dismissed EB-1C Case: Communications Equipment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-G-INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : AUG . 5, 2019 
MOTION ON ADMINISTRATIV E APPEALS OFFICE DECISION 
PETITION: FORM I-140 , IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a service and distribution center for communications test equipment , seeks to 
permanently employ the Beneficiary as its chief financial officer and vice president under the first 
preference immigrant classification for multinational executives or managers . Immigration and 
Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C). This classification allows a 
U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an 
executive or managerial capacity . 
The Director of the Texa s Service Center denied the petition on multiple grounds concluding the 
Petitioner did not establish that: ( 1) the Beneficiary would act in a managerial or executive capacity 
in the United States; (2) the Beneficiary had acted in a managerial or executive abroad ; (3) the 
Beneficiary ' s former foreign employer was doing business as defined by the regulations ; (4) it had 
provided a bona fide job offer to the Beneficiary; and (5) it had the ability to pay the Beneficiary's 
proffered wage. 
The Petitioner later appealed the decision and we dismissed the appeal concurring with the Director 's 
grounds for denying the petition ; however , we withdrew the Director's conclusion that the Petitioner 
did not establish that the Beneficiary's foreign employer was doing business. The Petitioner then filed 
a motion to reopen and a motion to reconsider with us, but we denied the motions as untimely 
consistent with 8 C.F.R. § 103.5(a)(l)(i). The matter is now before us again on a motion to reopen 
and a motion to reconsider. 
On motion , the Petitioner contends that we granted an extension to the period within which it was 
required to file motions in response to our dismissal of its appeal. Upon review, we will deny the 
motion to reopen and the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence . 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establis h that our decision was based on an incorrect 
application of law or policy and that the decision was incorrec t base d on the evidence in the record of 
Matter of N-G- Inc 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner indicated in the Form I-290B Notice of Appeal or Motion that it was filing 
a combined motion to reopen and reconsider. However, the Petitioner submits no additional evidence 
on motion. As such, the Petitioner's motion to reopen does not contain any new facts to consider in a 
reopened proceeding and it has not supported new assertions with affidavits and/or documentary 
evidence. Therefore, we will deny the motion to reopen. 8 C.F.R. § 103.5(a)(2). 
B. Motion to Reconsider 
The Petitioner provides a brief on motion contending that it relied on an extension it asserts we granted 
to the time it was required to file motions in response to our appeal decision. In order for a motion to 
reconsider to be granted, the Petitioner must establish that our previous decision was incorrect based 
on the evidence of record at the time of that decision. 8 C.F.R. § 103.5(a)(3). Specifically, the 
Petitioner must demonstrate that we were incorrect in concluding that the previous motions to reopen 
and reconsider were untimely. We do not find the Petitioner's assertions convincing, and conclude 
that we were correct in our previous decision to deny the motion to reopen and motion to reconsider 
as untimely. 
1. Facts 
Our previous appeal decision was issued on April 30, 2018 and the cover page included instructions 
stating the following: 
Motions must be filed on a Form I-290B, Notice of Appeal or Motion, within 33 days 
of the date of this decision. This time period includes three days added for service by 
mail. 
Therefore, any motion was due on Saturday, June 2, 2018; but, if the last day of the designated 33 
days to file a motion falls on a weekend, as in this case, the regulations allow us to extend the deadline 
to file a motion to the first business day following this date. As such, the last date by which a motion 
to reconsider or motion to reopen could have been timely filed was Monday, June 4, 2018. 
The Petitioner points to a fax it sent to our office on May 29, 2018, within which it requested an 
"emergency extension, as [the Petitioner] has decided to work with a new attorney." Following this 
fax, we sent the Petitioner a letter on May 31, 2018 stating: 
We received your request for additional time to submit a brief: additional evidence, or 
both. We have granted you an additional 30 days. 
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Matter of N-G- Inc 
Please submit your documents directly to our office using the address at the top of this 
letter by June 29, 2018. 
On June 1, 2018, we received another fax from the Petitioner emphasizing their previous request for 
an "emergency extension." The Petitioner farther indicated that if this extension was not granted the 
motions "will need to be overnight mailed to USCIS today in order to arrive on time." 
On June 5, 2018, we responded with a letter stating the following: 
This letter is in regards to our previous response granting an extension of time to file 
your appeal or motion. We apologize for any inconvenience we have caused, but we 
do not have the authority to grant such a request. You must file your appeal within the 
time allotted based on the decision letter you have received. 
The Petitioner later filed a motion to reopen and a motion to reconsider on June 29, 2018, 60 days 
after the date of our appeal decision. The Petitioner farther asserts on motion that on May 31, 2018 
Petitioner's counsel contacted our office by telephone and contends they were told "that the request 
for an extension of time to file the I-290B had been granted." 
