dismissed EB-1C Case: Import/Export

(b)(6)
\ 
U.S. Department of Homeland Security 
U.S. Citizenship an_d Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529~2090 
U.S. Citizenship 
and Immigration 
Services 
Date: OFFICE: NEBRASKA SERVICE CENTER Fll..E: 
DEC 0 5 2013 
IN RE: Petitioner: 
Beneficiary: 
PETITION:· Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C)ofthe Immigration and Nati(mality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find. the decision ofthe Admipistra~ive 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 tbe Form I-290B instructions at. 
http://www.uscis.gov/fotrns for the latest infonnaiion on fee, filing location, and ()ther requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
(b)(6)
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DISCUSSION: The Director, Nebraska Service Center denied the employment-based· immigrant visa 
petition. The petitioner appealed th~ denial to the Administrative Appeals Office (AAO). On June 25, 2013, 
the AAO dismiss~d ~he appeal, and on September 25, 2013 the AAO dismissed the subsequent motion. to 
reopen and motion to ~econsider. The matter is now before the AAO on a second motion to reopen, in 
accordance with 8: C.F.R. § 103.5. The AAO will diSJi)iss the moti<>tt. 
The petitioner filed this immigrant petition seeking to classify the beneficiary as a multinational executive or 
· manager pursuant to section 203(b)(l)(C) of the immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(C). The petitioner, a California corporation established in March 2002 .• states that it operates an 
import and export business with ''1-5'' current employees and a gross annual income of "approx. $146,000." 
The petitioner 1s seeking to employ the beneficiMY as its president/executive manager. 
On February 27, Z009, tl)e director denied the petition on two alternative grounds, conCluding that the 
petitioner failed to establish that: (1) the beneficiMY was employed abroad; or will be employed by the 
petitioner, in a qualifying managerial or executive capaCity; and (Z) the beneficia,ry W(lS an "employee" of the 
foreign entity and will be. a.n ''employee" of the petiti()ner. In denying the petition, the director found that the 
beneficiary's detailed weekly breakdown of job duties demonstrates that the beneficiary spends the majority 
of nis time performing non-qualifying tasks related to sales, purchasing, inventory, and other functions, along 
with occasional supervision of nonprofessional employees. The director ilbted that while the foreign eQtity's 
organizational chart indicates that there Were workers or contractors in the areas of sales, transport, 
warehousing and accountin~, tne position description provided, for the beneficij).cy's position abroad, was 
essentially the s~me as ~at provided for the beneficij).cy's position in the U.S. company. The director 
determined that the description therefore indicated that he spent the majority of his time performing non­
qualifying tasks related to sales, purchasing, inventory .and other functions; <;tnd supervised non=profession.al 
employees. Furthem10re, the director noted th~t the beneficiary and his wife are co-owners of the U.S. and 
foreign entities, ll:nd therefore the beneficia.ry could not be considered an employee of the foreign entity or 
serve as an.employee ofthe U.S. petiti<:ming company. 
The petitioner subsequently filed an ~,tppeal to tbe MO. On appeal, counsel for the petitioner asserted that 
the service erred in it.s findings and that the petitioner has established that the beneficiary was and will be 
employed in both a managerial and an executive capacity. Counsel contended that the position description 
provided establishes that the beneficiary will be employed in a qualifying man~gerial or executive capacity, 
The petitioner submitted a. duplicate copy of the beneficiary's daily breakdown of duties and indicated that the 
evidence establishes that the beneficiary spends 53.3%, of his time on executive duties and 46.7% of his time 
on managerial duties. Counsel asserted that the position descriptions provided for the beneficiary and the 
foreign entity's other employees establish that he petfottned primarily managerial and executive dUties and 
that the foreign entity had sufficient Staff to relieve him from involvement in non-qualifying tasks. Counsel 
further asserted that the U.S. petitioner is incorpor:ated and the beneficiary is an employee of t_be corporat·ion. 
