dismissed EB-1C Case: Business Management

(b)(6)
i ·-L 
·.·· 
DATE: APR 0 2 201lJFFICE: NEBRASKA SERVICE CENTER ' 
INRE: Petitioner: 
Beneficiary: 
U.S. DepanmentofHomeland Seturity 
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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nati~nality Act, 8 U.S.C. § ll53(b)(l)(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 have concerning your case must be made to that office. 
If you believe the law wa~ inappropriately applied by us in reaching our decision, or you have additional 
infonnation that you wish to have considered, you .may. file a motion to reconsider or a motion to reopen in 
accordance with the instrUctions on Fonn 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)(l)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks toreco~sider or reopen. 
. . . 
TJtank you, 
. "~'' · . ~>. ~ . 
· · ~··: . . . ., ... ,. ~:i:i ·" ~ ' ' ··~ •· . 
~on Ro . berg. . . .. . . 
.. Acting Chief, Administr~five Appeals· Office 
www.uscis.gov . 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). .The appeal was dismissed. The 
matter is now before the AAO on motion to reopen. The motion will be dismissed. · 
The petitioner is ' a California corporation that seeks 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)(l)(C) of the hnmigration and Nationality Act (the Act), 8 U.S.C. § 1153(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 in a managerial or executive capacity. 
The petitioner appealed the denial disputing the denial. The AAO dismissed the appeal affirming the 
director's original conclusion-that the petitioner failed to establish that the beneficiary was employed abroad 
in a qualifYing managerial or executive· capacity-and making three additional findings beyond the director's 
dedsion. First, the AAO concluded that the petitioner provided a deficient job description and organizational 
chart pertaining to· the benefiCiary's proposed employment with the petitioning entity, thus failing to establish 
that the beneficiary would be employed in a qualifYing managerial or executive capacity in her proposed 
pos1t10n. Second, the AA9 concluded that the petiti9ner failed to provide evidence showing that the 
petitioner met the initial filing requirement specified at 8 C.F.R. § 204.5(j)(3)(i)(D), which requires the 
petitioner to establish that it had been doing business for at least one year prior to filing the Form 1-140. And 
third,. the AAO found that the petitioner failed to provide evidence of its continued business activity abroad, 
thus precluding an affirmative finding that the petitioner continues to fit the .definition of a multinational 
organization. 
,. 
On motion to reopen, counsel attempts to overcome the grounds for the AAO's decision, offering a 
supplemental brief which contains an additional percentage breakdown pertaining to the beneficiary's 
employment with the foreign entity. as well as job descriptions of the beneficiary!s direct subordinates. 
Counsel also contends that the foreign entity continues to do ~usiness and that the petitioner had been doing 
business for the requisite one-year period prior to filing the Form 1-140. Counsel offers non-binding and non­
precedent decisions in support of her assertions and asks the AAO to: consider the following documents as 
new evidence: 
1. Copies ofthe foreign entity's and the petitioner's previously submitted organizational charts. 
2. Foreign documents pertaining to the educational credentials of the foreign entity's and the 
petitioner' s employees. 
3. The petitioner's 2009 and 2010 tax returns as well as the petitioner's quarterly sales and use tax 
history tor all four quarters in 2011. 
4. Photocopied images of what appear to be the exterior and interior of the petitioner's business 
. . . . . 
premises. 
5. The petitioner's busir:tess lease commencing on June 18, 2011. 
6. The. petitioner's fictitious name renewal document showing that it commenced using the name 
on July 23, 2003. 
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7. The petitioner's bank statements from July throughDece'mber 2011. 
8. The foreign entity's tax assessment document for the 2011-2012 tax year. 
9. A statement dated September 23, 2009 from the foreign entity's CEO attesting to the 
beneficiary's employment abroad from 1997 through May 2002. The statement included a 
general discussion of the beneficiary's overseas employment. 
' I 0. Foreign documents pertaining to the beneficiary's education. · 
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.• 
In the instant matter, the only documents submitted to support counsel's motion that can be deemed as truly 
unavailable are documents that had not yet been created when the petition was filed. Such doc~ments include 
the petitioner's tax returns, bank statements, and business lease as well as the foreign entity's tax 
assessment. 
