Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions

The Case of Will Not Take NO for an Answer!

Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) Matter of B-I-U- Corp., ID# 13168 (AAO Sept. 10, 2015)

The list shown is related to ONE L1-A case and it does not include every decision. The Petitioner, a corporation organized under the laws of the State of New Jersey, claimed to be engaged in the wholesale of general merchandise and states that it is a subsidiary of M.R. Utensils, located in Ahmedabad, India. The Beneficiary was initially granted a one-year period of stay in the United States in order to open a new office, and the Petitioner then sought to extend the Beneficiary's stay. The Director, Vermont Service Center, initially denied the extension petition on February 24, 2004, concluding that the Petitioner did not establish that the Beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. The Petitioner subsequently filed a total of three1 appeals and eleven motions with AAO. Most recently, AAO denied the Petitioner's eleventh motion to reopen and reconsider in a decision dated April 21, 2016. These 13 decisions follow, newest to oldest. The original denial is not available.

1 One of the decision states that four appeals were filed. It is unclear if one of the rejected appeals was counted or not. It is easy to lose track.

MATTER OF B-1-USA CORP.

MOTION ON AAO DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 21,2016

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a corporation organized in the State of New Jersey that engages in the wholesale of general merchandise, seeks to extend the employment of its vice-president under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) § 10l(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-IA 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 petition. The Petitioner subsequently tiled a total of three appeals and ten motions with our office. Most recently, we denied the Petitioner's tenth motion to reopen and reconsider in a decision dated September 10.2015.

The matter is again before us on a combined motion to reopen and reconsider. In its motion, the Petitioner asserts that the Director and AAO did not consider all of the facts contained in the record and ignored the relevant statutory provisions in denying the petition and dismissing the initial appeal.

Upon review, we will deny the combined motion.

I. \'lOTION REQUIRFME\:TS

A. Overarching Requirement for Motions by a Petitioner

The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits the authority of an officer of U.S. Citizenship and Immigration Services (USCIS) to reopen a proceeding or reconsider a decision to instances where "proper cause" has been shown tor such action. Thus, to merit reopening or reconsideration. not only must the submission meet the formal requirements tor 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. The regulation at 8 C.F.R. § 1 03.5(a)(4) requires that •'[a] motion that does not meet applicable requirements shall be dismissed."

Matter <?f B-I-U5;A Corp.

B. Requirements for Motions to Reopen

The regulation at 8 C.F.R. § 1 03.5(a)(2) states that a motion to reopen must ''[(I)] 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 1-2908, which states: "Motion to Reopen: The motion must state new facts and must be supported by affidavits and/or documentary evidence demonstrating eligibility at the time the underlying petition or application was filed." 1

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 ofCaelha, 20 I&N Dec. 464,473 (8IA 1992); see also lvfaatouRui v. Holder, 738 F.3d 1230, 1239-40 (lOth Cir. 2013).

C. Requirements for Motions to Reconsider

The regulation at 8 C.F.R. § 103.5(a)(3), ·'Requirementsfor 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 [(h)] 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 Fom1 I-2908. which states: "Motion to Reconsider: The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions and must establish that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence of record at the time of decision.''

1 The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part:

Every benefit request or other document submitted to DHS must be executed and tiled 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.

2

Matter of B-1-USA Corp.

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. § 1 03.5(a)(3) and 8 C.F.R. § 1 03.5(a)(2).

II. DISCUSSION AND ANALYSIS

The Director denied the original extended petition on February 24, 2004, concluding that the Petitioner did not establish that the Beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. Although we summarily dismissed the Petitioner's appeal on February L 2006, the Petitioner subsequently tiled a motion to reopen that was granted for the purpose of considering a timely filed appellate brief that had not been incorporated into the record prior to our initial decision. As discussed in our previous decisions, we issued a 14-page decision affirming the Director's decision to deny the petition on May 17, 2007.

The Petitioner then filed a second appeaL which we rejected as improperly filed, noting that we do not exercise appellate jurisdiction over our own decisions and that the appeal did not meet the requirements for a motion to reopen or reconsider. The Petitioner next tiled a motion, which was denied, followed by a third appeal, which we rejected, once again noting that we do not exercise appellate jurisdiction over our own decisions. The Petitioner proceeded to tile nine subsequent motions to reopen and reconsider. all of which were denied. The most recent motion was denied in a September 10, 2015, decision in which we found that combined the motion did not meet the applicable requirements of a motion to reopen or reconsider set out at 8 C.F.R. § 103.5. The Petitioner has now filed another combined motion to reopen and motion to reconsider.

When a motion is filed, 8 C.F.R. § 1 03.5(a)(l )(i) authorizes us to reopen or to reconsider the immediate prior decision which, in the matter of this motion, is our decision of September 10, 2015. As in our prior decisions, we stress again that in order to establish merit for reopening our latest decision, the Petitioner must: ( 1) provide new facts relevant to the most recent decision. and (2) support those facts with affidavits or other documentary evidence. 8 C.F.R. § 1 03.5(a)(2). In order to establish merit for reconsideration of our latest decision the Petitioner must: (1) state the reasons why the Petitioner believes the most recent decision was based on an incorrect application of law or policy; and (2) specifically cite laws. regulations. precedent decisions. and/or binding policies that the petitioner believed we misapplied in our prior decision.

In our most recent decision dated September 10, 2015, we found that the combined motion to reopen and reconsider was filed 53 days after the previous decision, and as such it was untimely tiled. The regulations at 8 C.F.R. § 103.5(a)(l)(i), allows us to accept an untimely filed motion to reopen when the delay is both reasonable and beyond the affected party's control. We noted in our decision that the record did not establish that the Petitioner's late filing of the motion to reopen was reasonable and beyond the affected party's control, and as there is no such provision to accept untimely filings for motions to reconsider, the combined motion was untimely and must be denied for that reason. We further found that even if the combined motion had been timely filed, the motion did not meet the requirements of either a motion to reopen or reconsider, and that the combined motion must also

3

Matter of B-1-U..)A Corp.

be denied for this reason. It is this September 10, 2015, decision that is the subject of the motion currently before us.

With the combined motion to reopen and reconsider before us now, the Petitioner submits a brief The brief addresses the propriety of the Director's February 24, 2004, decision denying the visa petition and our May 17, 2007, decision dismissing the appeal of that denial. The Petitioner's assertions pertinent to those decisions will not be considered because, as was explained above, the propriety of those decisions is not before us. Rather, as noted, it is the September 10, 2015, decision that is the relevant subject of this motion. The Petitioner's motion brief does not address the reasoning of our most recent decision or present any argument pertinent to the propriety of our September 10,2015, decision denying the combined motion to reopen and reconsider.

Again, a motion to reopen must state new facts and support those facts with at1idavits or other documentary evidence. Here, the Petitioner has not stated any new facts or submitted new evidence relevant to the September 10, 2015, decision. As such, the motion before us does not meet the requirements of a motion to reopen. See 8 C.F.R. § 103.5(a)(2).

A motion to reconsider must state the reasons for reconsideration and be supported by citations to pertinent statutes, regulations, and/or precedent decisions to establish that the decision was based on an incorrect application of law or USC IS policy. Here, the Petitioner does not address the propriety of our September 10, 2015, decision and does not assert that this decision was incorrect based on the evidence of record at the time of that decision. Therefore, the motion before us does not satisfy the requirements of a motion to reconsider as stated at 8 C.F.R. § 103.5(a)(3).

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 ofOtiende, 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 (~lB-1-U.SA Corp., ID# 16552 (AAO Apr. 21, 2016)

4

U.S. Citizenship and Immigration Services

MATTER OF B-I-U- CORP.

MOTION OF AAO DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 10, 2015

PETITION: FORM I-129, PETITION FOR NONIMMIGRANT WORKER

The Petitioner, a corporation organized in the State of New Jersey that engages in the wholesale of general merchandise, seeks to extend the employment of its vice-president as an L-1 A nonimmigrant intracompany transferee. See section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The Director, Vermont Service Center, denied the petition. The Petitioner has subsequently filed a total of three appeals and nine motions with the Administrative Appeals Office (AAO). Most recently, we dismissed the Petitioner's motion to reopen and reconsider in a decision dated January 8, 2015. The matter is again before us on a motion to reopen and reconsider. The motion will be denied.

The Director denied the petition on February 24, 2004, concluding that the Petitioner did not establish that the Beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. Although we summarily dismissed the Petitioner's appeal on February 1, 2006, the Petitioner subsequently filed a motion to reopen that was granted for the purpose of considering a timely filed appellate brief that had not been incorporated into the record prior to our initial decision. As discussed in our previous decisions, we issued a 14-page decision affirming the Director's decision to deny the petition and we dismissed the appeal on May 1 7, 2007.

On June 14, 2007, the Petitioner filed a second appeal, which we rejected as improperly filed on December 4, 2007, noting that we do not exercise appellate jurisdiction over our own decisions. We also found that the appeal did not meet the requirements for a motion to reopen or reconsider. On January 4, 2008, we reviewed and dismissed a subsequent motion, which was followed by a third appeal, despite the fact that the Petitioner had been previously informed that multiple appeals on a single petition are not allowed. Accordingly, we rejected the appeal on November 25, 2008 and once again noted that we do not exercise appellate jm~isdiction over our own decisions. The Petitioner proceeded to file four subsequent motions to reopen and reconsider, all of which were dismissed pursuant to the regulation at 8 C.F.R. § 103.5(a)(4), based on the Petitioner's failure to satisfy applicable filing requirements. The Petitioner's subsequent filing was a fifth motion to reopen and reconsider in which the Petitioner asked us to consider a supporting brief, which the Petitioner did not submit simultaneously with the Form I-290B, Notice of Appeal or Motion, filed on April 26, 2013. Rather, the Petitioner altered Part 2, subsection F of the Form I-290B from the original version, which states, "My brief and/or additional evidence is attached," to read the following: "My brief and/or additional evidence will be submitted in 90 days (ninety)." It is noted

Matter of B-1-U- Corp.

that the brief was not incorporated into the record prior to our review of the Petitioner's motion, thus leading us to conclude that the Petitioner did not provide evidence to support the motion to reopen and reconsider. The basis for the subsequent (sixth) motion was to request consideration of additional evidence and a supporting brief, which was intended to be submitted in support of the motion that was filed on April 26, 2013. Both motions were dismissed. The Petitioner's subsequent (seventh) motion was dismissed as the Petitioner did not submit evidence to meet the requirements of filing a motion, and the Petitioner's subsequent (eighth) motion was dismissed because the Petitioner, again, altered Part 3, subsection 2.f. of the Form I-290B from the original version to reflect that a brief and/or additional evidence "will be submitted in 90 days."

In this matter, its ninth motion filed on March 2, 2015, the Petitioner submits a copy of the same brief submitted with its seventh motion, filed June 13, 2014 and dismissed September 25, 2014. In its brief, again, the Petitioner maintains its objections to the analysis contained in the Director's original decision, with an issue date of February 24, 2004, and further contends that the very fact that we upheld the Director's decision indicates that we failed to apply the current law, regulation, or policy. The Petitioner lists a number of federal court decisions in an effort to establish that it has complied with 8 C.F.R. § 103.2(a)(l) and that "ignoring this fact of due compliance, [sic] is another instance of Abuse of Discretion."

As we shall now discuss, the motion was filed late and therefore must be dismissed.

The provision at 8 C.F.R. § 103.5(a)(4), Processing motions in proceedings before the Service, provides that "[a] motion that does not meet applicable requirements shall be dismissed."

The pertinent section of the motion regulations, 8 C.F.R. § 103.5(a)(l)(i), states:

[A]ny motion to reconsider an action by the Service filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reconsider. Any motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner.

Emphasis added.

The date of filing is not the date of mailing, but the date when U.S. Citizenship and Immigration Services (USCIS) receives the intended motion (1) completed, signed, and accompanied by the

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required fee as specified by the Form I-290B instructions; and (2) at the location that those instructions designate for filing motions. 1

Neither the Act nor the pertinent regulations grant us the authority to extend the 33-day time limit for filing a motion to reconsider. The regulations do permit USCIS, in its discretion, to excuse the untimely filing of the motion-to-reopen component of this joint motion were it demonstrated that the delay was both (a) reasonable and (b) beyond the control of the petitioner. 8 C.F.R. § 103.5(a)(l)(i). However, upon review of all of the submissions constituting the motion we find no basis for finding that the untimely filing was either reasonable or beyond the control of the Petitioner in this matter.

We issued the decision that is the subject of this motion on January 8, 2015. We note that the petitioner initially submitted its Form r.:290B on February 17, 2015, 40 days after our decision, which was rejected, and ultimately filed its Form I-290B on March 2, 2015, 53 days after our decision. Accordingly, the motion was untimely filed.

As the record does not establish that the failure to file the motion to reopen within 33 days of the decision was reasonable and beyond the affected party's control, and as there is no such provision for motions to reconsider, the combined motion is untimely and must be dismissed for that reason.

Although the late filing of the joint motion requires the motion's dismissal, we shall also address in summary fashion why the joint motion would have to be dismissed even if it had been timely filed.

The regulation at 8 C.F.R. § 103.5(a)(2) states, in pertinent part, that 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. Here, the Petitioner has not submitted any new evidence. Therefore, the Petitioner has not satisfied the requirements of a motion to reopen.

Next, with regard to the motion to reconsider, the regulation at 8 C.F.R. § 103.5(a)(3) 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 ....

As in our prior decisions, we stress again that in order to have established merit for reconsideration of our latest decision the Petitioner must both: (1) state the reasons why the petitioner believes the most recent decision was based on an incorrect application of law or policy; and (2) specifically cite

1 See 8 C.F.R. §§ 103.2(a)(l) ("every benefit request or other document submitted to DHS must be executed and filed in accordance with the form instructions" and with whatever fees are required by regulation); I 03.2(a)(6) (form instructions specify filing location).