Qil June 25, 2013, tbe AAO dismissed the appeal and affirmed the director's decision to deny the petiti()n, 
concluding tha.t the petitioner failed to establish that the beneficiary was employed abroad, or will be 
(b)(6)
NON-PRECEDENT DECISION 
Page3 
employed by the petitioner, in a qualifying managerial or executive capacity. In its decision, toe AAO 
thoroughly aqdressed counsel's objections to the denial of the petition ih a 13~page decision. The AAO found 
~hat, altqough the petitioner submitted a breakdown of the beneficiary's daily routine for one week and 
indicated the tasks he would be performing, the petitioner did not provide sufficient information detailing the 
beneficiary's duties at the U;S. company to demonstrate that these duties qualify him as a manager or as an 
executive. The petitioner categorized each of the beneficiary's duties as either managerial or executive and 
concluded that he spent 53.3% of his time on executive duties and 46.7% of his time oil m_an_agetial duties; 
however, the AAO found that the majority of the duties listed for the beneficiary, which the petitioner 
indicated would account for more _ than half of his time, a_re actually non-qualifying duties. The AAO further 
found that the U.S. petitioning company does not have sufficient staff to relieve the beneficiary from 
performing non-q-ualifyi_ng operational duties associated with providing the petitioner's products and services. 
The AAO also noted ihat the only position description provided for the beneficiary's foreign employment 
closely resembles the description provided for the u.s. employment (l.nd therefor~. does not meet the 
requirements of a position in a q1;1alifying rti(l.nagetial or ex~Qtive capacity at the foreign entity. 
As it related to the issue of the beneficiary's status as an ''employee'' of the foreign entity and U.S. company, 
the AAO withdrew the director's decision and found no need to further explore the_ issue of an employer­
employee relationship between the beneficiary and its foreign and U.S. employers. 
The petitioner subsequently filed a motion -to reopen 3Jld motion to reconsider the AAO's decision dated June 
25, 2013. On September 25, 2013, the AAO dismissed the petitioner's motions and affirmed its decision. On 
mot_ion, counsel for the petitioner first addressed the employer-employee relationship between the beneficiary 
and its foreign and U.S. employers; however, in its previous decision, the AAO specifically st(:lted that, "the 
decision of the director wiH be withdrawn as it relates to the beneficiary's status as an employee," and as such, 
this issue is no longer relevant in these prQGeedings. Secq_nd, counsel for the petitioner addressed the 
beneficiary's U.S. employment in a managerial or executive capacity and the AAO's focus on the petitioner:s 
lack of employees. The AAO found that the beneficiary primarily performs non-qualifying duties and the 
lack of subordinate staff indicates that he does not have employees to relieve him from perfoniling such non~ 
qualifying duties. In this inst~nce, the lack of employees hinders the beneficiary from performing the duties 
of an executive or manager. Third, counsel for the petitioner addressed the beneficiary's employment abroad 
in an executive or managerial capacity and asserted that the work flow of items betWeen the U.S. and 
Me~ican corporations was extensive a.nd clearly showed th;1t the beneficiary was engaged !n an executive 
position. This assertion was not accurate; in its decision, the AAO clearly stated that the petitioner did not 
provide information specifically for the time period the beneficiary was employed abroad and AAO found 
that the petitioner submitted inconsistent information about the foreign entity's staff ,at the tiine the beneficiary 
was employed . the AAO further found that the only position description provided for the beneficiary's 
employment abroad closely resembled the position description provided for his U.S. po_sition, and therefore 
the AAO ~id not discuss it in detail twice, but ratber referenced its an<1!ysis of the description fot the U.S. 
employment. Finally, counsel for the petitioner aqdresseq "errors in the AAO decision," which counsel 
contended suggest that the file reviewed was not the one related to this case. This assertion was not accurate; 
(b)(6)
NON-PRECEDENT l)ECISION 
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a review of the record clearly demonstrated that the AAO did not err iri its decision and each document 
discussed was in fact submitted ih support of this petition. 
