dismissed EB-1C Case: Business

1 
DATE: DEC 1 0 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: 
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: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1 )(C) oftheImmigration and Nationality Act, 8 U.S.c. § 1153(b)(1 )(C) 
ON BEHALF OF PETITIONER: 
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 ha ve 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 tile a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request 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)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
\JQ@. ... -
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.go,"' 
DISCUSSION: The preference visa petition was initially approved by the Director, Texas Service Center. 
On further review of the record, the director determined that suspect documentation had been submitted in 
support of the petition and that the petitioner was therefore not eligible for the benefit sought. Accordingly, 
the director properly served the petitioner with a notice of his intention to revoke the approval of the 
preference visa petition, and his reasons therefore. The director ultimately revoked the approval of the 
petition. In response, the petitioner filed a motion to reopen and reconsider, which the director dismissed. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary in the United States as its 
president/managing director. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1 )(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(I)(C), as a multinational executive or manager. 
The record shows that the petitioner's Form 1-140 was initially approved on May 4,2010. Upon subsequent 
review of the record, the director determined that the petitioner submitted fraudulent tax documents claiming 
more employees than the petitioner actually employed. The director also observed inconsistencies in the 
organizational charts submitted with regard to the foreign entity and determined that the petitioner failed to 
provide sufficient evidence to establish that it has a qualifying relationship with the foreign entity. 
The matter currently before the AAO is an appeal from the director's denial of the motion to reopen and 
reconsider, which the petitioner filed when the director revoked approval of the Form 1-140. In a statement 
submitted in support of the appeal, counsel restated the explanation and assertions that he previously provided 
on motion. Counsel asks the AAO to consider the non-fraudulent documents in light of the petitioner's 
"highly unusual situation" in which counsel seemingly claims that the beneficiary was the victim, rather than 
the perpetrator, of fraud. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
• • • 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least I year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
Page 3 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(1 )(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Additionally, with regard to the revocation of a previously approved petition section 205 of the Act, 8 U.S.c. 
§ 1155, states: "The Attorney General may, at any time, for what he deems to be good and sufficient cause, 
revoke the approval of any petition approved by him under section 204." 
In the event that an immigrant petition has been revoked on notice pursuant to section 205 of the Act, the 
Board of Immigration Appeals has stated: 
In Matter of Eslime, ... this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Eslime, 19 I&N 450 (BIA 1987)). 
The director issued a decision dated August 24, 2011, revoking the petitioner's immigrant petition on notice 
based on the determination that the petitioner submitted fraudulent documentation in support of the Form 1-
140. On November 29, 2011 the director issued a decision denying the petitioner's motion based on the 
finding that the petitioner did not meet the provisions of a motion to reopen or a motion to reconsider. The 
primary objective in the present matter is to determine whether the director erred in denying the petitioner's 
motion. 
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. 
Based on the plain meaning of "new," a new fact is found to be evidence that was not available and could not 
have been discovered or presented in the previous proceeding. I 
A review of the record shows that the only evidence the petitioner previously submitted in support of the 
motion was a written explanation from counsel, a copy of the foreign entity's organizational chart, and copies 
of bank records that the petitioner provided earlier in response to the notice of intent to revoke (NaIR) in an 
effort to demonstrate an exchange of funds to account for the purchase of the petitioner's stock. 
I The word "new" is defmed 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). 
· . 
Page 4 
The petitioner has neither claimed nor provided evidence to show that any of the documents submitted on 
motion were newly discovered or previously unavailable. 
Accordingly, the AAO finds that the director properly determined that no new evidence had been submitted to 
support the motion. Therefore, the director did not err in denying the petitioner's motion to reopen. 
Turning to the motion to reconsider, the regulation at 8 C.P.R. § 103.5(a)(3) states, in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or Service policy. A motion to reconsider a decision on an application or 
petition must, when filed, also establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 
In the instant matter, counsel did not cite any legal precedent or applicable law that would indicate an error on 
the part of the director in revoking the approval of the petitioner's immigrant petition. Therefore, the motion 
was properly dismissed in accordance with 8 C.P.R. § 103.5(a)(4), which states, in pertinent part, that a 
motion that does not meet applicable requirements shall be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden. 
Accordingly, the approval of the petition will remain revoked. 
ORDER: The appeal is dismissed.