dismissed EB-1C Case: Freight Air Transportation

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-E- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 27, 2018 
MOTION ON ADMlNISTRA TIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
. The Petitioner, a freight air transportation service company, seeks to permanently employ the 
Beneficiary as its vice president under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 
8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (1) it has a qualifying relationship with the Beneficiary's foreign 
employer; and (2) the Beneficiary was employed abroad in a managerial or executive capacity. We 
dismissed the Petitioner's appeal and denied its four subsequent motions, including three combined 
motions to reopen and reconsider and one motion to reconsider. 1 
The matter is now before us on another motion to reconsider. The Petitioner points to our decision 
dated in April 201 7 and contends that the previous submitted evidence demonstrates that the 
Beneficiary is "entitled to ·the immigration benefit sought." 
Upon review, we will deny the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reconsider is based on legal grounds and must (1) state the reasons for reconsideration; 
(2) be supported by any pertinent precedent _decisions to establish that the decision was based on an 
incorrect application of law or policy; and (3) establish that the decision was incorrect' based on the 
evidence of record at the time of the initial decision. 8 C.F.R. § I 03.5(a)(3). 
1 On April 18, 2016, we dismissed the Petitioner's appeal. We subsequently denied four motions: (I) the Petitioner's 
combined motion to reopen and reconsider on September 27, 2016, (2) a motion to reconsider on April 27, 2017, (3) a 
combined motion to reopen and reconsider as untimely on September 20, 2017, and ( 4) another motion to reopen and 
reconsider on May 22, 2018. 
Matter of A-E-lnc. 
II. ANALYSIS 
The issue in this matter is whether the Petitioner has set forth sufficient reasons supported by 
pertinent precedent decisions to demonstrate that our last decision in May 20 I 8 was based on 
incorrect law or policy. 
On motion, the Petitioner refers to our decision issued April 27, 2017, and asserts that the 
preponderance of the evidence shows that "based on the factual record already presented for this 
case, [it] is entitled to the immigration benefits sought." However, the scope of our review here is 
limited to our previous decision which addressed the Petitioner's assertion that it had submitted an 
untimely appeal based on the ineffective assistance of its previous counsel. We note that when a 
motion is filed, the petitioner may seek reopening or reconsideration of the immediale prior decision. 
See 8 C.F.R. § I 03.S(a)(l )(i). , 
In that decision, we noted that only meeting the threshold documentary requirements of Maller of 
Lozada was not sufficient; the petitioner must also show that former counsel's assistance was so 
deficient that it was prejudiced by the performance. See Maller <~f Lozada, 19 J&N Dec. 637 (BIA 
1988), aff'd, 857 F.2d lO ( I st Cir. 1988). Specifically, the Petitioner was required to show that there 
was a reasonable probability that the outcome would have been different without former counsers 
mistakes,2 and that it had at least a plausible ground for relier.3 As we stated in our previous 
decision, there is no prejudice if the adverse decision would have been issued even without former 
counsel's errors. See. e.g.. Minhas v. Gonzales, 236 Fed. Appx. 981 (5th Cir. 2007). 
In support of its previous combined motion, the Petitioner only submitted a statement from the 
Petitioner's former counsel, an affidavit from the Beneficiary, and previously submitted evidence in the 
form of an employment certificate and a letter from the Petitioner's president. The Petitioner did not 
cite any laws or precedent decisions establishing that we incorrectly applied law or policy when we 
denied the prior motion to reconsider. The Petitioner also did not point to new facts that would cause us 
to reopen our decision to deny that motion to reconsider. Therefore, we concluded that as the 
Petitioner's submissions did not meet the requirements for a motion to reopen or reconsider and that our 
decision pertaining to the Petitioner's prior motion ·to reconsider would have remained undisturbed, 
even if former counsel had filed a timely motion to reopen and reconsider. 
Here, we are largely presented with the same circumstances, as the Petitioner merely reiterates 
previous contentions that we have considered on the merits on three prior occasions - first on appeal, 
and then in two consecutive motions. It only vaguely makes reference to the preponderance of the 
evidence standard, reiterates previously considered facts, and indicates that the evidence shows that 
"based on the factual record already presented for this case, [it] is entitled to the immigration 
2 Yu Tian Liv. United States, 648 F.3d 524, 527 (7th Cir. 2011 ); Delhaye v. Holder. 338 Fed. Appx. 568, 570 (9th Cir. 
2009). 
3 See Martinez-Hernandez v. Holder, 778 F.3d I 086, I 088 (9th Cir. 2015}. 
2 
Matter of A-E- lnc. 
benefits sought." As noted, in our May 2018 decision we concluded that the Petitioner was not 
prejudiced by former counsel filing a late motion, as even if timely filed, the presented assertions 
and evidence submitted with the motion would not have been sufficient to overcome our three 
previous decisions addressing the merits. Here, the Petitioner does not set forth sufficient reasons 
supported by pertinent precedent decisions to reconsider this decision, or to establish that it was 
based on incorrect law or policy. Therefore, the Petitioner has not submitted evidence that would 
meet the requir~ments of a motion to reconsider. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reconsidering the prior 
decision. 
ORDER: The motion to reconsider is denied. 
Cite as Matter of A-E- Inc_., ID# 1847627 (AAO Nov. 27, 2018) 
.I 
3