dismissed EB-1C Case: Bakery

(b)(6)
DATE: JUN 3 0 2015 
IN RE: Petition er: 
Beneficiary : 
FILE#: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigra tion Services 
Administra tive Appeals Office 
20 Massac husells Ave .. N.W .. MS 2090 
Washingto n, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immi grant 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. § 1153(b)(l )(C) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Fonn I-290B web page (www .usci s.go v/i-290b) contains the latest information on fee, filin g 
locat ion, and other requir eme nts. Please do not mail any motions directly to the AAO . 
Thank you, 
d-~ Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The 
petitioner appealed the denial to the Administrative Appeals Office (AAO), and we dismissed the 
appeal. The matter is again before us on a motion to reconsider. We will dismiss the motion. 
The petitioner, a bakery, seeks to employ the beneficiary in the United States as its president. The 
petitioner filed Form 1-140, Immigrant Petition for Alien Worker, on February 14, 2013, seeking to 
classify the beneficiary as an employment-based immigrant under section 203(b )(1 )(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or 
manager. The director denied the petition on January 6, 2014, concluding that the petitioner had not 
established that the beneficiary's duties have been, or will be, primarily managerial or executive in 
nature. We reviewed the record of proceeding and determined that it did not contain sufficient 
evidence to establish that the petitioner would employ the beneficiary as a manager or executive, or 
that the beneficiary had previously worked in such a capacity abroad. We dismissed the petitioner's 
appeal from that decision on October 27, 2014, with a comprehensive analysis of the director's 
decision. 
I. Motion Requirements 
A. Overarching Requirement for Motions by a Petitioner 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits a U.S. Citizenship and Immigration Services 
(USCIS) officer's authority to reopen the proceeding or reconsider the decision to instances where 
"proper cause" has been shown for such action. Thus, to merit reopening or reconsideration, the 
submission must not only meet the formal requirements for filing (such as, for instance, submission 
of a Form I-290B 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." 
B. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § 103.5(a)(3), "Requirements.for 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 [(b)] establish 
that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 
Augmenting these provisions is the related instruction at Part 3 of the Form I-290B, which states that 
a motion to reconsider "must be supported by citations to appropriate statutes, regulations, or 
precedent decisions." 
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II. Discussion and Analysis 
The submission on motion consists of a two-page brief and a copy of the AAO's prior dismissal 
notice. 
A. Dismissal of the Motion to Reconsider 
The petitioner's motion rests on the assertion that the AAO erred by applying too strict a standard of 
proof, and by overlooking certain evidence of the petitioner's business activities. 
Section 101(a)(44) ofthe Act, 8 U.S.C. § 1101(a)(44), provides: 
(A) The term "managerial capacity" means an assignment within an organization in 
which the employee primarily-
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, 
or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) or, if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or with 
respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
(B) The term "executive capacity" means an assignment within an organization m 
which 
the employee primarily-
(i) directs the management of the organization or a maJor component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
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NON-PRECEDENTDEC§JON 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) ofthe Act. 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
applicant's claim is "probably true," where the determination of"truth" is made based on the factual 
circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0) 
(citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In evaluating the evidence, the 
truth is to be determined not by the quantity of evidence alone but by its quality. !d. Thus, in 
adjudicating the application pursuant to the preponderance of the evidence standard, we must 
examine each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true. 
Even if we have some doubt as to the truth, if the petitioner submits relevant, probative, and credible 
evidence that leads us to believe that the claim is "probably true" or "more likely than not," the 
applicant or petitioner has satisfied the standard of proof. See INS v. Cardozo-Fonseca, 480 U.S. 
421 (1987) (discussing "more likely than not" as a greater than 50 percent probability of something 
occurring). 
The petitioner cites Chawathe and states: 
it appears that a higher standard was applied. Indeed, the decision does not state what 
standard was applied, nor why the evidence did not meet the standard. . . . The 
decision uses such terms as "general" or "nonspecific." However, the decision quotes 
some very specific duties from the materials submitted .... 
