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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.,...
MATTER OF B-1-USA CORP.
MOTION ON AAO DECISION
Non-Precedent Decision of the
Administrative Appeals Office
DATE: APR. 21,2...
Matter <?fB-I-U5;A Corp.
B. Requirements for Motions to Reopen
The regulation at 8 C.F.R. § 103.5(a)(2) states that a moti...
Matter ofB-1-USA Corp.
A motion to reconsider contests the correctness of the prior decision based on the previous factual...
Matter ofB-1-U..)A Corp.
be denied for this reason. It is this September 10, 2015, decision that is the subject of the mot...
U.S. Citizenship
and Immigration
Services
MATTER OF B-I-U- CORP.
MOTION OF AAO DECISION
Non-Precedent Decision of the
Admi...
Matter ofB-1-U- Corp.
that the brief was not incorporated into the record prior to our review of the Petitioner's motion, ...
Matter ofB-1-U- Corp.
required fee as specified by the Form I-290B instructions; and (2) at the location that those
instru...
Matter ofB-1-U- Corp.
laws, regulations, precedent decisions, and/or binding policies that the petitioner believed we
misa...
Matter ofB-1-U- Corp.
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same
...
(b)(6)
DATE: JAN 0 8 2015
IN RE: Petitioner:
Beneficiary:
Office: VERMONT SERVICE CENTER
U.S. Department of Homeland Secur...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Vermont Service Center Director (director) denied the petition for a ...
(b)(6)
NON-PRECEDENT DECISION
Page 3
motion; any additional evidence or a supporting brief that the petitioner intends to ...
(b)(6)
DATE: MAY 0'12014 Office: VERMONT SERVICE CENTER
INRE: Petitioner:
Beneficiary:
U.S. Department of Homeland Securit...
(b)(6)
NON-PRECEDENTDECISION
Page2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigran...
(b)(6)
NON-PRECEDENTDECISION
Page 3
brief in support of the current motion along with an undated document titled, "Discuss...
(b)(6)
NON-PRECEDENT DECISION
Page 4
I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which...
(b)(6)
NON-PRECEDENT DECISION
Page 5
Motions for the reopening or reconsideration of immigration proceedings are disfavore...
(b)(6)
DATE:
SEP 2·52014 Office: VERMONT SERVICE CENTER
INRE: Petitioner:
Beneficiary:
U.S. Department of Homeland Securit...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigr...
(b)(6)
NON-PRECEDENT DECISION
Page 3
validity of the unfavorable decision is NOT the subject of any judicial proceeding." ...
(b)(6)
NON-PRECEDENT DECISION
Page4
decision was based on an incorrect application of law or policy; and (2) specifically ...
(b)(6)
(b)(6)
DATE: AUG 282013
INRE: Petitioner:
Beneficiary:
Office: VERMONT SERVICE CENTER
U.S. Department of Homeland Security...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigr...
(b)(6)
NON-PRECEDENT DECISION
Page 3
This regulation is supplemented by the instructions on the Form I-290B, Notice of App...
(b)(6)
NON-PRECEDENT DECISION
Page4
the entire record of proceeding when it reopened the matter to consider the petitioner...
(b)(6)
DATE: MAR 29 2013
INRE: Petitioner:
Beneficiary:
Office: VERMONT SERVICE CENTER
U.S, Department of Homeland Securit...
(b)(6)
· Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
petitio...
(b)(6)
Page 3
petition and incorporated in the briefs submitted later. However, CIS has ignored all of them
without giving...
(b)(6)
Page4
It
Here, the petitioner makes two only vague references to the AAO's most recent decision dated February 7,
2...
(b)(6)
. '"
Page 5
the director and the AAO to date. The petitioner cannot generally request reconsideration of every deci...
identifying data deleted to
vent dearly unwarr~ted
:asion ofpersonal pnvacy
PUBLIC COPY
DATE: FEB 07 2012 Office: VERMONT ...
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
petitioner has previous...
Page 3
I denial decision of the Director and as such contrary to precedent decisions and bad
in law. For details, please s...
This regulation is supplemented by the instructions on the Form I-290B, Notice of Appeal or Motion, by
operation of the ru...
Page 5
acknowledges the AAO's findings or its six previous decisions. As such, counsel's most recent assertion that
the pe...
identifying data deleted to
prevent clean: ur . J8rr~nted
invasion ofpersonai pnvac)
PUBLIC COPY
U.S. Department of Homela...
EAC 03' 165 50593
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. Th...
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions
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Matter of B-I-USA Corp., ID# 16552 (AAO Apr. 21, 2016) and most prior decisions

