dismissed EB-1C Case: Business Management

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DATE: APR 0 ·1 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service~ 
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 Multin·ational 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 
related to this matter have been returned to the office that originally decided your case . Rlease 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 t~ 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 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. § I 03.5(a)(l )(i) requires that any motioQ must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
www.uscis.gov 
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DISCUSSION: The preference visa petition was initially approved by the Director, Texas Service 
Center. Upon further review, a Notice of Intent to Revoke (NOIR) was issued and the approval of 
the petition. was ultimately revoked. The petitioner appealed the matter to the Administrative 
. Appeals Office (AAO). The appeal was dismissed. The matter is now before the AAO on motion to 
reopen andreconsider. The motion will be dismissed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary in the United States 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)(l)(C), as a multinational executive or manager. 
The director revoked the approval of the visa petition based on four independent grounds of 
ineligibility. Specifically, the director found the petitioner failed to establish: ( l) that the 
beneficiary's P,roposed employment with the U.S. entity would be in a qualifying managerial or 
executive capacity; (2) that the beneficiary's employment abroad was within a qualifying managerial 
or executive capacity; (3) the existence of a qualifying relationship with the foreign entity; and (4) 
· that the foreign company continues to operate as a business abroad. 
On appeal, the AAO found that the petitioner failed to provide sufficient evidence to overcome the 
director's decision on any of the four independent grounds. Consequently, the AAO affirmed the 
director's findings and dismissed the appeal. 
On June 29, 2012, the petitioner filed the instant motion to reopen and reconsider the AAO's 
dismissal of the petitioner's appeal. The petitioner's motion is comprised of counsel's brief and . a 
copy of an affidavit from that was executed in March 2010. 
' 
The regulations at 8 C.F.R. § 103.5(a)(2) state, iri 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 pf "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 .,. 
The regulations at 8 C.F.R. § 103.5(a)(3) includes the following provisions for a motion to 
reconsider: 
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 [USCIS] 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. 
Upon review, the petitioner's submission does not meet the requirements of a motion to reopen or a 
motion to reconsider. 
In support of this motion, counsel provides a copy of an affidavit notarized and attested to in March 
2010 which she claims offers proof to dispute one of the director's grounds for revocation, 
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specifically, the director's finding that the beneficiary's foreign employer continued to do business in 
India. This affidavit cannot .be considered new evidence. Further, even if counsel provided some 
explanation as to why this document was not or could not have been available previously, it is 
insufficient to overcome the director's finding on the issue to which it relates. In fact, according to 
the affidavit, the foreign entity closed its operations in 2008. In order to qualify as a multinational 
entity, the petitioner must establish that it and its affiliate or its subsidiary conducts business in two 
or more countries. The petitioner has not met the requiremel1ts for a motion to reopen. 
Moreover, counsel does not cite any legal precedent or applicable law that would indicate an error 
on the part of the AAO in dismissing the petitioner's appeal. Counsel complains of procedural 
issues including the lapse of time between the original petition approval and its ultimate revocation. 
She recounts the procedural history and the eligibility requirements for the requested immigrant visa 
classification, and she asserts that all necess~y documents for approval were submitted and included 
in the record. However, counsel's assertions primarily consist of objections to the service center's 
decision to issue a notice of intent to revoke, rather than any specific objections to the four 
independent grounds of ineligibility that were discussed at length in the AAO's decision dated May 
29, 2012, which is the decision for which the petitioner seeks reconsideration. Accordingly, 
counsel's assertions do not meet the 
requirements of a motion to reconsider. 
In light of the above deficiencies, the AAO finds that the petitioner has failed to meet the 
requirements for a motion to reconsider. Accordingly the motion to reopen and reconsider 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. 
The AAO notes that in support of the motion; counsel contends that "the Attomey General, through 
the Service has applied a higher standard while adjudicating the Petitioner's Company's case. II 
Counsel cites Jilin Pharmaceuticals USA, Inc. vs. Cherto.ff, 44 7 F. 3d 196 (3rd Cii·. 2006) in her brief, 
a case which incorporates a discussion of the "good and sufficient cause" language and the Attomey 
Gene.ral's (now USCIS) right or power to revoke a previously granted petition. 
According to Section 205 of the Act, 8 U.S.C. § 1155, the Secretary of the Department of Homeland 
Security "may, at any time; for what he deems to be good and sufficient cause, revoke the approval 
of any petition approved by him under section 204. II In regards to a revocation of an immigrant 
petition under section 205 of the Act, the Board of Immigration Appeals stated: 
In Matter of Estime , ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of . 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to th.e notice of intention to revoke, would warrant such denial. 
MatterofHo, 19 I&N Dec. 582,590 (BIA 1988)(citingMatterofEstime, 19 I&N 450 (BIA 1987)). 
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By itself, the director's realization that a petition was incorrectly approved is good and sufficient 
cause for the issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 l&N 
Dec. 582, 590 (BIA 1988). As the AAO concurred with the director's determination that the petition 
was in fact incorrectly approved based on the petitioner's failure to satisfy four separate eligibility 
requirements for the requested immigrant visa classification, the notice of intent to revoke and 
revocation decision were properly issued. · 
As a final not~. 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 departure date. 8 C.F.R. 
§ 103.5(a)(1)(iv) . 
. 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.