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laws, regulations, precedent decisions, and/or binding policies that the petitioner believed we misapplied in our prior decision.

Moreover, as we cautioned in our earlier decisions, a motion to reconsider cannot 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, 220 (BIA 1990, 1991 ). Rather, the "additional legal arguments" that may be raised in a motion to reconsider should flow from new law or a de novo legal determination reached in its decision that could not have been addressed by the party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which a party may submit, in essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the prior decision. !d. Instead, the moving party must specify the factual and legal issues raised on appeal that were decided in error or overlooked in the initial decision or must show how a change in law materially affects the prior decision. !d. at 60.

As the Petitioner's primary objections, again, focus on findings that the Director made in his original decision denying the petition, it is apparent that the Petitioner had ample opportunity to express its concerns earlier in these proceedings. The Petitioner cannot take the opportunity to file a ninth motion in order to address findings that could have and should have been addressed in an appellate brief. Moreover, the record shows that this office granted the Petitioner's first motion for the specific purpose of reopening these proceedings and addressing the Petitioner's assertions, which were made in an attempt to establish that the Petitioner and the Beneficiary met the statutory and regulatory requirements at the time the petition was filed. Based on the statement that the Petitioner submitted in support of this latest motion, it appears that the Petitioner once again seeks to address matters that were already addressed on appeal.

Further, while the Petitioner clearly understands that its motion to reconsider must be supported by statutes, regulations, or precedent decisions, the Petitioner provided no discussion of the facts pertaining to any of the nine court cases it listed in its supporting statement. Therefore, the Petitioner has not established that any of the cited cases are relevant to the matter at hand; nor has the Petitioner established that these cases support a finding that we misapplied a law or service policy in denying the motion in our latest decision. Contrary to the Petitioner's belief, conducting a de novo review of the record does not obligate us to repeatedly re-adjudicate issues that were already addressed on appeal. The Petitioner's understanding that we have abused our discretion appears to be entirely premised on the fact that we did not find the Petitioner to be eligible for the immigration benefit sought and as a consequence issued an adverse decision. As the Petitioner has not established that we committed legal error in our prior decision, we are unable to grant the Petitioner's motion.

For the foregoing reasons, the instant motion does not meet the requirements of a motion to reconsider. The motion does not establish that our decision dated January 8, 2015 dismissing the previous motion was in error, as required by 8 C.F.R. § 103.5(a)(3).

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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.

In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. Accordingly, the motion will be dismissed, the proceeding will not be reopened or reconsidered, and the previous decisions of the director and the AAO will not be disturbed.

ORDER: The motion is denied.

Cite as Matter ofB-I-U- Corp., ID# 13168 (AAO Sept. 10, 2015)

5

(b)(6)

DATE: JAN 0 8 2015

IN RE: Petitioner: Beneficiary:

Office: VERMONT SERVICE CENTER

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N. W., MS 2090 Washington, DC 20529-2090


FILE:

PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)

ON BEHALF OF PETITIONER:

SELF-REPRESENTED

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

-

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at

http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements.

See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.

Ron Rosenberg

Chief Administrative Appeals Office

www.uscis.gov

(b)(6)NON-PRECEDENT DECISION

Page 2

DISCUSSION: The Vermont Service Center Director (director) denied the petition for a nonimmigrant visa. The petitioner has subsequently filed a total of three appeals and eight motions with the Administrative Appeals Office (AAO). Most recently, the AAO dismissed the petitioner's motion to reopen and reconsider in a decision dated September 25, 2014. The matter is once again before the AAO on a motion to reopen and reconsider. The motion will be dismissed.

The petitioner seeks authorization to extend the beneficiary's employment as an L-1A nonimmigrant intracompany transferee pursuant to section 10l(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the State of New Jersey and is engaged in the wholesale of general merchandise. The beneficiary was initially granted a one-year period of stay in the United States in L-1A status in order to open a new office.

The director denied the petition on February 24, 2004, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petitiOn. Although we summarily dismissed the petitioner's appeal on February 1, 2006, the petitioner subsequently filed a motion to reopen that was granted for the purpose of considering a timely filed appellate brief that had not been incorporated into the record prior to our initial decision. As discussed in our previous decisions, we issued a 14-page decision affirming the director's decision to deny the petition and we dismissed the appeal on May 17, 2007.

On June 14, 2007, the petitioner filed a second appeal, which we rejected as improperly filed on December 4, 2007, noting that we do not exercise appellate jurisdiction over our own decisions. We also found that the appeal did not meet the requirements for a motion to reopen or reconsider. On January 4, 2008, we reviewed and dismissed a subsequent motion, which was followed by a third appeal, despite the fact that the petitioner had been previously informed that multiple appeals on a single petition are not allowed. Accordingly, we rejected the appeal on November 25, 2008 and once again noted that we do not exercise appellate jurisdiction over our own decisions. The petitioner proceeded to file four subsequent motions to reopen and reconsider,

all of which were dismissed pursuant to the regulation at 8 C.F.R. § 103.5(a)( 4), based on the petitioner's failure to satisfy applicable filing requirements. The petitioner's subsequent filing was a fifth motion to reopen and reconsider in which the petitioners asked us to consider a supporting brief, which the petitioner did not submit simultaneously with the Form I-290B, Notice of Appeal or Motion, filed on April 26, 2013. Rather, the petitioner altered Part 2, subsection F of the Form I-290B from the original version, which states, "My brief and/or additional evidence is attached," to read the following: "My brief and/or additional evidence will be submitted in 90 days (ninety)." It is noted that the brief was not incorporated into the record prior to our review of the petitioner's motion, thus leading us to conclude that the petitioner did not provide evidence to support the motion to reopen and reconsider. The basis for the subsequent (sixth) motion was to request consideration of additional evidence and a supporting brief, which was intended to be submitted in support of the motion that was filed on April 26, 2013. Both motions were dismissed.

Although the petitioner has filed a seventh motion to reopen and reconsider, it has once again altered the Form I-290B to indicate that a brief and/or additional evidence "will be submitted in 90 days." Again, the

record shows no further evidence submitted since the filing of the Form I-290B. Moreover, while Part 3, No,

1(b) of the Form I-290B allows the petitioner an additional thirty days in which to submit a brief and/or additional evidence in the course of filing an appeal, the same option is not available in the course of filing a

(b)(6)

NON-PRECEDENT DECISION

Page 3

motion; any additional evidence or a supporting brief that the petitioner intends to submit when filing a motion must be submitted simultaneously with the Form I-290B.

The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that 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. As the petitioner has not submitted any supporting evidence, it has failed to meet the requirements of a motion to reopen.

Next, with regard to the motion to reconsider, the regulation at 8 C.F.R. § 103.5(a)(3) 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."

We continue to emphasize, as we have in our prior decisions, that in order to merit reconsideration of our latest decision the petitioner must first state the reasons why the petitioner believes the most recent decision was based on an incorrect application of law or policy; and the petitioner must then specifically cite laws, regulations, precedent decisions, and/or binding policies that establish how we misapplied in our prior decision. 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.

As the petitioner did not provide a statement and or any evidence to support the instant motion, it has failed to meet any of the above requirements. For the foregoing reasons, the instant motion does not meet the requirements of a motion to reopen or a motion to reconsider. Therefore, the motion will be dismissed pursuant to 8 C.F.R. § 103.5(a)( 4), which states, in pertinent part, that a motion that does not meet applicable requirements shall be dismissed and the previous decisions will not be disturbed.

ORDER: The motion is dismissed.

(b)(6)

DATE: MAY 0' 1 2014 Office: VERMONT SERVICE CENTER

INRE: Petitioner: Beneficiary:

U.S. Department of Homeland Security U. S. Ci tizenship and lmrnigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090


FILE:

PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(L)


SELF -REPRESENTED

INSTRUCTIONS:


This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO.

erg Chief Administrative Appeals Office

www. uscis.gov


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DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The petitioner has subsequently filed a total of three appeals and seven motions with the Administrative Appeals Office (AAO). Most recently, the AAO dismissed the petitioner's motion to reopen and reconsider in a decision dated August 28, 2013. The matter is once again before the AAO on a motion to reopen and reconsider. The motion will be dismissed.

The petitioner seeks to extend the beneficiary's employment as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the State ofNew Jersey, and is engaged in the wholesale of general merchandise. The beneficiary was initially granted a one-year period of stay in the United States in L-IA status in order to open a new office and the petitioner seeks to extend the beneficiary's stay.

The director denied the petition on February 24, 2004, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. Although we summarily dismissed the petitioner's appeal on February 1, 2006, the petitioner subsequently filed a motion to reopen that was granted for the purpose of considering a timely filed appellate brief that had not been incorporated into the record prior to our initial decision. As reviewed in our previous decision, we issued a 14-page decision affirming the denial of the petition and dismissal of the appeal on May 17, 2007. The appeal contemplated the issues in the director's decision and determined that the petitioner's submissions, from the time the petition was originally filed along with any further submissions made up through and including the time of the appeal, were insufficient to establish eligibility and overcome the director's findings.

Nevertheless, the petitioner filed a second appeal on June 14, 2007, which we rejected as improperly filed on December 4, 2007, noting that we do not exercise appellate jurisdiction over our own decisions. In our decision, we reviewed the petitioner's appeal and found that it did not meet the requirements for a motion to reopen or reconsider. We then reviewed and dismissed a subsequent motion, which the petitioner filed on January 4, 2008. Despite having been informed that a petitioner cannot file multiple appeals on a single petition, the petitioner filed a third appeal, which we rejected on November 25, 2008, again noting that we do not exercise appellate jurisdiction over our own decisions. The petitioner proceeded to file four subsequent motions to reopen and reconsider, all of which were dismissed pursuant to the regulation at 8 C.F .R. § 103.5(a)(4), based on the petitioner's failure to satisfy applicable filing requirements. In support of the petitioner's fifth motion to reopen and reconsider, the petitioners asked us to consider a supporting brief, which the petitioner did not submit along with the Form I-290B, Notice of Appeal or Motion, filed on April 26, 2013. Rather, the petitioner altered Part 2, subsection F of the Form I-290B from the original version, which states, "My brief and/or additional evidence is attached," to read the following: "My brief and/or additional evidence will be submitted in 90 days (ninety)." It is noted that the brief was not incorporated into the record prior to our review of the petitioner's motion, thus leading us to conclude that the petitioner did not provide evidence to support the motion to reopen and reconsider. We therefore dismissed the petitioner's motion.

The petitioner now seeks consideration of additional evidence and a supporting brief, which was intended to be submitted in support of the motion that was filed on April 26, 20 13. The petitioner also submits another

(b)(6)

NON-PRECEDENT DECISION Page 3

brief in support of the current motion along with an undated document titled, "Discussion," which addresses issues pertaining to the petitioner's eligibility.

The regulation at 8 C.F.R. § 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding." The petitioner's prior motion, at the time it was filed, did not contain the statement required by 8 C.F.R. § 103.5(a)(l)(iii)(C). The regulation at 8 C.F.R. § 103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. Therefore, the AAO properly dismissed the petitioner' s motion, filed on April26, 2013, which did not meet specific motion requirements.

Additionally, the regulation at 8 C.F.R. § 103.5(a)(3) states, in pertinent part:


This regulation is supplemented by the instructions on the Form I-290B, Notice of Appeal or Motion, by operation of the rule at 8 C.F.R. § 103.2(a)(l) that all submissions must comply with the instructions that appear on any form prescribed for those submissions.' With regard to motions for reconsideration, Part 3 of the Form I-290B submitted by the petitioner states:

Motion to Reconsider: The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions.

Therefore, to have established merit for reconsideration of our latest decision the petitioner must both: (1) state the reasons why the petitioner believes the most recent decision was based on an incorrect application of law or policy; and (2) specifically cite laws, regulations, precedent decisions, and/or binding policies that the petitioner believed that we misapplied in our prior decision. We stress that the requirements for a motion to reconsider are specific. As indicated above and in numerous of our prior decisions, the regulation at 8 C.F .R. § 103.5(a)(3) requires that a motion to reconsider state the reasons for reconsideration and that it be supported by any pertinent precedent decisions to establish that the prior decision was based on an incorrect application of law or Service policy. Such explanation and supporting evidence must be submitted on or with Form I-290B. See 8 C.F.R. §§ 103.5(a)(2) and (3).

Moreover, a motion to reconsider cannot 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, 220 (BIA 1990, 1991 ). Rather, the "additional legal arguments" that may be raised in a motion to reconsider should flow from new law or a de novo legal determination reached in its decision that could not have been addressed by the party. Matter of 0-S-G-, 24

The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part:

[E]very application, petition, appeal, motion, request, or other document submitted on the form prescribed by this chapter shall be executed and filed in accordance with the instructions on the form, such instructions ... being hereby incorporated into the particular section of the regulations requiring its submission.


Page 4

I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which a party may submit, in essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the prior decision. Id. Instead, the moving party must specify the factual and legal issues raised on appeal that were decided in error or overlooked in the initial decision or must show how a change in law materially affects the prior decision. Id. at 60.

As in the previously filed motion, the petitioner once again states on the Form I-290B that the basis for motion is "[b ]eing aggrieved by the decision to deny BOTH in fact & law." In a follow-up brief, the petitioner satisfies the requirements of 8 C.P.R. § 103.5(a)(l)(iii)(C) by stating "that the validity of the unfavorable decision is NOT the subject of any judicial proceeding." The petitioner also asks that the AAO remove any adverse finding with regard to the petitioner's non-submission of evidence in support of the April 26, 2013 motion, asserting and providing evidence to show that the petitioner indeed provided a supporting brief within 90 days of filing the said motion.

