dismissed EB-1C Case: Business

identifying data deleted to 
prevent clearly unw~ted 
invasion of personal pnvacy 
PUBLIC COpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
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 
Date: JAN 1 9 2Dll 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional infonnation that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Fonn 1-290B, Notice of Appeal or Motion, with a fee of $630. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(1)(i). 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO) where the appeal was dismissed. 
The matter is now before the AAO on motion to reopen and reconsider. The motion will be dismissed. 
The petitioner is a Texas corporation seeking to employ the beneficiary as its vice president. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I I 53(b)(I)(C), as a multinational 
executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a primarily managerial or executive capacity. The petitioner appealed the denial, 
disputing the director's findings. The AAO dismissed the appeal, concluding that the petitioner failed to 
establish that the beneficiary would be employed in a managerial or executive capacity. The AAO issued two 
additional findings beyond the decision of the director. First, the AAO found that the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity. Second, 
the AAO found that the record lacks evidence establishing the foreign entity's ownership and that the 
petitioner has therefore failed to establish that it has a qualifying relationship with the beneficiary'S foreign 
employer. 
On motion, counsel asks the AAO to reopen the proceeding and reconsider the adverse findings. Counsel's 
arguments are based primarily on the beneficiary'S proposed transfer to , the petitioning entity's 
U.S. affiliate, which was formed on April 7, 2008. Counsel also asserts and provides documentation 
establishing that the foreign entity, like the petitioning entity, is majority owned by •••••• 
After reviewing the petitioner's supporting documentation, the AAO concludes that the petltlOner has 
overcome the second finding that the AAO issued in its May 18, 2009 decision in addition to the director's 
original basis for denial. However, the petitioner failed to overcome the second additional finding issued in 
the AAO's decision and, with respect to the original basis for denial-the petitioner's failure to establish that 
the beneficiary'S proposed employment would be within a qualifying managerial or executive capacity-the 
petitioner'S motion does not meet the requirements of a motion to reopen or a motion to reconsider. 
The regulations at 8 C.F.R. § I 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, none of the new information or documentation that the petitioner submits in support of the 
motion pertains to the petitioning entity that filed the Form 1-140 whose merits are discussed herein. Rather, 
the new evidence or information pertains to a different, newly formed, entity that had not been established at 
I See exhibit 41, Deed of Partnership, p. 6. 
2 The word "new" is defined as "I. 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 
(I 984)(emphasis in original). 
Page 3 
the time the instant Fonn 1-140 was filed. However. on appeal or on motion. a petitioner cannot offer a new 
position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. In general, a petitioner may not make material 
changes to a petition in an effort to make a deficient petition confonn to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Furthennore, a petitioner must establish eligibility at 
the time of filing the petition; a petition cannot be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 4S, 49 (Comm. 1971). 
Therefore, counsel's statements describing a new position that is purportedly being offered to the beneficiary 
by an entity other than the petitioner will not be considered, as they do not pertain to or help to resolve any 
issues regarding the petitioner's eligibility for the immigration benefit sought in the current proceeding. 
The regulations at 8 C.F.R. § !03.S(a)(3) state, 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 CIS 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.S(a)(4), which states, in pertinent part, that a motion that does not meet 
applicable requirements shall be dismissed. 
Furthennore, the motion shall be dismissed for failing to meet an applicable requirement. The regulation at 
8 C.F.R. § 103 .S(a)( 1 )(iii)(C) requires that motions be "[ a]ccompanied by a statement about whether or not 
the validity of the unfavorable decision has been or is the subject of any judicial proceeding." In this matter, 
the motion does not contain the statement required by 8 C.F.R. § I03.S(a)(l)(iii)(C). The regulation at 
8 C.F.R. § !03.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. 
Therefore, because the instant motion did not meet the applicable filing requirements listed in 8 C.F.R. 
§ 103.S(a)(I)(iii)(C), it must also be dismissed for this reason. 
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.S(a)(I)(iv). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion is dismissed.