dismissed EB-1C Case: Cargo Transportation

(b)(6)
DATE: MAR 1 9 2013 
INRE: Petitioner: 
Beneficiary: 
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 
OFFICE: TEXAS SERVICE CENTER 
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 PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: · 
Enclosed please fmd 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. § 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 any motion to be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
on Rosenberg 
Acting Chief, Administrative Appeals 
Office 
www.uscls.gov 
(b)(6)
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DISCUSSION: The preference visa petition was denied by the director, Texas Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO), where the appeal was 
dismissed. The matter is now before the AAO on a motion to reopen and reconsider. The motion will be 
dismissed; the previous decisions will not be disturbed. · 
The petitioner is a California corporation engaged in cargo transportation and it seeks to employ the 
beneficiary as a manager. Accordingly, the petitioner endeavors to classify the beneficiary as a 
multinational executive or manager pursuant to section 203(b)(l)(C}ofthe Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(l)(C). 
The director denied the petition on October 12, 201 0, concluding that the petitioner failed to establish 
that the beneficiary would be employed in the United States in aqualifying managerial or executive 
capacity. 
The petitioner subsequently filed an appeal which the AAO dismissed on July 2, 2012, affrrming the 
director's original fmding and discussing two a<,iditional grounds for denial. 
On July 25, 2012, the petitioner filed Form 1-2908 and states that it is filing a motion to reopen and a 
motion to reconsider. The petitioner submitted a brief in support ofthe motion. 
While an appeal and a motion are both remedial actions, the legal purpose of an appeal is distinct from 
that of .a motion to reopen/reconsider. The AAO reviews appeals on a de novo basis, allowing the 
petitioner to supplement the record with any evidence or documentation that the affected party feels may 
overcome the grounds for the underlying adverse decision. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). However, the AAO's review of a motiqn to reopen or a motion to reconsider is limited to 
evidence that fits the specific criteria discussed at 8 C.F.R. § 1 03.5(a)(2) and 8 C.F.R. § 103.5(a)(3), 
respectively. Submitting evidence that does not fit the regulatory criteria will not suffice. 
The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part: "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 
On motion, the petitioner provided a brief that outlines sections ofthe AAO's decision and lays out the 
grounds for challenging the decision. The petitioner did not submit any additional evidenc·e. Since the 
petitioner submits no new evidence, the motion reveals no fact that could be considered new under 8 
C.F.R. § 103.5(a)(2). 
The regulations outline the requirements of a motion to reconsider. 8 C.F.R. § 1 03.5(a)(2) states, in 
pertinent part: 
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)
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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 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 ofthe initial decision. 
On motion, the petitioner submits a brief with the same job descriptions submitted previously for the 
beneficiary's position abroad and for the proffered position in the United States. The petitioner also 
states that the AAO's decision was incorrect when it stated that the petitioner failed to respond to two 
Notices· of Intent to Deny (''NOID"). The petitioner contends that "there's nothing in the record that 
suggests petitioner failed to respond to two NOIDS." The petitioner also stated that the director did not 
mention that the petitioner failed to respond to two NOIDS, and the "director most certainly would have 
used such discrepancy to deny petitioner form I -140." 
In reviewing the file, there is no evidence that the petitioner's responded to the director's first NOID, 
issued on April 19, 2010. It appears that the petitioner submitted additional documentation for the filing 
on April12, 2010 but this was prior to the director's NOID, dated April19, 2010. Thus, the additional 
documentation sent by the petitioner on April 12, 2010 does not qualify as a response to the director's 
NOID, dated April12, 2010. . 
In addit.ion, on June 10, 2010, the director sent a second NOID since no response was received from the 
petitioner for the April 19, 2010 NOID. The petitioner submitted a letter on June 17, 2010, indicating 
that the Form 1-140 had already been approved and since the director did not send a Notice oflntent to 
Revoke, the petitioner requested an explanation as to why USCIS requested the additional information. 
Thus, the petitioner did not directly respond to the evidence requested from the director in the NOID. 
· In addition, the petitioner states that the "evidence submitted are fully sufficient for the approval of 
forms 1-140 and Beneficiary's form 1-485." The petitioner also states that the petitioner has been 
approved previously for individuals that were transferred to the U.S. as managers. 
Despite the clai~ed previously approved petitions, USCIS does not have any authority to confer an 
immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See 
section 291 of the Act. Each petition filing is a separate proceeding with a separate record. See 8 C.F.R. 
§ 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information 
contained in that individual record ofproceeding. See 8 C.F.R. § 103.2(b)(l6)(ii). Based on the lack of 
required evidence of eligibility in the current record, the AAO finds that the director was justified in 
departing from the previous nonimmigrant petition approval by denying the instant petition. · 
A review of the record and the adverse decision indicates that the director and the AAO properly applied 
the statute and regulations to the petitioner's case. The petitioner's primary complaint is that the director 
denied the petition. The petitioner insists that it · provided sufficient documentation and that the 
petitioner's business is important. However, both decisions clearly outlined the conflicting information 
and the documentation that the petitioner failed to submit. Ultimately, the petitioner submitted 
(b)(6)A ' • 
Page4 
insufficient evidence to establish eligibility for the immigration. benefit sought. Accordingly, the 
petitioner's claim is without merit. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
See sec. 291 of the Act, 8 U.S.C. 1361; see also Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). 
The petitioner must prove by a preponderance of the ·evidence that the beneficiary is fully qualified for 
the benefit sought. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's 
claim is ''probably true," where the determination of "truth" is made based on the factual circumstances 
of each individual case. Matter ofChawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 
77, 79-80 (Comm'r 1989)). In evaluating the evidence, the truth is to be determined not by the quantity 
of evidence alone but by its quality. !d. Thus, m adjudicating the application pursuant to _the 
preponderance of the evidence standard, the director must examine each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the evidence, 
to determine whether the fact to be proven is probably true. 
Here, the submitted evidence does not meet the preponderance of the evidence standard. As noted in the 
director's decision and the AAO's decision, the petitioner did not provide sufficient relevant, probative, 
and credible evidence to establish that the petitioner meets the regulatory requirements to establish 
eligibility for the I -140 
immigrant visa petition. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are petitions 
"for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 
U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding 
bears a -"heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met 
that burden. 
The reg\llation at 8 CFR § 103.5(a)(4) states that "[a] motion that does not meet applicable requirements 
shall be dismissed." Accordingly, the motion will be dismissed, the proceedings will not be 
reconsidered, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion will be dismissed. The director's and AAO's decisions will not be disturbed; 
The petition is denied.