dismissed EB-1C Case: Immigration And Investment Services

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusett s Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: DEC 0 9 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Peti~ioner : 
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. § ll53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTR(JCTIONS: 
Enciosed 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 
ageQc)' 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 m11st be filed on a Notice of Appeal or Motion (Fonn 
I-290B) within 33 days of the date of this decision. Please review the Form I-Z90B instructions at 
http://www.uscis.gov/fonns for the latest infonnation on fee, filing location, and qtber r~quire!fiel)ts. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
1 ,/-Ron Ro.e- . . 
Chief, Administrative Appeals Office 
www.uscis.gov 
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PJSCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The petitioner 
subsequently filed an appeal that was dismissed by the Administrative Appeals Office (AAO). The matter is 
now before the AAO on a combined motion to reopen and motion to reconsider. The motion will be denied. 
The petitioner is a California corporation engaged in immigration and investment services. The petitioner 
states that it is a subsidiary of in China. ·The petitioner 
seek.s to employ the beneficiary as its managing director. Accordingly, the petitioner endeavors to classify 
the beneficiary as an employment~basediiiunigtaiit plirSuan( 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 denied tbe petition, finding that the petitioner had not timely and adequately responded to a 
reqyest for evidence (RFE). As a result of the petitioner's faHure to respond, the director concluded tha:t the 
petitioner had failed to establish that it has a qualifying relationship With the foreign erpployer, that the 
beneficiary was employed in a qualifying managerial or ex,ecQHve capacity abroad, or that the beneficiary 
will be employed in a qualifying managerial or executive capacity in the Uni~ed States. 
On appeal, counsel stated that the petitioner submitted a timely response to the RFE and that the pe(itioner 
provided sufficient evidence to establish that it has a qualifying relationship With the foreign employer and 
that the beneficiary had one year of full-time qualifying managerial or executive employment abroad. 
The AAO dismissed the petitioner's c.tppeal. . The AAO found that the petitioner had submitted a timely 
response to the dire(:~or' s RFE and that the petitioner had submitted sufficient evidence to establish that the 
beneficiary had been employed abroaq in a qualifying managerial or executive capacity. Howeyer, the AAO 
concluded that the petitioner failed to establish that it had a qualifying relationship with the foreign employer 
and 
observed that information reported on the petitioner's corpomte tax returns and stock ledger was 
Inconsistent with the petitioner's claims rega:n'-ing its ownership . ·The AAO also cone! uded that the petitioner 
had not demonstrate<:~ that it would employ the beneficiary in a qualifying managerial or executive capacity. 
In teaching this conclusion, the AAO noted the petitioner's failure to submit requested evidence, including a 
detailed duty description for the beneficiary, the percentages of time he would devote to specific tasks, a:nd 
position descriptions for the lieneficia:ry's two subordinate employees. 
The 
petitioner now files a motion to reopen and reconsider the .AAO',s decision dated September 27, 2013. 
The 
purpose of a motion to reopen or motion to reconsider is different from the purpose of an appeal. While 
the AAO conducts a comp{ehensive, de novo review of the entire record on appeal, the AAO's review in this 
matter is limited to the narrow issue of whether the petitioner has presented and documented new facts or 
documented sufficient reasons; supported by pertinent precedent decisions, to warrant the re-opening or 
reconsideration of the AAO's decision to dismiss the petitioner's previous appeal. 
The regulation at 8 C.F.R. § 103.5(a)(2) states: 
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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. 
The regulation at 8 C.F.R. § 103.5(a)(3) states, in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be supported by 
~ny pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or Service policy. A motion to reconsider a decis:ion on an application 
or petition must, when filed, also establish that the decision was incorrect based on the 
evidenc.e of record at the time of the initial decision. 
This teguJatioii is supplemented by the instructions on the Form I-290B, Notice of Appeal or Motion, by 
operation of the rule at 8 C.F.R. § 103.2(a)(l) that all submissions must comply with th~ instructions that 
appear on any form prescribed for those s"ubmissions.1 With regaro to motions for reconsideration, Part 3 of 
the Form f-290B submitted by the petitioner States: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions. 
On 1110tion, counsel asserts that the petitioner's prior attorney failed to submit evidence that Clearly 
demo· nstr~tes th~t th¢ peti~ioner has a qualifying relationship with the foreign employer and evidence that the 
petitioner will employ the beneficiary in a managerial or executive capacity. Counsel submits s stock 
certificate reflecting that the foreign employer owns 80,000 sbate~ of the petitioner's stock (or 80% of the 
autborized shares) and the petitioner's 2012 IRS Form 1120S, U.S. Income Tax Return for an S Corporation, 
indicating that the foreign employer owns 80% of the petitioner. Additionally, counsel provides an updated 
position description for the beneficiary which includes the percelitage of time he allocates to specific duties. 