We find that the petitioner's motion does not meet applicable requirements. As acknowledged above, the petitioner's Form I-290B, filed April26, 2013, stated that additional evidence would be submitted in 90 days. Although the regulation at 8 C.P.R. § 103.3(a)(2)(vii) states that a petitioner may be permitted additional time to submit a brief or additional evidence to the AAO in connection with an appeal, no such provision applies to a motion to reopen or reconsider. The additional evidence must comprise the motion. See 8 C.F.R §§ 103.5(a)(2) and (3). Accordingly, the AAO's dismissal of the petitioner's prior motion, which lacked any supporting evidence or information at the time of review, was correct based on the petitioner's failure to meet applicable requirements for filing a motion to reopen or reconsider.

The petitioner's claim of being "aggrieved" by the decision is vague and fails to explain how we misapplied the law or policy. The record shows that the petitioner has made similar claims in prior motions and we have addressed these claims in prior decisions. The petitioner cannot generally request reconsideration of every decision to date. The purpose of a motion is different from the purpose of an appeal. While we conduct a comprehensive, de novo review of the entire record on appeal, a review in the case of a motion to reconsider is strictly limited to an examination of any purported misapplication of law of USCIS policy in the most recent decision. We previously conducted a de novo review of the entire record of proceeding when we reopened the matter to consider the petitioner's appellate brief in our May 17, 2007 decision. There is no regulatory or statutory provision that allows a petitioner more than one appellate decision per petition filed. In the present matter, an appe1late decision was issued and the deficiencies were expressly stated. Although the record contains a supporting brief that we have reviewed in contemplating the merits of the petitioner's most recent motion, we fmd that the petitioner has once again reiterated arguments that have been addressed and found to be insufficient in our prior decisions. Furthermore, given that the petitioner did not provide a supporting brief in support of its April 26, 2013 motion, we properly dismissed that motion. The petitioner will not succeed in its effort to have us reopen this matter in order to consider a supporting brief that should have been filed at the same time it filed the motion.

For the foregoing reasons, the instant motion does not meet the requirements of a motion to reconsider. The motion fails to establish that our decision dated August 28, 2013, dismissing the previous motion was in error, as required by 8 C.P.R.§ 103.5(a)(3).

(b)(6)


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. Accordin~ly, the motion will be dismissed, the proceedings will not be reconsidered, and the previous decisions will not be disturbed.


(b)(6)

DATE: SEP 2·5 2014 Office: VERMONT SERVICE CENTER


U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090


FILE:



SELF-REPRESENTED

INSTRUCTIONS:


This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.

Than

Ron Rosenberg Chief Administrative Appeals Office

www.uscis.gov

(b)(6)


Page 2

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The petitioner subsequently filed a total of four appeals and seven motions with the Administrative Appeals Office (AAO). Most recently, we dismissed the petitioner's motion to reopen and reconsider in a decision dated May 1, 2014. The matter is once again before us on a motion to reopen and reconsider. The motion will be dismissed.

The petitioner seeks to extend the beneficiary's employment as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L). The petitioner is a New Jersey corporation and is engaged in the wholesale of general merchandise. The beneficiary was initially granted a one-year period of stay in the United States in L-1A status in order to open a new office and the petitioner now seeks to extend the beneficiary's stay.

The procedural history in this matter is lengthy, starting with the director's decision denying the petition on February 24, 2004 based on the conclusion that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. Although we summarily dismissed the petitioner's appeal on February 1, 2006, the petitioner subsequently filed a motion to reopen, which we granted for the purpose of considering a timely filed appellate brief that had not been incorporated into the record prior to our initial decision. As reviewed in our prior decisions, on May 17, 2007 we issued a 14-page decision affirming the denial of the petition and dismissal of the appeal. The appeal fully explored the issues discussed in the director's decision and determined that the petitioner's submissions, from the time the petition was originally filed through and including the time of the appeal, were insufficient to establish eligibility and overcome the director's findings.

Nevertheless, the petitioner improperly filed a second appeal on June 14, 2007, which we rejected on December 4, 2007, explaining that we do not exercise appellate jurisdiction over our own decisions. We also found that we could not consider the petitioner's appeal as a motion to reopen or reconsider based on the petitioner's failure to meet the motion requirements. On January 4, 2008, the petitioner filed a motion, which we reviewed and dismissed. Next, despite having been informed that a petitioner cannot file multiple appeals on a single petition, the petitioner filed a third appeal, which we rejected on November 25, 2008, again noting that we do not eErcise appellate jurisdiction over our own decisions. The petitioner then filed four subsequent motions to reopen and reconsider, all of which were dismissed based on the petitioner's failure to satisfy applicable filing requirements. In support of the petitioner's fifth motion to reopen and reconsider, the petitioner asked us to consider a supporting brief, which the petitioner did not submit along with the Form I-290B, Notice of Appeal or Motion, filed on April 26, 2013. Rather, the petitioner altered Part 2, subsection F of the Form I-290B from the original version, which states, "My brief and/or additional evidence is attached," to read the following: "My brief and/or additional evidence will be submitted in 90 days (ninety)." It is noted that the brief was not incorporated into the record prior to our review of the petitioner's motion, thus leading us to conclude that the petitioner did not provide evidence to support the motion to reopen and reconsider. We therefore dismissed the petitioner's fifth motion.

In its sixth motion, the petitioner sought consideration of additional evidence and a supporting brief, which was intended to be submitted in support of the fifth motion, filed on April 26, 2013. The petitioner also submitted another brief in support of the sixth motion, filed on September 26, 2013, along with a 23-page undated document titled, "Discussion," which addresses issues pertaining to the petitioner's eligibility. We found that the petitioner satisfied the requirements of 8 C.P.R. § 103.5(a)(1)(iii)(C) by stating "that the

(b)(6)


validity of the unfavorable decision is NOT the subject of any judicial proceeding." However, we declined to reconsider the adverse finding with regard to the petitioner's untimely submission of documents in support of the April 26, 2013 motion. We pointed out that while the regulation at 8 C.F.R. § 103.3(a)(2)(vii) allows for additional time to submit a brief or additional evidence in connection with an appeal, there is no similar provision with regard to a motion to reopen or reconsider. We therefore determined that our dismissal of the petitioner's prior motion, which lacked any supporting evidence or information at the time of review, was correct based on the petitioner's failure to meet applicable requirements for filing a motion to reopen or reconsider. We further found that the petitioner's claim of being "aggrieved" by the adverse decision was vague and that the petitioner failed to explain how we misapplied the law or policy.

As noted in several of our prior decisions, the record shows that the petitioner has made similar claims in prior motions and we have addressed those claims in prior decisions. We repeatedly explained that while we conduct a de novo review of the entire record on appeal, the scope of the issues to be addressed in the case of a motion is limited to an examination of any purported misapplication of law or USCIS policy in the most recent decision. As demonstrated in our May 17, 2007 decision, we previously conducted a de novo review of the entire record of proceeding when we reopened the matter to consider the petitioner's appellate brief and all matters concerning the petitioner's eligibility. There is no regulatory or statutory provision that allows a petitioner more than one appellate decision per petition filed. With regard to the circumstances at hand, the petitioner has been issued a detailed appellate decision specifically addressing matters concerning the petitioner's statutory eligibility. That decision was followed by a series of motions, all of which were denied based on the petitioner's failure to meet motion requirements. While we reviewed the petitioner's supporting brief in contemplating the merits of the petitioner's prior motion, we found that the petitioner once again reiterated arguments that were addressed and deemed to be insufficient.

In this matter, the petitioner maintains its objections to the analysis contained in the director's original decision, with an issue date of February 24, 2004, and further contends that the very fact that we upheld the director's decision indicates that we failed to apply the current law, regulation, or policy. The petitioner lists a number of federal court decisions in an effort to establish that the petitioner has complied with 8 C.F.R. § 103.2(a)(1) and that "ignoring this fact of due compliance, [sic] is another instance of Abuse of Discretion."

The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that 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.

In the present matter, the petitioner has failed to submit any new evidence. Therefore, the petitioner has failed to meet the requirements of a motion to reopen.

Next, with regard to the motion to reconsider, the regulation at 8 C.F.R. § 103.5(a)(3) states, in pertinent part:


As in our prior decision, we stress again that in order to have established merit for reconsideration of our latest decision the petitioner must both: (1) state the reasons why the petitioner believes the most recent

(b)(6)


Page4

decision was based on an incorrect application of law or policy; and (2) specifically cite laws, regulations, precedent decisions, and/or binding policies that the petitioner believed we misapplied in our prior decision.

Moreover, as we cautioned in our earlier decisions, a motion to reconsider cannot 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, 220 (BIA 1990, 1991). Rather, the "additional legal arguments" that may be raised in a motion to reconsider should flow from new law or a de novo legal determination reached in its decision that could not have been addressed by the party. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which a party may submit, in essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the prior decision. Id. Instead, the moving party must specify the factual and legal issues raised on appeal that were decided in error or overlooked in the initial decision or must show how a change in law materially affects the prior decision. Id. at 60.

As the petitioner's primary objections focus on findings that the director made in his original decision denying the petition, it is apparent that the petitioner had ample opportunity to express its concerns earlier in these proceedings. The petitioner cannot take the opportunity to file a sixth motion in order to address findings that could have and should have been addressed in an appellate brief. Moreover, the record shows that this office granted the petitioner's first motion for the specific purpose of reopening these proceedings and addressing the petitioner's assertions, which were made in an attempt to establish that the petitioner and the beneficiary met the statutory and regulatory requirements at the time the petition was filed. Based on the statement that the petitioner submitted in support of this latest motion, it appears that the petitioner once again seeks to address matters that were already addressed on appeal.

Further, while the petitioner clearly understands that its motion to reopen must be supported by statutes, regulations, or precedent decisions, the petitioner provided no discussion of the facts pertaining to any of the nine court cases it listed in its supporting statement. Therefore, the petitioner has failed to establish that any of the cited cases are relevant to the matter at hand; nor has the petitioner established that these cases support a finding that we misapplied a law or service policy in denying the motion in our latest decision. Contrary to the petitioner's belief, conducting a de novo review of the record does not obligate us to repeatedly readjudicate issues that were already addressed on appeal. The petitioner's understanding that we have abused our discretion appears to be entirely premised on the fact that we did not find the petitioner to be eligible for the immigration benefit sought and as a consequence issued an adverse decision . As the petitioner has failed to establish that we committed legal error in our prior decision, we are unable to grant the petitioner's motion.

For the foregoing reasons, the instant motion does not meet the requirements of a motion to reconsider. The motion fails to establish that our decision dated May 1, 2014, dismissing the previous motion was in error, as required by 8 C.F.R. § 103.5(a)(3).

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. Accordingly, the motion will be dismissed, the proceedings will not be reconsidered, and the previous decisions will not be disturbed.

(b)(6)

(b)(6)

DATE: AUG 2 8 2013



U.S. Department of Homeland Security U.S. Citizenship and lrnrnigra t.i on Services Ad ministrat ive Appeals Office (AAO) 20 IV!assachusetts Ave. , N. W., MS 2090 Washington, DC 20529-2090


PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(L) of the Immigration and Nationality Act, 8 U.S.C. § llOl(a)(lS)(L)


SELF-REPRESENTED

INSTRUCTIONS:


This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision . Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5 . Do not file a motion directly with the AAO.

Thank you,

f/ ' ~.//~

,;ZRonR~, Chief Administrative Appeals Office

www.uscis.gov

(b)(6)


Page 2

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The petitioner has subsequently filed a total of three appeals and six motions with the Administrative Appeals Office (AAO). Most recently, the AAO dismissed the petitioner's motion to reopen and reconsider in a decision dated March 29, 2013. The matter is once again before the AAO on a motion to reconsider.

The petitioner seeks to extend the beneficiary's employment as an L-1A nonimmigrant intracompany transferee pursuant to § 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). The petitioner, a corporation organized under the laws of the State of New Jersey, claims to be engaged in the wholesale of general merchandise and states that it is a subsidiary of

· The beneficiary was initially granted a one-year period of stay in the United States in L-1A status in order to open a new office, and the petitioner seeks to extend the beneficiary's stay.

The director denied the petition on February 24, 2004, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. The AAO summarily dismissed the petitioner's appeal on February 1, 2006, and subsequently granted a motion to reopen in order to consider a timely filed appellate brief that had not been incorporated into the record prior to the AAO's initial decision. The AAO issued a 14-page decision affirming the denial of the petition and dismissal of the appeal on May 17, 2007. The petitioner subsequently filed an appeal on June 14, 2007. The AAO rejected the petitioner's second appeal as improperly filed on December 4, 2007, noting that the AAO does not exercise appellate jurisdiction over AAO decisions. In its decision, the AAO reviewed the petitioner's appeal and found that it did not meet the requirements for a motion to reopen or reconsider. A subsequent motion, filed on January 4, 2008, was reviewed by the AAO and dismissed in a decision dated July 7, 2008. The AAO rejected the petitioner's subsequent appeal on November 25, 2008, again noting that the AAO does not exercise appellate jurisdiction over AAO decisions . The AAO dismissed the petitioner's subsequent motions to reopen and reconsider pursuant to the regulation at 8 C.F.R. § 103.5(a)(4), based on the petitioner's failure to satisfy applicable filing requirements.

The regulation at 8 C.F.R. § 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding." The petitioner's motion does not contain the statement required by 8 C.F.R. § 103.5(a)(1)(iii)(C). The regulation at 8 C.F.R. § 103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. Therefore, because the instant motion does not meet the applicable filing requirements listed in 8 C.F.R. § 103.5(a)(l)(iii)(C), it must be dismissed for thi s reason.

Further, 8 C.F.R. § 103.5(a)(3) states, in pertinent part:


(b)(6)


Page 3

This regulation is supplemented by the instructions on the Form I-290B, Notice of Appeal or Motion, by operation of the rule at 8 C.F.R. § 103.2(a)(l) that all submissions must comply with the instructions that appear on any form prescribed for those submissions. 1 With regard to motions for reconsideration, Part 3 of the Form I-290B submitted by the petitioner states:

Motion to Reconsider: The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions.

