dismissed EB-1C Case: Computer Software

MATTER OF N-C-, LC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 10,2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FO,RM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a computer soliware distributor, seeks to permanently employ the Beneficiary as its 
"Managing Director'' under the first preference immigrant classification for multinational executives 
or managers, See Immigration and Nationality Act (the Act) section 203(b)(I)(C), 8 U.S.C. 
§ I 153(b )(I )(C). This classi lication 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 Tex<is Service Center revoked the approval of the petition concluding that the 
Petitioner did not establish, as required, that the Beneficiary would be employed in the United States 
in a managerial or executive capacity. We dismissed the Petitioner's subsequent appeal and the 
matter is now before us on a motion to reconsider. 
On motion, the Petitioner submits additional evidence and asserts that we erred in dismissing the 
appeal because we did not consider the totality of the evidence submitted or apply the preponderance 
of the evidence standard. 
Upon review, we will deny the motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal tiling requirements (such 
as, lor instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
A motion to reconsider must establish that we based our decision on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at 
the time of the decision. A petitioner must support its motion to reconsider with a pertinent 
precedent or adopted decision, statutory or regulatory provision, or statement of U.S. Citizenship and 
Immigration Services (USCIS) or Department of Homeland Security policy. 8 C.F.R. § I 03.5(a)(3). 
We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested 
immigration benefit. · 
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Malter ofN- 1-. LC 
II. ANALYSIS 
The primary issue m this matter is whether the Petitioner has established on motion that the 
Beneficiary would be employed in a managerial or executive capacity, as defined at section 
IOI(a)(44) of the Act. The Petitioner must establish that all eligibility requirements tor the 
immigration bene lit have been satisfi ed from the time of the tiling in August 20 I 0 and continuing 
through adjudication. 8 C.F.R. § 103.2(b)(l). 
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On motion, the Petitioner asserts that we did not consider the totality of the evidence, that our 
decision contained a h1ctual error, and that we did not properly apply the preponderance of the 
evidence standard. However, for the reasons discussed below, the Petitioner has not established that 
we incorrectly applied the law and USCIS policy to the facts presented. 
The Petitioner also submits a new statement in which it elaborates on a position description that it 
previously provided in response to a notice of intent to revoke (NOlR) in 2017. The Petitioner states 
that our decisio
n was erroneous "based on the facts that will be exposed in this document." 
However, we do not consider new facts or evidence in a motion to reconsider. 
Accordingly , the Petitioner has not shown proper cause for reconsideration. 
A. Previous AAO Decision 
In our decision dismissing the Petitioner's appeal, we determined that the Petitioner had not 
adequately explained the Beneficiary's proposed job duties or established the specific tasks he would 
perform on a day-to-day basis as managing director. We tound that the job description submitted at 
the time of tiling was too broad, while a lengthier job description submitted in response to a request 
for evidence (RFE) in 2011 was confusing because it assigned percentages to the Beneficiary's 
duties which accounted for 11 5% of his time and included a number of duties that he would pertorm 
only intermittently. Finally, we noted that a third job description submitted in response to the NOIR 
in 20 17 was largely inconsistent with previous descriptions as it indicated that the Beneficiary would 
spend a significant portion of his time s upervising staff b~sed in w ho did not appear on 
previous versions of th~;; Petitioner's organizational chart and who were not mentioned in earlier 
iterations of his position description. Therefor e, we found that the 2017 job description had limited 
probative value in establishing the Beneficiary's eligibility at the time offiling in 2010. 
We also addressed the company's starting and organizational structure as it existed at the time of 
filing. We acknowledged the Petitioner's organizational chart submitted in 2011 and its IRS Forms 
W-2 issued in 2010, but found that this information was insufficient to establish exactly who was 
working for the company at the time of filing. We explained that the evidence did not establish that 
the Beneficiary would primarily supervise managerial or professional employees, or demonstrate 
that his subordinate staff would be able to relieve him from signiticant involvement in non­
managerial and non-execut ive duties. 
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B. Motion to Reconsider 
The Petitioner's primary claims on motion are that: (1) we erred by questioning the inc!'usion of 
intermittent duties in the Beneficiary's job descriptio'n; (2) we erroneously determined that time 
allocations included in the Beneficiary's job description totaled more than 100%; and (3) \ve placed 
too much weight on the absence of certain evidence relating to the Beneficiary's subordinate staff; 
such as evidence that a particular employee was working for the company at the time of filing, 
copies of state quarterly wage reports for the third quarter of 20 I 0, and evidence that certain 
positions subordinate to the Beneficiary are professional positions requiring a bachelor's degree. 
The Petitioner contends that we did not properly consider the totality of the circumstances and cites 
case law addressing the preponderance of the evidence standard. 
The Petitioner correctly ·asserts that, except where a different standard is specified by law, a 
petitioner must prove eligibility for the requested immigration benefit by a preponderance of the 
evidence. Maller o(Chawa!he, 25 l&N Dec. 369, 375-76(AAO 2010). Under the preponderance of 
the evidence standard, the evidence must demonstrate that the petitioner's claim is "probably true." 
!d. at 376. We 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 f~1ct to be 
proven is "more likely than not" or probably true. 
Our previous decision discussed the various position descriptions submitted and noted deficiencies 
beyond the inclusion of intermittent job duties. In addition, further review of the record reflects that 
we accurately determined that the position description submitted in response to the Director's RFE 
in 2011 included duties that accounted for 115% of the Beneficiary's time. The job description the 
Petitioner has re-submitted and further elaborated upon in support of this motion is the job 
description submitted in response to the NOlR in 2017. We acknowledge that the time allocations in 
this version account for 100% of the Beneficiary's time.· However, as noted, we determined that the 
2017 description was not consistent with the previous versions of the Beneficiary's job duties and 
the Petitioner did not show that it accurately reflects the duties he was expected to perform in 2010 
when this petition was filed. 
The Petitioner has not explained how we failed to consider the totality of the circumstances in 
reviewing its evidence. The Petitioner objects to our finding that it should have provided evidence 
showing exactly who was working lor the company at the time of tiling as well as evidence of its 
employees' educational credentials. However, it does not cite any specific law or USCIS policy in 
support of its suggestion that such evidence, or the lack thereof~ was irrelevant to our determination 
of the Bcncliciary's employment capacity. Our review of the Petitioner's staffing levels, structure, 
and the credentials of its employees was appropriate as we were attempting to determine whether the 
Beneficiary supervised subordinate professionals, and whether the staffing at the time or filing was 
sufficient to support the Beneficiary in a managerial or executive capacity. 
In applying the preponderance of the evidence standard, we explained why certain evidence was 
lacking in relevance and probative value, and noted the absence of requested documentation that 
would have assisted in corroborating the Petitioner's claims. In its motion, the Petitioner seeks to 
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rely on new supplemental ini{Jrmation which it has added to the Beneficiary's 2017 job description, 
and asserts that this description establishes his eligibility as a manager or executive. However, as 
noted, this 2017 version of the Beneficiary's job description docs not establish his eligibility at the 
time of filing. It also introduces new facts, which we do not consider in a motion to reconsider. 
For the foregoing reasons, the Petitioner has not established that our prior decision misapplied law or 
policy or that it was incorrect at the time of that decision. Therefore, the Petitioner has not shown 
proper cause for reconsideration. 
Ill. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reconsideration. 
ORDER: The motion to reconsider is denied. 
Cite as Maller o{N-1-. LC ID# 1244029 (AAO May 10, 2018) 
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