dismissed EB-1C Case: Finance

(b)(6)
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 
DATE: JAN 1 1 2013 .OFFICE: NEBRASKA SERVICE CENTER FILE:. 
INRE: Petitioner: 
Beneficiary: I. 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrativ~ 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 in 
accordance. with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request 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 that any motion must be filed 
within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscls.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was subsequently 
rejected as untimely filed pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(J). The director determined that the 
petitioner's submissions met the requirements of a motion and therefore issued a new decision denying the 
petition. The petitioner then filed ano~her appeal, which the AAO dismissed. The AAO also dismissed the · 
petitioner's subsequently filed motion to reconsider. The matter is now before the AAO on motion to reopen 
and reconsider. This motion will also be dismissed. 
The petitioner is a corporation that seeks to employ the beneficiary as its comptroller general. Accordingly, 
the petitioner endeavors to. classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1)(C) of!he 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 the 
existence of a qualifying relationship between itself and the beneficiary's foreign employer, 1 
C.A., a Venezuelan entity. 
In a decision dated December 9, 2009, the AAO dismissed the petitioner's appeal, affirming the director's 
decision. The AAO found that minimal evidence was submitted and that such evidence revealed no common 
ownership between the petitioner and the beneficiary's employer abroad. The AAO cietenninect that the 
evidence indicates that the petitioner is owned by while , the 
beneficiary's employer abroad, is majority owned by 
In a decision dated August 4, 2010, the AAO determined that the motion toreconsider was filed 34 days after 
the prior decision was issued and therefore dismissed the motion based on its untimely filing. See 8 C.F .R. 
§ 103.5(a)(l)(i), which states that a motion to reopen or reconsider must be filed within 30 days of the 
decision the motion seeks to reopen or reconsider. Moreover, the AAO found that even if the petitioner's 
motion had been timely fll.ed, it would nevertheless have been dismissed because the motion was not 
supported by precedent decisions, it did not state the reasons for reconsideration, and it was not accompanied 
by a statement specifying how the AAO's decision was based on an incorrect application of law or USCIS 
policy. The AAO further noted that the petitioner failed to explicitly acknowledge the grounds for the 
appeal's dismissal. 
On current motion to reopen and reconsider, counsel submits an appellate brief in which she addresses the 
original basis for the director's decision-the determination that the petitioner failed to establish the existence 
of a qualifying relationship between itself and the beneficiary's employer abroad. 
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. 
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 
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 IT NEW RIVERSIDE UNIVERSITY DICTIONARY 792 
(1984)( emphasis in original). 
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The regulation at 8 C.F.R. § 103.S(a)(3) states, in pertinent part: 
A motion to reconsider must state the reaso~ for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of la_w 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 scope of review of any matter on motion is predetermined by the subject matter of the decision that the 
. motion seeks to reopen and/or reconsider. The AAO's prior decision. was based on the determination that the 
petitioner's motion to reconsider was untimely filed. The AAO therefore issued a decision on August 4, 2010 
dismissing the motion based on its untimely filing. Although the AAO provided a discussion of the facts 
pertaining to the petitioner's claimed qualifying relationship with the beneficiary's foreign employer, this was 
done as a courtesy to the petitioner in order to more fully clarify the grounds for the director's original 
adverse decision. The comprehensive discussion was not intended to invite the petitioner to have another 
opportunity to address the director's original decision. Therefore, regardless of the dicta included in the 
AAO's prior decision, the basis for dismissing the motion was its untimely filing. 
In light of the above, the scope of this discussion will be limited to consideration of any new facts or 
adequately documented reasons, supported by pertinent precedent decisions, establishing that the AAO's prior 
conclusion-that the1 petitioner's motion to reconsider was untimely filed-was incorrect and that a 
withdrawal of the erroneous decision is warranted. After reviewing counsel's brief, the AAO fmds that none 
of the elements addressed pertain to the issue of the untimely filing. Therefore, this motion will be dismissed 
in accordance 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). 
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.