dismissed L-1A Case: Trucking And Freight Services

MATTER OF S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 13,2016 
MOTION ON VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a trucking and freight services company, seeks to temporarily employ the Beneficiary 
as its general manager under the L-lA nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The L-1A classification allows a corporation or other legal entity (including its affiliate or subsidiary) to 
transfer a qualifYing foreign employee to the United States to work temporarily in an executive or 
managerial capacity. 
The Director, Vermont Service Center, denied the pet1t10n. The Director concluded that the 
Petitioner did not establish that the Beneficiary will be employed in a primarily executive capacity in 
the United States. On October 10, 2015, the Petitioner simultaneously filed an appeal with our 
office as well as a motion to reopen and/or reconsider with the Director. On March 14, 2016, the 
Director dismi~sed the motion. On April29, 2016, we rejected the appeal as untimely filed, and the 
Petitioner filed a motion to reopen and motion to reconsider our decision on June 10, 2016. We 
denied the combined motion on September 29, 2016. 
Upon review of the record, it is noted that on April 18, 2016, the Petitioner also filed a combined 
motion to reopen and motion to reconsider the Director's decision of March 14, 2016, which was not 
reviewed or ruled upon at the time of filing since the record of proceeding was being reviewed on 
appeal by our office at that time. Therefore, while the March 14, 2016, decision was rendered by the 
service center and not our office, our office was the one which made the last decision in this matter 
on September 29, 2016. Therefore, the authority to review the Petitioner's combined motion of 
April18, 2016, rests with our office. See 8 C.F.R. §103.5(a)(l)(ii). The motion will be denied. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F.R. § 103.5(a)(l)(i) includes the following statement limiting a U.S. 
Citizenship and Immigration .Services (USCIS) officer's authority to reopen the proceeding or 
reconsider the decision to instances where "proper cause" has been shown for such action: "[T]he 
official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the 
prior decision." 
Matter of S-, Inc. 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal 
requirements for filing (such as, for instance, submission of a Form I-290B, Notice of Appeal or 
Motion, that is properly completed and signed, and accompanied by the correct fee), but the 
Petitioner must also show proper cause for granting the motion. As stated in the provision at 8 
C.F.R. § 103.5(a)(4), "Processing motions in proceedings before the Service," "[a] motion that does 
not meet applicable requirements shall be dismissed." 
B. Requirements for Motions to Reopen 
( 
The regulation at 8 C.F.R. § 1 03.5(a)(2), "Requirements for motion to reopen," states: "A motion to 
reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be 
supported by affidavits or other documentary evidence .... " 
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: 
"Motion to Reopen: The motion must state new facts and must be supported by affidavits and/or 
documentary ,evidence that establish eligibility at the time the underlying petition or application was 
filed." 1 · 
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Further, the new facts must possess such significance that, "if proceedings ... were reopened, with 
all the attendant delays, the new evidence offered would likely change the result in the case." Matter 
of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 
1239-40 (lOth Cir. 2013). 
C. Req~irements for Motions to Reconsider 
The regulation at 8 C.F.R. § 1 03.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must [(1)] state the reasons for reconsideration and 
[(2)] 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 [(3)], [(a)] when filed, also 
[ (b)] establish that the decision was incorrect based on the evidence of record at the 
time of the initial decision. 
These provisions are augmented by the related instruction at Part 4 of the Form I-290B, which states: 
Motion to Reconsider: The motion must be supported by citations to 
appropriate statutes, regulations, or precedent decisions and must establish that the 
1 The regulation at 8 C.F.R. § I 03.2(a)(l) states in pertinent part: "Every benefit request or other document submitted to 
DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR 
chapter I to the contrary, such instructions are incorporated into the regulations requiring its submission." 
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Matter of S-, Inc. 
decision was based on an incorrect application of law or p~licy, and that the 
decision was incorrect based on the evidence of record at the time of decision. 
A motion to reconsider contests the correctness of the prior decision based on the previous factual 
record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 8 
C:.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2). 
