dismissed EB-1C Case: Business Management

DATE: DEC 1 9 2012 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Oftice (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)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § I I 53(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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 originaIly 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 I-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. § 103.5(a)(1 )(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, 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 reconsider. The motion will be 
dismissed and the director's and the AAO's decisions will be undisturbed. 
The petitioner is a Texas 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)(l)(C) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1153(b)(I)(C), as a multinational executive or manager. 
The director denied the petition on January 25, 2008, concluding that: (I) 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 the beneficiary was employed 
abroad in a qualifYing managerial or executive capacity. 
The petitioner subsequently filed an appeal which the AAO dismissed on December I, 2008, 
affirming the director's original findings. 
On July 22, 2011, the AAO dismissed the motion to reopen and reconsider pursuant to 8 C.F.R. § 
I 03.5(a)(4), which states, in pertinent part, that a motion that does not meet applicable requirements 
shall be dismissed. 
On August 24, 2011, the petitioner filed Form I-290B, Notice of Appeal or Motion, and states that 
he is filing a motion to reconsider, and a brief from counsel is attached. 
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 party feels may overcome 
the grounds for the underlying adverse decision. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). However, the AAO's review of a motion to reopen or a motion to reconsider is limited to 
evidence that falls within the specific criteria discussed at 8 C.F.R. § 103.5(a)(2) and 8 C.F.R. § 
103.5(a)(3), respectively. Submitting evidence that does not fit the regulatory criteria specified at 8 
C.F.R. § 103.5(a)(2) or 8 C.F.R. § 103.5(a)(3), depending on the type of motion the petitioner has 
filed, will not suffice even if such evidence may have overcome the grounds for denial if it have 
been submitted on appeal. 
Counsel's assertions do not satisfY the requirements of a motion to reconsider. 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 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 evidence of record at the time of the initial decision. 
Page 3 
On motion, counsel contends that the "Petitioner and Beneficiary were not outside of legal bounds 
in presenting new evidence in the appeal process before the AAO." Upon review of the AAO's 
decisions, at no time did the AAO state that the petitioner or the beneficiary were "outside of legal 
bounds" when presenting new evidence on appeal. Instead, the AAO stated in the appeal decision 
that the organizational chart submitted in response to the request for evidence indicated new 
employees that were not employed at the time the 1-140 petition was filed. As stated by the AAO, 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'r 1971). 
Counsel also states that "at this time the Petitioner would like in good faith to resolve the 
Beneficiary's classification with a quality decision from the Service (one that does not confuse the 
facts and legal explanations of the Petitioner)." Upon review of the denial and the AAO's 
decisions, both the Director and AAO provided detailed statements of the grounds for denial and 
dismissal and cited to the specific provisions of the regulations as a basis for the decisions. 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. Both the director and the AAO's 
decisions have clearly outlined the missing information or inconsistent information and 
documentation, and explained that the record has insufficient evidence to establish eligibility for the 
benefit sought. 
Counsel also suggests that USCIS may have ignored the fact that an executive or manager can 
oversee both a function and personnel. Upon review of the AAO's dismissal of the appeal, the 
AAO clearly outlined the reasons why the evidence was insufficient to establish that the beneficiary 
will perform in a managerial or an executive capacity or as a function manager. The AAO's 
decision discusses all three issues and still found that the petitioner did not provide sufficient 
evidence to establish that the beneficiary was employed abroad and would be employed with the 
petitioner in a qualifYing managerial or executive capacity. The AAO provided a detailed statement 
of the grounds for denial and dismissal and cited to the specific provisions of the regulations as a 
basis for the decisions. As previously discussed, the petitioner has not met its burden of proof and 
the denial was the proper result under the regulation. 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 (BIA 1966). The petitioner must prove by a 
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of 
Martinez, 21 I&N Dec. \035, \036 (BIA 1997); Matter of E-M-, 20 I&N Dec. 77,79-80 (Comm. 
1989); Matter of'Soo 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 jruth is to be determined not by the 
quantity of evidence alone but by its quality." Id. Thus, in adjudicating the application pursuant to 
the preponderance of the evidence standard, the director must examine each piece of evidence for 
Page 4 
relevance, probative value, and credibility, both individually and within the context of the totality of 
the evidence, to detennine 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 Us. 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. 
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 1-140 
immigrant petition. 
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 (1992)(citing INS v. Abudu, 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. 
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 reconsidered, and the previous decisions of the 
director and the AAO will not be disturbed. 
ORDER: The motion will be dismissed. The director's and AAO's decisions will be undisturbed. 
The petition is denied.