dismissed EB-1C Case: Business Management

(b)(6)
DATE: AUG 2 8 2013 
INRE : Petitioner : 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals Office (AAO) 
20 Massachu setts Ave. N.W., MS 2090 
Washingt on, 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)(l )(C) of the Immigration and Nationality Act, 8 U.S. C. § ll53(b)(l )(C) 
ON BEHALF OF PETITIONER : 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R . § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
/~/~ 
/'-Ron R senberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was initially approved on May 4, 2010 by the Director, Texas 
Service Center . On further review of the record, the director determined that suspect documentation had been 
submitted in support of the petition and that the petitioner was therefore not eligible for the benefit sought. 
Accordingly, the director properly served the petitioner with a notice of his intention to revoke the approval of 
the preference visa petition , and his reasons therefore. The director ultimately revoked the approval of the 
petition . In response, the petitioner filed a motion to reopen and reconsider, which the director dismissed . 
The matter later came before the Administrative Appeals Office (AAO) on appeal , which was dismissed, and 
it is now before the AAO on a motion to reopen and reconsider. The motion will be dismis sed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary in the United States as its 
president/managing director. 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 record shows that the director revoked approval of the petition based on the determination that the 
petitioner submitted fraudulent tax documents claiming more employees than the petitioner actually 
employed. The director pointed to inconsistencies in the organizational charts submitted with regard to the 
foreign entity and concluded that the petitioner failed to provide sufficient evidence to establish that it has a 
qualifying relationship with the foreign entity. 
The director dismissed the petitioner's motion to reopen and reconsider based on the finding that the 
petitioner failed to meet the regulatory requirements for the filing of motions set forth at 8 C .P.R. § 103.5. 
The petitioner therefore filed an appeal in support of which counsel restated the explanation and assertions 
that he previously provided on motion. Counsel asked the AAO to consider the non-fraudulent documents in 
light of the petitioner's "highly unusual situation" in which counsel alleged that the beneficiary was the 
victim, rather than the perpetrator, of fraud . The AAO reviewed the documents submitted in support of the 
motion and affirmed the director's conclusion. The AAO therefore dismissed the appeal. 
In the present motion, the petitioner's new counsel provides a brief stating that at the time he assumed his role 
as the petitioner's counsel, he provided documentation that the AAO did not review prior to dismissing the 
appeal. Counsel refers to evidence of ongoing business activities from 2010 to 2012, IRS Form W-2s, W-3s, 
and W -4s, invoices, utility bills, and documents of financial transactions, many of which were previously 
unavailable. Counsel also reasserts the prior claims that the petitioner made in response to the notice of intent 
to revoke (NOIR), where the petitioner claimed that a subordinate of the beneficiary acted unlawfully, 
alleging that such individual embezzled money that was intended to pay the payroll taxes of U.S. employees, 
who were paid "under the table" during a time when the beneficiary was outside the country and allegedly 
unaware of the criminal activity. Counsel asks the AAO again to review a statement the beneficiary made 
claiming that he made a police complaint against his subordinate employee who allegedly committed the 
unlawful acts. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
After reviewing the record in its entirety for a second time, the AAO finds that the documents counsel 
referenced and submitted in support of the instant motion, even if considered earlier, would not have resulted 
in the AAO sustaining the appeal. 
First , with regard to the sworn statement the beneficiary provided in an effort to addr ess the petitioner 's 
submission of fraudulent tax documents , the AAO notes that the beneficiary ' s attempt to explain the 
damaging inconsistencies cited in the director's notice of revocation are not sufficient unless accompanied by 
competent objective evidence pointing to where the truth lies. Matter of Ho , 19 I&N Dec . 582, 591-92 (BIA 
1988). Although counsel offers the alleged police complaint to corroborate the beneficiary's statement, the 
actual complaint document is devoid of relevant information and thus cannot be deemed as reliable evidence 
that verifies the beneficiary's claim . Specifically, the only information contained in the complaint include s an 
incident number , theft as the crime allegedly committed, the date of the alleged crime, address where the 
complaint was made, and what appears to be an identification number in place of the name of the officer who 
presumably recorded the complaint. The complaint does not identify the names of either the complaining 
party or the alleged offender, nor does the complaint provid e any specific details about the type of theft that 
was allegedly committed . Therefore, the AAO cannot rely on the deficient police complaint to corroborate 
the beneficiary's statement in which he claims to have no knowledge and no patt in the submission of 
fraudul ent tax documents . 
As previously stated in the AAO's deci sion dated December 10, 2012, doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Id.at 591. As such, the director was justified in questioning 
the reliability of the beneficiary's statement and the validity of documents that the petitioner submitted after 
having been made aware of U.S. Citizenship and Immigration Services' (USCIS) knowledge of the 
petitioner 's submission of fraudulent documents to support its claimed eligibility. Given the prior submission 
of unreliable documents , the director reasonably believed that any documents that the petitioner subsequently 
submitted, or may submit in the future, may also be unreliable . 
Furthermore, given that a large number of the supporting documents that current counsel offered in support of 
his July 2012 statement were dated after the petition's filing date of March 4, 2010, the AAO finds that 
consideration of such documents would not have resulted in an approval of this petition. 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. Matt er of Katigbak , 14 I&N Dec. 45 , 49 (Comm . 
