dismissed EB-1C Case: Education

" 
FILE: 
IN RE: 
identifying data deleted to 
prev~nt clearly unwarranted 
inVaSIOn of personaJ pnvac}' 
PUBLIC COpy 
OFFICE: NEBRASKA SERVICE CENTER 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Date: NOV 0 2 2010 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 1-290B, Notice of Appeal or Motion. 
The fee for a Form 1-290B is currently $585, but will increase to $630 on November 23,2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. § 
103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Thank you, 
~./:L 
!- ~~~, ;::inistrative 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. The motion will be 
dismissed. 
The petitioner is a Florida corporation engaged in the business of offering language-based education 
programs. The petitioner seeks to employ the beneficiary as its "language director/owner." 
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. 
§ Il53(b )(1 )(C), as a multinational executive or manager. 
The director denied the petition on the grounds that: (1) the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity in the United States; and (2) the 
petitioner failed to establish that it has a qualifying relationship with the foreign entity that employed 
the beneficiary abroad. 
The petitioner appealed the director's decision. The AAO dismissed the appeal, noting that in 
responding to the director's RFE, the petitioner failed to provide crucial documents that are 
necessary to gauge the availability of a support staff and whether the beneficiary would be relieved 
from having to primarily perform the non-qualifying, daily operational tasks of the business. 
Therefore, the AAO concluded that the petitioner failed to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity. The AAO also found that the petitioner 
failed to submit sufficient evidence to demonstrate that the petitioner and the beneficiary's employer 
abroad have the required common ownership and control. Beyond the decision of the director, the 
AAO also found that, insofar as the regulation at 8 C.F.R. § 204.50)(5) requires the petitioner to 
establish that the beneficiary will be "employed" as an "employee" of the United States operation, 
the petitioner has failed to do so. See, e.g., Nationwide Mutual Ins. Co. v. Darden, 503 u.s. 318, 
322-323 (1992); Clackamas Gastroenterology Associates, P.e. v. Wells, 538 U.S. 440, 449-450 
(2003). Additionally, the AAO found the petitioner has failed to show that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity per 8 C.F.R. § 204.50)(3)(i)(B), 
or that the petitioner is a "multinational" entity, as defined at 8 C.F.R. § 204.50)(2). 
On motion to reopen, the petitioner asserts that all required information in connection with the 
petition has been submitted previously. At the same time, the petitioner submits additional evidence, 
which the petitioner claims was "omitted unintentionally in the previous presentations." 
Specifically, the evidence submitted on motion includes: (1) a partnership agreement dated March 
27, 1992, in Spanish with English translation, documenting the formation of the foreign entity; (2) an 
undated letter from an attorney in Buenos Aires describing the assignment of the beneficiary to the 
U.S. branch of the business by the foreign entity's board of directors; (3) an undated organizational 
chart for the U.S. company; and (4) the U.S. company's IRS Forms W-3 and W-2 for the year 2008. 
The regulations at 8 C.F.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 
documentary evidence. 
Page 3 
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 
On motion, the petitioner has failed to state any new fact that would be provided in the reopened 
proceeding. In fact, the petitioner maintains that it "ha[ s] presented in the last two presentations all the 
documentations concerning [the beneficiary's] activity in the country." Further, a review of the 
additional evidence submitted on motion reveals no relevant documentation that could be considered 
"new" pursuant to 8 C.F.R. § 103.5(a)(2). 
In the instant matter, the director's RFE issued in August 2007 clearly requested that the petitioner 
provide "evidence to establish the qualifying corporate interrelationship between the United States 
business entity and the foreign business entity which employs or employed the alien." The director 
also specifically requested an organizational chart depicting the beneficiary'S position within the 
U.S. company. A motion is not meant to allow the petitioner an additional opportunity to correct 
deficiencies that it previously failed to correct or to provide information that it should have 
previously provided. Rather, as indicated above, the purpose of a motion to reopen is to provide the 
petitioner an opportunity to supplement the record with evidence that was previously unavailable. 
As the petition was filed in April 2007, evidence from 1992 documenting the foreign entity's 
formation and an organizational chart, whose purpose is to depict the petitioner's hierarchy at the 
time of filing, cannot be deemed documents that were "previously unavailable." Therefore, the 
evidence submitted on motion fails to meet the requirements of a motion to reopen under 8 C.F.R. § 
103.5(a)(2). 
Further, the AAO notes that the record contains a copy of a letter identical in content to the attorney 
letter submitted on motion, the only difference being the dates of translation. As such, that letter 
clearly does not qualify as "new" evidence. 
Finally, documentation relating to wages paid to the petitioner's employees in 2008 is not relevant to 
this proceeding, insofar as it does not establish the petitioner's eligibility at the time the petition was 
filed. The petitioner must 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). 
In light of the foregoing, the AAO concludes that the requirements of a motion to reopen have not 
been met and, therefore, the motion will be dismissed. 
The AAO notes that the petitioner did not indicate on the Form I-290B that the petitioner is filing a 
combined motion to reopen and motion to reconsider, although the petitioner states that "it has been 
very partialized evaluation of the elements brought for their consideration for what I believe this 
opportunity will be conducted in a more integral way [sic}." Even if this statement is to be 
I 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). 
Page 4 
interpreted as a request for reconsideration of the petition, the petitioner has failed to meet the 
requirements of a motion to reconsider. 
The regulations at 8 C.F.R. § 103.5(a)(3) state, 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 Service 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 petitioner has failed to assert that the AAO's decision was based on an incorrect application of 
law or Service policy, nor does the petitioner cite to any pertinent precedent decisions that would 
indicate such to be the case. As such, the petitioner has also failed to fulfill the requirements of a 
motion to reconsider. 
Accordingly, the motion will be dismissed pursuant to 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. 
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. 
§ 103 .5( a) (1 )(iv). 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as 
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" of proof. INS v. Abudu, 485 U.S. at 110. With the 
current motion, the movant has not met that burden. Accordingly, the motion will be dismissed, the 
proceedings will not be reopened, and the previous decision of the AAO will not be disturbed. 
ORDER: The motion is dismissed.