dismissed EB-1C Case: Import/Export

(b)(6)
Date: 
SEP 2 5.2013 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citi.zenship and Immigration Service~ 
Administrative Appeals 9ffice (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services I 
OFFICE: NEBRASKA SERVICE CENTER 
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 (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 Notiee of Appeal or Motion (Form I-290B) 
within 33 days of -~the date of this decision. Please review the F()rm l-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing iocation, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~ f- Ron Rosenberg · 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed this denial to the Administrative Appeals Office (AAO). On June 25, 2013, the AAO 
dismissed the appeal. The matter is now before the AAO on a motion to reopen and a motion to reconsider; 
in accordance with 8 C.P.R.§ 103.5. The AAO will dismiss the motion: 
the petitioner filed this immigrant petition seeking to classify the ben~ficiary as a m\lltinational executive or 
manager pursuant to section 203(b)(l)(C) of the Immigration and N11tionality Act (the Act), 8 U.S.C . 
. § l153(b )( 1 )(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 is seeking to employ the beneficiary as its president/executive manager. 
On February 27, 2009, the director denied the petition on two aJtemative grounds, concluding that the 
petitioner failed to establish that: (1) the beneficiary was employed abroad, or will be employed by the 
petitio_ner, in a qualifying managerial or executive capacity; and (2) the beneficiary was an ''employee" of the 
foreign entity and will be an "employee" of the petitioner. 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 his time performing non-qua:lifying tas:i(s relate<,i to sales, purchasing, inventory, and other functions, along 
with occasional supervision of nonprofessional employees. The director noted that while the foreign entity's 
organizational chart indicates that there were workers or contractors in the areas of sales, transport, 
warehousing and accounting, the position description provided, fot the beneficiary's position abroad, was 
essentially the same as that provided for the beneficiary's position in the U.S. company. The ditectot 
determined that th.e description therefore indicated that he spent the majority of his time performing non­
@alifying tasks related to sales, purchasing, inventory and other functions, and supervised non-professional 
employees. Furthermore, the director noted that the beneficiary and his wife are co-owners of the U.S. and 
foreign entities, and therefore the beneficiary could not be considered an employee of the foreign entity or 
serve as an employee of the U.S. petitioning company. 
The petitioner subsequently filed an appeal to the AAO. On appeal, counsel for the petitioner asserted that 
the service erred in its findings and that the petitioner' has established that the beneficiary is 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 managerial 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 performed 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 incorporated and the beneficiary
1
is an employee of the corporation. 
On June 25,"2013, the AAO dismissed the appeal and affirmed the director's decision to deny the petition, 
concluding that the petitioner failed to establish that the beneficiary was employed abroad, or will be 
employed by the petitioner, in a qualifying managerial or executive capacity. In its decision, the AAO 
(b)(6)
.r 
. NON-PRECEDENT DECISION 
Page 3 
thoroughly addressed counsel's objections to the denial of the petition in a 13-page decision. The AAO found 
that, although 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 on managerial duties; 
however, the AAO found that the majority of the duties listed for the beneficiary, which the petitioner 
indicated would account for more than hlllf of his time, are actually non-qualifying duties. The A~O further 
found that the l)'.S. petitioning company does not have sufficient staff to relieve the beneficiary from 
performing non-qualifying operational duties associated with providing the petitioner's products and services. 
The AAO noted that the petitioner did not provide a description of the duties the beneficiary performed prior 
to his relocation to the U.S. or evidence of the staffing of t.he foreign entity for the relev~nt time period. The 
AAO also noted that the only position description provided for the beneficiary's foreign employment closely 
resembles the description provided for the U.S. employment and therefore, does not meet the requirements of 
a position in a qualifying managerial or executive.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 ~nd found no need to further explore tl;le iSst1e of an employer­
employee nilatiQnship between the beneficiary and its foreign and U.S. employers. 
The petitioner subsequently filed the inst;mt motion to reopen and motion to reconsider the AAO's decision 
dated June 25,. 2013. On motion, counsel for the petitioner submits a brief in which she addresses the AAO's 
grounds for dismissipg the appeal. ~· 
The regulation at 8 C.F.R. § 103.5(a)(2) states: 
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. § 1 03.5(a)(3) states: 
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 [U.S. Citizenship and Immigration Services (USCIS)] 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. 
The regulation at 8 C.F.R. § 103.5(a)(4) states, in pertinent part: "A motion that does not meet applicable 
requirements shail be dismissed." 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
The instC:tnt motion consists of a "memorandum" submitted by counsel. First, counsel for the petitioner 
addresses the employer-employee relationship between the beneficiary and its foreign and U.S. employers. 
Counsel states thatthe AAO's decision on this issue ''is not. understood." In: its decision, the AAO specifically 
stated that, "the dedsion of the director Will be withdrawn as it relates to the beneficiary's status as an 
employee.'' As such, this issue is no longer relevant in these proceedings. 
Second, ~ounsel for the petitioner addresses the beneficiary's role in a position of a primarily managerial or 
executive capacity. Counsel indicates that the AAO failed to consider evidence presented on appeal, in the 
form of a print-out {rom the U.S. Department of Labor (DOL), B.ureau of Labor Statistics' Occupational 
Outlook Handbook (OOH) outlining hOw executives function, in Which the duties listed ate very similar to 
those ascribed to tbe beneficia,ry. While the petitioner offers this as supporting evidence, these documents 
have little probative value as they were not created within the scope of the statutory definitions of managerial 
or executive capacity and, as such, do not help to establish that individuals who fit the generalized DOL 
position overview for executives or managers must necessarily fit the statutory definitions that apply to the 
matter at hand. 
