dismissed EB-1C Case: Business

(b)(6)
DATE: MAR 0 4 2013" 
INRE: 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 
PETITION: Immigrant Petition for Alien Worker as a MLtinational Executive or Manager Pursuant to 
. I 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative AP,peals Office in your case. All of the documents 
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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 casb must be made to that office. 
I . . 
. 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 mJ a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290H, 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 
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directly with the AAO. Please be aware that 8. C.F.R. § 103.5(a)(l )(i) requires that any motion must bt; filed 
within 30days of the decision that the m·otion seeks to recorlsider or.reopen. · : 
Thank you, 
www.uscis.gov 
(b)(6)
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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 Appeats
1 
Office (AAO). The appeal was dismissed and 
the matter is now before the AAO on motion to reopen and reconsider. The motion will be dismissed. 
The petitioner is a Puerto Rico corPoration that seeks to employ the beneficiary as its president/CEO. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and NationalitY, Act (the Act), 8 U.S.C. § 1153(b)(I)(C), as a 
multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish that: (I) the beneficiary 
would be employed in a qualifying managerial or executive 9apacity; (2) the petitioner is doing business; and 
(3) the petitioner has the ability to pay the beneficiary's proffered wage. · . 
The petitioner subsequently filed an appeal disputing the dirLtor's findings . The AAO determined that while 
the record contained sufficient evidence to overcome the adterse finding listed at no. 2 above, the same was 
not true of the adverse findings listed in nos. I and 3 above!. Additionally, pursuant to a de novo review on 
appeal, the AAO issued another adverse finding, beyond the 1director's decision, concluding that the petiiioner 
failed to provide sufficient evidence to establish that the bbneficiary was employed abroad in a qualifying 
managerial or executive capacity. 
On motion, counsel provides a supplemental statement disP.uting the AAO's decision. Counsel asserts that 
the beneficiary performs job duties that are typical of a cbmpany president, including targeting corporate 
clients and finalizing deals with those clients. Counsel u~ges the AAO to consider "the realities of small 
business" in reviewing the petitioner's organizational hier~chy. With regard to the petitioner's ability to 
pay, counsel simply asserts that the petitioner provided "thcl best available evidence." Finally, in addressing 
the beneficiary's employment abroad, counsel simply disagJees with the AAO and asserts th~t the record has 
been supplemented with suffiCient evidence establishing tha't the beneficiary was employed as the company's 
president. · 
The regulations at 8 C.F.R. § l03.5(a)(2) state, in pertinento part, that a motion to reopen must state the new 
facts to be provided in the r~opened proceeding and bJ 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 proceedingJI . · . 
In the instant case, counsel does not indicate that any new 1idence or information has been submitted for the 
AAo''s review. Therefore, the petitioner has not met the re~uirements for a motion to reopen. . 
I . . 
Next, turning to the motion to reconsider, the regulation at 8 C.F.R. § 103.5(a)(3) states, in pertinent part: 
1 The word "new" is defined as "1. having existed or been 1made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> " WEBSTER'S Iii NEW RIVERSIDE UNIVERSITY DICTIONARY 792. 
(l984)(emphasis in original). j 
(b)(6)
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Page 3 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent prec~dent decisions to establish that thb decision was based on an incorrect 
application of iaw or Service policy. A motion to rJconsider a decision on an application or 
petition must, when filed, also establish · that the decikion was incorrect based on the evidence 
of record at the time of the initial decision. 
In the instant matter, counsel does not cite any legal precedent or applicable statute or regulations that would 
indicate an error on the part of the AAO in dismissing the petitioner's appeal. Merely·disagreeing with the 
AAO' s findings i~ not sufficient to meet the speCific requiren'tents pertaining to the motion to reconsider. 
The AAO further notes that counsel's only claim with regar~ to the beneficiary's employment abroad is that 
the beneficiary assumed the position of president. However!, this fact is not in contention. Rather, the AAO 
found that the record lacked sufficient evidence to establis~ that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. The beneficia~·s position title alone does not establish that the 
beneficiary's employment · abroad was primarily comprised of tasks within a qualifying managerial or 
executive capacity. 
In light of the above, the motion will be dismissed in accordance with 8 C.F.R. § l03 .5(a)(4), which states, in 
pertinent part, that a motion that does not meet applicable re4uirements shall be dismissed. 
As a final note, the proper filing of a motion to re~~en Jnd/or reconsider does not stay the AAO's prior 
decision to dismiss an appeal or extend · a beneficia~'s previously set departure date. 8 .CF.R. 
§ 1 03.5(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 .