dismissed EB-1C Case: Business

(b)(6)
DATE: . APR 09 2014 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner : 
Beneficiary : 
lJ.S. Department of Homeland Security 
U.S . Citi zenship and Immigration Service5 
Administrative Appeals Office (AAO) 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF- REPRESENTED 
INSTRUCTIONS : 
Enclosed please find the deci sion of the Admini strative 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-pr ece dent 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, respecti vely. Any motion must be filed on a Notice of Appeal or Motion (Form I-2908) 
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 Rosen 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
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DISCUSSION: The prefer ence visa petition was denied by the Director, Nebrask a Service Center. The 
petitioner filed an appeal with the Administrative Appeals Office (AAO) , where the appe al was dismissed. 
Th e petitioner then filed two consecutive motions with the AAO - one motion to reop en and reconsider and a 
subseq uent motion to reconsider - both of which were also dismissed. The petitioner now files a motion to 
reopen and reconsider, which is the petitioner 's third motion before the AAO. The motion will be dismissed. 
Th e petitioner is a Texas corp orat ion that seeks to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to clas sify the beneficiary as an employment-b ase d immigr ant pursuant to section 
203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S .C. § 1153(b)(1)(C), as a multin ational 
executive or man age r. 
The director's original decision , dated January 25, 2008, was based on two grounds of ineligibility . The 
director concluded that the petitioner failed to establish 1) that the beneficiary was employed abroad in a 
managerial or executive capacity and 2) that the beneficiary would be employed in the United States in a 
qualifying manag erial or executive capacity . 
On appeal , counsel for the pet itioner disputed the director 's findings , pointing to evidence of the petitioner 's 
organizational expansion sub seq uent to the filing of the Form 1-140 and asserting that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
The AAO dismissed the appeal, concluding that the petitioner failed to overcome the director's findings. The 
AAO rejected the portion of the argument that focused on the petitioner' s change in staffing since the dale the 
petition was filed, pointing out that the petitioner must establish its eligibility based on the facts in exis tence 
at the time of filing. With regard to the beneficiary's position abroad, the AAO did not stray from the 
director 's original finding, concluding that the petitioner I) failed to adequately describe the beneficiary's 
actual daily job duties and 2) did not establish that the beneficiary either supervised other supervisory, 
manage rial, or pro fess ional employees or managed an essential function of the foreign en tity. 
In support of the petitioner's first motion, counsel submitted a brief, contending that the petitioner submitted 
sufficient documentation to meet the regulation s that govern motions to reopen and reco nsider. Although the 
AAO disagreed with couns e l's assertion and denied the petitioner's motion, the decision nevertheless 
acknowledged and addressed a number of counsel's arg uments for the purpose of clarifying the legal 
requirements concerning statutory eligibility for classification as an immigrant worker in the visa category of 
multinational manager or executive. The AAO heavily stressed the petitioner ' s burden of having to esta blish 
eligibility as of the date of filing the petition , rat her than at a later date based on a new set of facts that had not 
mate rialized when the petition was originally filed. Matt er of Katigbak, 14 I&N Dec. 45 , 49 (Comm. 1971). 
The AAO also explained that the legal stand ards are applied to all petitioners equally, regardless of the size of 
a petitioner or number of years it has been doing busin ess. The AAO dismissed the petitioner 's motion, 
concluding that the petitioner 's submission of documents that applied to the time period that followed the 
filing of the petitioner 's Form 1-140 were deemed irrelev ant and could not be used to overcome eit her the 
director's adverse findings in the original decision or the AAO's adverse findings on appeal. 
Th e AAO also dismissed the petitioner's seco nd motion , filed on August 24 , 20 II . In its deci sion dated 
December 19, 2012, the AAO concluded that the petitioner failed to meet the requirements of a motion to 
reconsider. Notwithstanding its decision to dismiss the petitioner's motion , the AAO addressed several of the 
points made by the petitioner for the purpose of clarifying the law and explaining why the petitioner's current 
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understanding of the law was incorrect. Namely, the AAO explained that while the petitioner is not precluded 
from providing new evidence on appeal, it is contrary to established precedent for the AAO to consider any 
evidence that pertains to facts or circumstances that did not exist at the time of filing. The AAO explained 
that it did not act contrary to the law when in its prior decision it rejected to consider evidence that pertained 
to events or circumstances that came about after the filing of the Form I-140. 
Additionally, as a courtesy to the petitioner, the AAO explained the difference between the legal purpose for 
filing a motion versus the purpose for filing an appeal. Specifically, the AAO explained that appeals are 
reviewed on a de novo basis , thus giving the petitioner an opportunity to supplement the record with any 
evidence or documentation that the filing party feels may overcome the grounds for the underlying adverse 
decision. See Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). However, review criteria of a motion to 
reopen or a motion to reconsider is much more narrow and is limited only to evidence that falls within the 
specific criteria discussed at 8 C.F.R. § 103 .5(a)(2) and 8 C.F .R. § 103.5(a)(3), respectively. Given the 
AAO 's determination that the petitioner did not meet the specific criteria of either motion, the motion was 
dismissed. 