The petitioner subsequently filed the instant motion to te9pen the MO's d,e<:J~ion dated September 25, 2013. On 
motion, counsel for the petitioner submits a bri~f in which she addresses the AAO's grounds for dismissing the 
appeaL 
The regulation at 8 C.F.R. § 103.5(a)(2) states: 
A motion to reopen inust state the neW fa¢ts to be provided in the reopened proceeding and be . 
. supported by affidavits of other documenw-y evidence. 
( 
The regulation a,t 8 CF.R. § 103.5(a)(4) states, in pertinent part: ''A motion that does not meet applic<:tble 
req~Jirements shall be dismissed." 
The instant motion consists of a four~pl:lge briefand~dditional evidence submitted by counsel. First, counsei 
for the petitioner States that the petitioner is presenting new facts and has material evidence which was not 
provided at the ~ime of original filing or on appeal. Counsei goes on to address the beneficiary's 
"employment" abroad and submits evidence that he paid 
taxes in Mexico as proof that be was an employee of 
the foreign entity .. Again, in its decision dated JQhe 25, 2013, the AAO specifically stated that ''the decision 
of the director will be withdrawn as it r~l~.t¢s to the beneficiary's status as an employee." The AAO 
determined that tlie beneficiary was employed by the foreign entity. As such, this Issue is no longer relevant 
in these proceedings and will not be discussed further. 
Second, counsel for the petitioner addresses th_e beneficiary's position at the fpreign entity and asserts that he 
was employed in a managerial capacity at the foreign entity <lS its general manager. Counsel then addresses 
the beneficiary's position at the U.S. company and asserts that it is a rnanageriaVexecutive position. Counsel 
directs the AAO to review policy memos in conjunction with the description of the beneficiary's position in 
the U.S. to prove he will'serve in a managerial capaCity. 
Fjnally, counsel contends that the petitioner provided documents and facts to it former counsel which were 
not 
filed with the petition or the appeal. Counsel presents this information on motion. 
On motion, the petitioner submits a statement from the beneficiary, who attests that he , provided 
documentation to former counsel and was assured it would be submitted to tJSCIS. He states that he then 
received a denial of the petition, a <;lismissal of the appeal, arid a dismissal of the motion based on lacking 
evidence in the record, all of which he had provided to fotrner counsel. 
Any appeal or motion based upon a claim 6f ineffective assistance of counsel requires: ( 1) that the claim be 
supported by an affidavit of the allegedly aggrieved responclent setting fOI1h in qet().jl th_e agreement that W<:ts 
entered into with counsel with respect to the actions to be taken and what representations counsel did or did 
(b)(6)
NON-PRECEDENT DECISION 
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not make to the respondent in thi~ reg<l,rd, (2) that counsel whose integrity or competence is being impugned 
be iilfoiined of the allegations leveled against him and be given an opportunity to respond, and (3) that the 
ap~;:tl or motion reflect whether a complaint has been filed with appropriate disciplinary authotit_ies with 
respect to any violation of counsei's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 
I&N Dec. 637 (BIA)1988), aff'd, 857 F.Zd 10 (1st Cir. 1988). Here, neither counsel nor the petitioner submits 
evidence that previous counsel has been informed of the allegations leveled against her and given an 
oppo_rtunity to re~pond, or explains why a formal complaint has not been filed with the appropriate 
dis<;:iplinary authority with 
respect to previous counsel's yiolation of ethiCal ot leg(ll respoilsibilitie~. 
The . petitioner submits a new organizatjonaJ ch_;:tr:t depicting the beneficiary as "president/CEO," supervising a 
"buying department," "selling department," ''import/export department,'' and a "controler [sic] department.'' 
The "import/export department'' appears to be headed by aild includes ''warehouse," named as 
"transport,'' named as and "assist. custom," named as 
The "controler [sic] department" .appears to be headed by and includes an "admon. 