However, a petitioner must establish eligibility at the time of filing; 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. 45, 49 (Comm. 1971). Therefore, the petitioner's focus on facts and/or circumstances that had not 
materialized until after the filing of the petition are irrelevant in the instant proceeding and will not be 
considered in determining the petitioner's eligibility.' The AAO further notes that the petitioner's submission 
of documents that had been previously submitted on appeal (Nos. 1 and 9) also fails to qualify as previously 
unavailable documents. In fact, the documents that had been submitted previously on appeal were considered 
by the AAO prior to issuing its decision. Such documents were found insufficient to meet the regulatory 
requirements and will not be considered for 
a second time on motion. 
The remainder of the. documents, including photographs of the interior and exterior of the petitioner's 
business premises, the fictitious name renewal document, and the foreign documents that pertain to the 
beneficiary's educational credentials, were previously available and thus could have been submitted prior to 
the petitioner' s motion. 
In light of the above, the petitioner's motion to reopen 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. 
Additionally, the AAO notes that even if the petitioner had provided sufficient documents to meet the 
requirements pf a motion to reopen, the petitioner's submission of its 2010 corporate tax return has brought to . . ' 
1 The word "new" is defined as "l. 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). 
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light new infonnation, 'Vhich indicates that the petitioner's ownership breakdown has been altered such that it 
no longer has a qualifYing relationship with the beneficiary's foreign employer. Namely, Schedule K-1 of the 
petitioner's 2010 corporate tax return, which lists the filing entity's shareholders and the percentage of shares 
held, indicated the following share distribution for the petitioner: 30% shares allocated to 
20% shares allocated to , and another 20% shares allocated to The tax return 
did not indicate how the.remaining'30% ofthe petitioner's shares were distributed. 
. . 
The share distribution s~own in the 20 I 0 tax return is significantly different from the distribution scheme that 
was originally claimed by the petitioner and as shown in the petitioner's 2009 tax return, which indicated that 
· each owned an .equal 50% ,of the petitioner's s.tock. As. the petitioner originally 
claimed, and was able to document, that it has an affiliate ·relationship with the beneficiary's foreign employer 
by virtue of both companies being equally owned by the alteration of this 
ownership scheme within the petitioning entity, as shown in the petitioner's 2010 tax return, indicates that the 
two entities are no· longer similarly owned and controlled." · Rather than being owned by only two 
individuals:- -who contiimed to share equal ownership of the foreign entity, 
these individu~ls now have a.combined 40% interest in the petitioning entity, which is now shown to have at 
least three owners, none of whom has majority ownership. 
The regulation ~d case law confinn that ownership and control are the factors that must be examined in 
detennining whether a qualifYing relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter ofChurc}:z Scientology International, 19 J&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N [)ec. 362 (Assoc:Comm. 1986); Matter of Hughes, 18 I&N 
pee. 289 (Comm. 1982). In ·the context of this visa petition, ownership refers to the direct or indirect legal 
right of possession of the assets of an entity with full power and authority to control; control means the direct 
or indirect legal right and authority to direct the establishment, management, and operations of an entity. 
Matter of Church Scientology International, 19 I&N Dec. at 595. 
In the present matter, the petitioner has provided evidence, which establishes that the beneficiary's foreign 
and U.S. employers are no longer similarly owned and controlled and that the qualifying relationship that the 
two einities once shared.has beeri severed due to the petitioner's recent change in ownership. Although the 
AAO recognizes that the changes in the petitioner's ownership occurred after the petition was filed, the 
petitioner's burden to establish and maintain eligibility is not discharged until the immigrant visa is issued. 
Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). Therefore, the petitioner's 
new ownership scheme, while not in place at the time of filing, indicates that the qualifYing relationship that 
existed at the time of filing no longer exists. Therefore, in addition to the grounds for denial that were cited 
previously in the AAO's decision, the petitioner is also ineligible based on its lack of a qt.JalifYing 
relationship. 
As previously stated in the AAO's decision, an application or petition that fails to comply with the technical 
requirements of the law may be denied by the AAO even if the Service Center does not identifY all of the 
grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 
1025, 1043 (E.D. CaL 2001), afj'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004)(noting that the AAO reviews ap~als on a de novo basis). Therefore, based on the additional 
ground of ineligibility, the appeal .was properly dismissed and the Fonn 1-140 was properly denied. 
(b)(6)
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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 CF.R. 
§ 1 OJ.5(a)(l )(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$C. § 1361. Here, the petitioner has not sustained that burden. 
ORDER: · The motion is dismissed.