dismissed EB-1C Case: Business

(b)(6)
DATE: 
INRE: 
PETITION: 
OFFICE: TEXAS SERVICE CENTER 
Petitioner: 
Beneficiary: 
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 
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 US. C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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 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.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R.§ 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
on Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was dismissed and 
the petitioner subsequently filed a motion to reopen and reconsider, which is now before the AAO. The 
motion will be dismissed. 
The petitioner is a Texas corporation and seeks to employ the beneficiary as its president. 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. § I l53(b )(l )(C), as a multinational 
executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary was 
employed abroad or that he would be employed in the United States in a qualifying managerial or executive 
capacity. Additionally, relying on the common law definition of the term "employee," the director concluded 
that the petitioner and the beneficiary do not have an employer-employee relationship. 
The petitioner appealed the denial disputing the first two of the director's findings. The AAO dismissed the 
appeal, concluding that the petitioner failed to provide adequate supporting evidence in the form of detailed 
job descriptions and relevant organizational charts establishing that the beneficiary was employed abroad and 
would be employed in the United States in a managerial or executive capacity. The AAO also pointed to an 
inconsistency between the information provided by the petitioner in its Form 1-140 and that which was 
conveyed in the organizational chart the petitioner submitted in support of the Form 1-140. Finally, the AAO 
determined that because the petitioner failed to address the issue of an employer-employee relationship on 
appeal, the petitioner effectively conceded the adverse finding, which served as the third ground for dismissing 
the appeal. 
On motion, counsel asserts that the petitioner's prior failure to provide relevant information pertaining to the 
beneficiary's employment abroad was the direct result of ineffective assistance of counsel, an issue, which 
counsel claims the AAO failed to address. Counsel states that all relevant documents establishing the 
existence of the foreign entity have been submitted and further expresses the petitioner's willingness to 
provide additional evidence should this matter be reopened and "the Petition is afforded one more 
opportunity." Lastly, counsel states that the petitioner has no ties with alleging that 
documents pertaining to this entity were erroneously submitted by the petitioner's prior counsel. 
The regulations at 8 C.F.R. § 1 03.5(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.' 
In the instant case , instead of offering new evidence to support the motion, counsel indicates that the 
petitioner would provide "any requested evidence" should the AAO grant the motion. Based on the 
' 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 7 92 
(l984)(emphasis in original). 
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regulation pertaining to a motion to reopen, the AAO cannot grant the motion based on a promise to submit 
evidence in the future. Rather, the petitioner is required to provide previously unavailable evidence in order 
to establish a proper basis for reopening this matter. It appears that counsel seeks to have the petitioner 
provide (and the AAO consider) previously requested evidence to cure prior deficiencies noted in the AAO 's 
decision 
dismissing the appeal. It does not appear that counsel intends for the petitioner to submit previously 
unavailable evidence; nor is there any indication that previously unavailable evidence actually exists. 
With regard to counsel 's claim that the petitioner was the victim of ineffective counsel, the AAO notes that 
any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim be 
supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was 
entered into with counsel with respect to the actions to be taken and what representations counsel did or did 
not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned 
be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the 
appeal or motion reflect whether a complaint has been filed with appropriate disciplinary authorities with 
respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada , 19 
l&N Dec. 637 (BIA 1988), aff'd, 857 F.2d lO (1st Cir. 1988). 
There is no evidence that the petitioner meets the three-pronged test to establish that any prior inadequacies in 
the petitioner's submissions should be excused due to ineffective assistance of counsel. 
In sum, the petitioner has failed to provide any new facts or documents to warrant the granting of a motion to 
reopen. Therefore, the petitioner 's motion to reopen will be dismissed. 
Next, turning 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. 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 case, counsel does not cite any legal precedent or applicable law that would indicate an error on 
the part of the AAO in dismissing the petitioner's appeal. Therefore, the motion will be dismissed in 
accordance with 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. 
As a tina! 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)(l )(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.