dismissed EB-1C Case: Cocoa Processing

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLICCOPV 
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 
DATE: MAR 15 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1 )(C) of the Immigration and Nationality Act, 8 U. S.c. § 1153(b)(1 )(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. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
(JQ@. .... 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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) where 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 Delaware corporation that operates a cocoa processing facility. It seeks to employ the 
beneficiary as a production manager. 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 failed to establish that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity or that the beneficiary would be employed 
in the United States in a managerial or executive capacity. 
The petitioner filed an appeal in support of which counsel submitted a brief contending that the beneficiary 
manages an essential function and has hiring and firing authority as well as discretion over daily operations 
within the production department. Counsel explained that the beneficiary's responsibilities in his foreign and 
proposed positions are similar and further asserted that the beneficiary manages the essential function of 
production through his oversight of supervisory or managerial personnel. 
The AAO found that counsel's statements were not persuasive in overcoming the director's decision and 
therefore dismissed the appeal. . 
On motion, counsel submits another legal brief along with supporting statements from the president of the 
petitioning entity and president of an entity that is familiar and does business with the petitioner. Counsel 
disputes the AAO's finding that the beneficiary cannot be both a personnel and a function manager, asserting 
that by virtue of managing personnel, the beneficiary in effect manages the production function. 
The term "function manager" is limited to those individuals who do not have subordinates under their 
supervision. While it can be said that any personnel manager is indirectly managing an essential function 
through the personnel that he or she has under their charge, the primary focus of a personnel manager is to 
oversee the work of others. The same is not true of a function manager, who, by virtue of primarily managing 
a function, does not directly oversee the work of others. As can be gauged from reviewing the components of 
"managerial capacity," someone whose main focus is managing others, i.e., a personnel manager, is tasked 
with evaluating the work of subordinates, hiring and firing those subordinates, or recommending those and 
other personnel actions. See section 101(a)(44)(A)(iii) of the Act. In other words, the key management 
component for a personnel manager is to directly oversee the work of a subordinate staff that is comprised of 
supervisory, professional, or managerial employees. See section 10 I (a)(44)(A)(ii). On the other hand, a 
function manager's role focuses on the beneficiary's discretionary authority with respect to an essential 
function and while the underlying duties of that function are performed by others, the beneficiary is not tasked 
with managing the individuals who carry out the duties of the essential function. 
In the present matter, it appears that the beneficiary's focus in his positions with the U.S. and foreign entities 
is the supervision of employees. As such, the burden is on the petitioner to establish that the subordinates 
both abroad and in the United States were and would be supervisory, professional, or managerial employees. 
Having failed to meet this burden, the AAO was and continues to be unable to conclude that the beneficiary is 
not a first-line supervisor. See section 101(a)(44)(A)(iv). 
· ~ 
Page 3 
The AAO further notes that the supporting documents submitted in this matter do not meet the requirements 
of a motion to reopen or a motion to reconsider. The regulation at 8 C.F.R. § 103.5(a)(2) states, 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 has not introduced any facts that 
were previously unavailable and could not have been submitted earlier in this proceeding. 
The regulation at 8 C.F.R. § 103.5(a)(3) states, 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. 
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. 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. 
Furthermore, the motion shall be dismissed for failing to meet an applicable requirement. The regulation at 
8 C.F.R. § 103.5(a)(1)(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." The motion 
does not contain the statement required by 8 C.F.R. § 103.5(a)(1)(iii)(C). The regulation at 8 C.F.R. § 
103.5(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)(1)(iii)(C), it must also be dismissed for this reason. 
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 appeal or extend a beneficiary's previously set departure date. 8 C.F .R. 
§ 1 03.5(a)(1 )(iv). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The motion is dismissed. 
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).