dismissed EB-1C Case: General Management

(b)(6)
DATE: JUN 1 2 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
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 FILE: 
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 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.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.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.uscis.gov 
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DISCUSSION: The preference visa petition was initially approved by the Director, Nebraska Service 
Center. On further review of the record, the director determined that the petitioner was not eligible for the 
benefit sought. Accordingly, the director properly served the petitioner with a notice of his intention to 
revoke the approval of the preference visa petition, and his reasons therefore. The director ultimately 
revoked the approval of the petition. The petitioner subsequently filed an appeal with the Administrative 
Appeals Office (AAO). The appeal was dismissed and the matter is now before the AAO on a motion to 
reconsider. 
At the time the Form I -140 was filed, the petitioner was operating as a sole proprietorship in the State of 
Missouri. The petitioner seeks to employ the beneficiary as its general manager. The petitioner seeks 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. 
On December 22, 2008, the director issued a decision revoking the approval of the visa petition based on 
four independent grounds of ineligibility. The director concluded that the petitioner failed to establish that: 
1) it was a qualifying entity that was authorized to file an employment-based petition on behalf of the 
beneficiary at the time the Form I-140 was filed; 2) it had the ability to pay the beneficiary's proffered wage 
commencing on the priority date; 3) the beneficiary was employed abroad within a qualifying managerial or 
executive capacity; or 4) the petitioner would employ the beneficiary in a managerial or executive capacity. 
The petitioner appealed the denial disputing the director's conclusions and challenging the director's decision 
to revoke the petition on grounds that were not previously included in the notice of intent to revoke (NOIR) . 
Counsel reasserted arguments that he previously raised in response to the NOIR and contended that the 
director erred in retroactively applying portions of the USCIS Adjudicator's Field Manual (AFM). 
In a decision dated October 5, 2010, the director dismissed the petitioner's appeal, concluding that the 
petitioner failed to present persuasive evidence or information to overcome the first two grounds listed 
above. The AAO rejected counsel's claim that the director retroactively applied the AFM, finding that the 
petitioner would not have been eligible at the time of filing the petition but for the guidelines in the AFM. 
The AAO determined that it was the statute and regulations that were in effect at the time of filing the 
petition that determined the petitioner's ineligibility and that the AFM was cited merely to show that internal 
service guidelines were in accord with what the statutory and regulatory provisions already dictated at the 
time the petition was initially filed. 
The AAO rejected counsel's interpretation of the definition of affiliate, a term that is defined at 8 C.P.R. 
. § 204.5(j)(2). The AAO concluded that counsel focused on only one part of the term's definition and failed 
to consider that in order to meet the regulatory criteria of an affiliate, the petitioner must demonstrate that it 
is one of two subsidiaries where both entities are owned and controlled by the same parent or individual. 
The AAO observed that counsel emphasized only the portion of the definition that focused on the term 
"individual," implying that the beneficiary is the individual who owns and controls the U.S. entity, but failed 
to acknowledge that the petitioner must also be one of two subsidiaries and that in order to fit the definition 
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of subsidiary, the petitioner must establish that it is a firm, corporation, or other legal entity.
1 
8 C.P.R. 
§ 204.5(j)(2). As stated in the AAO's prior 
decision, unlike a firm, corporation, or other legal entity, a sole 
proprietorship is a business in which one person operates the business in his or her personal capacity. Black's 
Law Dictionary 1398 (7th Ed. 1999). As such, a sole proprietorship does not exist as an entity apart from the 
individual owner. See Matter of United Investment Group, 19 I&N Dec. 248,250 (Comm. 1984). The AAO 
determined that the sole proprietorship's filing of an employment-based petition was synonymous with the 
beneficiary extending an offer of employment to himself, which is precluded by law given that a petitioner 
who is a nonimmigrant temporary worker, much like the beneficiary, is not competent to offer permanent 
employment to an alien beneficiary for the purpose of obtaining an immigrant visa for the beneficiary under 
section 203(b)(1)(C) of the Act. Matter a.[ Thornhill, 18 I&N Dec. 34 (Comm. 1981). 
Additionally, the AAO addressed USCIS's prior approval of the instant petition and several previously filed 
L-1A nonimmigrant petitions , concluding that approving a petition that the petitioner was ineligible to file in 
the first place clearly shows an error on the part of the service center and would not result in a mandate for 
the AAO to approve applications or petitions where eligibility 
has not been demonstrated, merely because of 
prior erroneous approvals. See, e.g. Matter o.f Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). Treating acknowledged errors as binding precedent is not compulsory on the USCIS or any 
agency. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 
(1988). To the contrary, by virtue of affirming the director's decision, the AAO allowed USCIS to rectify an 
error, which initially occurred when the service center approved a petition that did not merit approval. 
The AAO continued by withdrawing the director's two additional findings, which were not previously cited 
in the NOIR, finding that withdrawal was mandated by the provisions of 8 C.P.R.§ 205.2(b), which precludes 
the director from citing adverse fmdings in the fmal revocation without first giving the petitioner the opportunity 
to address such fmdings by including them in the NOIR. The AAO added, however, that the decision to 
withdraw the two additional bases for revocation was not intended to serve as an indication that the petitioner 
successfully established that the beneficiary was employed abroad or that he would be employed in the United 
States within a qualifying managerial or executive capacity. In fact, the AAO found that the record supported 
both adverse findings, which would not have been disturbed as valid bases for revocation if the director had 
properly introduced them in the NOJR. 
Finally, with regard to counsel's attempt to, invoke AC21 protections as a result of the time delay between the 
date the Form 1-140 was approved and the date of the approval's revocation, the AAO found that AC21 
provisions did not apply to the petitioner in the present matter, as the petition was not valid and therefore cannot 
be deemed as remaining valid for the purpose of invoking protection under AC21. 
On motion, counsel reasserts many of the same assertions that he previously raised on appeal, claiming that 
the AAO's decision was erroneous in its failure to properly address the director's retroactive application of 
AFM provisions and its lack of consideration of previously issued favorable decisions regarding the 
petitioner, including the earlier approval of the instant petition as well as other non-immigrant petitions filed 
by the same petitioner. The AAO fmds that counsel has not offered information that meets the requirements 
of a motion to reconsider. 
1 
An entity, other than a natural person, who has sufficient existence in legal contemplation that it can function legally, 
be sued or sue and make decisions through agents as in the case of corporations. Black' s Law Dictionary 620 (6th Ed. 
1991). 
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The regulation at 8 C.P.R. § 103.5(a)(3) 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 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. 
Furthermore, a motion to reconsider cannot be used to raise a legal argument that could have been raised 
earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal arguments" that may be raised in a motion to reconsider should flow from new law or a de 
novo legal determination reached in its decision that could not have been addressed by the party. Matter of 
0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which a party 
may submit, in essence, the same brief presented on appeal and seek reconsideration by 
generally alleging 
error in the prior decision. !d. Instead, the moving party must specify the factual and legal issues raised on 
appeal that were decided in error or overlooked in the initial decision or must show how a change in law 
materially affects the prior decision. !d. at 60. 
The petitioner's motion does not meet any of the above criteria. While counsel does cite legal precedent 
decisions, none establish an error on the part of the AAO in dismissing the petitioner's appeal based on the 
reasons described above. Rather, counsel advances arguments that are similar, if not identical, to those that 
were previously raised and addressed on appeal. Therefore, the motion will be dismissed in accordance with 
8 C.P.R. § 103.5(a)(4), which states, in pertinent part, that a motion that does not meet applicable 
requirements shall be dismissed. 
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.