dismissed EB-1C Case: Consulting

(b)(6)
DATE: AUG 1 3 l013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administr ative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE : 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l )(C) of t~e Immigration and Nationality Act, 8 U.S.C. § 1153(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 Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa pet1t10n was denied by the Director, Texas Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was dismissed and 
the matter is now before the AAO on motion to reopen and reconsider. The motion will be dismissed . 
The petitioner, a New York corporation, states that it employs a staff of four employees and is engaged in 
providing consulting services. It seeks to employ the beneficiary in the United States as its general manager. 
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 director denied the petition concluding that the petitioner failed to 
establish that the beneficiary would be employed in a managerial or executive capacity. 
The petitioner appealed the denial disputing the director's findings. On May 30, 2013, the AAO issued a 
decision dismissing the appeal and affirming the director's decision. The dismissal of the appeal was based 
on the petitioner's failure to provide an adequate job description and to establish that its organizational 
composition at the time of filing was sufficient to relieve the beneficiary from having to allocate his time 
primarily to the performance of non-qualifying tasks. 
In support of the motion to reopen , the petitioner offers additional evidence in the form of a deed executed by 
the petitioner approximately one year after the filing of the petition, evidence of the beneficiary's involvement 
in ensuring that the petitioner complies with the New York City building codes and registering the petitioner 
for water and sewer services, and letters from the petitioner's office administrator and vice president, each of 
whom briefly discussed the beneficiary's foreign and U.S. employment. 
The regulations at 8 C.P.R. § 103.5(a)(2) state, 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 document ary 
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.' 
In the instant matter, the petitioner has failed to provide documentation that meets the requirements for a 
motion to reopen. The supplemental letters were created for the purpose of addressing the AAO's adverse 
findings. The information that was provided in the letters could have been provided prior to the AAO 's 
decision and thus it cannot be deemed as new or previously unavailable. Similarly, documents that serve as 
evidence of events and circumstances that did not take place until after the filing of the petition are not 
relevant for the purpose of determining whether the petitioner established eligibility based on the facts and 
circumstances that existed at the time of filing. Precedent case law mandates that a petitioner 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. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
Therefore, evidence of events that had not materialized at the time of filing is irrelevant in the instant 
proceeding and need not be considered. 
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 NEW COLLEGE DICTIONARY 753 (3rd Ed., 2008)(emphasis 
in original). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
In support of the motion to reconsider, counsel submit s a lengthy brief in which he disputes the AAO's 
decision citing district court decisions, which are non-precedent and generally fail to point to AAO error, as 
the portions quoted by counsel merely restate legal principals which the AAO did not and does not dispute. 
On page 14 of coun sel's brief, counsel references a district court case which discus ses a court's reversal of an 
AAO decision that was deemed to have lacked a basis for dismissal , Importer s, Inc. v. U.S. Dept. of 
Homeland Security, 445 F.Supp.2d 1174, 1180 (C.D. Cal., 2006) . The instant case can be easily 
distinguished from the one cited in counsel's brief given that the AAO provided a comprehensive analysis in 
which it specifically cited the information that the petitioner provided with regard to the beneficiary's 
proposed employment and explained precisely why the evidence was deemed to be insufficient. Additionally , 
the record reflected other deficiencies, which the AAO cited, including the petitioner's inadequate 
organizational structure at the time of filing and the fact that none of the employees on the petitioner' s payroll 
at that time were assigned consulting tasks. Given the petitioner's claim that the petitioner operates as a 
consulting services provider , and the lack of staff to perform these service s, the AAO could not conclude that 
the beneficiary would be relieved from performing non-qualifying operational tasks. 
Looking to page sixteen of counsel's brief, the AAO takes note of quoted portions of the beneficiary's job 
description . Specifically, counsel asserts that the AAO erroneously found the job description to be deficient. 
However, merely disagreeing with the AAO' s analysis of the evidence is not sufficient to overcome the 
AAO's findings . Although counsel goes on to cite a decision from the second circuit in support of the 
assertion that the AAO was obligated to consider the record in its totality , there is no evidence to suggest that 
the AAO failed to meet this burden. In fact, the AAO expre ssly stated its intent to consider the entire record 
before coming to a conclusion regarding the petitioner's eligibility . See AAO May 30, 2013 decision, p. 4. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. 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. 1 (BIA 1983); Matter of Ramire z-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). 
Next, counsel points to the fact that the tasks the AAO deemed as non-qualifying would constitute only 20% 
of the beneficiary's overall position. Counsel maintains that the remaining 80% of the beneficiary's time 
would be allocated to qualifying managerial- or executive-level tasks. This assertion, however, is not 
supported by the evidence of record considered in light of the numerous deficiencie s the AAO pointed out 
with regard to the job description, which the AAO determined was overly vague and lacking in substantive 
information about the beneficiary's actual daily tasks. It was as a result of the petitioner's failure to provide 
this crucial evidence that precluded the AAO from being able to affirmatively determine the nature of the 
proposed employment. The regulation at 8 C.P.R. § 204 .5(j)(5) expre ssly requires the petitioner to provide a 
list of the beneficiary's proposed job duties as supporting evidence in the filing of the instant Form 1-140. 
Additionally, counsel's claim that the AAO failed to consider portions of the beneficiary's job description is 
also meritless , as the AAO is not required to specifically restate and address each portion of the job 
description in order to establi sh that all relevant evidence has been considered. As pointed out above , the 
AAO provided a comprehensive discussion explaining the deficiencies in the beneficiary's job description. 
The AAO need not and will not address this issue anew when it has done so already in its prior decision . 
Lastly , the precedent case law counsel cites to support his reliance on is irrelevant in the matter at hand 
and does not establish that the AAO's decision to disregard the information offered at was incorrect. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
Unlike the immigrant classification sought for the beneficiary in the matter at hand, where a labor 
certification is not required, the immigrant and nonimmigrant classifications that were contemplated in the 
cited cases required labor certifications, thus explaining the respective petitioners' need to invoke and refer to 
information found at O*Net. The AAO issued findings that reflected a thorough review of all information 
provided with regard to the beneficiary's proposed employment. The AAO will not review legal arguments 
that could have been provided on appeal. 
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 U.S. Citizenship and 
Immigration (USCIS) policy. 8 C.P.R. § 103.5(a)(3). A motion to reconsider contests 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 addressed 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. !d. 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. !d. at 60. 
In this case, counsel failed to support his motion with relevant precedent decisions or other comparable 
evidence to establish that the decision was based on an incorrect application of law or USCIS policy. The 
motion to reconsider will therefore be dismissed in accordance with 8 C.P.R. § 103.5(a)(4), which states, in 
pertinent part, that a motion that does not meet applicable requirements shall be dismissed. 
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.P.R. 
§ 103.5(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 .