[sic] assist.," named as and "H.R," named as 
The petitioner also submits 
a list of "essential duties and responsibilities" for the beneficiary and describes his 
position as follows: 
• Plan , develop ; organize, irnptern.¢nt, clirect and evaluate the organiz;:ttion's fiscal function 
.<:!-1:19 performance. 
• Participate in the development of the corporation's plans and programs as a'' strategic · 
partner. 
• Evaluate and advise on the impa_et · of long range planning, introduction of new 
progtams/strategies and regulatory action. 
• Enh.ance and/or develop, implement and enforce policies and procedures of the 
organization by way of systems that will improve the overall operation and effectiveness 
of the corporation. 
• Ptovi<Je technical financial advice · and knowledge to others within the finan~ial 
discipline. 
• Continual improvement of the pudgeting process through education of department 
managers o~ financial issues imp(lcti)Jg tl!eir budgets. 
• Provide ~trategic financial input and leadership on decision making issues affecting the 
organization; i.e., evaluation of potential alliances acquisitions and/or mergers and 
pension funds and investments. 
• Develop a reliable cash flow projection process and reporting mechanism, which includes 
minimum ¢ash threshold to meet operating needs. 
• Be an ;:tdvisor from the financial perspective on C!.PY contracts into which the Corporation 
ma.y enter. 
(b)(6)
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The evidence presented on motion materially changes the fact$ previously presented with the original petition, 
on appeal, and on the previous motion. Here, i~ appears th<n the petitioner is presenting new evidence in an 
attempt to meet the requirements of a motion to reopen. However, this new organizational chart and list of 
duties for the btfneficiary is significantly different from those presented at the time of filing the petition. A 
petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a fUture date ~fter the 
petitioner or beneficiary becomes eligible under a .new set of facts. Matter of Katigb(lk,, 14 I&N Dec. 45, 49 
(Comm'r 1971). The petitioner must .establish that the position offered to the benefici_ary when the petition 
was filed merits 
classification as a Iiiafiti.geria.I or ex,ecutjve position. Matter ofMichelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg, Conim'r 1978). A petiti9ner may not make material changes to .a petition in an effort to 
make a deficiem petition COf1fOrm to users requirements. See Matter 'of Izummi, 22 I&N Dec. 169, 176 
(Assoc;. Comm'r 1998). Thus, the/documentation fails to meet the requirements for a motion to reopen at 8 
C.F.R. § 103.5(a)(2). Accordingly, the motion to reopen will be dismissed. 
The AAO's review in this matter is l.imited to the narrow issue of whether the petitioner has presented and 
documented new f~cts to warrant the re-opening of the AAO's decision issued on September 25, 2013. In the 
current proceedin~, counsel has not adequately addressed the grounds stated for dismissal of the previous 
motion. 
In addition, the regulation at 8 C.F.R. § 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a 
statement about Whether Or not the V(),ljdity Of the unfavorable decision has been Or iS the SUbject of any 
judicial proceeding." The petitioner's motion does not contain this statement. The regulation at 8 C.F.R. § 
l03.5(a)(4) states that a motion which does not meet applicable requirem~nts mustbe dismissed. Therefore, 
because the instant. motion does not meet the applicable filing requirements listed in 8 C.F.R:. § 
l03.5(a)(l)(iii)(C), it must also be dismissed for this r~son. 
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same reasons as 
petitions for rehearing and motions fora new trial on the basis of newly discovered evidenc.e. See INS v. Doherty, 
502 U.S. 314, 323 (l992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding 
bears a ''heavy bJjrcjen." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that 
burden. The motion will be dismissed. 
The burden of proof in these proc~ings rests solely with the petitioner. Section 291 of the Act, 8 U.S. C. § 1361. 
The petitioner has not met that burden. Accordingly, the motion will be dismissed, the proceedings will not be 
reopened, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.