dismissed EB-1C Case: Flooring / Export

(b)(6)
U.S. Department of Homeland Security 
U. S. Citi zenship and Immigration Servi< 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: AUG 0 2 2013 Office: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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 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, 
L#--f-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center 
("the director"), denied the preference visa petition. The 
Administrative Appeals Office (AAO) dismissed the petitioner's appeal. The matter is now before the 
Administrative Appeals Office (AAO) on a motion to reopen. The AAO will grant the motion and affirm its 
decision. The petition will remain denied. 
The petitioner filed the nonimmigrant petition seeking to classify the beneficiary under section 101(a)(l5)(L) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. § 110l(a)(15)(L), as an intracompany transferee 
employed in a managerial or executive capacity. The petitioner, a Florida corporation, states that it is a 
flooring and international export firm. It claims to be an affiliate of 
located in the Venezuela. The petitioner seeks to employ the beneficiary as its President. 
The director denied the petition concluding that the petitioner failed to establish that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
The petitioner filed an appeal, in which it asserted that petitioning organization, in light of its reasonable 
needs, business purpose, and stage of development, can support a managerial or executive level position. 
The AAO dismissed the petitioner's appeal, finding that the evidence did not suppott a finding that the 
beneficiary will be employed in a primarily managerial or executive capacity. The AAO found that the 
petitioner's description of the beneficiary's job duties was vague, and that the petitioner had failed to provide 
a more detailed job description in response to the director's specific request for a percentage breakdown of 
time the beneficiary will spend on each duty. Beyond the decision of the director, the AAO found that the 
petitioner failed to establish a qualifying relationship with the foreign employer and determined that the 
petition could not be approved for this additional reason. 
The petitioner subsequently filed the instant motion to reopen. On motion, counsel for the petitioner states 
that the AAO made incorrect conclusions of fact regarding the corporate relationship and that the evidence of 
record establishes that the petitioner has a qualifying relationship with the beneficiary's foreign employer. 
With respect to the beneficiary's proposed employment capacity in the United States, the petitioner provides a 
position description with percentage of time for the beneficiary, position descriptions for her subordinates, 
and additional evidence of the beneficiary's qualifications. 
Upon review, counsel's assertions are persuasive with respect to the issue of the petitioner's qualifying 
relationship with the foreign employer. The explanation provided on appeal clarifies that the petitioner and 
foreign entity have a qualifying affiliate relationship. Accordingly, the AAO will withdraw its previous adverse 
finding with respect to this issue alone. 
However, counsel's assertions regarding the beneficiary's proposed employment in a managerial or executive 
capacity do not satisfy the requirements of a motion to reopen. 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
The regulation at 8 C .P.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.' 
On motion, the petitioner provides a position description for the beneficiary which includes the percentage 
breakdown of the amount of time she will allocate to each duty, along with additional information regarding 
duties to be performed by her subordinate staff. The petitioner fails to state why this description was not 
previously submitted in response to the director's request for evidence or was otherwise unavailable previously. 
The petitioner has not submitted new facts supported by affidavits or other documentary evidence in support of its 
claim that the beneficiary will be employed in a qualifying managerial or executive capacity, and has not met the 
requirements of a motion to reopen with respect to this issue. Accordingly, the AAO will not disturb its previous 
finding that the petitioner failed to establish that the beneficiary will be employed in a qualifying managerial or 
executive capacity. 
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). 
III. Conclusion 
The AAO will withdraw its determination that the petitioner does not have a qualifying relationship with the 
foreign entity. The petition will remain denied based on the petitioner's failure to establish that it will employ 
the beneficiary in a qualifying managerial or executive capacity. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The AAO's decision dated April 8, 2013 is affirmed in part and withdrawn in part. The 
petition is denied. 
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 ll NEW RIVERSIDE UNIVERSITY DICTIONARY 792 
(1984)(emphasis in original).