dismissed EB-1C Case: Business Management

DATE: OCT 0 4 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
lJ. S. Citizenship and Irrnnigration Services 
Administmtivc Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529~2090 
u.s. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
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. § I I 53(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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fee of $630. The specific 
requirements for filing such a motion 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. § I03.5(a){l)(i) requires any motion to be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen. 
Thank you, 
p rryRhew 
hief, Administrative Appeals Office 
www.uscis.gov 
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), where the appeal was 
dismissed. The petitioner subsequently filed a motion to reopen with AAO, which was dismissed. The 
matter is now before the AAO on a motion to reopen and reconsider. The motion will be dismissed and 
the director's and the AAO's decisions will be undisturbed. 
The petitioner is a Florida limited liability company that seeks to employ the beneficiary as its general 
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. 
§ 1153(b)(1 )(C), as a multinational executive or manager. 
The director denied the petition on April 25, 2008, concluding that: (1) the petitioner failed to establish 
that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity, and (2) the petitioner failed to establish that it has a qualifying relationship with the foreign 
entity that employed the beneficiary abroad. 
The petitioner subsequently filed an appeal which the AAO dismissed, affirming the director's original 
fmdings. Additionally, the AAO found that the petitioner failed to show that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity per 8 C.F.R. § 204.5(j)(3)(i)(B). 
On December 13, 2010, the AAO dismissed the motion to reopen pursuant to 8 CFR § 103.5(a)(4), 
which states, in pertinent part, that a motion that does not meet applicable requirements shall be 
dismissed. 
On January 18, 2011, the petitioner filed Form I-290B and states that it is filing a motion to reopen and a 
motion to reconsider. Counsel requests that the AAO reopen this proceeding and grant the petitioner a 
period of 30 days to present additional evidence in support of the petition, because ofthe "very negative 
economic environment." Counsel's assertions do not satisfy the requirements of either a motion to 
reopen or a motion to reconsider. 
As a preliminary matter, the AAO notes that while an appeal and a motion are both remedial actions, the 
legal purpose of an appeal is entirely distinct from that of a motion to reopen/reconsider. The AAO 
reviews appeals on a de novo basis, allowing the petitioner to supplement the record with any evidence 
or documentation that the filing part feels may overcome the grounds for the underlying adverse 
decision. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO's review of a motion to 
reopen or a motion to reconsider is limited to evidence that fits the specific criteria discussed at 8 C.F.R. 
§ 103.5(a)(2) and 8 C.F.R. § 103.5(a)(3), respectively. The regulation at 8 C.F.R. § 103.5(a)(2) states, in 
pertinent part: "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. I 
I The word "new" is dermed as "1. 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). 
Page 3 
On motion, counsel for the petitioner states that the petitioner "will provide additional evidence" if the case 
is reopened, but does not provide any of that evidence in the instant motion. A review of the evidence that 
the petitioner submits on motion reveals no fact that could be considered new under 8 C.P.R § 103.5(a)(2). 
The evidence submitted was either previously available and could have been discovered or presented in the 
previous proceeding, or it post -dates the petition. 
In addition, the motion does not satisfY the requirements of a motion to reconsider. 8 C.P.R § 103.5(a)(2) 
states, 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 oflaw or Service 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. 
On motion, counsel does not submit any document that would meet the requirements of a motion to 
reconsider. A review of the record and the adverse decision indicates that the director and the AAO 
properly applied the statute and regulations to the petitioner's case. The petitioner's primary complaint is 
that the director denied the petition. The petitioner insists that it provided sufficient documentation and 
that the petitioner's business is important. However, both the director and the AAO's decisions have 
clearly outlined the missing information and documentation that the petitioner failed to submit. As 
previously discussed, the petitioner has not met its burden ofproof and the denial was the proper result 
under the regulations. Accordingly, the petitioner's claim is without merit. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
See Matter of Brantigan, II I&N Dec. 493 (BrA 1966). The petitioner must prove by a preponderance 
of the evidence that the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 21 I&N 
Dec. 1035, 1036 (BrA 1997); Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989); Matter of Sao 
Hoo, II I&N Dec. 151 (BIA 1965). 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's 
claim is "probably true," where the determination of "truth" is made based on the factual circumstances 
of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the 
evidence, Matter of E-M- also stated that "[t]ruth is to be determined not by the quantity of evidence 
alone but by its quality." [d. Thus, in adjudicating the application pursuant to the preponderance of the 
evidence standard, the director must examine each piece of evidence for relevance, probative value, and 
credibility, both individually and within the context of the totality of the evidence, to determine whether 
the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and 
credible evidence that leads the director to believe that the claim is "probably true" or "more likely than 
not," the applicant or petitioner has satisfied the standard of proof See u.s. v. Cardozo-Fonseca, 480 
U.S. 421 (1987) (defining "more likely than not" as a greater than 50 percent probability of something 
occurring). If the director can articulate a material doubt, it is appropriate for the director to either 
request additional evidence or, if that doubt leads the director to believe that the claim is probably not 
true, deny the application or petition. 
• 
-Page 4 
Here, the submitted evidence does not meet the preponderance of the evidence standard. As noted in the 
director's decision and the AAO's decisions, the petitioner did not provide sufficient evidence to 
establish that the petitioner meets the regulatory requirements to establish eligibility for the benefit 
sought. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are petitions 
for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 
U.S. 314,323 (1 992)(citing INS v. Abudl!, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding 
bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met 
that burden. 
Finally, the AAO acknowledges counsel's claim that USCIS has previously approved L-IA petitions 
filed by the petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant 
petitions are denied after uscrs approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 
2d 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103. Examining the consequences of an approved 
petition, there is a significant difference between a nonimmigrant L-IA visa classification, which allows 
an alien to enter the United States temporarily, and an immigrant E-13 visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for 
naturalization as a United States citizen. Cf §§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see 
also § 316 ofthe Act, 8 U.S.C. § 1427. Because USCIS spends less time reviewing 1-129 nonimmigrant 
petitions than 1-140 immigrant petitions, some nonimmigrant L-l A petitions are simply approved in 
error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. § 2l4.2(1)(14)(i) 
(requiring no supporting documentation to file a petition to extend an L-IA petition's validity). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. 1361. The petitioner has not sustained that burden. 8 CFR § 103.5(a)(4) states that "[a] motion 
that does not meet applicable requirements shall be dismissed." Accordingly, the motion will be 
dismissed, the proceedings will not be reopened or reconsidered, and the previous decisions of the 
director and the AA 0 will not be disturbed. 
ORDER: The motion is dismissed.