dismissed EB-1C Case: Business Management

(b)(6)
't ' \' 
DATE: 
INRE: 
MAR 2 1 2013 . 
Petitioner: . 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
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 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 in your case. All of the documents 
relate.d 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 was inappropriately applied by us in reaching our 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 l-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 of the decision that the motion seeks to reconsider or reopen. 
: <:k~ ~y,ou, . . .. · ~ · 
.·r · .J>'.~ . ·" Ron R · nber · · 
Acting '· ief, dministrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
petitioner filed a motion to reconsider with the Texas Service Center where the motion was dismissed. The 
matter is now before the Administrative 
Office Appeals (AAO) on appeal. The appeal will. be dismissed. 
I 
The petitioner is a corporation that seeks to employ the beneficiary as its president. 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. 
In the original decision dated February 28, 2012, the director denied the petition concluding that the petitioner 
failed to establish that the beneficiary was employed abroad and that he would be employed in the United 
States in a qualifying managerial or executive capacity. 
The petitioner subsequently filed a motion to reconsider. The motion was supported by a brief from wunscl, 
who sought to address deficiencies that the director previously noted in the denial. 
The director dismissed the motion concluding that the petitioner did not meet the requirements for a motion to 
reconsider, which requires the petitioner to establish that the prior decision was erroneous based on the 
evidence that existed at the time the decision was issued. The director rejected counsel's attempt to clarify 
certain points made with regard to evidence that had been previously submitted. 
On appeal, counsel submits a brief in which he refers to the director's original decision where the petition was 
denied. Counsel asserts that the original denial was deficient and failed to consider certain evidence .. 
As a preliminary matter, the AAO notes that while matters on appeal are reviewed on a de novo basis, the 
subject matter for review will be limited to those issues that were addressed in the prior adverse decision. In 
this matter, the director's June 26, 2012 decision, which the petitioner .now seeks to appeal, addressed the 
petitioner's motion to reconsider, explaining that the motion was being dismissed based on the finding that 
the petitioner did not meet the regulatory requirements for the motion to reconsider. Therefore, the AAO's 
key task on appeal is to conduct a de novo review of the record to determine whether the director properly 
dismissed the petitioner's motion. 
) 
( 
If counsel's goal was to clarify evidence previous'y submitted and/or to address the director's. adverse 
findings in an attempt to overcome the grounds for denial, then Counsel should be advised that the appropriate 
course of action would have been to file an appeal in response to the decision dated February 28, 2012. When 
the petitioner chooses to first file a motion with the service center, the AAO's appellate review will he limited 
to the subject matter of the decision being appealed. Here, the petitioner did not appeal the February 28, 2012 
decision in which the director discussed the grounds for denying the petition. Instead, the petitioner filed an 
appeal in response to the director's June 26, 2012 decision, where the director's discussion was limited to 
addressing the requirements of a motion to reconsider and explaining how the petitioner failed to meet those 
requirements. 
The regulation at 8 C.F.R. § 103.5{a)(3) 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 
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Page 3 
application of law 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 evidenc~ 
of record at the time of the initial decision. 
In the present matter, co~nsel s~bmits a supporting brief indicating his intention to clarify the dat~s of the 
beneficiary's employment abroad. Counsel claims that the time period of'the beneficiary's employment was 
not apparent at the time of the director's prior review of the record. Counsel also asserts that the dir~ctor was 
wrong to adversely find that the petitioner failed to submit a detailed description of the beneficiary's specific 
job duties with the foreign entity given that the request for evidence (RFE) did not expressly instruct the 
petitioner to provide such information. 
Considering counsel's assertions in light of the requirements for a motion to reconsider, the AAO ~nds that 
the motion was properly dismissed. Despite counsel's desire to clarify information that was previously 
submitted, a motion to reconsider requires the petitioner to establish an error on the part of the individual who 
issued the decision. The very fact that counsel finds the need to clarify information that was previously 
presented suggests that the director's interpretation was reasonable based on the facts he had before him at the 
time of making the decision to deny the petition~ ·Providing further evidence to clarify information that was 
previously submitted is best done by appealing the decision, which thereby allows the AAO to c~mduct a 
comprehensive review of the record and to consider all of the petitioner's submissions anew. Evidence that is 
permitted for submission in support of a motion to reconsider is limited pursuant to the regulatory provisions 
expressly discussed at 8 C.F.R. § 103.5(a)(3). ' 
Additionally, counsel's objection to an incomplete RFE also fails to meet the requirements of a motion to 
reconsider, as the director is empowered with the discretionary authority to determine whether an RFE is to be 
issued. See 8 C.F.R. §§ 103.2(b)(8)(ii) and (iii). To clarify, the director can choose to deny a petition without 
ever issuing an RFE or a notice of intent to deny. Contrary to counsel's understanding, there is no 
requirement that a denial may only be based on issues that were specifically addressed in an RFE. As such, 
the director may make an adverse finding regarding the petitioner's failure to submit certain supporting 
evidence even when such evidence was not e·xpressly requested in the RFE. 
Applying the above rational to the matter at hand, the petitioner is required to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity. Regardless of whether the RFE 
instructed the petitioner to provide more detailed information about the beneficiary's job duties ab~oad, the 
petitioner is still required to meet certain statutory and regulatory requirements . Here, the director determined 
that he could not conclude that the beneficiary was employed abroad in a qualifying capacity bedause the 
record lacked sufficient information about .the job duties the beneficiary performed. The petitioner is not 
relieved from the burden of having to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity just because the director did not ask the petitioner to provide additional 
information pertaining to the beneficiary's specific job duties. It follows, therefore, that the direct9r is not 
precluded from issuing an adverse conclusion based on the finding that the record lacked sufficient 
information about the beneficiary's position abroad . 
While it appears that counsel is looking to the AAO to determine whether the findings in the director 's 
original decision were correct, the AAO is not permitted to review those issues on appeal in this matter. As 
noted above, the AAO's review is limited to the subject matter that was addressed in the decision that is 
currently being appealed. Here, the June ?6, 2012 decision that is being appealed deals only with the 
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Page 4 
petitioner's motion to reConsider. Therefore, the AAO's foremost concern is to determine wh~thcr the 
director was correct in his conclusion that the petitioner failed to meet the requirements for a motion to 
reconsider. 
Turning to the assertions put for in the appellate brief, it is clear that counsel aims to revisit issues that were 
· addressed in the director's original denial. Counsel does not address the requirements of the motion to 
reconsider and thus fails to establish that the director erred in concluding that the petitioner failed to meet the 
requirements of the motion. ' 
\ 
Furthermore, after having reviewed counsel's brief in support of the motion the AAO finds that co~nsel did 
not cite any pertinent precedent decisions that establish that the, director's decision was based on an incorrect 
application of law or Service policy. Counsel also failed to establish that the director's decision was incorrect 
based on the evidence the director had available to him at the time of the initial decision. Therefore, the AAO 
finds that the petitioner failed to meet the requirements of a motion to reconsider and the motion was :proper) y 
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. . ; 
I 
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 appeal is dismissed.