dismissed EB-1C Case: Automotive Repair

(b)(6)
DATE: 
MAY 0 8 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of.Homelalld Security 
U.S. Citizenship and hnmigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § ll53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal and 
the petitioner's three subsequently filed motions to reopen and motions to reconsider. The matter 
is now before the AAO on a fourth motion to reopen and 
a motion to reconsider. The motion will 
be dismissed; the director's and the AAO's decisions will remain undisturbed. 
The petitioner is a Florida limited liability company that seeks to employ the beneficiary as the 
"functional manager" of an automotive body repair shop. Accordingly, the petitioner endeavors 
to classify the beneficiary as a multinational executive or manager pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C). 
The director denied the petition based on the following grounds: (1) the petitioner failed to 
establish that the beneficiary was employed abroad in a managerial or executive capacity; (2) the 
petitioner failed to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity; and, (3) the petitioner failed to establish that it has 
been doing business for one year prior to filing the petition. In a decision dated September 19, 
2011, the AAO dismissed the appeal affirming all three grounds for denial. 
On October 18, 2011, counsel for the petitioner filed a combined motion to reconsider and 
motion to reopen. On the Form I-1290B, Notice of Appeal or Motion, counsel requested an 
"extension of30 days to file our Briefbecause ofthe need to obtain affidavits and documents from a 
distant source, the founder and owner of the petitioner, who is currently in Trinidad." Counsel also 
stated that "new facts are available regarding the personnel employed by the petitioner" and 
emphasized that "this information is central to the motion to reopen." The petitioner did not submit 
any new evidence pertaining to its personnel. Counsel relied on Matter of Obaigbena, 19 I&N Dec. 
553 (BIA 1988) in support of his request for an extension of time to submit a brief. 
The AAO dismissed the motion to reopen and reconsider since a petitioner is not permitted 
additional time to submit a brief or additional evidence to the AAO in connection with a motion. 
As stated in the AAO's decision, an affected party has 30 days from the date of an adverse 
decision to file a motion to reopen or reconsider. See 8 C.F.R. § 103.5(a)(l)(i). If the adverse 
decision was served by mail, an additional three days are added to the proscribed period. 
8 C.F.R. § 103.5a(b). Any motion that does not meet applicable requirements shall be dismissed. 
8 C.F.R. § 103.5(a)(4). 
In its decision, the AAO emphasized that, 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. 
On April 5, 2013, counsel for the petitioner filed a second motion to reopen and reconsider. On 
motion, counsel for the petitioner asserted that the Service denied the Motion to Reconsider 
without regard to Matter of Obaigbena, 19 I & N 553 (1988), which counsel argued was a 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
precedent decision that must be followed by the Service. Counsel also stated that the denial 
amounted to an abuse of discretion because it was contrary to law. 
In the AAO's decisions, dated November 29, 2013 and February 20, 2014, the AAO noted that 
ihe case cited by counsel 
relates to the submission of a response to a notice of intent to deny, and 
not to the submission of supporting evidence in support of a motion to reopen and reconsider. 
The AAO noted that the case cited by counsel is distinguishable based on the applicable 
regulations, and counsel's reliance on Matter of Obaigbena is misplaced. 
Furthermore, USCIS regulations do not permit a petitioner to submit a brief within 30 days of 
filing a motion. The instructions to Form I-290B expressly state: "Although a petitioner may be 
permitted additional time to submit a brief and/or additional evidence to support an appeal, no 
such provision applies to motions. Any additional evidence must be submitted with the motion." 
The regulation at 8 C.F.R. § 103.2(a)(1) provides: 
Every benefit request or other document submitted to DHS must be executed and 
filed in accordance with the form instructions, notwithstanding any provision of 8 
C.F.R chapter 1 to the contrary, and such instructions are incorporated into the 
regulations requiring its submission. 
Therefore, the AAO's decision to dismiss the motion based on the petitioner's failure to submit a 
brief and/or evidence with the motion was in accordance with the regulations governing motions. 
The motion was properly dismissed as it did not meet the requirements of a motion to reopen or 
reconsider. 8 C.F.R. § 103.5(a)(4). 
In the current motion, counsel contends that the AAO never addressed a statement made on the 
Form I-1290B, filed in October 2011. The statement is the following: 
Rather than specific reasons, the denial presents rule making by concluding that a 
functional manager cannot manage a business in the absence of additional 
employees. The denial reiterates vague, generalized objections to the petition, 
dismiss specific evidence such as receipt for wages paid, and misinterprets evidence 
such as the list ofthe beneficiary's job duties provided. 
Upon review, the AAO finds that counsel's assertions do not adequately support 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. A motion to 
reconsider a decision on an application or petition must, when filed, also establish 
that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
In other words, the purpose of a motion to reconsider is to contest the correctness of the original 
decision based on the previously established factual record. A motion to reconsider based on a legal 
argument that could have been raised earlier in the proceedings will be denied. See Matter of 
Medrano, 20 I&N Dec. 216, 219-20 (BIA 1990, 1991). The "reasons for reconsideration" that may 
be raised in a motion to reconsider should flow from new law or a de novo legal determination 
reached by the AAO 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. Jd.at 60. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. § 1361. The petitioner has not sustained that burden. 8 C.F.R. § 103.5(a)(4) states that "[a] 
motion that does not meet applicable requirements shall be dismissed." Accordingly, the motion 
will be dismissed and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.