dismissed EB-1C Case: Business Management

DATE: OCT 1 8 2012 
INRE: 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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § lI53(b)(I)(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 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. § \03.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § \03.5(a)(I)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petItIOn was denied by the Director, Texas Service Center. 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 and reconsider. The motion will be dismissed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary as its director. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(I)(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 based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. The petitioner filed an appeal, challenging the 
director's decision. The petitioner provided a supplemental percentage breakdown of the beneficiary's 
proposed employment. The AAO dismissed the appeal, affirming the director's conclusion. The AAO also 
noted, beyond the decision of the director, that the petitioner failed to provide evidence to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. 
On motion, counsel for the petitioner submits a supporting brief in which the primary focus is to provide 
further information pertaining to the beneficiary's respective positions with the foreign and petitioning 
entIlies. The petitioner also provides additional documentation including the foreign entities business 
documents and organizational chart, the 's corporate documents and tax returns from 2009 and 
2010, and tax documents pertaining 
The regulations at 8 C.F.R. § 103.5(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 
The petitioner provided documents that are either not new or are irrelevant to the key issues that served as 
grounds for the AAO's prior decision. First, with regard to the petitioner's tax documents that reflect the 
petitioner's staffing and income in 2009 and 2010, the AAO notes that a petitioner must establish eligibility at 
the time of filing the petition; 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. 1971). 
Therefore, any documents that reflect facts that had not yet materialized at the time the petition was filed, 
including the petitioner's post 1-140 tax returns or acquisition of an ownership interest in another entity, are 
not relevant in the instant proceeding and will not be considered. 
Additionally, with regard to the petitioner's submissions pertaining to the foreign entity, the AAO notes that 
the documents provided on motion predate the filing of the Form 1-140 and no evidence has been submitted to 
establish that such documents were previously unavailable. Moreover, the record shows that through the 
issuance of a request for evidence (RFE) the petitioner was put on notice of required evidence regarding the 
1 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 
(l984)(emphasis in original). 
Page 3 
beneficiary's employment abroad and was given a reasonable opportunity to provide the missing evidence for 
the record before the visa petition was adjudicated. As pointed out in the AAO's prior decision, the petitioner 
failed to submit the requested evidence in response to the RFE and now looks to the motion as a means of 
addressing previously noted deficiencies. However, the AAO need not and will not consider the previously 
requested evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
In light of the above, the AAO finds that the petitioner has failed to meet the regulatory requirements for a 
motion to reopen. 
The AAO now turns to the regulations at 8 C.F.R. § 103.5(a)(3), which state, 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 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. 
In the instant case, 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. Rather, counsel relies on the motion as a vehicle 
for supplementing the record with information that addresses the various deficiencies previously discussed in 
the AAO's decision. However, as the regulations above expressly state, the purpose of a motion to reconsider 
is to correct any improper application oflaw or USCIS policy, not to allow the petitioner another opportunity 
to correct deficiencies that were noted on appeal. As counsel neither claimed nor provided evidence to show 
an error on the part of the AAO, the petitioner has failed to meet the requirements of the motion to reconsider. 
In light of the above, the petitioner's motion to reopen and reconsider will be dismissed pursuant to the 
provisions at 8 C.F.R. § I03.5(a)(4), which states, in pertinent part, that a motion that does not meet 
applicable requirements shall be dismissed. 
Furthermore, the motion shall be dismissed for failing to meet an applicable requirement. The regulation at 
8 C.F.R. § I03.5(a)(I)(iii)(C) requires that motions be "[a]ccompanied by a statement about whether or not 
the validity of the unfavorable decision has been or is the subject of any judicial proceeding." In this matter, 
the motion does not contain the statement required by 8 C.F.R. § 103.5(a)(I)(iii)(C). The regulation at 
8 C.F.R. § I03.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. 
Therefore, because the instant motion did not meet the applicable filing requirements listed in 8 C.F .R. 
§ 103.5(a)(l)(iii)(C), it must also be dismissed for this reason. 
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.