The petitioner's combined motion will be denied as it has not met the requirements of either a motion to 
reopen or a motion to reconsider. 
1 Counsel states that the petitioner's former counsel failed to s.ubmit evidence to e.stablish that the petitioner 
had a qualifyi_ng relationship with the foreign employer and that the beneficiary will act in a qualifying 
managerial or executive capacity in the United States. In support of this assertion, counsel provides a 
completed California Att<?rney Complaint Form dated October 15, 2013. It is unclear whether the form was 
1 The regula.tion at 8 C.P.R.§ 103.2(a)(l) states in pertinent part: 
[E]very application, petition, appeal, motion, request, or other document submitted on the form 
prescribed by this chapter shail be executed and filed in accordance with the instructions on the form, 
such instructions ... being hereby incorporated into the particular section of the regulations requiting 
its submission. 
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filed With the state bar of California. In an attachment to the complaint form, the petitioner indicates that the 
complaint is being filed based on former counsel's failure to communicate important dea~ll~nes, his fa.ihJre to 
properly counsel his client, his l~Gk of responsiveness, and his failure to provide appropriate legal analysis 
when responding to United States Citizenship and Immigration Service (USCIS) requests for evidence. 
Any appeal or motion based upon a daim of ineffective assistance of counsel requires: (l) that the claim be 
supported by an affidavit of the allegedly aggrieved respouc;lent setting forth in detail the agreement that was 
e;ntere4 in_to with counsel with respect to the actions to be taken and what representations counsel did or did 
not make to the re~pond,ent in'this· regard, (2) that counsel whose integrity or competence is being impugned 
be informed of the allegations leveled agaih$t nim and be given an opportunity to respond, and (3) that the 
appeal or motion reflect whether a complaint has been filed With appropriate disciplinary authorities with 
respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozadq, 
19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (lstCir. 1988). 
Toe petitioner has not provided sufficient detail or explanation in the asserted complaint aga:inst its form_er 
counsel to support reopening the matter based upon ineffective assistance counsel. · As noted above, a claim 
of ineffective assistance of counsel requires tb~t tile petitioner set forth in detail agreements made with 
counsel and the actions and representations of counsel that negatively affected the petition. However, the 
petitioner has not provided sufficient detail regarding its agreements or the actions of couns_el, but only 
offered vague allegations such as noting counsel's lack of responsiveness, his failure to communicate 
deadlines, or to do appropriate legal analysis. Counsel does not iildicate any agreements between the parties 
or tile S"pecific actions of counsel that led to a denial · of the petition, such as the specific evidence he c;iid, or 
did not, submit, which deadlines he failed to communicate, or the nature of his erred legal analysis. Further, 
no evidence is submitted _that establishes that the Submitted complaint against counsel was actually filed with 
the California bar or that former counsel has been informed of these allegations and Will have an opportunity 
to tesportd. As such, counsel's assertion that the denial of the petition was based upon ineffective assistance 
of counsel is not persuasive an<i tne petitioQer. had not submitted sufficient new evidence to support 
reopening the matter on this ground . 
WitQ respect to qualifying relaticmship, and as previously stated herein, counsel submits on motion a stock 
certificate reflecting that the foreign employer owns 80,000 shares of petitioner stock _ (or 80% of the 
outstanding shares) and a 2012 . IR,S Form 1120S indicating toe foreign employer's 80% -owriership of the 
petitioner. The AAO finds this evidence insufficient to reopen the matter. First, the petitioner previously 
submitted the aforementioned stock certificate in response to the director's RFE. As such, this eVidence Was 
·already dmsidered by the AAO in dismissing the petitioner's appeal.2 Additionally, the newly submitted 
2012 IRS Form 1120S fails to address the discrepancies in the previously submitted evidence .with respect to 
the petitioner's ownership. For in~tance, the petitioner's IRS Forms 1120S for both 2009 and 2010 stated 
that t.he petitioner was jointly owned by during those tax yeats. Also, the 
petitioner's IRS Form 1120S for 2011 stated that the -petitioner was wholly owned by the aforementioned 
2 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 II New College Dictionary 736 (2001)(emphasis in original). 