Therefore, to merit reconsideration of the AAO's most recent decision, the petitioner must both: (1) state the reasons why the petitioner believes the most recent decision was based on an incorrect application of law or policy; and (2) specifically cite laws, regulations, precedent decisions, and/or binding policies that the petitioner believes that the AAO misapplied in it its most recent decision. The AAO emphasizes that the requirements for a motion to reconsider are specific. 8 C.F.R. § 103.5(a)(3) requires a motion to reconsider to state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the prior decision was based on an incorrect application of law or Service policy. Such explanation and supporting evidence must be submitted on or with Form I-290B. See 8 C.F.R. §§ 103.5(a)(2) and (3).

The petitioner states on the Form I-290B that the basis for appeal is ·"being aggrieved by the decision to deny BOTH in fact & law." The petitioner further states that a detailed brief will be submitted in 90 days. As of August 21, 2013, no further correspondence has been received from the petitioner.

The petitioner's motion does not meet applicable requirements. The petitioner stated that additional evidence would be submitted in 90 days. Although the regulation at 8 C.F.R. § 103.3(a)(2)(vii) states that a petitioner may be permitted additional time to submit a brief or additional evidence to the AAO in connection with an appeal, no such provision applies to a motion to reopen or reconsider. The additional evidence must comprise the motion. See 8 C.F.R §§ 103.5(a)(2) and (3). Accordingly, the motion must be dismissed for failing to meet applicable requirements.

The petitioner's claims of being "aggrieved" by the decision is vague and fails to explain how the AAO misapplied the law or policy. The AAO notes that the petitioner has made similar claims in prior motions and the AAO has addressed these claims in prior decisions. The petitioner cannot generally request reconsideration of every decision made by the director and the AAO to date. The AAO emphasizes that the purpose of a motion is different from the purpose of an appeal. While the AAO conducts a comprehensive, de novo review of the entire record on appeal, a review in the case of a motion to reconsider is strictly limited to an examination of any purported misapplication of law of USCIS policy in the most recent decision. The AAO previously conducted a de novo review of

1 The regulation at 8 C.P.R. § 103.2(a)(l) states in pertinent part:


(b)(6)


Page4

the entire record of proceeding when it reopened the matter to consider the petitioner's appellate brief in its May 17, 2007 decision. There is no regulatory or statutory provision that allows a petitioner more than one appellate decision per every petition filed. In the present matter, an appellate decision was issued and the deficiencies were expressly stated. The petitioner persists in filing motions and improperly filed appeals reiterating arguments that have been addressed and found to be insufficient in prior AAO decisions.

For the foregoing reasons, the instant motion does not meet the requirements of a motion to reconsider. The motion fails to establish that the AAO's decision dated March 29, 2013 dismissing the previous motion was in error, as required by 8 C.F.R. § 103.5(a)(3).

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. Accordingly, the motion will be dismissed, the proceedings will not be reconsidered, and the previous decisions of the director and the AAO will not be disturbed.


(b)(6)

DATE: MAR 2 9 2013



U.S, Department of Homeland Security U. S. Citizenship and Immigration Service~ Administrative Appeals Office (AAO) 20 Massachusetts Ave. N.W., MS 2090 Washington, DC 20529-2090


FILE:



SELF-REPRESENTED

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Offic~ 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:

If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, yqu may file a motion to reconsider or a motion to reopen in accordance with the instructions oil Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

Ron Rosenberg Acting Chief, Administrative Appeals Office

www.uscis.gov

(b)(6)

· Page 2

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The

petitioner has filed a total of three appeals and four motions with the Administrative Appeals Office (AAO).

Most · recently, the AAO dismissed the petitioner's motion to reopen and reconsider in a decision dated

. February 7, 2012. The matter is once again before the AAO on a motion to reconsider.

The petitioner seeks to extend . the employment of the beneficiary as its vice president as an L-1A

nonimmigrant intracompany transferee pursuant to § 101(a)(15)(L) of the Immigration and Nationality Act, 8

U.S.C 1101(a)(15)(L). The petitioner, a corporation organized under the laws of the State of New Jersey,

claims to be engaged in the wholesale of general merchandise and states that it is a subsidiary of

located in Ahmedabad, India. The beneficiary was initially granted a one-year period of Stay in the

United States in L-lA status in order to open a new office, and the petitioner seeks to extend the beneficiary's

stay.

The director denied the petition on February 24, 2004, concluding that. the petitioner failed to establish that

the beneficiary would be employed in a primarily managerial or executive capacity under the ext¢nded

petition. The AAO summarily dismissed the petitioner's appeal on February 1, 2006, and subsequently

granted a motion to reopen in order to consider a timely filed appellate brief that had ·not been incorporated

into the record prior to the AAO's initial decision. The AAO issued a 14-page decision affirming the denial of

the petition and dismissal of the appeal on May 17, 2007. The petitioner subsequently filed an appeal on June

14, 2007. The AAO rejected the petitioner's second appeal as improperly filed on December 4, 2007, noting

that the AAO does not exercise appellate jurisdiction over AAO decisions. In its decision, the AAO reviewed

the petitioner's appeal and found that it did not meet the requirements for a motion to reopen or reconsider. A

subsequent motion, filed on January 4, 2008, was reviewed by the AAO and dismissed in a decision dated

July 7, 2008. The AAO rejected the petitioner's subsequent appeal on November 25, 2008, again noting that

the AAO does not exercise appellate jurisdiction over AAO decisions. The AAO dismissed the petitioner's

subsequent .motions to reopen and reconsider pursuant to the regulation at 8 C.F.R. § 103.5(a)(4), based on the

petitioner's failure to satisfy applicable filing requirements.

The petitioner filed the instant motion to reconsider on March 8, 2012. The petitioner's motion consisted of

the Form I~290B, Notice of Appeal or Motion, and a brief stating, in pertinent part, the following:

2.03 CIS in a predetermined decision to deny, resorts to violating its own principles. CIS in

the subject d~.cision at page 4 states .... " Therefore, to merit reconsideration .............. (2)

ARTICULATE (emphasis added) how the standards cited on motion were so misapplied to

the evidence before the AAO as to result in a dismissal that should not have been rendered."

Now, please refer to the previous decision dated October 19, 2009 ... ·

(d) CIS again, in the subject decision at page 4 states ' ..... Therefore, to merit

reconsideration .......... . the petitioner must both . (1) specifically cite laws, regulations,

precedent decisions, and/or binding U.S. Citizenship and Immigration Service (USICS)

policies ... .' A review of the facts/evidence on record will review that all of these have been

cited. The laws and regulations under which the job duties of the beneficiary merit eligibility

as managerial have been cited with every job function described and submitted with the

(b)(6)

Page 3

petition and incorporated in the briefs submitted later. However, CIS has ignored all of them

without giving any reason all throughout. The binding USCIS policy is NOT to re-adjudicate

previously approved petition or the eligibility of the job duties as managerial. But CIS, as

explained in( c) above, has violated the same without any just cause or reason. Precedent

decisions have been quoted as will be noticed from the evidence in the record. BUT again

CIS has ignored all of them without just cause or even assigning any reason for such a

violation ....

[sic]

The regulation at 8 C.F.R. § 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a statement about

whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding."

The petitioner's 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. § 103.5(a)(4) states that a motion whiCh does not meet applicable requirements must be

dismissed. Therefore, because the instant motion does 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.

Further, 8 C.F.R. § 103.5(a)(3) 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 ....

This regulation is supplemented by the instructions on the Form I-290B, Notice of Appeal or Motion, by

operation of the rule at 8 C.F.R. § 103.2(a)(l) that all.submissions must comply with the instructions that

appear on any form prescribed for those slibmi~sions. 1 With regard to motions for reconsideration, Part 3 of

the Form I-290B submitted by the petitioner states:

Motion to Reconsider: The motion must be supported by citations to appropriate statutes,

regulations, or precedent decisions.

Therefore, to merit reconsideration of the AAO's most recent decision, the petitioner must both: (1) sta'te the

reasons why the petitioner believes the most recent decision was based on an incorrect application of law or.

policy; and (2) specif~cally cite laws, regulations,. precedent decisions, and/or binding . policies that the

petitioner believes that the AAO misapplied in it its most recent decision.


[E]very application, petition, appeal, motion, request, or other document submitted on the form prescribed by this chapter shall be executed and filed in accordance with the instructions on the form, such instructions .. : being hereby incorporated into the particular section of the regulations requiring its submission.

(b)(6)

Page4

I t

Here, the petitioner makes two only vague references to the AAO's most recent decision dated February 7,

2012. Other than these two vague references, the petitioner fails to state specific reasons why the petitioner

believes the most recent decision was based on an incorrect application of law or policy. In particular, in the

AAO deCision dated February 7, 2012, the AAO dismissed the petitioner's motion to reopen and reconsider

on three specific grounds: (1) the motion was not accompanied by a statement about whether or not the

validity of the unfavorable decision has been or is the subject of judicial proceedings; (2) the motion tQ reopen

was not JiCCOmpanied by new facts and supported by affidavits or other documentary evidence; and (3) the

petitioner's assertions on Form I-290B were insufficient to support a motion to reconsider. The petitioner

fails to specifically address any of the above three findings in the instant motion to reconsider.

In the instant matter, the petitioner fails to establish that the AAO erred in finding that the prior motion was ·

not accompanied by a statement about whether or not the validity of the unfavorable decision has been or .is

the subject of judicial proceedings. The petitioner neither claims that the AAO erred in requiring such a

statement, nor that the AAO erred in finding that such a statement was not provided. As discussed supra, the

petitioner still does not submit such. a statement with the instant motion.

The petitioner also fails to establish that the AAO erred in · finding that the prior motion to reopen was not .

accompanied by new facts and supported by affidavits or other documentary evidence. The petitioner neither

Claims that the AAO erred in requiring such evidence, nor claims that the AAO erred in finding that no new

facts were provided in t~e prior motion.

Finally, the petitioner fails to establish that the AAO erred in finding that the petitioner's assertions on Form

I-290B, dated November 16, 2009, were insufficient to support a motion to recOnsider. In the Febru;;try 7,

2012 decision, the AAO found that the petitioner made vague references to policies, regulations a~d the

statute without specifically citing any authorities, and made broad assertions regarding abuses of disctetion

·and improper assessments of the evidence without articulating how such standards were misapplied to the

petitioner's evidence. With the instant motion, the petitioner fails to establish how this particular conclusion

was erroneous. Rather, the petitioner generally asserts that USCIS "ignored" citations and assertions "placed

on record earlier," without specifically identifying which par~icular citations and assertions were provided on

the prior motion and purportedly disregarded by the AAO.

The AAO emphasizes that the requirements for a motion to reconsider are specific. 8 C.F.R. § 103.5(a)(3)

requires a motion to reconsider to state the reasons for reconsideration and be supported by any pertinent

precedent decisions to establish that the prior decision was based on an incorrect application of law or Service

policy. Such explanation ~nd supporting evidence mustbe submitted on or with'Forin I-290B. See 8 C.F.R.

§§ 103.5(a)(2) and (3). As discussed in the February 7, 2012 decision, the AAO found the petitioner's prior

motion to be insufficient because the petitioner's prior motion consisted of only vague statements on Form I-

290B, as counsel's brief submitted on January 10,2010 did not accompany Form I-290B and therefore could

not be considered with the motion. The petitioner failed to explain how the .AAO misapplied the law or

policy in this respect.

The AAO notes that the petitioner has made similar claims in prior motions and the AAO has addressed these

.claims in prior decisions. The petitioner appe~rs to be requesting reconsideration of every decision made by

(b)(6)

. '"

Page 5

the director and the AAO to date. The petitioner cannot generally request reconsideration of every decision

made by the d.irector and the AAO to date. The AAO emphasizes that the purpose of a motion is different

from the purpose of an appeal. While the AAO conducts a comprehensive, de novo review of the entire

record on appeal, a review in the case of a motion to reconsider is strictly limited to an examination of any

purported misapplication of law of USCIS policy in the. most recent decision. The AAO previously

conducted a de novo.review of the entire record of proceeding when it reopened the matter to consid~r the

petitioner's appellate brief in its May 17, 2007 decision, Ther~ is no regulatory or statutory provisioh that

allows a petitioner n;tore than one appellate decision per every petition filed. In the preserit matt~r, an

appellate decision was. issued and the deficiencies were expressly stated. The petitioner persists in filing

motions and improperly filed appeals reiterating arguments that have been addressed and found to be

insufficient in prior AAO decisions.

For the foregoing reasons, the instant motion does not meet the requirements cif a motion to reconsider. The

motion fails to establish that the AAO's decision .dated February 7, 2012 dismissing the motion was in error,

as required by 8 C.F.R. § 103.5(a)(3).

Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same reasons as

petitions for rehearing and motions for a riew 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, the proce~dings will not be reconsidered, and the previous decisions of the

director and the AAO will not be disturbed.·

ORDER: The motion is dismissed ...

identifying data deleted to vent dearly unwarr~ted

:asion of personal pnvacy

PUBLIC COPY

DATE: FEB 0 7 2012 Office: VERMONT SERVICE CENTER


U.S. Department of Homeland Security U. S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave. N.W., MS 2090 Washington, DC 20529-2090




SELF -REPRESENTED

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.

If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

PerryRhew Chief, Administrative Appeals Office

www.uscis.gov

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The

petitioner has previously filed a total of three appeals and three motions with the Administrative Appeals

Office (AAO). Most recently, the AAO dismissed the petitioner's motion to reopen and reconsider in a

decision dated October 19, 2009. The matter is once again before the AAO on a motion to reopen and

reconsider.

The petitioner seeks to extend the employment of the beneficiary as its v1ce president as an L-1A

nonimmigrant intracompany transferee pursuant to§ 101(a)(15)(L) of the Immigration and Nationality Act, 8

U.S.C. 1101(a)(15)(L). The petitioner, a corporation organized under the laws of the State of New Jersey,

vu;~a~;vu in the wholesale of general merchandise and states that it is a subsidiary of -The beneficiary was initially granted a one-year period of stay in the

United States in L-lA status in order to open a new office, and the petitioner seeks to extend the beneficiary's

stay.

