dismissed EB-1C Case: Food Service

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: F~B 0 7 2005 
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. 8 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. 
The director's decision to deny the petition was affirmed by the Administrate Appeals Office (AAO) on appeal. 
The matter is now before the AAO on a motion to reopen and reconsider. The motion will be dismissed. 
The petitioner is a limited liability company organized in January 1999 in the State of Georgia. It is engaged 
in the operation of franchise yogurt shops. 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. 
The director determined that the petitioner had not established that it was owned and controlled by the foreign 
entity as required. The AAO observed that the director's reasoning regarding the petitioner's qualifying 
relationship with the beneficiary's foreign employer was incorrect. The AAO determined, however, that the 
petitioner had not established that it had been doing business for one year prior to filing the petition as required by 
8 C.F.R. 204.56)(3)(i)(D) and determined the petition could not be approved based on the record. 
On motion dated October 23, 2003, counsel for the petitioner asserts that the AAO erred in denying the petition 
on grounds that the petitioner was not doing business for a year prior to filing the petition and noted that he would 
submit evidence and a brief to support the motion within 30 days. Although the regulation at 8 C.F.R. 
Q 103.3(a)(2)(vii) states that a petitioner may be permitted additional time to submit a brief or additional 
evidence to the AAO in connection with an appeal, no such provision applies to a motion to reopen or 
reconsider. The additional evidence must comprise the motion. See 8 C.F.R $5 103.5(a)(2) and (3). For this 
reason, the motion must be dismissed for failing to med applicable requirements. 
Of note, to date the record contains no subsequent submission. The regulation at 8 C.F.R. 5 103.5(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. 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. Doherzy, 
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. With the current motion, the movant has not met that 
burden. The motion to reopen will be dismissed. 
Furthermore, the regulation at 8 C.F.R. 8 103.5(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 Services] 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. 
Counsel does not cite any pertinent precedent decisions to establish that the AAO's decision was based on an 
incorrect application of law or policy. 
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. 5 1361. Here, that burden has not been met. 
ORDER: The motion is dismissed.