dismissed L-1A Case: Wireless Telecommunications

identifying d?.t? .'\a$? :<ed to 
prevent cl ezij L--. . imanted 
hvasiQrA afpersenal privacy 
'PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 058 51891 Office: VERMONT SERVICE CENTER Date: SEP 0 3 2008 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
lN 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 hrther inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 07 058 51891 
Page 2 
DISCUSSION: On April 4, 2007, the Director of the Vermont Service Center denied the nonimrnigrant visa 
petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on April 3, 
2008, the AAO dismissed the appeal. On April 30, 2008, counsel to the petitioner filed a Motion to Reopen 
and Reconsider the AAO's decision in accordance with 8 C.F.R. 5 103.5. The Motion will be dismissed 
pursuant to 8 C.F.R. $5 103S(a)(l)(iii)(C), 103.5(a)(2), 103.5(a)(3), and 103.5(a)(4). 
The petitioner filed this nonimrnigrant visa petition seeking to employ the beneficiary as an L-1A 
nonirnrnigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. Cj 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the 
State of Texas and is allegedly engaged in the wireless telecommunications business as a retailer. 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 dismissed the 
subsequently filed appeal and further denied the petition based on the petitioner's failure to establish that the 
beneficiary was employed abroad in a primarily managerial or executive capacity and based on the 
petitioner's failure to establish that it has a qualifying relationship with the foreign employer. 
On motion, counsel to the petitioner asserts that the AAO erred in dismissing the appeal, because the record 
establishes that the beneficiary was employed abroad, and will be employed in the United States, in a 
primarily managerial or executive capacity. Counsel did not address the AAO's determination that the 
petitioner failed to establish that it and the foreign employer are qualifying organizations. 
Upon review, the motion shall be dismissed for failing to meet applicable requirements. 
The regulation at 8 C.F.R. $5 103.5(a)(l)(iii) lists the filing requirements for motions to reopen and motions 
to reconsider. Section 103.5(a)(l)(iii)(C) requires that motions be "[alccompanied by a statement about 
whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding." 
In this matter, the motion does not contain the statement required by 8 C.F.R. 103.5(a)(l)(iii)(C). The 
regulation at 8 C.F.R. 5 103.5(a)(4) states that a motion which does not meet applicable requirements must be 
dismissed. Therefore, because the instant motion did not meet the applicable filing requirements listed in 8 
C.F.R. 
 103.5(a)(l)(iii)(C), it must be dismissed for this reason. 
Furthermore, upon review, the AAO will dismiss the motion for failing to meet the applicable requirements 
for motions to reopen set forth in 8 C.F.R. Cj 103.5(a)(2). "[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." Id. In 
this matter, counsel offers no new evidence on motion. The unsupported statements of counsel in a motion are 
not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188- 
89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Accordingly, the motion does not meet the applicable requirements of a motion to reopen and must be 
dismissed for that reason. 
Finally, the AAO will dismiss the motion for failing to meet the applicable requirements for motions to reconsider 
set forth in 8 C.F.R. 5 103.5(a)(3). This regulation states, in pertinent part, that "[a] motion to reconsider must 
state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the 
EAC 07 058 51891 
Page 3 
decision was based on an incorrect application of law or [Citizenship and Immigration Services (CIS)] policy." 
Id. In this matter, counsel fails to cite to any precedent decisions that establish that the AAO's decision to dismiss 
the appeal because the petitioner failed to establish that the beneficiary was employed abroad, or will be 
employed in the United States, in a primarily managerial or executive capacity was based on an incorrect 
application of law or policy. 
For example, counsel cites Omni Packaging, Inc. v. INS, 733 F. Supp. 500 (D. herto Rico 1990), as support for 
its argument that the AAO acted unreasonably in determining that the petitioner failed to establish that two of the 
beneficiary's subordinates are "professional" employees. However, the petitioner's reliance on this decision will 
not support a Motion to Reconsider. First, the decision in Omni Packaging is not a precedent decision for 
purposes of the instant motion because the AAO is not bound to follow the published decisions of United 
States district courts even in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 
(BIA 1993). Regardless, even if it were a precedent decision, the decision in Omni Packaging, Inc. is not 
pertinent. Counsel has not established that the facts of the instant petition are analogous to those in Omni 
Packaging, Inc. Furthermore, while counsel argues that the AAO erred in its "assumption that [the 
subordinate positions] are not professional level employees.. .without any basis," it is emphasized that the 
burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. As 
the petitioner failed to carry its burden of proof, the AAO properly dismissed the appeal. 
Counsel's reliance on the decision in Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006), is also misplaced. 
First, the AAO is not bound to follow the published decisions of a Untied States circuit court in reviewing 
matters not arising from that circuit. See Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989).' Second, the 
petitioner again fails to establish how this decision is pertinent to the reasoning in the AAO's April 3, 2008 
decision. As thoroughly explained by the AAO in its decision, the petitioner failed to establish that the 
beneficiary will be employed, or was employed abroad, in a primarily managerial or executive capacity. 
Counsel fails to explain how, exactly, the AAO's decision is inconsistent with the holding in Nadarajah. The 
random citation of general authority will not pennit a motion to reconsider to survive scrutiny as to whether it 
meets the minimum requirements under the regulations. Rather, as made clear by the regulations, the movant 
must, at a minimum, cite pertinent precedent decisions and specifically connect this law with the AAO's 
alleged failure to follow these precedents. 8 C.F.R. 5 103,5(a)(3). As counsel failed to do this in this matter, 
the motion must be di~missed.~ 
I 
Counsel's reliance on the decision in Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), 
afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 534 U.S. 819 (2001), is similarly misplaced. 
2 
Finally, it must be noted that counsel's citation to a 1993 letter allegedly written by an official of the legacy 
Immigration and Naturalization Service does not constitute the citation to a pertinent precedent decision under 
the regulations. Not only is this letter not a "decision," it is not binding on the AAO in its consideration of the 
instant appeal. See generally Lou-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000) (holding that CIS 
memoranda merely articulate internal guidelines for INS personnel; they do not establish judicially 
enforceable rights. An agency's internal personnel guidelines "neither confer upon [plaintiffs] substantive 
rights nor provide procedures upon which [they] may rely"); see also Noel v. Chapman, 508 F.2d 1023 (2nd 
Cir. 1975) (finding that policy memoranda to INS district directors regarding voluntary extended departure 
determinations to be "general statements of policy"). 'Regardless, counsel has failed to establish that this INS 
EAC 07 058 51891 
Page 4 
As such, the motion does not meet the applicable requirements and must be dismissed. 8 C.F.R. 5 103.5(a)(4). 
Motions for the reopening or reconsideration 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. See 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 110. With the current motion, the movant has not met that 
burden. The motion will be dismissed. 
Finally, it should be noted for the record that, unless CIS directs otherwise, the filing of a motion does not stay the 
execution of any decision in a case or extend a previously set departure date. 8 C.F.R. 4 103.5(a)(l)(iv). 
Once again, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act. 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. 
letter is pertinent to the instant appeal. As explained by the AAO in its April 3,2008 decision, the beneficiary 
does not appear to have been employed abroad because the foreign employer is a sole proprietorship owned 
by the beneficiary. The beneficiary cannot employ himself. Counsel does not explain how, exactly, this 
determination is inconsistent with the INS letter.