The director denied the petition on February 24, 2004, concluding that the petitioner failed to establish that

the beneficiary would be employed in a primarily managerial or executive capacity under the extended

petition. The AAO summarily dismissed the petitioner's appeal on February 1, 2006, and subsequently

granted a motion to reopen in order to consider a timely filed appellate brief that had not been incorporated

into the record prior to the AAO's initial decision. The AAO issued a 14-page decision affirming the denial of

the petition and dismissal of the appeal on May 17, 2007. The petitioner subsequently filed an appeal on June

14, 2007. The AAO rejected the petitioner's second appeal as improperly filed on December 4, 2007, noting

that the AAO does not exercise appellate jurisdiction over AAO decisions. In its decision, the AAO reviewed

the petitioner's appeal and found that it did not meet the requirements for a motion to reopen or reconsider. A

subsequent motion, filed on January 4, 2008, was reviewed by the AAO and dismissed in a decision dated

July 7, 2008. The AAO rejected the petitioner's subsequent appeal on November 25, 2008, again noting that

the AAO does not exercise appellate jurisdiction over AAO decisions. The AAO dismissed the petitioner's subsequent motion to reopen and reconsider pursuant to the regulation at 8 C.P.R. § 103.5(a)(4) based on the petitioner's failure to satisfy applicable filing requirements.

The petitioner filed the instant motion to reopen and reconsider on November 16, 2009. The petitioner's

motion consisted of the Form I-290B, Notice of Appeal or Motion, on which the petitioner briefly outlined six

bases supporting the motion and indicated that a brief would follow in 90 days. Although the regulation at 8 C.P.R. § 103.3(a)(2)(vii) states that a petitioner may be permitted additional time to submit a brief or

additional evidence to the AAO in connection with an appeal, no such provision applies to a motion to reopen

or reconsider. The additional evidence must comprise the motion. See 8 C.F.R §§ 103.5(a)(2) and (3).

Accordingly, the AAO will not consider the brief submitted on January 10, 2010. Thus, the motion consists of counsel's statement on the Form I-290B, as follows:

(1) Initial decision of the Director denying the petition is bad both in fact and law. For

details please refer the brief that follows;

(2) The said de novo review by AAO, a 14 page decision, merely states history,

provisions of law and regulations and simply rubber stamps the subjective assessment

Page 3

I denial decision of the Director and as such contrary to precedent decisions and bad in law. For details, please see brief that follows;

(3) The definition of "new" evidence in the Motion to reopen and reconsider is wrongly construed. . . AND the evidence on record overlooked, ignored, not considered is once again ignored in violation of the accepted legal policy. For details please refer

the brief that follows; ( 4) Incorrect application of law. The adjudicating officer resorts to subjective

interpretation and requirement not provided for and not envisaged by the state or the applicable regulation. For details please refer the brief that follows;

(5) Incorrect application of the service policy. The adjudicating officer resorts to subjective interpretation of the service policy to support his line of erroneous adverse

assessment. For details please refer the brief that follows; (6) Abuse of discretion ... Case law referred. For details please refer the brief that

follows.

The regulation at 8 C.P.R. § 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding."

The petitioner's previous motions did not contain the statement required by 8 C.P.R. § 103.5(a)(l)(iii)(C), nor does the current motion. The regulation at 8 C.P.R. § 103.5(a)(4) states that a motion which does not meet

applicable requirements must be dismissed. Therefore, because the instant motion does not meet the applicable filing requirements listed in 8 C.P.R. § 103.5(a)(l)(iii)(C), it must also be dismissed for this reason.

The regulation at 8 C.P.R. § 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 evidence that was not available and could not have been discovered or presented in the previous proceeding. 1 The petitioner's brief statement on the Form I-290B contains no fact that could be considered "new" under 8 C.P.R. § 103.5(a)(2), nor is it properly supported by affidavits or documentary evidence as required by the regulations.

Furthermore, 8 C.P.R. § 103.5(a)(3) 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 establish that the decision was

incorrect based on the evidence of record at the time of the initial decision.

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 II New Riverside University Dictionary 792 (1984) (emphasis in original).

This regulation is supplemented by the instructions on the Form I-290B, Notice of Appeal or Motion, by

operation of the rule at 8 C.F.R. § 103.2(a)(l) that all submissions must comply with the instructions that

appear on any form prescribed for those submissions? With regard to motions for reconsideration, Part 3 of

the Form I-290B submitted by the petitioner states:

Motion to Reconsider: The motion must be supported by citations to appropriate statutes,

regulations, or precedent decisions.

Therefore, to merit reconsideration of the AAO's most recent decision, the petitioner must both (1)

specifically cite laws, regulations, precedent decisions, and/or binding U.S. Citizenship and Immigration

Service (USCIS) policies that the petitioner believes that the AAO misapplied in deciding to dismiss the

appeal; and (2) articulate how those standards cited on motion were so misapplied to the evidence before the

AAO as to result in a dismissal that should not have been rendered.

Here, the petitioner makes vague references to policies, regulations and the statute without specifically citing

any authorities, and makes broad assertions regarding abuses of discretion and improper assessments of the

evidence without articulating how such standards were misapplied to the petitioner's evidence. Accordingly,

the petitioner's statements on the Form I-290B are insufficient to support a motion to reconsider.

Further, the AAO notes that the petitioner has made the same claims in a prior motion and the AAO has

addressed these claims in prior decisions. The petitioner appears to be requesting reconsideration of every

decision made by the director and the AAO to date. The AAO emphasizes that the purpose of a motion is

different from the purpose of an appeal. While the AAO conducts a comprehensive, de novo review of the

entire record on appeal, a review in the case of a motion to reconsider is strictly limited to an examination of

any purported misapplication of law of USC IS policy, which must be supported by precedent case law. The

AAO previously conducted a de novo review of the entire record of proceeding when it reopened the matter to consider the petitioner's appellate brief in its May 17, 2007 decision. There is no regulatory or statutory provision that allows a petitioner more than one appellate decision per every petition filed. In the present matter, an appellate decision was issued and the deficiencies were expressly stated. The petitioner persists in

filing motions and improperly filed appeals reiterating arguments that have been addressed and found to be insufficient in prior AAO decisions.

Rather, the AAO's review in this matter is limited to the narrow issue of whether the petitioner has presented

and documented new facts or documented sufficient reasons, supported by pertinent precedent decisions, to

warrant the re-opening or reconsideration of the AAO's prior decisions. Again, the petitioner barely



Page 5

acknowledges the AAO's findings or its six previous decisions. As such, counsel's most recent assertion that

the petitioner submitted sufficient evidence to establish eligibility for the benefit does not meet the

requirements of a motion. The motion fails to establish that the decision to deny the petition and subsequent

appeal and motions were incorrect based on the evidence of record at the time of the initial decision, as

required by 8 C.P.R. § 103.5(a)(3).

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, the proceedings will not be reopened or reconsidered, and the previous

decisions of the director and the AAO will not be disturbed.


identifying data deleted to prevent clean: ur . J8rr~nted invasion of personai pnvac)

PUBLIC COPY

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office of Administrative Appeals, MS 2090 Washington, DC 20529-2090


OCT 19l009 FILE: EAC 03 165 50593 Office: VERMONT SERVICE CENTER Date:


PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(L)


SELF-REPRESENTED

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.

If you believe the law was inappropriately applied or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for the specific requirements. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585 . Any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i).

www.uscis.gov

EAC 03' 165 50593 Page 2

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The petitioner has subsequently filed a total of three appeals and three motions with the Administrative Appeals Office (AAO). Most recently, the AAO rejected the petitioner's third appeal in a decision dated November 25, 2008. The matter is currently before the AAO on a motion to reopen and reconsider.

The petitioner seeks to extend the employment of the beneficiary as its vice president as an L-lA nonimmigrant intracompany transferee pursuant to § 101(a)(l5)(L) of the Immigration and Nationality Act, 8 U.S.C. llOl(a)(lS)(L). The petitioner, a corporation organized under the laws of the State of New Jersey, claims to be engaged in the wholesale of general merchandise and states that it is a subsidiary of M.R. Utensils, located in Ahmedabad, India. The beneficiary was initially granted a one-year period of stay in the United States in order to open a new office, and the petitioner now seeks to extend the beneficiary's stay.

The director denied the petition on February 24, 2004, concluding that the petitioner failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. The AAO summarily dismissed the petitioner's appeal on February l, 2006, and subsequently granted a motion to reopen in order to consider a timely filed appellate brief that had not been incorporated into the record prior to the AAO's initial decision. The AAO issued a 14-page decision affirming the denial of the petition and dismissal of the appeal on May 17, 2007. The petitioner subsequently filed an appeal on June 14, 2007. The AAO rejected the petitioner's second appeal as improperly filed on December 4, 2007, noting that the AAO does not exercise appellate jurisdiction over AAO decisions. In its decision, the AAO reviewed the petitioner's appeal and found that it did not meet the requirements for a motion to reopen or reconsider. A subsequent motion, filed on January 4, 2008, was reviewed by the AAO and dismissed in a decision dated July 7, 2008. The AAO rejected the petitioner's subsequent appeal on November 25, 2008, again noting that the AAO does not exercise appellate jurisdiction over AAO decisions. The AAO determined that the appeal did not meet the requirements of a motion to reopen or reconsider.

The petitioner filed the instant motion to reopen and reconsider on December 29, 2008. In a brief dated December 19, 2008, the petitioner asserts that the service center director, in denying the petition, "ignored all the information and evidence on record," made an impermissible "subjective determination," and ignored a prior approval involving the same petitioner and beneficiary. The petitioner requests a "personal hearing" based on a desire to "present all facts and law in person." The petitioner submits a brief but no additional evidence in support ofthe appeal.

To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria. Specifically, within three years preceding the beneficiary's application for admission into the United States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity.

EAC 0) 165 50593 Page 3

The regulation at 8 C.P.R. § 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 evidence that was not available and could not have been discovered or presented in the previous proceeding. 1 The petitioner's brief contains no fact that could be considered "new" under 8 C.P.R. § 103.5(a)(2), nor is it properly supported by affidavits or documentary evidence as required by the regulations.

Furthermore, 8 C.P.R.§ 103.5(a)(3) 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 establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

The petitioner argues that the denial of the request to extend the beneficiary's L-1 A status constitutes a violation of U. S. Citizenship and Immigration Services (USCIS) policy and an abuse of discretion because US CIS previously approved a petition filed on the beneficiary's behalf for the same position. The petitioner made this same claim in a prior motion and the AAO addressed the petitioner's argument in its decision dated July 7, 2008. Once again, the AAO emphasizes that prior approvals do not preclude users from denying an extension of the original visa based on reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Further, the petitioner's prior petition to which counsel refers was a petition to allow the beneficiary to enter the United States to open a new office. Thus, that petition was governed by the regulations pertaining to new offices. See 8 C.P.R. § 214.2(1)(3)(v). The present petition is a request for an extension of the beneficiary's status after completing a one-year period to open a new office. Thus, the present petition is governed by a different set of regulations pertaining specifically to new office extensions. See 8 C.P.R.§ 214.2(1)(14)(ii).

A 2004 interoffice memorandum to USCIS Service Center Directors and Regional Directors regarding the significance of prior USCIS approvals specifically states that, while deference should be given to the prior adjudicators in matters relating to an extension of nonimmigrant petition validity involving the same parties and the same underlying facts, such policy does not apply to nonimmigrant petitions "where the initial approval is granted to allow the petitioner and/or beneficiary to effectuate a tentative or prospective business plan or otherwise prospectively satisfy the requirements for the visa classification." L-1 "new office" petition extensions are specifically included in this class of nonimmigrant petitions. See

1 The word "new" is defined as "l. having existed or been made for only a short time .. .3. Just discovered, found, or learned <new evidence> ... " Webster's II New Riverside University Dictionary 792 (1984) (emphasis in original).

EAC or 165 50593 Page 4

Memorandum of William R. Yates, Associate Director for Operations, US CIS, to Service Center Directors, et al, The Significance of a Prior CIS Approval on a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity (April23, 2004).

As different law and evidentiary requirements apply to the present petition, the director had a duty to carefully review the petitioner's representations and documentation to determine if eligibility has been established. Contrary to the petitioner's suggestion, the fact that a prior petition was approved on behalf of the beneficiary does not serve as prima facie evidence that eligibility has been established in the present proceeding. Despite any number of previously approved petitions, USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act.

The one-year "new office" provision is an accommodation for newly established enterprises, provided for by USCIS regulation, that allows for a more lenient treatment of managers or executives that are entering the United States to open a new office. When a new business is first established and commences operations, the regulations recognize that a designated manager or executive responsible for setting up operations will be engaged in a variety of low-level activities not normally performed by employees at the executive or managerial level and that often the full range of managerial responsibility cannot be performed in that first year. In an accommodation that is more lenient than the strict language of the statute, the "new office" regulations allow a newly established petitioner one year to develop to a point that it can support the employment of an alien in a primarily managerial or executive position. There is no provision in USCIS regulations that allows for an extension of this one-year period. If the business is not sufficiently operational and/or it does not have sufficient staffing after one year to relieve the beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the petition was denied because the U.S. company, one year after the approval of the new office petition, had not reached the point where it could employ the beneficiary in a predominantly managerial or executive position.

On motion, the petitioner does not address the AAO's prior 14-page decision in which the merits of the petitioner's arguments and evidence were discussed in great detail, and the AAO concurred with the director's determination that the petitioner had failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. Rather, the petitioner is requesting reconsideration of the director's original decision issued on February 24, 2004.

