dismissed L-1B Case: Software Engineering

u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FEB 0 1ZOOBOffice: CALIFORNIA SERVICE CENTER Date:File: WAC 07 195 52404
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IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § IIOI(a)(l5)(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.
~_ __.~_ .
/ ..../~~
:t£;bert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 07 195 52404
Page 2
DISCUSSION: The Director of the California Service Center denied the nonimmigrant visa petition and the
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as
untimely pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(1).
The petitioner is a Delaware corporation, which describes its business in the Form 1-129 as "consulting,
software and hardware design development and architecture analysis for communication and applications
domain." The petitioner seeks to employ the beneficiary as a "principal software engineer" as an L-1B
nonimmigrant intracompany transferee having specialized knowledge pursuant to section 101(a)(15)(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 petitioner failed to establish (1) that the beneficiary will be employed in a specialized
knowledge capacity or that beneficiary possesses specialized knowledge; or (2) that the placement of the
beneficiary at a worksite of an unaffiliated employer will not be merely labor for hire as prohibited by the L-l
Visa Reform Act of 2004. Section 214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F).
The regulation at 8 C.F.R. § 103.3(a)(2) requires an affected party to file the complete appeal within 30 days after
service of the decision, or, in accordance with 8 C.F.R. § 103.5a(b), within 33 days if the decision was served by
mail. The record indicates that the decision of the director dated Saturday, August 11, 2007 was sent both to
counsel and the petitioner. An appeal was filed with the California Service Center on Friday, September 14,
2007, 34 days after the decision was served by first class mail.
Thus, the appeal was not timely filed and must be rejected on these grounds pursuant to 8 C.F.R. §
103.3(a)(2)(v)(B)(1).
The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a
motion to reopen as described in 8 C.F.R. § 103.5(a)(2) or a motion to reconsider as described in 8 C.F.R.
§ 103.5(a)(3), the appeal must be treated as a motion, and a decision must be made on the merits of the case. The
official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case
the service center director. See 8 C.F.R. § 103.5(a)(l)(ii). Here, the untimely appeal does not meet the
requirements of a motion to reconsider or a motion to reopen. The petitioner failed to cite any pertinent precedent
decisions establishing that the director's decision was based on an incorrect application of law or policy.
Therefore, it does not meet the requirements of a motion to reconsider.
Likewise, the petitioner failed to state any "new facts" which could be considered in a reopened proceeding.
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.! The petitioner did not submit any additional
evidence on appeal, and counsel's brief did not aver any new, previously unavailable facts for consideration. As
such, there is no evidence submitted on appeal that may be considered "new" under 8 C.F.R. § 103.5(a)(2) and
that could be considered a proper basis for a motion to reopen.
ORDER: The appeal is rejected.
'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'SII NEW RIVERSIDEUNIVERSITYDICTIONARY792 (1984)(emphasis
in original).