[Y]our decision ... finds that the description of the beneficiary's duties abroad of 
"oversees the general managers of various bakeries, reviewing the financial reports, 
sales reports, project and loss reports, recommendations for new products, advertising 
campaigns" (page 6) is "vague and nonspecific.["] We respectfully disagree. The 
nature of the business is bakeries - the duties are reasonable executive decisions 
necessary for the success and growth of the company." 
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NON-PRECEDENT DECISION 
Page 5 
The petitioner, on motion, does not explain how the quoted information consists of "very specific 
duties" rather than broad categories. Stating that "the duties are reasonable" does not rebut our 
finding that the description lacked detail. 
The petitioner states: "There is not one scintilla of evidence that the beneficiary bakes bread, 
supervises the employees or is otherwise involved in the day-to-day baking and selling of bread. 
Instead, evidence has been presented that the beneficiary has turned an unprofitable operation into a 
profitable one." This assertion presumes that the two functions are mutually exclusive, which is not 
the case. 
In our dismissal notice, we stated: "The petitioner also provided a list of new clients and prospective 
clients of the petitioner's bakery. However, the petitioner did not submit any contracts, agreements 
or invoices between the petitioner and the new clients." On motion, the petitioner states that our 
"decision overlooks evidence of negotiations with related to the continued growth of the 
petitioner due to the beneficiary ' s on-going activities." The petitioner contends that "the production 
and sale of baked goods ... is not an industry that normally involves long-term sales contracts. " 
The petitioner also asserts that we failed to consider evidence that the company became profitable 
under the beneficiary's leadership. 
Our previous decision contained no finding that the beneficiary lacked high-level control over the 
bakeries, and therefore was not responsible for their improved business practices. Rather, we found 
"the evidence does not support a finding that the beneficiary allocated his time primarily to the 
performance of tasks that are within a qualifying managerial or executive capacity" (emphasis 
added). 
The asserted absence of evidence that the beneficiary personally baked bread, for instance, does not 
establish that the petitioner's claims are more likely than not to be true. The adjudication does not 
begin with a presumption in the petitioner's favor that users must overcome in order to deny the 
petition. Our decision contained a number of particular findings that the petitioner does not address 
on motion, such as the observation that "the director specifically requested additional information of 
the beneficiary's subordinate employees such as job descriptions for each employee. Instead, the 
petitioner resubmitted the same organizational chart and did not provide any evidence of the foreign 
company's employees except for a few job titles and names." It was for this reason, and not because 
of derogatory or countervailing evidence, that we found the petitioner had not met its burden of 
proof. 
With respect to the claim on motion that the beneficiary's field "is not an industry that normally 
involves long-term sales contracts," our decision contained no specific reference to "long-term sales 
contracts." The petitioner has, however, repeatedly referenced "contracts" in the context of the 
beneficiary's past and intended future duties, stating that he "reviews purchase history reports and 
issues decisions on suppliers, 
including reviewing proposed contracts for supplies , as well as 
reviewing and approving proposed contracts with major retailers and restaurants in Mexico ," and 
that he "will review present purchasing 
protocols by visiting vendors and inspecting supplies as 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
agreed under present contracts. He will review and analyze all present supply and sales contracts for 
possible re-negotiation." 
We conclude that the motion meets some, but not all, of the requirements of a motion to reconsider. 
The petitioner stated the reasons for reconsideration and cited a pertinent precedent decision relating 
to the standard of proof. The petitioner also sought to establish that the decision was incorrect , but 
the petitioner did not persuasively establish that we held the petitioner to too high a standard of 
proof, or that we erred in our findings regarding the nature of the beneficiary's past and intended 
future duties. Accordingly, we must dismiss the motion to reconsider as required by 8 C.F.R. 
§ 103.5(a)(4). 
Ill. Conclusion 
Unless USCIS directs otherwise, the filing of a motion to reopen or reconsider does not stay the 
execution of any decision in a case or extend a previously set departure date. 8 C.F.R. § 103.5(a)(l )(iv). 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the motion will be dismissed, the 
proceedings will not be reconsidered, and our previous decision will not be disturbed. 
ORDER: The motion is dismissed.