dismissed EB-1C Case: Business Administration

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
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. 5 1153(b)(l)(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 information 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. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO), where the appeal was dismissed. 
The petitioner subsequently filed a motion to reopen, which was granted, but the AAO ultimately affirmed the 
prior adverse decision. The matter is now before the AAO on a second motion to reopen and reconsider. The 
motion will be dismissed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its controller and vice 
president of administration. 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. tj 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
based on the conclusion that the petitioner failed to establish that it would employ the beneficiary in a 
managerial or executive capacity. 
The petitioner appealed the denial disputing the director's findings and claiming that the beneficiary would be 
employed in a managerial and an executive capacity. In a decision dated December 21, 2005, the AAO 
dismissed the appeal affirming the director's conclusion. The AAO found that the beneficiary would be 
performing the petitioner's non-qualifying administrative and operational tasks and that he would not be 
supervising managerial, professional or supervisory employees who would relieve him from having to 
primarily perform non-qualifying tasks. In addition to the director's findings, the AAO further concluded that 
the petitioner failed to establish that the beneficiary was employed abroad in a managerial or executive 
capacity. The AAO provided detailed discussions of the job descriptions previously given by the petitioner, 
explaining in detail the basis for its adverse findings. 
On first motion, counsel argued that dismissing the appeal amounted to an abuse of discretion, claiming that 
the AAO failed to consider the beneficiary's contribution to the success of the U.S. entity. Counsel offered an 
additional job description for the beneficiary. 
Although the AAO granted the petitioner's motion, it found that counsel's submissions were insufficient to 
overcome the prior decision, which the AAO ultimately affirmed. Again, the AAO provided a thorough and 
comprehensive analysis of the petitioner's submissions, finding that the petitioner failed to meet the 
regulatory, statutory, and case law provisions that called for a statement of the beneficiary's actual job duties 
in order to enable U.S. Citizenship and Immigration Services (USCIS) to determine whether the beneficiary's 
employment in the United States and abroad could be deemed as qualifying within a managerial or executive 
capacity. 
The AAO further noted that the petitioner did not challenge three of its prior adverse findings. Specifically, 
the petitioner did not dispute 1) that at the time of filing it did not employ a support staff to relieve the 
beneficiary from having to perform lower-level tasks associated with payments, collections, refunds, or 
handling refund requests and legal issues; 2) that the beneficiary would not supervise a staff of managerial, 
supervisory, or professional employees; and 3) that the beneficiary was not employed abroad in a qualifying 
managerial or executive capacity. 
On second motion, counsel asserts that the beneficiary is employed in an executive capacity, leaving out the 
prior claim that the beneficiary's prospective employment fits the definition of managerial capacity as well. 
Regardless, in support of this claim counsel offers an affidavit written by the petitioner's office manager and 
submits evidence of the educational levels of the beneficiary's claimed subordinates. 
 However, these 
additional documents do not meet the requirements of a motion to reopen. 
The regulations at 8 C.F.R. 9 103.5(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.' 
Accordingly, the evidence offered in support of the most recent motion does not fit the definition of what is 
deemed as new evidence, as neither the affidavit nor the educational levels can be found as having been 
previously unavailable. In fact, the petitioner had been advised on numerous occasions, both by the director and 
by the AAO, of the various deficiencies that lead to the adverse findings in the present matter. Thus, the 
petitioner had ample opportunity to supplement the record with the necessary information either on appeal or 
even earlier, in response to the request for evidence. It is not credible that the supplemental information is new 
and that it was previously unavailable. The issue of the beneficiary's proposed employment and whether that 
employment fits the definition of managerial or executive capacity had been fully addressed on several occasions. 
Counsel's submissions in the present matter do not warrant yet another full discussion of an issue that has already 
been decided. 
Additionally, while counsel asserts that USCIS had previously ignored the list of five goals and policies that 
are reiterated in the current brief, there is no basis for this claim. The record shows that the AAO accorded 
the petitioner the benefit of a full and comprehensive review of all the facts and issues it deemed to be the 
most relevant in determining the petitioner's eligibility for the immigration benefit sought. The mere fact that 
every piece of information offered by the petitioner was not specifically enumerated in prior decisions is not 
indicative of any oversight on the part of the AAO. Rather, it appears that the facts which counsel may have 
deemed as key elements were not similarly prioritized by the AAO. In its current review of the list of goals 
and policies, the AAO finds no reason to detract from its prior holdings. Contrary to counsel's belief, nothing 
in the list of goals and policies gives any further insight into the beneficiary's daily activities or suggests that 
the job duties that would be performed can be deemed primarily managerial or executive in their nature. 
Thus, counsel's argument is without merit. 
Lastly, while counsel filed this motion as a combined motion to reopen and reconsider, there is no indication 
that counsel addressed the requirements for a motion to reconsider. The regulations at 8 C.F.R. 9 103.5(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. 
I 
 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 I1 NEW RIVERSIDE UNIVERSITY DICTIONARY 792 
(1 984)(emphasis in original). 
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In the present matter, counsel does not cite any legal precedent or applicable law that would indicate an error 
on the part of the MO in dismissing the petitioner's appeal. Therefore, the motion will be dismissed in 
accordance with 8 C.F.R. tj 103.5(a)(4), which states, in pertinent part, that a motion that does not meet 
applicable requirements shall be dismissed. 
As a final note, the proper filing of a motion to reopen andlor reconsider does not stay the MO's prior 
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.F.R. 
tj 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. Cj 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion is dismissed.