dismissed EB-1C Case: Business Management

(b)(6)
DATE: OCT 0 4 2013 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner : 
Benefici ary: 
U.S . .Department of Homeland Security 
U.S. Citizenship and Immigratio n Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE : 
PETITION: Immigr ant 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. § ll53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administr ative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new construction s of law nor establish agency 
policy through non-prece dent decisions. If you believe the AAO incorrectly app lied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider 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-Ron Rosenberg 
Chief, Administrativ e 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 Administrative Appeals Office (AAO), which dismissed the appeal. The 
matter came before the AAO on two subsequent motions to reopen, both of which the AAO dismissed. The 
matter is now before the AAO on a motion to reopen and reconsider. 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 Immigration and Nationality Act (the Act), 8 U.S.C. § ll53(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 abroad in a managerial or executive capacity. 
The petitioner filed an appeal disputing the denial. The AAO dismissed the appeal , affirming the director 's 
finding, and added the following three findings beyond the director's decision: (1) the petitioner failed to 
establish that the beneficiary would be employed in a qualifying managerial or executive capacity in her 
proposed position with the U.S. entity; (2) the petitioner failed to establish that it had been doing business for 
at least one year prior to filing the Form I-140; and (3) the petitioner failed to establish that the foreign entity 
continued to do business abroad, thus precluding an affirmative finding that the petitioner continues to be a 
"multinational" organization. 
The petitioner proceeded to file to successive motions - the first in response to the dismissal of the appeal and 
the second in response to the dismissal of the first motion -each suppmted by an identical supplemental brief 
and nearly identical supporting document. Both briefs included job descriptions of the beneficiary's direct 
subordinates as well as an additional percentage breakdown that pertained to the beneficiary's employment 
with the foreign entity. Counsel also contended that the foreign entity continues to do business and that the 
petitioner had been doing business for the requisite one-year period prior to filing the Form I-140. Counsel 
offered non-binding and non-precedent decisions in support of her assertions and asked the AAO to consider 
the following documents as new evidence: 
1. Copies of the 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 qua1terly sales and 
use tax history for 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 business 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. 
7. The petitioner's bank statements from July through December 2011. 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
8. The foreign entity's tax assessment document for the 2011-20 12 tax year. 
9. A statement dated September 23, 2009 from the foreign entity's CEO attesting to the 
benefi ciary's employment abroad from 1997 through May 2002. The statement includ ed 
a general discus sion of the beneficiary 's overseas employment. 
10. Foreign document s pertaining to the beneficiary's education. 
The regulations at 8 C.F.R. § l03 .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 .1 
In the decision that pertained to the second motion, the AAO pointed out that it had previously addressed the 
petitioner's submissions and brief in the decision pertaining to the first motion. The AAO concluded that 
only the petitioner' s tax return s, bank statements, and business lease and the foreign entity's tax assessment 
could be deemed as truly unavailable. However, the AAO rejected these previously unavailable documents 
based on case law precedent, which determined that the petitioner must establish eligibility based on facts and 
circumstances that existed at the time of filing, not based on a new set of facts that came about after the 
petition was filed . See Matter of Katigbak , 14 I&N Dec . 45, 49 (Comm . 1971) . In both of its prior decisions 
the AAO properly declined to consider facts and/or circumstances that had not materialized until after the 
filing of the petition, finding such documents to be irrelevant to the question of whether the petitioner had 
established its eligibility at the time of filing . The AAO further found that several of the document s that had 
been previously submitted on appeal (Nos. 1 and 9) also do not qualify as previously unavailable documents . 
The AAO pointed out that such documents were considered when they were originally submitted on appeal. 
With regard to the remainder of the documents, including photographs of the interior and exterior of the 
petitioner 's business premi ses, the fictitious name renewal document , and the forei gn documents that pettain 
to the beneficiary' s educational credentials, the AAO concluded that such documents were previously 
available and thus could have been submitted prior to the petitioner's first motion. 
On current motion , which was filed by a different attorney from the same firm, counsel offers the same brief 
and supporting documents for a third time, despite the fact that the AAO dismi ssed the petitioner's two 
previously filed motions based on the conclusion that neither the brief nor the supporting documents were 
sufficient to meet the requirements for a motion to reopen. 
In light of the above, the petitioner 's motion to reopen will be dismissed . 
1 The word "new" is defined as "1. having existed or been made for only a shoti time . .. 3. Just discovered, 
found , or learned <new evidence> .. .. " WEBSTER'S NEW COLLEGE DICfiONARY 753 (3rd Ed., 2008) (emphasis 
in original). 
(b)(6) NON-PRECEDENT DECISION 
Page4 
Notwithstanding the identical contents of the supporting evidence, the petitioner's cunent counsel marked 
Part 2 of the instant Form I-290B to indicate that the instant filing is a combined motion to reopen and 
reconsider. Therefore, the AAO will now consider the petitioner's submissions under 8 C.F.R. § 103.5(a)(3), 
which states the criteria for a motion to reconsider. 
A motion to reconsider must state the reasons for reconsideration and be suppot1ed by any pertinent precedent 
decisions to establish that the decision was based on an inconect application of law or U.S. Citizenship and 
Immigration (USCIS) policy. 8 C.F.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). Further, a motion to reconsider is not a process by which a pat1y may submit, 
in essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the prior 
decision. !d. Instead, the moving party must specify the factual and legal issues raised on appeal that were 
decided in enor or overlooked in the initial decision or must show how a change in law materially affects the 
prior decision. !d. at 60. 
In the present matter, the petitioner has presented a brief and supporting evidence that are virtually identical in 
content to the petitioner's prior submissions, which had been considered and addressed when origi nail y 
submitted. Even though the petitioner is represented by different counsel, the current motion offers no new 
arguments or in any way addresses or acknowledges the AAO's prior adverse findings, including the adverse 
finding issued in the latest decision dated July 23, 2013, where the AAO discussed the petitioner's change in 
ownership, concluding that the redistribution of the petitioner's stock significantly altered the ownership 
scheme such that the petitioner and its former foreign affiliate can no longer be deemed as having similar 
ownership and control-the two elements that are crucial in order for the petitioner and the foreign entity to 
be deemed as having a qualifying relationship. See Matter of Church Scientology International, 19 I&N Dec. 
593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Assoc. Comm. 1986); 
Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
In light of the above adverse findings, the instant motion 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. 
(b)(6) NON-PRECEDENT DECISION 
Page 5 
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 depa1ture date. 8 C.P.R. 
§ 103.5(a)(l)(iv). 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C . § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, the petitioner has not sustained that burden. 
ORDER: The motion is dismissed.