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Mr. However, the petitioner's meeting minutes and stock ledger reflect that the petitioner was never 
jointly owned by Mr. and Ms. or wholly owned by Mr. None of the petitioner's 
previously submitted supporting documentation substantiated the information reported in the company's tax 
returns for 2010 4nd 2011. In addition, the petitioner's stock ledger does not reflect the issuance of stock in 
2009 when the petitioner was incorporated. On motion, the petitioner fails to submit any new evidence to 
directly address these discrepancies on the record beyond 40 unsi8ned 2012 IRS Form 1120S reflecting the ' 
foreign elllployer' s asserted 80% ownership of the petitioner. The AAO finds this new evidence insufficient 
to reopen the matter with respect to qualifying relationship. 
As to the Issue Of Whether the beneficiary will act in a qualifying managerial or executiye capacity in the 
United States, counsel has again not submitted sufficient new evidence to reopen the matter. As notec,i,' this 
·office <;lismi~sed the petitioner's appeal due to its failure to submit evidence reqt)ested by the · director, 
including a detailed description of the benefiCiary's duties with percentages of time speri.t on his tasks and 
duty descriptions for the beneficiary's two subordinates. Now, on motion, counsel attempts to submit this 
evidence, But, the regulat:ion states that the petitioner shall submit additional evidence as the director, in his 
ot her di_scretion, may deem necessary. The purpose of the request for evidence is to elicit further 
informaHon that clarifies whether eligibility for the benefit sought has been est4blished, <),S of the time the 
petition is filed. See '8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounc,is for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Where, as here, 4 petitioner has been put on notice of a deficiency in the evidence and has been given ali 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
motion. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Mqtter ofObaigbena, 19 I&N Dec. 
533 (BIA 1988). If the petitioner had wanted tile submitted evidence to be considered, it should have 
submitted the documents in response to the director's request for evidence. /d. Additionally, the petitioner 
has not su_bmitted sufficient evidence to demonstrate that the failure to submit requested evidence in response 
to the director was due to ineffective assistance Of counsel. Therefore, the petitioner bc:ts not provided 
sufficient new evidence to reopen this office's preVious decis.ion with respect to whether the beneficiary 
would act in a managerial or executive capaCity in the United States. 
lhdeed, additional evidence and assertions submitted on motion further support this office's previous 
conclusion that the petitioner had not established that it will employ the beneficiary in a managerial or 
executive capacity. For instance, the 2012 IRS Form 1120S submitted on motion Indicates that the petitioner 
earned only $57,056 in gross revenue during this year and paid no salatie.s or wages. Considering that the 
beneficiary's stated annual salary is $45,000 per year, this level of revenue does not support a conclusion that 
the petitioner ·can support its two claimed employees or, as it cl<),im on rnotion, to pay $3,000 per month to 
students to support :the business. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner stlbmit.s compete11t objective evidence pointing to where the truth lies. Doubt 
cast on any aspect of the petitioner's proof may,. of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec, 
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582, 591-92 (BIA 1988). _In fact, counsel's assertions on motion suggest tbat the petitioner's business and 
the beneficiary's proposed managerial or executive role are l~rgely prospective. For example, counsel 
submits a business plan on motion emphasizing the petitioner's future growth and notes that the petitioner 
will hire seven adQitioh<otl employees. The petitioner must 'establish eligibility at the time of filing the 
nonimmigr~nt visa petitio~. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., l7 I&N Dec. 248 
(Reg. Comm'r 1978). As such, assertions as to the benefiCiary's potential future eligibility are not relevant 
and also insufficient to reopen the matter. 
Finally, on motion .• counsel ))~s not stated sufficient reasons for reconsideration supported by pertinent 
citations to statutes, regulations, or precedent decisions to establish that the AAO's decision was based on an 
incorrect application of law or USCIS policy. See 8 C.F.R. § l03.5(a)(3) . In fact, no reference to l~w or 
agency policy is set forth in counsel's brief, not is any st~(eroent as to its incorrect application of law 
proffered. For this reason, the mot.ion to reconsider will be denied. 
Motions for reconsideration of immigration ptOC~iogs are disf~vored for the same reasons as petitions for 
rehearing and motions for~ new lfi.~l on the basis of newly discovered evidence. See INS v. Doherty, 502 U.S.· 
314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a 
"he~vy bl!fden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that burden. 
As a final note, the proper filing of a motion tO reopen anQ!or reconsider does not stay the AAO's prior 
decision to dismiss an appeal ot extend a beneficiary's previously set departure date. 8 C.F.R. 
§ l03.5(a)(l)(iv). 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sou~ht. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, the petitioner has not met that burden. 
ORDER: The motion is denied.