dismissed EB-1C Case: Business Management

(b)(6)
DATE: OFFICE: CALIFORNIA SERVICE CENTER 
APR 1 8 2013 
INRE: Petitioner : 
Benefi~iary: : 
' ' 
'. 1J•~: , ~eP._~~e~fof HoDie!ilncJ security 
U.S. Citizenship and Immigration Services 
Admin istrative Appeals Office (AAO) 
· 20 MaSsachusetts Ave. N.W .•. MS 2090 
Washington, DC 20529-2090 
U .. S. Citizenship 
and Inirtligration 
.Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITION.I;:R: 
• I 
INSTRUCTIONS: 
Enclosed please find the decision of the Admi(listrative 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. 
I 
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 1-2908, Notice of Appeal or Motion, with a fee C?f $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. 
~: you4i 
. ~ ~onRo.it}) 
Acting Chi'ef, Administrative Appeals Office · 
(b)(6)
Page2 
DISCUSSION: The Director, California Service Center, initially approved the petitioner's preference visa 
petition. Upon further review of the record, the director detennined that the petitioner did not qualify for the 
benefit sought and therefore issued a notice of intent to revoke. The director subsequently revoked approval 
of the petition and the petitioner appealed the matter to the Administrative Appeals Office (AAO). The AAO 
rejected the appeal as untimely filed. The matter later came before the AAO on motion to reopen and 
reconsider, whose dismissal resulted in the petitioner's filing of the instant and second motion. Accordingly, 
the matter is now before the AAO on a motion to reconsider, which the AAO will also dismiss. 
The petitioner is a California 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. 
The director denied the petition concluding that the petitioner submitted contradictory supporting evidence 
and failed to establish that the beneficiary would be employed in a managerial or executive capacity. The 
petitioner appealed the decision disputing the director's findings. The AAO rejected the appeal based on its 
untimely filing. 
In its August 8, 2012. decision, the AAO found that the district court case cited by counsel was not on point 
with the current subject 
matter and rejected counsel's uncorroborated assertion claiming that neither he nor 
the petitioner had received the director's decision revoking the petition. The AAO also relied on precedent 
BIA case law establishing that a courier's untimely delivery of the appeal would not serve to excuse the 
untimely filing of the appeal. Finally, with regard to the motion to reconsider, the AAO concluded that the 
petitioner failed to cite pertinent precedent decisions 
establishing that the decision to reject the untimely filed 
appeal was an incorrect application of law or Service policy. 
In s~pport of the current moti~n to reconsider, counsel cites Irigoyen-Briones v. Holder, 644 ~.3d 943 (91h Cir. 
2011 ), another district court case. In that case, the court remanded the matter of an untimely filed appeal, 
which dealt with an individual's deportation, back to the Board of Immigration Appeals (BIA) for further 
consideration, concluding that the BIA committed legal error by refusing to review the matter due to lack of 
jurisdiction. The court cited Matter of Liadov, 23 I&N Dec. 990 (BIA 2006), as an example of a prior BIA 
decision where the BIA certified a matter back to itself sua sponte and excused the late filing of an appeal 
based on the detennination that "exceptional circumstances" caused the untimely filing. 
The AAO finds that the facts in lrigoyen-Briones v. Holder are sufficiently different from those in the matter 
at hand such that the court's ruling cannot be applied here. First, the AAO notes that the cited case dealt with 
a deportation proceeding where the individual was the directly affected party. The petitioner in the present 
matter, on the other hand, is a corporate entity which seeks an immigration benefit on behalf of a beneficiary 
who has no standing in this proceeding. See 8 C.F.R. § 103.3(a)(l)(iii)(B). Second, there is no precedent 
case' law wherein the AAO reopened proceedings sua sponte in order to excuse the untimely filing of an 
appeal. While the AAO is expressly authorized to excuse the untimely filing of a motion to reopen ''where it 
is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner," the 
AAO does not have the same discretionary authority in matters concerning the untimely filing of an appeal or 
a motion to reconsider. 8 C.F.R. § 103.5(a)(1)(i). , 
(b)(6)
PageJ 
Thus, while the court's ' ruling in Irigoyen-Briones v. Holder hinges on the BIA's prior use of discretion to 
detennine when the circumstances amount to "extraordinary" such that a late filing of an appeal may be 
excused, the same is not true with regard to an appeal that is filed untimely with the AAO. The AAO has no 
hist~ry of acknowledging rare or extraordinary Circumstances, as there is no evidence that it was meant to 
have the discretionary authority to make such detenninations. Therefore, regardle!?S of the BIA's practices, 
any appeal that is unt~mely filed with the AAO will be accorded similar treatment. 
When filing a motion to reconsider, the regulation at 8 C.F.R. § 103.5(aX3) states, in pertinent part: 
A motion to reconsider must state the reasons for reconsi~eration 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. 
l1i the instant case, counsel does 'not cite any legal precedent or applicable law that ~ould indicate an error on 
the part of the AAO in dismissing the petitioner's appeal. Therefore, the motion 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. 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
. decision to dismiss an . appe'at. or extend a beneficiary's previously set departure date .. 8 C.F.R. 
·§ 103.5(a)(1Xiv). 
In visa petition proceedings1 the burden of proving eligibility for the benept 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.