A motion to reconsider should not be used to raise a legal argument that could have been raised 
earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991) 
("Arguments for consideration on appeal should all be submitted at one time, rather than in 
piecemeal fashion."). Rather, any "arguments" that are raised in a motion to reconsider should flow 
from new law or a de novo legal determination that could not have been addressed by the affected 
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party. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (examining motions to reconsider under a 
similar scheme provided at 8 C.F.R. § 1003.2(b)); see also Martinez-Lopez v. Holder, 704 F.3d 169, 
171-72 (1st Cir. 2013). Further, the reiteration ofprevious arguments or general allegations of error 
in the prior decision will not suffice. Instead, the affected party must state the specific factual and 
legal issues raised on appeal that were decided in error or overlooked in the initial decision. See 
Matter of 0-S-G-, 24 I&N Dec. at 60. 
II. DISCUSSION AND ANALYSIS 
In denying the petition, the Director found that the Beneficiary will be primarily managing 
non-supervisory/non-professional employees on a regular basis. The Director found that the 
Petitioner submitted inconsistent evidence regarding its actual employees and, as such, could not 
determine whether the Beneficiary would have sufficient subordinate employees to relieve him from 
performing non-qualifying operational and administrative duties. 
The Petitioner subsequently filed an appeal of the Director's decision with our office. We rejected 
the appeal as untimely filed and found that the record indicated that the Director issued the decision 
on August 26, 2015, and properly gave notice to the Petitioner that it had 33 days to file the appeal. 
Simultaneously, the Petitioner filed a combined motion to reopen and motion to reconsider the 
Director's decision. The Director dismissed the combined motion based on a finding that it was 
untimely filed and the delay in filing was not found to be reasonable and beyond the Petitioner's 
control. The Petitioner then filed a second combined motion to reopen and motion to reconsider the 
Director's decision to dismiss the previous combined motion. 
On motion, the Petitioner cites to 8 C.F.R. § 103.8(b), stating, "Effect of service by mail. Whenever 
a person has the right or is required to do some act within a prescribed period after the service of a 
notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. 
Service by mail is complete upon mailing." The Petitioner contends that because the combined 
motion was mailed on September 29, 2015, at no fault of the Petitioner but rather Counsel, and was 
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Matter of S-, Inc. 
received by USCIS on October 1, 2015, the combined motion is considered timely because the 
receipt date is within the 3-day window allotted by the regulations. 
A. Denial of the Motion to Reopen 
Upon review, we find that the Petitioner did not provide any new facts in this motion. The Petitioner 
has not submitted any new evidence pertaining to the instant petition or the Director's dismissal of 
the Petitioner's combined motion. As such, the Petitioner has not established that the evidence 
submitted on motion would change the outcome of this case if the proceeding were reopened. 
Therefore, the Petitioner has not mt?t the requirements of a motion to reopen. 
"There is a strong public interest in bringing [a case] to a close as promptly as is consistent with the 
interest in giving the [parties] a fair opportunity to develop and present their respective cases." INS 
v. Abudu, 485 U.S. 94, 107 (1988). 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). A party seeking to reopen a proceeding bears a "heavy burden" of proof. INS v. Abudu, 
485 U.S. at 110. With the current motion, the Petitioner has not met that burden. 
B. Denial ofthe Motion to Reconsider 
Upon review, we find that the Petitioner did not properly state the reasons for reconsideration. The 
Petitioner briefly references one section of the regulations in an attempt to demonstrate that it should 
be allowed additional time to submit its appeal. However, USCIS regulations specifically state that 
an affected party or the attorney or representative of record must file the complete appeal within )0 
days of service of the unfavorable decision. See 8 C.P.R. § 103.3(a)(2)(i). If the decision was 
mailed, the appeal must be filed within 33 days. 8 C.P.R. § 103.8(b). USCIS records indicate that 
the Director's decision was issued on August 26, 2015, and the Petitioner has not submitted evidence 
to the contrary. As the Petitioner didn't file its appeal until October 1, 2015, which was 36 days 
after the original decision was issued, it was untimely filed. As noted, the date of filing is not the 
date of mailing, buL the actual date of receipt at the designated filing location. 8 C.P.R. § 
103 .2( a)(7)(i). 
We conclude that the documents constituting this motion do not articulate how the Director's 
decision on combined motion misapplied any pertinent statutes, regulations, or precedent decisions 
to the evidence of record when the decision to dismiss the combined was rendered. The Petitioner 
has therefore not submitted any document that would meet the requirements of a motion to 
reconsider. Accordingly, the motion to reconsider must be denied. 
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Matter of S-, Inc. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter of0tiende,26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen ·is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofS-, Inc., ID# 149593 (AAO Oct. 13, 2016) 
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