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

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

  1. 1. 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.
  2. 2. 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. § 103.5(a)(4) requires that •'[a] motion that does not meet applicable requirements shall be dismissed."
  3. 3. Matter <?fB-I-U5;A Corp. B. Requirements for Motions to Reopen The regulation at 8 C.F.R. § 103.5(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 ofdecision.'' 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
  4. 4. Matter ofB-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. § 103.5(a)(3) and 8 C.F.R. § 103.5(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 ofwhich 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. § 103.5(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. § 103.5(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
  5. 5. Matter ofB-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 USCIS 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
  6. 6. 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 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 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
  7. 7. Matter ofB-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 2
  8. 8. Matter ofB-1-U- Corp. 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 ofthe 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 ofthe 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); I03.2(a)(6) (form instructions specify filing location). 3
  9. 9. Matter ofB-1-U- Corp. 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 ofMedrano, 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 ofthe 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). 4
  10. 10. Matter ofB-1-U- Corp. 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
  11. 11. (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 U.S. Citizenship and Immigration Services 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
  12. 12. (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
  13. 13. (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.
  14. 14. (b)(6) DATE: MAY 0'12014 Office: VERMONT SERVICE CENTER INRE: Petitioner: Beneficiary: U.S. Department of Homeland Security U.S. Citizenship and lmrnigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services FILE: PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) ofthe Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(L) ON BEHALF OF PETITIONER: SELF-REPRESENTED INSTRUCTIONS: Enclosed please find the decision ofthe Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions oflaw 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 ChiefAdministrative Appeals Office www.uscis.gov
  15. 15. (b)(6) NON-PRECEDENTDECISION Page2 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 ofthe petition and dismissal ofthe 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, 2013. The petitioner also submits another
  16. 16. (b)(6) NON-PRECEDENTDECISION 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: 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 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 ofMedrano, 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.
  17. 17. (b)(6) NON-PRECEDENT DECISION 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 briefpresented 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 ofthe April 26, 2013 motion, asserting and providing evidence to show that the petitioner indeed provided a supporting briefwithin 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 briefor 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).
  18. 18. (b)(6) NON-PRECEDENT DECISION Page 5 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 ofnewly 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. ORDER: The motion is dismissed.
  19. 19. (b)(6) DATE: SEP 2·52014 Office: VERMONT SERVICE CENTER INRE: Petitioner: Beneficiary: 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 U.S. Citizenship and Immigration Services 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://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
  20. 20. (b)(6) NON-PRECEDENT DECISION 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 ofthe 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
  21. 21. (b)(6) NON-PRECEDENT DECISION Page 3 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: 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 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
  22. 22. (b)(6) NON-PRECEDENT DECISION 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.
  23. 23. (b)(6)
  24. 24. (b)(6) DATE: AUG 282013 INRE: Petitioner: Beneficiary: Office: VERMONT SERVICE CENTER U.S. Department of Homeland Security U.S. Citizenship and lrnrnigrat.ion Services Ad ministrative Appeals Office (AAO) 20 IV!assachusetts Ave., N. W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services 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) 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://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
  25. 25. (b)(6) NON-PRECEDENT DECISION 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 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....
  26. 26. (b)(6) NON-PRECEDENT DECISION 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: [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.
  27. 27. (b)(6) NON-PRECEDENT DECISION 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. ORDER: The motion is dismissed.
  28. 28. (b)(6) DATE: MAR 29 2013 INRE: Petitioner: Beneficiary: Office: VERMONT SERVICE CENTER 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 U.S. Citizenship and Immigration Services 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 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
  29. 29. (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
  30. 30. (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. 1 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.
  31. 31. (b)(6) Page4 It 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
  32. 32. (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 wasin 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 aproceeding 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...
  33. 33. identifying data deleted to vent dearly unwarr~ted :asion ofpersonal pnvacy PUBLIC COPY DATE: FEB 07 2012 Office: VERMONT SERVICE CENTER INRE: Petitioner: Beneficiary: 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 U.S. Citizenship and Immigration Services PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) ofthe 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 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 ofthe decision that the motion seeks to reconsider or reopen. Thank you, PerryRhew Chief, Administrative Appeals Office www.uscis.gov
  34. 34. 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 ofAppeal 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 briefthat 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
  35. 35. Page 3 I denial decision of the Director and as such contrary to precedent decisions and bad in law. For details, please see briefthat 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 briefthat 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 ofthe service policy to support his line of erroneous adverse assessment. For details please refer the briefthat 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 ofrecord 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).
  36. 36. 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 USCIS policy, which must be supported by precedent case law. The AAO previously conducted a de novo review ofthe entire record ofproceeding 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 2 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.
  37. 37. 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 ofnewly 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 ofthe director and the AAO will not be disturbed. ORDER: The motion is dismissed.
  38. 38. identifying data deleted to prevent clean: ur . J8rr~nted invasion ofpersonai pnvac) PUBLIC COPY U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office ofAdministrative Appeals, MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services OCT 19l009 FILE: EAC 03 165 50593 Office: VERMONT SERVICE CENTER Date: INRE: Petitioner: Beneficiary: PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) ofthe Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(L) ON BEHALF OF PETITIONER: 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
  39. 39. 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 ofthe 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 ofa 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.

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