1971). USCIS cannot and shall not give evidentiary weight to tax and busines s documents that reflect events 
and circumstances that took place after the filing of the petition. Despite the fact that the AAO' s decision did 
not specifically acknowledge counsel 's submis sion of additional docum ents, a determination of the 
petitioner's ineligibility would not have been altered given that counsel offered documents that had no 
evidentiary value given that they did not pertain to the petitioner's eligibility at the time of filing . The AAO 
is not required to address documents piecemeal when if find s that such documents are inelevant to the matter 
at hand. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
Moreover, with regard to bank documents that show fund transfers between the petitioner and the foreign 
entity throughout 2010, while such documents may establish that the two entities had an ongoing business 
relationship, these documents do not establish that the nature of the business association between the two 
entities in question rose to the level of a qualifying relationship in which the beneficiary's foreign employer 
and the propo sed U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a 
"parent and subsidiary" or as "affiliates ." See generally§ 203(b)(l)(C) of the Act, 8 U.S.C . § 1153(b)(l)(C); 
see also 8 C.F.R. § 204.5U)(2) (providing definitions of the terms "affiliate" and "subsidiary") . 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Sci entology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc ., 19 I&N Dec . 362 (Assoc. Comm . 1986); Matter of Hughes, 18 I&N 
Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal 
right of possession of the assets of an entity with full power and authority to control; control means the direct 
or indirect legal fight and authority to direct the establishment, 
management, and operation s of an entity. 
Matter of Chur ch Scientolo gy International, 19 I&N Dec . at 595. 
In this matter, the fund transfer documents, which the petitioner submitted earlier in response to the NOIR 
and subsequently in support of its motion and appeal, do not establish common ownership and control. 
Despite the petitioner's submission of a stock certificate, stock certificates alone are not sufficient evidence to 
determine whether a stockholder maintains ownership and control of a corporate entity and thus are not 
sufficient as general evidence of a petitioner's claimed qualifying relationship . 
Finally, turning to the requirements of a motion to reopen and a motion to reconsider , the regulations at 
8 C .F.R. § 103.5(a)(2) state, in perti nent 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 n ew fact is found to be evidence that was not available and could not 
have been discovered or presented in the previous proceeding. 1 
In the present matter, the petitioner did not present any new fact s when filing the motion to reopen and 
reconsider before the director. Rather, the petitioner 's prior counsel raised many of the same arguments and 
offered much of the same supporting evidence that was previously introduced in response to the NOIR . As 
such, the director properly dismissed the petitioner's motion and the AAO properly affirmed that deci sion 
when the information was presented on appeal. Counsel has not offered new evidenc e in support of the 
current motion such that would warrant reopening this matter. 
1 
The word "new" is defined 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)
NON-PRECEDENT DECISION 
Page 5 
Next, turning to the motion to reconsider, the regulations require that the state the reason s for reconsideration 
and support the motion with any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or U.S. Citizenship and Immigration (USCIS) policy . 8 C.P.R. § l03.5(a)(3). A 
motion to reconsider contest s the correctness of the original decision based on the previous factual record, as 
opposed to a motion to reopen which seeks a new hearing based on new or previously unavailable evidence. 
See Matter of Cerna , 20 I&N Dec. 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in the 
proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather , the "additional legal 
arguments" that may be raised in a motion to reconsider should flow from new law or a de novo legal 
determination reached in its decision that could not have been addres sed by the party. Matter of 0-S-G- , 24 
I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which a party may submit, 
in essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the prior 
decision . Id. Instead, the moving party must specify the factual and legal issues raised on appeal that were 
decided in error or overlooked in the initial decision or must show how a change in law materially affects the 
prior decision . Id. at 60. 
In this matter, the petitioner's prior counsel cited the precedent decision of Matter of E-M-, 20 I&N Dec. 77, 
79-80 (Comm . 1989) , which stated that the standard of proof that applies to the proceeding at hand requires 
the director to approve the petition, despite the presence of some doubt, "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 satisfied the standard of proof." It is noted that merely quoting phrases from 
precedent case law is not sufficient to meet the requir ements of a motion to reconsider where the petitioner 
must establish that the decision was based on an incorrect application of law or Service policy. In the present 
matter , counsel did not establish how the director's decision was contrary to the principle s established in the 
published decision, particularly given that the director expressly discussed the evidence that contributed to the 
adverse finding regarding the petitioner's failing credibility. 
While the AAO acknowledges that the petitioner ' s current counsel cited additional case law in the statement 
he submitted to support the appeal, he too failed to establish how the director's decision was erroneous given 
that a considerable portion of the director's original decision was based on the petitioner's submission of 
fraudulent documents, which undermined the petitioner's credibility and the validity of its claim . As 
discus sed abov e, neither counsel's claims nor the claims made by the beneficiary in his attempt to rehabilitate 
the petitioner 's credibility can serve as evidence in and of themselves. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings . 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm . 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); 
Matter of Ramirez-Sanche z, 17 I&N Dec. 503, 506 (BIA 1980). 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
In sum, the petitioner failed to submit sufficient evidence to warrant reopening and/or reconsideration of the 
director's decision revoking the approval of the petition. Therefore , the AAO properly affirmed the dismissal 
of the motion when the matter was presented on appeal. While the AAO has considered the new brief and 
resubmission of various documents, which have been provided in support of the cunent motion, the 
petitioner's submissions fail to state new facts that would warrant reopening the AAO's prior decision. 
Further counsel has not cited precedent case law establishing that the AAO's dismis sal of the appeal was the 
result of misstated facts or incorrect application of law or Service policy. 
Therefore, the motion will be dismissed in accordance with 8 C.F.R. § 103.5(a)(4), which states, in pettinent 
part , that a motion that does not meet applicable requirements shall be dismissed. 
As a final note, the dismissal of this motion does not bar the filing of a new visa petition, supported by the 
required evidence to demonstrate the petitioner's eligibility. 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.P.R . § I 03 .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 .