dismissed EB-1C Case: Business Management

(b)(6)
DATE: AUG 1 3 2013 
INRE: Petitioner : 
Beneficiary: 
U.S. Department of Homeland Securit y 
U. S. Citizenship and Immi gration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER FILE: 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-pr ecedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsid er or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
j on Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Admini strative Appeals Office (AAO). The appeal was dismissed and 
the matter is now before the AAO on motion to reopen and reconsider. The petitioner' s motion to reconsider 
will be dismi ssed due to the petitioner 's failure to meet the regulatory requirements stated at 8 C.F.R. 
§ 103.5(a)(3). The motion to reopen will be granted and the new information will be considered in a 
discussion below. However, the underlying decision dismissing the appeal will be affirmed. 
The petitioner is a California corporation that seeks to employ the beneficiary in the United States as its chief 
executive officer. 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)(l)(C), as a multinational executive or manager. 
On September 21, 2012, the director denied the petition, concluding that the petitioner failed to establish that 
the beneficiary was employed abroad or that he would be employed with the U.S. entity in a qualifying 
managerial or executive capacity. The director observed that the petitioner failed to establish that the 
beneficiary's subordinates in his position with the foreign entity were supervisory, professional, or managerial 
employees , as there was no evidence that either subordinate obtained a baccalaureate degree . With regard to 
the beneficiary's proposed employment, the director determined that the petitioner lacked sufficient staffing at 
the time of filing such that it was able to relieve the beneficiary from having to allocate his time primarily to 
non-qualifying tasks. 
On appeal, the petitioner ' s prior counsel contended that the director placed undue focus on whether the 
beneficiary's subordinates were professional and failed to consider the supervisory nature of the subordinates' 
positions. Counsel also asserted that the beneficiary assumed the role of a function manager in his position 
with the foreign entity, claiming that the job description previously submitted contained sufficient information 
to support a finding contrary to the one issued by the director. Lastly, counsel disagreed with the director 's 
adverse finding concerning the beneficiary's proposed U.S. position, contending that the beneficiary allocates 
his time primarily to executive functions. 
On May 7, 2013, the AAO issued a decision dismissing the petitioner's appeal based on the conclu sion that 
the petitioner failed to establish that has been and would be employed in a managerial or executive position 
requiring him to perform primarily qualifying duties. The AAO took numerous factors into consideration 
when making its decision, including the beneficiary's job descriptions pertaining to his foreign and U.S. 
employment , the beneficiary's subordinate s at his employment oversea s, and the petitioner's organi zational 
hierarchy at the time of and subsequent to the filing of the instant petition . The record shows that a 
comb ination of factors, rather than one individual factor, contributed to the AAO's overall finding with regard 
to the beneficiary ' s employment capacity abroad and with the U.S. entity . 
On motion, the petitioner's current counsel provides a brief in which he reiterates prior counsel's assertions , 
claims that the beneficiary 's role in his position abroad was that of function manager, and points out that the 
AAO's analysis only determined that 29% of the beneficiary's time was allocated to the performance of non­
qualifying tasks thus indicating that the remaining 71% of his time was spent performing tasks within a 
qualifying managerial or executive capacity. Counsel also disputes the AAO's adverse findings concerning 
the beneficiary's proposed position with the U.S. entity. Counsel asserts that the beneficiary 's managerial 
subordinates would relieve the beneficiary from having to perform non-qualifying tasks and asks the AAO to 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
consider 2012 tax returns for the petitioner's two 
contract workers whose salaries were not accounted for in 
the petitioner's previou sly provided quarterly wage reports. 
First, turning to the requirements for a motion to reconsider, the petitiOner must state the reasons for 
reconsideration and support those reasons with any pertinent precedent decisions to establish that the prior 
deci sion was based on an incorrect application of law or U.S. Citizenship and Immigration (USCIS) policy . 
