT SERVICE CENTER 
 Date: JUL I 0 200Fi 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 I (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON 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 ofice. 
obert P. Wieman 
-?----gf 
( Administrative ~~~eals Office 
EAC 01 257 52102 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
Administrative Appeals Office (AAO) dismissed the subsequently filed appeal in a decision dated November 
21, 2003. The matter is now before the AAO on motion to reopen or reconsider. The motion will be 
dismissed. 
The petitioner states that it operates as a travel and tour agency. 
 It seeks to employ the beneficiary 
temporarily in the United States as its vice president pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The director denied the petition concluding that the 
petitioner did not establish that the beneficiary will be employed by the petitioner in a managerial or executive 
capacity. The AAO affirmed this determination on appeal, and also determined that the petitioner had failed 
to establish that the beneficiary was employed in a qualifying managerial or executive capacity with the 
foreign entity. 
The petitioner filed the instant motion on December 22,2003. On motion, counsel for the petitioner submits a 
brief disputing the AAO's findings with respect to the beneficiary's proposed employment with the U.S. 
company, specifically asserting: (1) that the petitioner's job descriptions for the beneficiary were not 
"inconsistent, vague and general" as determined by the AAO; (2) that the petitioner no longer employs a 
president, which now places the beneficiary's position at the top of the company's organizational hierarchy; 
(3) that the beneficiary will be managing a subordinate staff who will relieve him from performing non- 
executive duties; and (4) that the U.S. company is a viable firm and possesses the financial ability to 
remunerate the beneficiary. Counsel submits the petitioner's IRS Form 1120, U.S. Corporation Income Tax 
Return, for the 2002 year and a new organizational chart for the petitioner. Counsel does not furnish any new 
facts to be considered in a reopened proceeding, nor does counsel cite any precedent decisions in support of 
his request for reconsideration of the AAO's decision. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 3 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
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.' 
Counsel's statement contains no fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2), nor is it 
supported by affidavits or documentary evidence as required by the regulations. The unsupported statements 
of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. See 
1 
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 N New Riverside University Dictionaly 792 (1984) 
(emphasis in original). 
EAC 01 257 52102 
Page 3 
INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 
1980). 
Similarly, a review of the evidence that the petitioner submits on motion reveals no fact that could be 
considered "new" under 8 C.F.R. 9 103.5(a)(2). The nonimmigrant petition was filed on August 23, 2001 and 
any new evidence submitted on motion must establish eligibility as of that date. The petitioner's 2002 federal 
tax return and subsequent changes to its organizational structure are not relevant to the beneficiary's 
eligibility as of August 23, 2001. Again, the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. 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 I&N Dec. 248 (Reg. 
Comm. 1978). Therefore, the evidence submitted on motion will not be considered "new" and will not be 
considered a proper basis for a motion to reopen. 
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. 
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 100. With the current motion, the movant has not met that burden. 
Furthermore, 8 C.F.R. 9 103.5(a)(2) states, in pertinent part: 
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 establishe that the decision was incorrect based on the 
evidence of record at the time of the initial decision. 
Although counsel has requested that the AAO reconsider its previous decision, counsel does not submit any 
document that would meet the requirements of a motion to reconsider. Counsel does not state any specific 
reasons for reconsideration nor cite any precedent decisions in support of a motion to reconsider, and again 
relies on changes in the petitioner's organizational structure that occurred subsequent to the filing of the 
petition to support his assertions. While counsel disputes the AAO decision and asserts that the beneficiary 
now qualifies as an executive, counsel does not argue that the previous decisions were based on an incorrect 
application of law or policy. The petitioner's motion to reconsider will also be dismissed. 
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. 9 103.5(a)(l)(iv). 
In visa petition proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not 
meet applicable requirements shall be dismissed." Accordingly, the motion will be dismissed, the proceedings 
will not be reopened, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.