Counsel also addresses the AAO's focus on the petitioner's lack of employees and references a:n AAO non­
precedent decision where it was found that a sole employee was an executive. the reference made by counsel 
if not relevant in this case as the AAO found that the benefiCiary primarily perfortns non-qualifying duties 
and the lack of subordinC:tte st&ff indicates that he does Qot hC:tve employees to relieve him from performing 
such non~quC:tlifying duties. In: this instance, the lack of employees hinders the beneficiary from performing 
the duties of an executive or manager. Counsel then mentions that the decision "makes much" of a 2007 
quarterly return, when this is not the case. In: its decision, the AAO's decision simply acknowledged all of the 
evidence presented by the petitioner to. demonstrate the existence of its employees, including the referenced 
quarterly return. 
Third, counsel for the petitioner addresses the beneficiary's employment abroad in an executive or managerial 
capacity and simply states that the AAO decision "uses almost identical language in evaluating the job duties 
of the beneficiary for the Mexican company." Counsel asserts that the work flow of items betWeen the U.S. 
and Mexican corporations was extensive and clearly showed 
that the beneficiary was engaged in an executive, 
position. This assertion is not accurate. In: its decision,~ the AAO clearly stated that the petitioner did not 
provide infonilation specifically fot the time period the beneficiary was employed abroad; the AAO found 
thC:lt the petitioner submitted inconsistent information about the foreign entity's staff at the time 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. position, and therefore 
the AAO did not discuss it in detail tWice, but rather referenced its analysis of tbe description for the U.S. 
employment. 
Finally, counsel fotthe petitioner addresses "errors in the AAO decision," which counsel contends suggest 
that the file reviewed was not the one related to this case. This C:tssertion is not accurate. Counsel first 
reiterates its contention that the AAO ignored the evidence presented on appeal, such as the DOL materials. 
(b)(6)
NON-PRECEDENT DECISION 
Pages 
This Was discussed abov~ a:nci will .not be re-addressed. Counsel contends that the decision contains errors . . 
related to the. ciocurnentation; counsel references the u.s. organizational chart and discusses the heading of 
"impo/expo department.'' Counsel states that this heading does not appear on the U.S. organizational chart, 
but does appear on the foreign chart and contends that the U.s. chart submitted pi) appeal was riot considered 
in the decision . ·rhis is not accurate. A review of the record clearly demonstti}tes that the AAO~s decision 
was referring to th!! U.S, organization~l ch;trt subiJli~ted with the initi~l evidence and said chart clearly states 
"impo/expo department" as a heading. The organizational chart discussed in suppoq of the appeal does state 
''import/export department" .as .stated by counsel. lt is clear that the AAO did riot err in its references t.o the 
·multiple organizational charts submitted in this case .. 
Counsel's final is.soe rel;:~.tes to the. d;~te of the Rf'E. · Counsel is correct in that the RFE . date mentioned in the 
AAO decision w(,ls incorrect However, said error is m~rely an oversight and does not impact the decision in 
this m_atter. Counsel contericis that the use of the erroneous date suggests that the AAO was not reviewing the 
file related to this case, . but this contention is not valid as ali the facts discussed in detail In the appellate 
. decision are relevant to the matter at hand. The fact that the AAO entered an incorrect date in etrot does not I - .-. ' .. --- ---- - -- · - . 
discredit its decision based on the facts in the recotci . 
. The AAO's re.view itl tl:iis matter is limited to the narrow issue of whether the petitioner has presented and 
cioctmiented new facts or documented sufficient reasons, supported by pertinent precedent decisions, to 
warrant the re-opening or re.consideratlon of the AAO;s decision issued on June 25, :2013 . . In the current 
proceeding, counsel ha~. not adequately addressed the gtoonds s~ted for ciismi:ss(,!J of the appeiil. 1 
lit l,lQQition, 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 :validity. of the urifavotable deCision has been or is the subject of any 
judicial proceeding.'' The petitioner's motion does not coqtain this.s~teth.en.t. Th~ n~glilation at 8 C.F.R .§ 
· 103.5(a)(4) states that a inotion 'Which does not meet cippUccible requirei11ents rpU_St be dismissed. Tl:Ierefore, 
because tl:Ie instant motiqn. does not meet · the. applicable filing requirements listed in 8 C.F.R. · § 
103,5(a)(l)(iii)JC). it must also be dismissed for this reason. 
. . . 
· · Motions for the reopening or reconsideration of immigfa.~ion pr~~djngs ate. 'cii.sfavoreq fQr th~ sa_rne. reasons ~s 
petitiop:s fot ~hearing and motions for a new trial 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 ''heavy b.urden.'; INS v, Abwiu, 485 U.S. at 110. With the cutte:nt motion, th¢ mova.nt h~s not ·met t,hl,lt 
burden. The motioQ. wiJI be dismissed. 
._) 
Tbe burden of proof in these-proceedings rests solely with the petitioner. Secilon 291 of the Act, 8 U.S.C. § l36l. 
The petitioner has not met that burden. Accordingly, the motion will be dismissed, ·the proceedlngs .will not~ 
reconsidered, and the previous decisions of the director and the AAO will not be disturbed . 
ORDER: The motion is dismissed.