8 C.P.R. § 103.5(a)(3). A motion to reconsider contests the correctness of the original decision based on the 
previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new or 
previously unavailable evidence . See Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in the 
proceedings . See Matter of Medrano, 20 I&N Dec . 216, 220 (BIA 1990, 1991). Rather, the "additional legal 
arguments" that may be raised in a motion to reconsider should flow from new law or a de novo legal 
determination reached in its decision that could not have been addressed by the party. Matter of 0-S-G-, 24 
I&N Dec. 56, 58 (BIA 2006). The moving party must specify the factual and legal issues raised on appeal 
that were decided in error or overlooked in the initial decision or must show how a change in law mat~rially 
affects the prior decision. /d. at 60. 
In this case, counsel chose to reassert the claim that the beneficiary assumed the role of a function manager in 
his foreign employment. It is noted that the term "function manager" applies generally when a beneficiary 
does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
an "essential function" within an organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
§ 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must furnish a written job offer that clearly describes the duties to be performed in managing the 
essential function, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establi sh the proportion of the beneficiary' s daily duties attributed to managing the essential function. See 8 
C.P.R. § 204 .5U)(5). In addition, the petitioner's description of the beneficiary's daily duties ·must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
In this instance, the petitioner provided two different breakdowns of the beneficiary's duties, neither of which 
articulated how the beneficiary allocated the majority of his time to petforming managerial duties or 
managing an essential function. Further, the evidence reflected that the beneficiary's two subordinates within 
the department were responsible for sourcing products and routine sales tasks; however, it was not shown 
how they would relieve him from performing the majority of the non-qualifying duties associated with the 
sales promotion and marketing functions he was claimed to manage . Most importantly, coun sel failed to 
support the motion with any precedent decisions or other comparable evidence to establish that the decision 
was based on an incorrect application of law or USCIS policy. Therefore, the motion to reconsider will be 
dismi ssed in accordance with 8 
C.P.R. § 103.5(a)(4), which states, in pertinent part, that a motion that does 
not meet applicable requirements shall be dismissed. 
Notwithstanding the AAO's dismissal of the petitioner's motion to reconsider , the motion to reopen will be 
granted for the purpose of considering newly submitted and previously unavailable IRS Form W-2 and 1099-
MISC statements for 2012. Counsel submits these documents in an effort to establish that the petitioner had 
six in-house employees and two independent contractors as part of its organizational structure at the time of 
filing. Counsel also seeks to address an inconsistency that was reflected in the record between the petitioner 's 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
second qumterly wage report, which showed a total of six employees, and the petitioner's organizational 
chart , which listed a total of twelve positions. 
The newly submitted evidence is not sufficient to overcome the AAO ' s prior adverse findings. First, the very 
number of tax documents - eight Form W-2 statements and two Form 1099-MISC statements - is still 
inconsistent with an organizational chart depicting twelve positions. Second, of the eight 2012 Form W-2s, 
only two showed salaries that were commensurate with those of full-time employees who were likely to have 
worked for the petitioner during all of 2012. The remaining six Form W-2s showed salaries that were either 
not commensurate with those of full-time employees or were indicative of employees who only worked for 
the petitioner for a fraction of 2012 and may not have been employed by the petitioner at the time the Form 1-
140 was filed . A review of the two 2012 Form 1099-MISC statements of miscellaneous income indicates that 
one individual was compensated $3010 while the other was compensated $1208. Based on the wages the 
petitioner paid these two individuals in 2012 it is unclear that either was employed by the petitioner at the 
time the petition was filed. 
In light of the above observations, the petitioner's new evidence does not resolve the inconsistency between 
the petitioner's organizational chart and second quarterly wage report for 2012, nor does it corroborate that 
the petitioner in fact had seven employees at the time of filing . While the evidence indicates that throughout 
2012 the petitioner paid wages to eight employees and two contract workers, the wage information is 
insufficient to establish precisely when the employees and contract workers provided services to the 
petitioner. Thus the petitioner has not established that it had the staffing necessary to relieve the beneficiary 
from having to allocate his time primarily to the performance of non-qualifying tasks as previously 
determined in the AAO's May 7, 2013 decision. See section 101(a)(44)(A) and (B) of the Act. 
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 .