The AAO emphasizes that the purpose of a motion is different from the purpose of an appeal. While the AAO conducts a comprehensive, de novo review of the entire record on appeal, a review in the case of a motion to reconsider is strictly limited to an examination of any purported misapplication of law of USCIS policy, which must be supported by precedent case law. The AAO previously conducted a de novo review of the entire record of proceeding when it reopened the matter to consider the petitioner's appellate brief in its May 17, 2007 decision. There is no regulatory or statutory provision that allows a petitioner more than one appellate decision per every petition filed. In the present matter, an appellate decision was issued and the deficiencies were expressly stated. The petitioner persists in filing motions

EACm 165 50593 Page 5

and improperly filed appeals reiterating arguments that have been addressed and found to be insufficient in prior AAO decisions.

Rather, the AAO's review in this matter is limited to the narrow issue of whether the petitioner has presented and documented new facts or documented sufficient reasons, supported by pertinent precedent decisions, to warrant the re-opening or reconsideration of the AAO's prior decisions. Again, the petitioner

does not acknowledge the AAO's findings or its five previous decisions. As such, counsel's most recent assertion that the petitioner submitted sufficient evidence to establish eligibility for the benefit does not meet the requirements of a motion. The AAO previously conducted a de novo review of the entire record of proceeding and addressed the petitioner's arguments regarding the appropriate standard of review. Thus, the motion fails to establish that the director's decision was incorrect based on the evidence of

record at the time of the initial decision, as required by 8 C.P.R.§ 103.5(a)(3).

The regulation at 8 C.P.R. § 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a statement

about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding." The petitioner's previous motion to reconsider did not contain the statement required by 8 C.P.R. § 103.5(a)(l)(iii)(C), nor does the current motion. The regulation at 8 C.P.R. § 103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. Therefore, because the instant motion does not meet the applicable filing requirements listed in 8 C.P.R. § 103.5(a)(l)(iii)(C), it must also be dismissed for this reason.

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.

The AAO acknowledges the petitioner's request for oral argument. However, the regulation at 8 C.P.R. § 1 03.3(b) provides that the requesting party must explain in writing why oral argument is necessary. USCIS has the sole authority to grant or deny a request for oral argument and will grant oral argument only in cases involving unique facts or issues of law that cannot be adequately addressed in writing. In this instance, the petitioner identified no unique fact or issue of law to be resolved. Consequently, the request for oral argument is denied.

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.


identifying d&a dcicted to

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invasion of personal privaq

pUBLIC COPY

U.S. Department of Homeland Security 20 Massachusetts Ave., N.W., Rm. 3000 Washington, DC 20529-2090 MAIL STOP 2090


FILE: EAC 03 165 50593 Office: VERMONT SERVICE CENTER Date:


PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(L)


SELF-REPRESENTED

INSTRUCTIONS:


~} / /l~~.IJ~

J John F. Grissom, Acting Chief Administrative Appeals Office

www.uscis.gov

EAC 03 165 50593 ·Page 2

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. After summarily dismissing the petitioner's appeal, the Administrative Appeals Office (AAO) granted a motion to reopen and affirmed its previous decision to dismiss the appeal. Subsequently, the petitioner appealed the AAO's decision, and the appeal was rejected as improperly filed. A subsequent motion to reopen was dismissed by the AAO, and the matter is now once again before the AAO on appeal. The appeal will be rejected.

The petitioner seeks to extend the employment of the beneficiary as its vice president as an L-1A nonimmigrant intracompany transferee pursuant to § 101(a)(l5)(L) of the Immigration and Nationality Act, 8 U.S.C. 110l(a)(15)(L). The petitioner, a corporation organized under the laws of the State of New Jersey, claims to be engaged in the wholesale of general merchandise and states that it is a subsidiary of M.R. Utensils, located in Ahmedabad, India. The beneficiary was initially granted a one-year period of stay in the United States in order to open a new office, and the petitioner now seeks to extend the beneficiary's stay.

The director denied the petition on February 24, 2004, concluding that the petitioner failed to establish that that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. The AAO dismissed the petitioner's appeal and affirmed its decision in a subsequent motion to reopen, in a decision dated May 17, 2007. The petitioner subsequently filed an appeal on June 14, 2007, which was rejected by the AAO, which noted that the AAO does not exercise appellate jurisdiction over AAO decisions. In its decision dated December 4, 2007, the AAO reviewed the petitioner's appeal and found that it did not meet the requirements for a motion to reopen or reconsider. A subsequent motion, filed on January 4, 2008, was reviewed by the AAO and dismissed in a decision dated July 7, 2008.

The matter is now again before the AAO on appeal. The petitioner indicated on Form I-290B that it would submit a brief and/or additional evidence to the AAO within 90 days.

The petitioner's appeal will be rejected. As previously stated in the AAO's decision dated December 4, 2007, the AAO does not exercise appellate jurisdiction over AAO decisions. The AAO exercises appellate jurisdiction over the matters described at 8 C.P.R. § l03.l(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150.1; 8 C.P.R. § 103.3(a)(iv). Accordingly, the appeal is not properly before the AAO.

Furthermore, upon review of the petitioner's brief statement on Form I-290B, it is apparent that the appeal does not meet the requirements of a motion as set forth in 8 C.F .R. § 103.5. The petitioner states on Form I-290B: "The appeal is preferred, being aggrieved in fact- cursory review, ignoring facts on record AND in law - ignoring previous AAO decisions, ignoring equity, abuse of discretion & OTHER. A brief detailing all these issues will be submitted for your consideration in 90 days time which please grant." Although the regulation at 8 C.P.R.§ 103.3(a)(2)(vii) states that a petitioner may be permitted additional time to submit a brief or additional evidence to the AAO in connection with an appeal, no such provision applies to a motion to reopen or reconsider. The additional evidence must comprise the motion. See 8 C.F .R. §§ 103.5(a)(2) and (3).

EA.C 03 165 50593 Page 3

As the appeal was not properly filed, it will be rejected. 8 C.F.R. § 1 03.3(a)(2)(v)(A)(J).

ORDER: The appeal is rejected.

identifying data deleted to prevent clem·iy unw~ted invasion of personal pnvacy

PlJBLIC COPY

FILE: EAC 03 165 50593


U.S. Department of Homeland Security 20 Massachusetts Ave. N.W. , Rm. 3000 Washington, DC 20529


Office: VERMONT SERVICE CENTER Date: JUL 0 7 2008

PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) ofthe Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(L)


SELF -REPRESENTED

INSTRUCTIONS:


j Robert P. Wiemann, Chfef

0 Administrative Appeals Office

www.uscis.gov

EAC 03 165 50593 Page2

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The Administrative Appeals Office (AAO) summarily dismissed the petitioner's appeal. The AAO subsequently granted the petitioner's motion to reopen and affirmed its previous decision to dismiss the appeal. Subsequently, the petitioner appealed the AAO's decision, and the AAO rejected the appeal as improperly filed. The matter is now before the AAO on a motion to be reopen. The motion will be dismissed.

The petitioner filed this nonimmigrant petition seeking to extend the employment of its vice-president as an L-lA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 110l(a)(l5)(L). The petitioner is a corporation organized in the State of New Jersey that claims to be a wholesaler and dealer of general merchandise. The petitioner states that it is a subsidiary of M.R. Utensils, located in Ahmedabad, India. The beneficiary was initially granted a one-year period in L-lA classification in order to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay.

The director denied the petition on February 24, 2004, concluding that the petitioner had not established that the beneficiary would be employed in a managerial or executive capacity under the extended petition. The AAO dismissed the petitioner's appeal and affirmed its decision on a subsequent motion to reopen, in a decision dated May 17, 2007. The petitioner subsequently filed an appeal on June 14, 2007. The AAO rejected the appeal, noting that the AAO does not exercise appellate jurisdiction over AAO decisions. In its decision dated December 4, 2007, the AAO reviewed the petitioner's appeal, and found that the appeal did not meet the requirements of a motion to reopen or reconsider.

The petitioner filed the instant motion to reopen on January 4, 2008. On motion, the petitioner emphasizes that the nonimmigrant petition was filed "to enable the beneficiary to continue to carry on the business of the petitioner company undertaking the same duties/job functions earlier entrusted to her, carried on as such AND which were approved by USCIS as managerial." The petitioner states that the approval of the initial petition on behalf of the beneficiary "confirmed due fulfilment [sic] of the statutory and regulatory requirements." The petitioner contends that the denial of the petition constituted an abuse of discretion, arguing that an "adverse determination quite opposite and contrary to the previous determination without good or sufficient cause cannot be acceptable as rational or reasonable." The petitioner submits a brief, but no new evidence, in support of the motion.

To establish eligibility under section lOl(a)(lS)(L) of the Act, the petitioner must meet certain criteria. Specifically, within three years preceding the beneficiary's application for admission into the United States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity.

The regulation at 8 C.F.R. § 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."

EAC 03 165 50593 Page 3

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. 1

The petitioner's statement contains no fact that could be considered "new" under 8 C.F .R. § 103 .5( a)(2), nor is it properly supported by affidavits or documentary evidence as required by the regulations.

Furthermore, 8 C.F.R. § 103.5(a)(3) 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 establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

The petitioner argues that the denial of the request to extend the beneficiary's L-1 A status constitutes a violation of Citizenship and Immigration Services (CIS) policy and an abuse of discretion because CIS previously approved a petition filed on the beneficiary's behalf for the same position. It must be emphasized that prior approvals do not preclude USCIS from denying an extension of the original visa based on reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Further, the petitioner's prior petition to which counsel refers was a petition to allow the beneficiary to enter the United States to open a new office. Thus, that petition was governed by the regulations pertaining to new offices. See 8 C.F.R. § 214.2(1)(3)(v). The present petition is a request for an extension of the beneficiary's status after completing a one-year period to open a new office. Thus, the present petition is governed by a different set of regulations pertaining specifically to new office extensions. See 8 C.F.R. § 214.2(1)(14)(ii).

A 2004 interoffice memorandum to CIS Service Center Directors and Regional Directors regarding the significance of prior CIS approvals specifically states that, while deference should be given to the prior adjudicators in matters relating to an extension of nonimmigrant petition validity involving the same parties and the same underlying facts, such policy does not apply to nonimmigrant petitions "where the initial approval is granted to allow the petitioner and/or beneficiary to effectuate a tentative or prospective business plan or otherwise prospectively satisfy the requirements for the visa classification." L-1 "new office" petition extensions are specifically included in this class of nonimmigrant petitions. See Memorandum of William R. Yates, Associate Director for Operations, USCIS, to Service Center Directors, et al, The Significance of a Prior CIS Approval on a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity HQOPRD 72/11.3 (April23, 2004).

As different law and evidentiary requirements apply to the present petition, the director has a duty to carefully review the petitioner's representations and documentation to determine if eligibility has been established. Contrary to the petitioner's suggestion, the fact that a prior petition was approved on behalf of the beneficiary

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 II New Riverside University Dictionary 792 (1984) (emphasis in original).

EAC 03 165 50593 Page4

does not serve as prima facie evidence that eligibility has been established in the present proceeding. Despite any number of previously approved petitions, CIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act.

The one-year "new office" provision is an accommodation for newly established enterprises, provided for by CIS regulation, that allows for a more lenient treatment of managers or executives that are entering the United States to open a new office. When a new business is first established and commences operations, the regulations recognize that a designated manager or executive responsible for setting up operations will be engaged in a variety of low-level activities not normally performed by employees at the executive or managerial level and that often the full range of managerial responsibility cannot be performed in that first year. In an accommodation that is more lenient than the strict language of the statute, the "new office" regulations allow a newly established petitioner one year to develop to a point that it can support the employment of an alien in a primarily managerial or executive position. There is no provision in CIS regulations that allows for an extension of this one-year period. If the business is not sufficiently operational and/or it does not have sufficient staffing after one year to relieve the beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the petition was denied because the U.S. company, one year after the approval of the new office petition, had not reached the point where it could employ the beneficiary in a predominantly managerial or executive position.

On motion, the petitioner does not address the AAO's prior 14-page decision in which the merits of the petitioner's arguments and evidence were discussed in great detail, and the AAO concurred with the director's determination that the petitioner had failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. Thus, the motion fails to establish that the director's decision was incorrect based on the evidence of record at the time of the initial decision, as required by 8 C.P.R.§ 103.5(a)(3).

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.P.R. § 103.5(a)(l)(iv).

The regulation at 8 C.P.R. § 103.5(a)(4) states, in pertinent part, that a motion that does not meet applicable requirements shall be dismissed. Here, the petitioner's motion does not meet the requirements for a motion to reopen or a motion to reconsider as set forth at 8 C.P.R. § 103.5.

In visa petition proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 13 61. Here, the petitioner has not met that burden. 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.


idcmtifyifit dfl!ta de,_. to prevent clt?~!r!y WX\"mrranted invasion of personal privacy

FILE: EAC 03 165 50593


U.S. Department of Homeland Security 20 Massachusetts Ave. N.W., Rm. 3000 Washington, DC 20529

U.S. Citizenship . and Immigration Services

Office: VERMONT SERVICE CENTER Date: DEC 0 4 £0U7



SELF-REPRESENTED

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 ~e made to that office.

R~f Administrative Appeals Office

\'1-'WW.uscis.gov

, .. EAC 03 165 50593 Page 2 .

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The Administrative Appeals Office (AAO) summarily dismissed a subsequent appeal based on counsel's failure to submit a brief or evidence in support of the appeal. The AAO subsequently granted the petitioner's motion to reopen and affirmed its previous decision to dismiss the appeal. The matter is now before the AAO again on appeal. The appeal will be rejected.

The petitioner filed this nonimmigrant petition seeking to extend the employment of its vice-president as an L-lA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of New Jersey that claims to be a wholesaler and dealer of general merchandise. Thepetitioner claims that it is a subsidiary of located in Ahmedabad, India. The beneficiary was initially granted L-lA classification in order to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay.

The director denied the petition on February 24, 2004, concluding that the beneficiary would not be employed by the petitioner in a managerial or executive capacity. The AAO dismissed the petitioner's appeal and affirmed its decision on a subsequent motion to reopen, in a decision dated May 17, 2007.

