dismissed EB-1C Case: Business Management

(b)(6)
DATE: 
JUN 1 3 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizen ship and Immigration Services 
Administrativ e Appeals Office (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)(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. 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 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.P.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 ft.led 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 
(b)(6)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). The appeal was dismissed and the 
matter is now before the AAO on motion to reopen. The motion will be dismissed . 
The petitioner is a California corporation that seeks to employ the beneficiary as its CFO and general manager. 
The petitioner seeks 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 reviewed the petitioner's submissions and determined that the petitioner failed to establish that the 
beneficiary was employed abroad or that he would be employed in the United States in a qualifying managerial 
or executive capacity. The director found that the petitioner offered insufficient information about the 
beneficiary's job duties with each entity and also questioned the petitioner's ability to relieve the beneficiary 
from having to primarily carry out non-qualifying tasks given the company's limited support staff. The director 
therefore issued a decision dated June 14, 2010 denying the petition. 
The petitioner subsequently filed an appeal disputing the director's findings. The AAO dismissed the appeal, 
disregarding third-party attestations that were offered for the purpose of establishing that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. With regard to the beneficiary's proposed 
employment, while the AAO acknowledged the director's oversight in failing to consider the part-time status of 
certain employees when calculating their hourly wages, it determined that the petitioner must nevertheless 
establish thatits staffing at the time of filing the petition was sufficient to relieve the beneficiary from having to 
primarily perform the petitioner's daily operational tasks. The AAO questioned whether the beneficiary would 
consistently be required to perform duties in a primarily managerial or executive capacity during the petitioner 's 
seasonal declines in business and staffing. 
On motion, counsel, on behalf of the petitioner, submits a brief statement and offers additional evidence in an 
effort to address some of the AAO's adverse findings. Specifically, the petitioner provides additional job 
descriptions with percentage breakdowns describing the beneficiary's foreign and proposed employment , 
several untranslated foreign language documents, a state-issued contractor's license effective September 29, 
2008, an invoice from the petitioner's accountant, and several business documents showing that the petitioner is 
doing business. 
The AAO finds that neither counsel's assertions nor the petitioner's submissions are sufficient to meet the 
requirements of a motion to reopen. 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 . 
1 
The word "new" is defmed 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 (1984)(emphasis in 
original). 
(b)(6)
Page 3 
Counsel did not cite nor did the petitioner introduce any evidence or any new facts that were previously 
unavailable and that warrant the reopening of the AAO's prior decision. While the AAO acknowledges that the 
job descriptions submitted in support of the motion are new in the sense that they had not been previously 
submitted, there is no indication that these job descriptions were previously unavailable. In fact, prior to 
denying the petition, the director issued a request for evidence in which he expressly instructed the petitioner to 
provide more detailed information pertaining to the beneficiary's employment. Thus, the petitioner had ample 
opportunity to provide the requested evidence prior to the denial and could have provided additional clarifying 
information on appeal. Merely attempting to supplement the record with information that could have been 
provided at an earlier time does not meet the requirements of a motion to reopen, the purpose of which is to 
allow for the consideration of previously unavailable evidence. 
The motion to reopen 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 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)(l)(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.