dismissed EB-1C Case: Exporting

DATE: OCT 1 7 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
PETITION: Innnigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.c. § I I 53(b){l)(C) 
ON BEHALF OF PETITIONER: 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1·290B, Notice of Appeal or Motion, with a fee of$630. The specific 
requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with 
the AAO. Please be aware that 8 C.F.R. § 103.5(a){l)(i) requires any motion to be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The preference via 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 petitioner subsequently filed a motion to reopen with AAO, which was dismissed. The 
matter is now before the AAO on a motion to reopen and reconsider. The motion will be dismissed and 
the decisions of the director and the AAO will be undisturbed. 
The petitioner is a Maryland corporation engaged in the business of acquiring and exporting various 
goods to China. It seeks to employ the beneficiary as its President and Chief Executive Officer. 
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. 
§ I I 53(b)(l)(C), as a multinational executive or manager. 
The director denied the petition on February 21, 2008 concluding that: (I) the petitioner failed to 
establish that it has a qualifYing relationship with the foreign entity that employed the beneficiary 
abroad, and (2) the petitioner failed to establish that the beneficiary would be employed in the United 
States in a qualifYing managerial or executive capacity. The AAO withdrew the first ground as a basis 
for denial and the second ground was upheld. The denial was affirmed on appeal. 
On March 14, 2011, the AAO dismissed the motion to reopen pursuant to 8 CFR § 103.5(a)(4), which 
states, in pertinent part, that a motion that does not meet applicable requirements shall be dismissed. 
On April 8, 2011, the petitioner filed Form I-290B and states that it is filing a motion to reopen and a 
motion to reconsider, and a brief and additional evidence is attached. 
Counsel's assertions do not satisfY the requirements of either a motion to reopen or a motion to 
reconsider. 
As a preliminary matter, the AAO notes that while an appeal and a motion are both remedial actions, 
the legal purpose of an appeal is distinct from that of a motion to reopen/reconsider. The AAO 
reviews appeals on a de novo basis, allowing the petitioner to supplement the record with any evidence 
or documentation that the petitioner feels may overcome the grounds for the underlying adverse 
decision. See Sollane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO's review of a motion to 
reopen or a motion to reconsider, however, is limited to evidence that fits the specific criteria discussed 
at 8 C.F.R. § 103.5(a)(2) and 8 C.F.R. § 103.5(a)(3), respectively. Submitting evidence that does not fit 
the regulatory criteria specified at 8 c.F.R. § 103.5(a)(2) or 8 C.F.R. § 103.5(a)(3), depending on the 
type of motion the petitioner has filed, will not suffice even if such evidence may have overcome the 
grounds for denial if it have been submitted on appeal. 
The regulations 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. I 
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 (1 984)(emphasis in 
original). 
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On motion, counsel for the petitioner provided a brief job description for the three positions supervised 
and managed by the beneficiary, and job profiles and an organizational chart. The petitioner also 
explained that the documentation submitted in the previous motion to reopen and reconsider were new 
documents. Counsel noted that the petitioner submitted 2007 and 2008 tax returns and since the 1-140 
was filed on December II, 2006, "the cusp of 2006 and 2007, the financial documents submitted from 
2006 and 2007 were clearly relevant to the question of whether the Petitioner had the ability to pay the 
beneficiary's wages, continues ability to pay the beneficiary'S wages and the continuing legal existence of 
the Petitioner in the state at the time offiling and afterwards." 
As noted in the prior AAO decision, the 2007 and 2008 tax returns and evidence of business transactions 
that took place in 2008 and 2009 are not considered new information for a motion to reopen. The petition 
was filed on December 8, 2006 and the petitioner must establish eligibility beginning on that date. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new set offacts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 
The documentation submitted on motion included tax documents and fmancial documents that were 
previously submitted. A review of the evidence that the petitioner submits on motion reveals no fact that 
could be considered new under 8 C.F.R. § 103.5(a)(2). The evidence submitted was either previously 
available and could have been discovered or presented in the previous proceeding, or it post-dates the 
petition. 
In addition, the motion does not satisfY the requirements of a motion to reconsider. 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 oflaw 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. 
On motion, counsel does not submit any document that would meet the requirements of a motion to 
reconsider. A review of the record and the adverse decision indicates that the director and the AAO 
properly applied the statute and regulations to the petitioner's case. The petitioner's primary complaint 
is that the director denied the petition. The petitioner insists that it provided sufficient documentation 
and that the petitioner's business is important. Both the director and the AAO's decisions, however, 
have clearly outlined the missing information and documentation that the petitioner failed to submit, 
and that the record has insufficient evidence to establish eligibility for this immigration visa. As 
previously discussed, the petitioner has not met its burden of proof and the denial was the proper result 
under the regulation. Accordingly, the petitioner's claim is without merit. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit 
sought. See Matter of Brantigan, II I&N Dec. 493 (BIA 1966). The petitioner must prove by a 
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of 
Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 
1989); Matter ofSoo Hoo, II I&N Dec. 151 (BIA 1965). 
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The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
applicant's claim is "probably true," where the determination of "truth" is made based on the factual 
circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In 
evaluating the evidence, Matter of E-M- also stated that "[t]ruth is to be determined not by the quantity 
of evidence alone but by its quality." Id. In adjudicating the application pursuant to the preponderance 
of the evidence standard, the director must 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 fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and 
credible evidence that leads the director to believe that the claim is "probably true" or "more likely 
than not," the applicant or petitioner has satisfied the standard of proof See Us. v. Cardozo-Fonseca, 
480 U.S. 421 (1987) (defining "more likely than not" as a greater than 50 percent probability of 
something occurring). If the director can articulate a material doubt, it is appropriate for the director to 
either request additional evidence or, if that doubt leads the director to believe that the claim is 
probably not true, deny the application or petition. 
Here, the submitted evidence does not meet the preponderance of the evidence standard. As noted in 
the director's decision and the AAO's decisions, the petitioner did not provide sufficient evidence to 
establish that the petitioner meets the regulatory requirements to establish eligibility for the 1-140 
immigrant visa. 
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 (l992)(citing INS v. Abudl!, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding 
bears a "heavy burden." INS v. Abudl!, 485 U.S. at 110. With the current motion, the petitioner has not 
met that burden. 
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 CFR § 103.S(a)(4) states that "[aJ motion 
that does not meet applicable requirements shall be dismissed." Accordingly, the motion will be 
dismissed and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.