On June 14, 2007, the petitioner filed Form I-290B, Notice of Appeal or Motion. The petitioner indicated on Form I-290B that it is filing an appeal, and that a brief and/or additional evidence will be submitted within 90 days. ·

The petitioner's appeal must be rejected. The AAO does not exercise appellate jurisdiction over AAO decisions. The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150.1; 8 C.F.R. § 103.3(a)(iv). Accordingly, the appeal is not properly before the AAO.

It should be noted that the petitioner did have the option of filing a motion to reopen or a motion to reconsider the AAO's most recent decisionpursuant to 8 C.F.R. § 103.5. The AAO notes for the record that the petitioner has filed only the Form I-290B stating that the petitioner is "being aggrieved by the decision to deny on facts on law," and has submitted no brief or documentary evidence. The petitioner's appeal does not

. meet the requirements of a motion. As noted above, the petitioner stated that additional evidence would be submitted in 90 days. Although the regulation at 8 C.F.R. § 103.3(a)(2)(vii) states that a petitioner may be permitted additional time to submit a brief or additional evidence to the AAO in conriection with an appeal, no such provision applies to a motion to reopen or reconsider. The additional evidence must comprise the motion. See 8 C.F.R §§ 103.5(a)(2) and (3).

· · As the appeal was not properly filed, it will be rejected. 8 C.F.R. § 103.3(a)(2)(v)(A)(l).

ORDER: The appeal is rejected.

PUBLIC COPY · identifying data defeted to .prevent clearly unw~ted invasion of personal pnvacy

FILE: EAC 03 165 50593


U.S. Department of Homeland Security 20 Massachusetts Ave. N.W. , Rm. 3000 Washington , DC 20529 ·


Office: VERMONT SERVICE CENTER Date: MAY 1 7 2007

PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the, Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)


SELF-REPRESENTED

INSTRUCTIONS:


~~obert P. Wiem n, Chief ( lf _dministrative Appeals Office

www.uscis.gov

EAC 03 165 50593 Page 2

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The Administrative Appeals Office (AAO) summarily dismissed a subsequent appeal based on counsel's failure to submit a brief or evidence in support of the appeal. The matter is now before the AAO on a motion to reopen, with evidence that counsel timely submitted a brief in support of the appeal. The AAO will grant the petitioner's motion and affirm its previous decision. 1

The petitioner filedthis nonimmigrant petition seeking to extend the employment ofits vice-president as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of New Jersey that claims to be a wholesaler and dealer of general merchandise.· The petitioner claims that itis a subsidiary of M.R. Utensils, located in Ahmedabad, India. The beneficiary was initially granted L-1 A classification in order to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay.

I The director denied the petition on February 24, 2004, concluding that the beneficiary would not be employed by the petitioner in a managerial or executive capacity.

The petitioner subsequently filed an appeal on March 25, 2004 and indicated on the Form I-290B, Notice of Appeal, that a brief and/or evidence were being submitted in support of the appeal. As no brief or evidence had been incorporated into the record at the time the appeal was reviewed, the AAO considered the record complete and summarily dismissed the appeal in a decision dated February 1, 2006:

The petitioner timely filed the instant motion to reopen and reconsider on February 28, 2006, with evidence that a brief was submitted to the Vermont Service Center on or about May 4, 2006, within the requested 90 day time period. The AAO notes that pursuant to 8 C.P.R. § 103.3(a)(2)(viii), where additional time to submit a supporting brief is requested, the affected party shall submit the brief directly to the AAO. However, the AAO will reopen the matter in order to consider the brief, which was not matched to the record of proceeding prior to the AAO's previous decision.

To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria. Specifically, within three years preceding the beneficiary's application for admission into the United States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity.

The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be accompanied by:

1 The regulation at 8 C.P.R. § 103.2(a)(3) specifies that a petitioner may be represented "by an attorney in the United States, as defined in § 1.1 (f) of this chapter, by an attorney outside the United States as defined in § 292.1(a)(6) of this chapter, or by an accredited representative as defined in§ 292.l(a)(4) ofthis chapter." In this case, the person listed on the G-28, is a foreign attorney licensed to practice law in India, and is an unauthorized representative.

EAC 03 165 50593 Page 3

(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section ..

(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.

(iii) · Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization. within the three years preceding the filing of the petition.

(iv) Evidence that the alien's prior year of employment abroad was in a position that was . managerial, executive or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.

The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a new office, may be extended by filing a new Form 1-129, accompanied by the following:

(A) Evidence that the United States and foreign entities are still qualifying organizations as defined in paragraph (1)(1 )(ii)(G) of this section;

(B) Evidence 'that the United States entity has been doing business as defined m paragraph (1)( 1 )(ii)(H) of this section for the previous year;

(C) A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;

(D) A statement describing the staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a managerial or executive capacity; and

(E) Evidence of the financial status of the United States operation.

The sole issue inthe present matter is whether the petitioner established that the beneficiary will be employed by the United States entity in a primarily managerial or executive capacity.

Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A), defines the term "managerial capacity" as an assignment within an organization in which the employee primarily:

(i) manages the organization, or a department, subdivision, function or component of the organization;

EAC 03 165 50593 Page 4

(ii) supervises and controls the work of other supervisory professional, or managerial employees, or manages an essential function within th~ organization, or a department or subdivision of the organization;

(iii) If another employee or other employees are directly supervised, has the authority to fire and fire or recommend those as well as other persormel actions (such as promotion and leave authorization), or if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the functio·n managed; and

(iv) Exercises discretion over the day to day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor 's supervisory duties unless the employees supervised are professional.

Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an assignment within an organization in which the employee primarily:

(i) directs the management of the organization or a major component or function of the organization;

(ii) establishes the goals and policies of the organization, component or function;

(iii) exercises wide latitude in discretionary decision making; and

(iv) receives only general supervision or direction from the higher level executives, the board of directors, or stockholders of the organization.

The petitioner filed the nonimmigrant petition on May 8,2003. In a letter dated April 13, 2003, the petitioner described the beneficiary's proposed duties as vice-president of the U.S. company as follows :

Corporate Planning: [The beneficiary] will review and analyze the company Business plan. [The beneficiary] will prepare comparative analysis of the operating programs. With this exercise [the beneficiary] will evaluate the strengths & weaknesses of the company and forecast the plan for business activity of the company, lying down the path of progress for the company['s] forthcoming year/s. [The beneficiary's] responsibilities include making recommendations to management with regards to economic objectives and policy for the company.

General Administration: [The beneficiary] directs the overall business operations of the organization. [The beneficiary] will analyze the operating procedures and devise most efficient methods to accomplish the task/work. [The beneficiary] is responsible to manage the affairs of the

EAC 03 165 50593 Page 5

company in a manner to conduct the same in an orderly manner ensuring due compliance with statutory requirements and to achieve smooth and efficient operations overall.

Finance & Account · [The beneficiary] will control matters related to finance. The job functions also cover Budget control, inventory control, Financial statements, MIS reports for management, internal Audit, statutory Audit, Tax planning, Asset/Risk management, arrangements for long term funds and working capital requirement & other related matters. [The beneficiary) will be assisted by an Accountant and his team for due performance of the job functions in this area of operation.

Marketing-Sales: [The beneficiary] directs the marketing policy of the company. [The beneficiary] will review the market trends and analyze the same to determine the consumer needs, evaluate the market potential in terms of volume at various geographical locations as also within specific buyer groups. [The beneficiary) prices the products geared to attract the potential buyers as also to retain the regular clientele for the products of the company. [The beneficiary] will assess the competition and develop overall marketing strategy to organize effective sales of the companies [sic] products. [The beneficiary J will be assisted by marketing manager and his sales team in these effort [sic].

Business Development: [The beneficiary] is responsible for business development, including market research, promotion of business and sales, which will account for 100% incoming revenue of the company. As such [the beneficiary] will look for new business opportunities, new products, new markets. The aim and purpose of this exercise is to secure progressive development of business and thereby the increase in the revenues of the company. In order to achieve this goal, [the beneficiary] may resort to promotional activities so as to promote the sales of the company even in the face of competition. Marketing Manager will assist [the beneficiary] in this matter.

Purchase & Contracts: [The beneficiary is responsible for purchase. [The beneficiary] is required to ensure regular and continued flow of materials, suppliers and services for the operations of the company. [The beneficiary] compares c'atalogue listings, examine samples, attend demonstration of products, conventions, [etc.] [The beneficiary] will review competitive offers from alternate sources and will negotiate contract terms and finalize the same. [The beneficiary's] responsibilities also include contract administration.

Personnel: [The beneficiary], with the control of General administration, will also have the charge of personnel department. [The beneficiary] will have the authority to hire and fire staff. [The beneficiary] will review the performance of the staff. [The beneficiary) will observe the employees['] attitude towards job functions and will evaluate their motivation and overall efficiency to perform vis-a-vis their job related skills inter personnel attitude, intellectual

EAC 03 165 50593 Page 6

capabilities to deal with situations on the spot [The beneficiary] will review other factors . . . for on going and periodical rating of the employees. With this <:;xercise [the beneficiary] will decide about · their remuneration and rewards. [The beneficiary] will establish and follow procedures and polity to continually boost the morale of the staff.

The petitioner submitted a "company tree" for the organization, which indicates that the beneficiary will serve as the vice~president and report to the company president. The chart shows five areas under the beneficiary's supervision, including general administration, finance, sales/marketing and business development, contracts/ purchase, and personnel. The specific positions identified are a general administration secretary, an accountant and staff, a .sales manager and salesmen, contracts/purchase staff, and a personnel secretary. The beneficiary and the company president are the only employees named on the chart, and there is no indication that the other positions were filled as of the date of filing.

The petitioner's representative also submitted a 29-page letter in support of the petition, which included an expanded description of the beneficiary's job duties as vice-president. As the job description is part of the record, it will not be repeated here. The petitioner's representative noted that the beneficiary manages the essential function within the organization, namely, "marketing sales and Business development," and is assisted by the Sales Manager and his sales personnel.

The job description included in the representative's letter also provided more detail regarding the beneficiary's role in the purchasing and contract activities of the company:

[The beneficiary reviews catalogue listings, invites bids, examines samples, attends demonstration of products and conventions and calls for quotations. [The beneficiary] compares offers from alternative sources, review[ s] bids, negotiates contract terms, determine acceptable terms and will finalize the same and enter into suitable contracts ....

[The beneficiary] avails Professional services of Chartered Accountant, Attorney, ancillary services for operations, such as forwarding, clearing, warehousing, packing, despatch [sic] and other, under contract .. . .

. The beneficiary has established inventory control .... with an emphasis on procurement strategies and reduction of inventory. [The beneficiary] has established process of procurement and flow of merchandise vis-a-vis incoming orders and appropriate assessment of the market share and growth.

The petitioner's represen~ative stated that the beneficiary "is assisted by staff to attend to secretarial functions and other routine matters, for due performance of his job." The petitioner's representative concluded:

[The beneficiary] with the overall charge of the entire operations ofthe Company inter-alia controls and manage the essential function within the organization viz. Marketing, Sales and Business development, which accounts for 100% incoming revenue of .the Company. [The beneficiary] operates with the authority to hire and fire personnel of the Company. The beneficiary has the discretionary powers to deal with and decide the day-to-day operations of

EAC 03 165 50593 Page 7

the Company. The job positions covering control of the essential function within the organization as indicated herein have been defined as managerial vide regulation 8 C.F.R. 214.2(1)(1)(ii)(B). The servi9e has also approved similar jobs with responsibilities of marketing as managerial for the purpose of eligibility for NIV L-1 classification.

The petitioner did not further describe its organizational structure or provide evidence of wages paid to employees and contractors. The petitioner did submit financial statements prepared by an accountant, for the eleven-month period ended on March 31, 2003. The statement shows that the petitioner paid $52,276 in salaries, and $1,045 in legal and professional fees, but does not indicate any additional expenses related to payment of employees or contractors.

The director issued a request for evidence on August 12, 2003, in part, instructing the petitioner to submit: (1) an organizational chart for the U.S. entity; and (2) a complete position description for and educational credentials of all of the beneficiary's subordinates including a breakdown of the number of hours devoted to the employees' job duties on a weekly basis. The director noted that the petitioner must demonstrate that the beneficiary will function at a senior level within an organizational hierarchy, and, if applicable, substantiate that the beneficiary will be managing a subordinate staff of professional, managerial or supervisory personnel who will relieve him from performing non-qualifying duties .

. In a response dated October 31, 2003, the petitioner reiterated the beneficiary's previously-stated job duties and asserted that the beneficiary is assisted by two supervisory personnel, a manager and a marketing manager. The petitioner also asserted that the beneficiary "is assisted by staff to attend to secretarial functions and other routine matters," and noted that he · "appointed additional staff for the operations of various departments and related functions assigned."

The petitioner submitted an updated organizational chart for the U.S. entity which indicates that the beneficiary supervises one manager in the general. administration department and a marketing manager. The general administration manager is depicted as supervising a "staff' person, while the marketing manager has a proposed ''salesman" position as a subordinate. The chart does not indicate any staff in the areas of finance, contract administration, purchasing or personnel. The petitioner indicated that the manager has a master of arts in English, the marketing manager has a diploma in engineering, and the staff member has a "B.A.M.S." The petitioner submitted an undated statement from each employee, stating that they work for the U.S. company. The statements do not indicate when the employees were hired or what positions the individuals hold. The petitioner did not submit the detailed job descriptions for the beneficiary's subordinates as requested by the director.

The director denied the petition on February 24, 2004, concluding that the petitioner had failed to establish that the beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. The director acknowledged the detailed job description noting that according to the description, the beneficiary will including corporate planning, general administration, finance and accounting, marketing and sales, business development, purchase and contracts and personnel activities and that it appeared that she would be performing duties associated with these functions rather than primarily managing essential functions as claimed by the petitioner. The director concluded that the beneficiary "is actually performing the basic tasks associated with running a company of three employees" and is "primarily engaged in performing all the

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duties of running a small business." The director did acknowledge that some of the beneficiary's duties "might be considered managerial if performed withina large organization."

