dismissed O-1B Case: Culinary Arts

(b)(6)
.. 
DATE: MAR 0 9 2013 Office: CALIFORNIA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
ms •.. D:epartment .. ofUomeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
"'•· (/ 
~)) .•.. ~.~--•.. ~~~· .. ~~- fJ 
Ron Ro;~nberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant 
visa, and the Administrative Appeals Office (AAO), rejected the petitioner's subsequent appeal as 
untimely filed. The matter is now before the AAO on a motion to reopen. The motion will be 
rejected as untimely filed. 
The petitioner, an Indian specialty restaurant, filed the instant petition seeking to classify the beneficiary 
pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), as an alien of 
extraordinary ability in the arts. The petitioner seeks to employ the beneficiary in the position of 
executive chef for a period of three years. 
The director denied the petition on October 14, 2009, concluding that the petitioner failed to submit the 
required written advisory opinion from an appropriate consulting entity, pursuant to 8 C.F.R. § 
214.2( o )(2)(ii)(D). 
The petitioner filed a late appeal, which the AAO rejected as untimely filed pursuant to 8 C.F.R. 
§ 103.3(a)(2)(v)(B)(J) on October 8, 2010. The petitioner, through current counsel, filed the instant 
motion to reopen on July 25, 2012, or 656 days subsequent to the AAO's decision dismissing the 
petitioner's appeal. 
The regulation at 8 C.F.R. § 103.5(a)(1)(i) requires that any motion to reopen or reconsider an action by 
U.S. Citizenship and Immigration Services (USCIS) be filed within 30 days of the decision that the 
motion seeks to reopen or reconsider, except that failure to file before this period expires may be 
excused in the discretion of users where it is demonstrated that the delay was reasonable and was 
beyond the control of the petitioner. If the decision was mailed, the motion must be filed within 33 
days. See 8 C.F.R. § 103.8(b). 
Here, although current counsel for the petitioner does not specifically acknowledge that the motion 
is filed well 
outside the period established by regulation, current counsel asserts as the basis for the 
motion ineffective assistance of prior counsel which "was not discovered until recently." Current 
counsel explains the basis for the claim of ineffective assistance of prior counsel as the "prior 
attorney's negligence in [not] filing the appropriate documents in a timely manner resulted in a 
denial of a visa extension and of an appeal." 
Current counsel submits a statement from the petitioner explaining, in pertinent part, as follows: 
* * * 
7. The visa petition was denied because the attorney failed to provide all of the 
necessary documents. 
8. The attorney filed an appeal but mistakenly sent the appeal to the wrong 
location, resulting in a denial due to untimely submission. 
* * * 
10. Although the denial letters were sent to me, I did not understand the 
explanation for the denial or the additional requirements of filing a timely 
appeal. 
* * * 
(b)(6)
' ' 
Page 3 
16. Had it not been for subsequent meetings with other attorneys, I never would 
have found out about [prior counsel's] negligence. 
* * * * 
Upon review, current counsel's argument is not persuasive, and the motion will be rejected as 
untimely filed. The petitioner's failure to file the motion within the period allowed will not be excused 
as either reasonable or beyond the control of the petitioner. 
Firstly, the petitioner has not submitted any evidence in support of its assertion that it only recently 
discovered the basis for the director's denial of the nonimmigrant visa petition and the AAO's 
rejection of the appeal. The instant motion was filed more than one year and nine months after the 
appeal was rejected. The petitioner has offered no explanation as to why this delay should be 
considered reasonable, such as circumstances beyond the petitioner's control that would exempt the 
petitioner from adhering to the 30-day timeframe for the filing of a motion established by regulations. 
Accordingly, the motion will be rejected as untimely filed. 
Secondly, it is noted that a claim of ineffective assistance of counsel requires: (1) that the claim be 
supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement 
that was entered into with counsel with respect to the actions to be taken and what representations 
counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or 
competence is being impugned be informed of the allegations leveled against him and be given an 
opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has been filed 
with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal 
responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 
10 (1st Cir. 1988). The petitioner has failed to fulfill the requirements listed above. Specifically, 
petitioner failed to provide an affidavit describing the agreement with the representative, evidence 
that the prior representative was informed of the allegations and given an opportunity to respond, 
and information regarding whether a complaint has been filed with disciplinary authorities. 
Therefore, petitioner is found not to have established a claim of ineffective assistance of counsel. 
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. 
Finally, it should be noted for the record that, unless USCIS 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.P.R.§ 103.5(a)(l)(iv). 
The petition will remain denied and the appeal dismissed for the previously stated reasons. In visa 
petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The motion is rejected as untimely filed.