In support of the instant motion , the petitioner has provided new evidence in the form of a 2011 corporate tax 
return with proof of filing, IRS Forms W-3 and W-2 for 2012, federal quarterly tax returns for 2012, state 
employer's quarterly reports for 2012, and a copy of counsel's brief, which the petitioner submitted 
previously in support of its motion to reconsider. The petitioner also submits a statement from the 
beneficiary, who asks the AAO to advise him as to the specific documents that served as the basis for the 
conclusion that he is not the "To p Executive or that [his] duties do not show that [he is] the President of [the 
petitioning entity] ." 
Turning first to the petitioner' s motion to reopen , 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 instant case, counsel's motion is primarily supported by a statement in which the beneficiary asks the 
AAO to clarify issues that have been stated and restated several time s throughout the petitioner 's repeated 
motion filings . Despite the beneficiary 's repeated assertions that he is the petitioner's "top executive " and 
president, the AAO has been clear as to the reasons why the petitioner has been deemed ineligible for the 
immigration benefit sought. The AAO has explained that neither the beneficiary's position title nor his 
discretionary authority can serve as grounds for approving the petition when the petitioner has failed to 
provide adequate evidence to establish that at the time of filing it was capable of employing the beneficiary in 
a qualifying managerial or executive capacity based on the statutory definitions of these terms rather than the 
beneficiary's common laymen 's understanding. See section 101(a)(44)(A) and (B) of the Act for definitions 
of managerial and executive capacity, respectively. 
Additionally, the AAO notes that the petitioner ' s submission of updated tax filings will not be considered in 
support of the petitioner's motion. As previously stated, these documents, which capture the petitioner's 
corporate finances and employee payroll in 2011 and 2012, respectively, are entirely unrelated to the facts and 
circumstances as they applied to the petitioner when the Form 1-140 was first filed in 2006. The petitioner 
has been advised numerous times in the AAO ' s prior decisions that only those documents that establish the 
petitioner's eligibility at the time of filing may be considered. The petitioner may not seek approval of an I-
140 petition based on documents that reflect facts not in existence when the petition was first filed. See 
(b)(6)
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Pag e 4 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Regardless of the petitioner's organizational 
composition five or six years since the filing of a petition, it is the petitioner's organizational hierarchy at the 
time of filing that is relevant for the purpose of determining whether the petitioner is eligible for the 
immigration benefit sought herein . As noted in one of the AAO's earlier decisions , if the petitioner seeks 
consideration of its new or expanded organization it may file a new petition, which will then be assigned a 
new priority dat e, thus allowing the director to consider the facts and circumstances that may indicat e that the 
petitioner is now eligible. However, in considering eligibility for the petition that was filed in 2006, the 
petitioner 's 2011 and 2012 tax and payroll documents are not relevant , they are not new for purposes of this 
motion , and they will not be considered. Similarly, the resubmission of counsel's prior appellate brief is also 
not new. It was given due consideration at the time of its original submission and will not be submitted as 
part of the petitioner's current motion. 
Next, turning to the petitioner 's motion to reconsider, the petitioner must state the reasons for reconsideration 
and support the motion with any pertinent precedent decisions to establish that the decision was base d on an 
incorrect application of law or U.S. Citizenship and Immigration (USCIS) policy. 8 C.F.R. § 103.5(a)(3). A 
motion to reconsider contests the correctness of the original decision based on the previous factual record , as 
opposed to a motion to reopen which seeks a new hearing based on new or previously unavailable evidence. 
See Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in the 
proceedings. See Matter of Medrano , 20 I&N Dec. 216 , 220 (BIA 1990 , 1991). Rather , the "additional legal 
arguments" that may be raised in a motion to reconsider should flow from new law or a de novo legal 
determination reached in its decision that could not have been addressed by the party. Matter of 0-S-G-, 24 
I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which a party may submit, 
in essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the prior 
decision. 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 Jaw materially affects the 
prior decision. Jd. at 60. 
In this case, the beneficiary 's supporting statement primarily consists of points and arguments that had been 
previously made and addressed in the AAO 's earlier decisions. Other than the decisions cited in counsel's 
photocopied brief, which was previously submitted and considered during the course of the petitioner's prior 
motion , the beneficiary's statement fails to cite any prec ede nt decisions or other comparable evidence to 
establish that the AAO ' s decision to dismiss the appeal was based on an incorrect application of Jaw or 
USCIS policy. The motion to reconsider will be dismissed. 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.F.R. 
§ 103.5(a)(1)(iv) . 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act , 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion is dismissed.