The director acknowledged that the beneficiary's c1aimed subordinates may perform a portion_ of the marketing and general administration tasks of the company, but again noted that the actual duties of the beneficiary's subordinates had not been established. The director observed that the evidence of record failed to establish who would perform the day-to-day administrative and clerical duties, or the duties of the finance, contracts, purchasing.and personnel departments depicted on the organizational chart. The director a·lso noted the petitioner's failure to submit documentary evidence to corroborate its contention that the U.S. company utilizes indepe!ldent contractors for certain functions.

As noted above, the petitioner appealed the director's decision on March 25, 2004, and the AJ\0 summarily dismissed the appeal based on the petitioner's failure to submit a brief in support of the appeal. The petitioner has not provided a copy of the brief that was submitted in May 2004 and not previously incorporated into the record.

In response to the director's decisipn, the petitioner submits a 25 page brief, the majority of which re-states portions of the beneficiary's job description already provide~ in support of the petition and in response to the director's request for evidence. The petitioner states that the beneficiary was initially supported by a secretarial staff and subsequently appointed staff to support the operations, including professional accountants, a manager, and .contract staff, leaving the beneficiary to devote "1 00% of time to attend to the managerial functions of the business." The petitioner contends that the beneficiary is not required to ·supervise staff in order to establish eligibility for L-1A classification, but she nevertheless was assisted by "Administrative and other staff."

The petitioner again asserts that the beneficiary utilizes the services of professional accountants, Mirani & Associates, LLC, "for maintenance of proper books of accounts and preparation of Financial Statements, inc1uding Profit and Loss and Balance Sheet, conduct statutory Audit, and coordinates with them in the matter."

In addition, the petitioner objects to the director's emphasis on the size of the U.S. company and objects to the director's statement that some of the beneficiary's duties would be managerial "if performed within a large

. organization:" The petitioner states that "what is considered as managerial function in a large organization is by its very nature managerial for a small organization and can by no means or measures be considered otherwise that is non-managerial." The petitioner asserts that changes implemented by the Immigration Act of 1990 made the size of the petitioning organization irrelevant as a basis for determining a beneficiary's employment in a managerial or executive capacity.

The petitioner further disputes the director's statement that, in order to establlsh that the beneficiary is a function manager, the petitioner must clearly demonstrate that the manager does not directly perform the function. The petitioner emphasizes that the petitioner has only been in operation for ten 'months, and states that "it has been accepted principle that the beneficiary may be required to perform-some functions which are not managerial in the initial period." The petitioner re-submits the organizational chart submitted in response to the request for . evidence, and asserts that the beneficiary supervises a marketing manager and a manager,

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both of whom possess at least a bachelor's degree. The petitioner also includes brief job descriptions for the marketing manager, manager and office staff. The petitioner asserts that these employees should be considered managers and professionals.

The petitioner nevertheless states that the regulations do not require the beneficiary to supervise staff, so such a determination is irrelevant, since the beneficiary functions at a senior level within the organizational hierarchy. The petitioner emphasizes the beneficiary's "highly visible position as a Vice President, in the second level of the management hierarchy."

The petitioner's assertions are not persuasive. Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary will be employed in a primarily managerial or executive position under the extended petition.

When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description ofthejob duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description ofthejob duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. !d. Here, the beneficiary's position description, when considered within the context of the totality of the record, does not sufficiently demonstrate that the beneficiary's tasks will be the high-level responsibilities that are specified in the definition of managerial capacity or executive capacity. See section 10l(a)(44)(A) of the Act, 8 U.S .C. § 1101(a)(44)(A).

The petitioner describes the beneficiary as being responsible for managing the areas of corporate planning, general administration, finance, marketing/sales/business development, purchasing and contracts, and personnel within the petitioning company; however, the record fails to establish that the beneficiary's actual duties with relation to these various functions would be prima:r1ly managerial or executive. While the beneficiary may exercise authority over the day-to-day operations of the company as its vice president, a careful review of the lengthy position description provided reveals many duties that are not managerial or executive in nature. As noted by the director, the petitioner indicated that the beneficiary engages in promotional activities, purchases and procures merchandise required for sales/contracts, is responsible for material logistics and inventory, carries out feasibility studies for "new business opportunities, compares catalog listings, examines products samples, attending product demonstrations and conventions, looks for new products and business opportunities, monitors the financial status of the company and performs budgeting, and is responsible for all aspects of business development, including market research, promotion of business and sales. The petitioner has not explained how any these duties fall under the statutory definitions of managerial or executive capacity. Rather, it appears that he beneficiary is responsible for the day-to-day operational and administrative tasks associated with the various departments and activities he is claimed to manage.

The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to~day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Therefore, whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained its burden of proving that his duties are "primarily"

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managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be managerial functions and what proportion would be non

managerial, other than stating on appeal that 100 percent of the beneficiary's time is devoted to managerial duties. As outlined above, this assertion is not supported by the record. The petitioner lists the beneficiary's duties as including both managerial and administrative or operational tasks, but fails to quantify the time the beneficiary spends on them. This failure of documentation is important because a significant number of the beneficiary's daily tasks, such as described above, do not fall directly under traditional managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily performing the duties of a manager or executive. See, e.g. IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).

The petitioner's description of the beneficiary' s duties cannot be read or considered in the abstract, rather the AAO must determine based on a totality of the record whether the description of the beneficiary's duties represents a credible perspective of the beneficiary's role within the organizational hierarchy. The record does not demonstrate that the petitioner has any employees to relieve the beneficiary from performing the day-today duties of the various departments and functions he is claimed to manage.

The record contains conflicting, unsupported cla'ims regarding the petitioner's staffing levels, and no documentary evidence which would support any of the petitioner's assertions that subordinate employees and contractors relieve the beneficiary from performing the non-managerial aspects of the petitioner's business. The petitioner failed to indicate on Form I-129 the number of employees working for the petitioner as of the date of filing. The organizational chart submitted in support of the initial petition did not identify any employees other than the beneficiary and his supervisor, the company president, while the beneficiary's job '

description indicates that he was initially supported by secretarial staff, contracted professional accountants, attorneys and "ancillary services for operations, such as forwarding, clearing, warehousing, [and] packing." The petitioner further indicated that the beneficiary "appointed additional staff to assist in the operations of various departments and functions assigned." The petitioner did not identify these "other staff," provide evidence of employment of payroll employees or contract workers, or otherwise describe the number and types of employees working for the company as of the date of filing. Finally, the petitioner referenced a "sales manager" and his personnel. The AAO notes that the regulation at 8 C.F.R. § 214.2(1)(14)(ii)(D) requires that the petitioner submit a statement describing the staffing of the new operation, including the number of . . employees and types of positions held accompanied by evidence of wages paid to employees. The petitioner's initial submission clearly did not meet the minimal evidentiary requirements mandated by the regulations.

Accordingly, the director requested that the petitioner submit additional evidence, including a comprehensive organizational chart, and evidence clearly depicting the number of employees supervised by the beneficiary, the positions they hold, the duties they perform, and their educational credentials. While the petitioner offered a new organizational chart indicating that the petitioner employs a manager, a marketing manager and a "staff' employee, the petitioner did not provide the request for detailed position descriptions for the beneficiary's subordinates. These position descriptions are now offered on appeal. The regulation states that the petitioner shall submit additional evidence as the director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed . See 8 C.F.R. §§ 103 .2(b )(8) and (12).

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The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petiti~n. 8 C.F.R. § 103.2(b)(14).

Where, as here, a petitioner has been put on notice 'of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in response to the director's request for evidence. !d. Under the circumstances, the AAO need not and does not consider the sufficiency of the evidence submitted on appeal.

Furthermore, although the director referred to the petitioner as a three-person company, the AAO notes that the petitioner has submitted no documentary evidence to corroborate its employment of the marketing manager, manager, staff member, or the many claimed contract employees .referenced in the beneficiary's position description: Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 15&, 165 (Comm. 1998) (citing Matter of Treasure Craft of California , 14 I&N Dec. 190 (Reg. Comm. 1972)). Even if the petitioner does employ the claimed employees, it appears that they were likely hired subsequent to the filing of the petition, given that the petitioner initially identified the beneficiary and the company president on the initial organizational chart. 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).

The statutory definition of "managerial capacity" allows for both "personnel managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). Personnel managers are required to primarily supervise and control the work of other supervisory, professional, or managerial employees. Contrary to the common understanding of the word "manager," the statute plainly states that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory . duties unless the employees supervised are professional." Section . 101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 214.2(l)(l)(ii)(B)(2). If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). Here, while the petitioner claims that the beneficiary has the authority to hire and fire employees, and supervises managerial and professional employees, the record as presently constituted fails to establish that the beneficiary had actually hired employees or was responsible for supervising managerial or profe'ssional employees at the time the petition was filed. Accordingly, the record does not establish the beneficiary's employment as a "personnel manager."

The petitioner claims that regardless of the petitioner's staffing levels, the benefiCiary will manage the "sales, . marketing and business development function" of the petition company. The term "function manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential ·function" within the organization. See section 10l(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a detailed position description that defines the duties to be performed in managing the essential function, identifies the function with specificity, articulates the essential nature of the function, and

EAC 03 165 50593 Page 12

establishes the proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R.' § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the duties related to the function. An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)): In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function.

Again, beyond the required description of the job duties, CIS reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors that will contribute to a complete understanding of a beneficiary' s actual duties and role in a · business. In the case of a ·function manager, where no subordinates are directly supervised, these other factors may include the beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, the scope of the beneficiary's authority and its impact on the petitioner' s operations, the indirect supervision of employees within the scope of the function managed, and the value of the budgets, products, or services that the beneficiary manages.

In such a situation, the AAO recognizes that other employees carry out the functions of the organization, even . though those employees may not be directly under the function manager ' s supervision. It is the petitioner's obligation to establish that the. day-to-day non-managerial tasks of the function managed are performed by someone other than the beneficiary,

The addition of the concept of a "function manager" by the Immigration Act of 1990 siinply eliminates the requirement that a beneficiary must directly supervise subordinate employees to establish managerial capacity. Despite the changes made by the Immigration Act of 1990, the statute continues to require that an individual "primarily" perform managerial or executive duties in order to qualify as a managerial or executive employee under the Act. The word "primarily" is defined as "at first," "principally," or "chiefly." Webster's II New College Dictionary 877 (2001). Where an individual is "principally" or "chiefly" performing the tasks necessary to produce a product or to provide a service or other non-managerial, non-executive duties, that individual cannot also "principally" or "chiefly" perform managerial or executive duties.

Moreover, federal courts continue to give deference to CIS ' s interpretation of the Immigration Act of 1990 and the concept of "function manager," especially when considering individuals who primarily conduct the business of an organization or when the petitioner fails to establish what proportion of an employee ' s duties might be managerial as opposed to operational. See Boyang Ltd. v. INS, 67 F.3d 305(Table), 1995 WL 576839 at *5 (91

h Cir. 1995 (unpublished)(citing to Matter of Church Scientology !nt 'l and finding an employee who primarily performs operational tasks is not a managerial or executive employee); see also, IKEA U~, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999); Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C.Cir. 1991).

EAC 03 165 50593 Page 13

As discussed above, the petitioner has provided a job description that includes a number of non-managerial duties, including operational tasks specifically related to the sales, marketing and. business development functions, as well as non-qualifying tasks associated with virtually every aspect of the company's day-to-day operations. The petitioner in this matter has not adequately documented the existence of any employees or contract staff who would relieve the beneficiary from performing all the day-to-day operational duties associated with the various functions he is claimed to manage. Again, going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The fact that the beneficiary is the only employee within the petitioning organization responsible for all of its various departments and functions is insufficient to elevate his position to that of a function manager. Even if the petitioner were able to establish that the beneficiary did in fact manage staff in the marketing/sales and administration departments as of the date of filing, the record shows that the beneficiary is solely responsible for purchasing, contracts and finance functions, including all non-managerial tasks associated with these departments within the petitioning company.

For these reasons, the AAO concurs with the director's conclusion that the record does not establish the petitioner's need for the beneficiary's services in a managerial capacity. Although counsel contends that the director failed to take into account the petitioner's current stage of development, and placed undue emphasis on the size of the petitioning organization, it is the petitioner's burden to establish that the beneficiary will be performing primarily managerial duties as of the date the petition is filed. Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of the organization, may not be the determining factor in denying a visa to a multinatiomil manager or executive. See§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the absence of employees who would perform the non-managerial or non-executive operations of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).

Furthermore, in the present matter, the regulations provide strict evidentiary requirements for the extension of a "new office" petition and require CIS to examine the organizational structure and staffing levels of the petitioner. See 8 C.P.R.§ 214.2(1)(14)(ii)(D). The regulation at 8 C.P.R.§ 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of the petition to support an executive or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year period. If the business does not have sufficient staffing after one year to relieve the beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial or executive position.

For .the reasons discussed above, the record does not establish that a majority of the beneficiary's duties will be ·managing an essential function of the petitioning organization. The record indicates that a preponderance of the beneficiary's duties will, at least initially, be operational duties related to the petitioner's finance, purchasing, contract administration, sales, marketing and business development functions. An employee who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church

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Scientology Int 'I., 19 I&N Dec. 593, 604 (Comm. 1988). Although the petitioner claims that the petitioner will be fully staffed" in the future, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set offacts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Based on the evidence furnished, it cannot be found that the beneficiary will be employed in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed.

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, the petitioner has not met this burden. Accordingly, the prior decisions of the director and the AAO will be affirmed. ·

ORDER: The decision of the AAO, dated February 1, 2006, is affirmed. The petition is denied.

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