dismissed EB-1C Case: Dairy Products Distribution

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 3 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
(f Robert bp P. Wi mann, Chief 
' Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, initially approved the employment-based petition. Upon 
subsequent review, the director issued a notice of intent to revoke approval and ultimately revoked approval 
of the petition. The petitioner submitted an appeal to the Administrative Appeals Office (AAO). The AAO 
found that the petitioner had overcome the director's determination that the petitioner had ceased doing 
business but affirmed the director's decision on the issue of the beneficiary's managerial or executive capacity 
for the petitioner and on the issue of the petitioner's ability to pay the beneficiary the proffered wage. The 
matter is now before the AAO on a motion to reopen. and reconsider the previous decision. The motion will 
be dismissed. 
The petitioner is a corporation organized in the State of Texas in February 1995. It sells and distributes dairy 
products. It seeks to employ the beneficiary as its president. 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. 
On motion, counsel for the petitioner re-states the beneficiary's duties and asserts that the beneficiary duties 
and responsibilities have always been managerial, as well as executive in nature. Counsel points out that the 
beneficiary has authority to enter into legal agreements and that without the beneficiary's presence, the 
petitioner will be left without any operational direction. Counsel contends that the AAO erred in stating that 
the record contained an inconsistency between the petitioner's organizational chart and the Internal Revenue 
Service (IRS) Forms W-2, Wage and Tax Statement, issued to the petitioner's employees in 2001. Counsel 
argues that the AAO erred when determining that the petitioner had not established that it had the ability to 
pay the beneficiary the proffered wage and lists the beneficiary's annual salary for the years 200 1, 2002, and 
2003, although the annual salaries in each of the years did not equal the petitioner's proffered salary. 
The regulation at 8 C.F.R. § 103.5(a)(2) states 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. Furthermore, the regulation at 8 C.F.R. $ 103.5(a)(2) 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 [Citizenship and Immigration Service (CIS)] 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. 
The AAO observes that 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. In this matter neither counsel nor the 
petitioner has submitted new evidence on motion nor are counsel's assertions supported by pertinent precedent 
decisions establishing that the AAO's decision was based on an incorrect application of law or policy. The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503 (BIA 1980). Counsel has not submitted evidence or argument sufficient to require the 
reopening or reconsideration of this matter. Accordingly, the motion will be dismissed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not sustained that burden. 8 C.F.R. $ 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 reopened, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.