2. Timeliness of the Motion to Reconsider 
The regulations require that a motion to reconsider be filed within 30 days of the decision that the 
motion seeks to reconsider, including three days for service by mail. 8 C.F.R. § 103.5(a)(l)(i); 
8 C.F.R. § 103.8(b). There is no exception to this requirement. 1 Therefore, although a letter dated 
May 31, 2018 granting an extension "to submit a brief, additional evidence, or both" was sent, such a 
letter could not communicate an extension to the time required under the regulations to file a motion 
to reconsider. 2 As we later communicated in our June 5, 2018 letter, we did not have the authority 
under the regulations to grant an extension to the regulatory time period to file a motion to reconsider. 
Further, given the explicit nature of the regulations, the Petitioner's request for an "emergency 
extension" of a motion to reconsider was improper and not grantable. It is noteworthy that the 
Petitioner appeared to acknowledge this requirement in its correspondence, stating in its fax of June 
1, 2018 that it would need to mail the motion overnight for it to be received in a timely fashion. 3 The 
Petitioner filed the motion to reconsider on June 29, 2018, or 60 days after the date of our appeal 
decision. By regulation, it is untimely and no exception to this regulatory requirement is provided. 
As such, consistent with the regulations, the Petitioner's motion to reconsider was filed untimely, and 
our previous decision denying this motion on that basis was correct. 
1 This is in contrast to the regulations related to the timely filing of a motion to reopen which provide that untimeliness 
may be excused "where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or 
petitioner." 8 C.F.R. § 103.S(a)(l )(i). 
2 We note that the erroneously sent letter referred to a "briet: additional evidence, or both" but did not state that the motion 
could be filed at a later date. 
3 The Petitioner stated in its correspondence that the deadline for filing a motion was June 2, 2018, a Saturday. However, 
as noted above, if the last day of the designated 33 days to file a motion falls on a weekend, the regulations allow us to 
extend the deadline to file a motion to the first business day following this date. As such, the last date by which the 
Petitioner could have filed a timely motion to reconsider or motion to reopen was Monday, June 4, 2018. 
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Matter of N-G- Inc 
3. Timeliness of the Motion to Reopen 
As discussed, in contrast to the regulations related to the timely filing of a motion to reconsider, the 
regulations specific to a motion to reopen indicate that untimeliness may be excused "where it is 
demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner." 
8 C.F.R. § 103.5(a)(l)(i). There is no question that the Petitioner filed the motion to reopen in response 
to our appeal decision untimely, as it was filed 60 days after the date of the appeal decision. However, 
consistent with the regulations, we will consider whether this delay should be excused; namely, 
whether it was reasonable and beyond the control of the Petitioner. 
Upon review, we conclude that we were correct in denying the motion to reopen as untimely and we 
conclude that the Petitioner has not sufficiently articulated and provided documented evidence that its 
untimely motion was reasonable and beyond its control. The Petitioner has not sufficiently articulated 
why filing a timely motion was beyond its control. For instance, in its fax dated May 29, 2018, the 
Petitioner indicated that it required an "emergency extension, as [the Petitioner] has decided to work 
with a new attorney" and it listed this new claimed counsel. However, there is no evidence that the 
Petitioner sought a change in counsel and there is no supporting evidence that this was ever the reason 
for the untimeliness of its motion to reopen. 4 Likewise, in its fax of June 1, 2018, the Petitioner stated 
that it had "been asking for an emergency extension." However, it again did not communicate why 
additional time was required, why this request was reasonable, and why the circumstances were 
beyond its reasonable control. 
On motion, the Petitioner also references a May 31, 2018 telephone conversation it claimed it had with 
our office and asserts we communicated that "an extension of time to file the 1-290B had been 
granted." We do not have a record of this phone conversation. In any event, this statement appears 
to be inconsistent with another claim made by the Petitioner. The Petitioner claims that it was told 
over the telephone on May 31, 2018, that an extension had been granted, but it elsewhere stated in a 
fax of June 1, 2018 that it had yet to hear from our office regarding its extension requests. These 
inconsistencies leave question as to whether the Petitioner's late motion to reopen was reasonable and 
beyond its control. The Petitioner must resolve inconsistencies in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
The Petitioner has yet to explain why it required an "emergency extension." The Petitioner has not 
provided sufficient reasons to demonstrate that its late motion to reopen should be excused; namely, 
that the late filed motion to reopen was reasonable and based on events beyond its control. In fact, in 
the fax of June 1, 2018, the Petitioner appears to acknowledge that it was capable of filing a timely 
motion to reopen stating it could mail 1-290B overnight, indicating that filing the motion to reopen in 
a timely fashion was well within its reasonable control. 
Therefore, we also conclude that our previous decision to deny the motion to reopen as untimely was 
correct. 
4 The Petitioner has been represented by the same attorney throughout these proceedings going back as far as the petition 
filing. 
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Matter of N-G- Inc 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
our prior decision. The motion to reopen and motion to reconsider will be denied for the above stated 
reasons. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofN-G-Inc, ID# 4886003 (AAO Aug. 5, 2019) 
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