dismissed EB-1C Case: Information Technology

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DATE: MAR 1 2 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S,I)epa~ent of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
witshington, oc 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe 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 AAO inappropriately applied the law iri reaching its 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 motion can be found at8 C.F.R. § 103.5. Do not file any motion directly with the 
AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) r~quires any motion to be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen. 
www.useis.gov 
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DISCUSSION: The preference visa petition was denied by the director, Texas Service Center. The 
Administrative Appeals Office (AAO) dismissed the subsequently filed 
appeal. The matter. is now 
before the AAO on _a motion to reopen and/or motion to reconsider. The motion will be dismissed and 
the director's and the AAO's decision will be undisturbed. 
The petitioner is a Delaware iimit~d liability company engaged in Iriformation Technology services, and 
seeks to employ the beneficiary as its chief executive officer (CEO). Accordingly, the petitioner 
endeavors 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. · 
The director denied the petition based on the following two grounds: (1) the petitioner failed to establish 
that the beneficiary had at least one continuous year of full time employment abroad with a qualifying 
organization within the three years immediately preceding the filing of the petition;. and, (2) the 
petitioner failed to establish that the beneficiary WaS employed by the foreign company in a qualifying 
managerial or executive capacity. 
On June 7, 2010, the petitioner filed a Form 1-2908 and stated that it is filing an appeal. In a decision 
dated June 13, 2012, the AAO dismissed the appeal and affirmed the director's decision. On July 16, 
2012, counsel for the petitioner filed a Form 1-2908 and identified it as a Motion to Reconsider and a 
Motion to Reopen. On motion, counsel submits a brief and supporting documentation. 
Counsel's assertions do not satisfy the requirements of a motion to reopen. The regulations at 8 C.F .R. 
103.5(a)(2) states, in pertinent part: "A motion to reopen must state the new facts to be provided in the 
reopene~ proceeding and be supported by affidavits or other documentary evidence." 
Based on the 
plain meaning of "new," a new fact is found to be evidence that was not available and could 
not have been discovered or presented in the previous proceeding. 1 
A review of the evidence that the petitioner submits on motion reveals no fact that could be considered new 
under 8 C.F.R. 103.5(a)(2)'. The evidence submitted was either previously available and coul~ have been 
discovered or presented in the previous proceedin~, or it post-dates the petition. 
Counsel for the petitioner also states that it is filing a motion to reconsider. 8 C.F.R. § 103.5(a)(2) 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. 
1 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 RIVERSIDE UNIVERSITY DICTIONARY 792 (1984)(emphasis in 
original). 
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On motion, counsel does not submit any document that would meet the requirements of a motion to 
reconsider. A review ofthe record and the adverse decision indicates that the director and the AAO 
properly applied the 
statute and regulations to the petitioner's case. 
On motion, counsel for the petitioner disputes the AAO's decision, arguing that the AAO used the 
incorrect three-year time period as the point of reference. Specifically, counsel asserts that the AAO 
should have considered the beneficiary's employment abroad in light of the fact Vtat it took place within 
three years of the beneficiary's lawful admission into the United States in a TN nonimmigrant visa 
category. 
On motion, counsel contends that the beneficiary "possesses at least one year of qualifying experience, 
from January 2005 through March 2006, outside the United States as CEO and President of the 
Canadian entity, a managerial position of considerable responsibility, within 3 years before his entry into 
the United States as TN nonimmigrant." Counsel also states that the AAO erred by counting the one 
year experience abroad preceding the change of status to an L-1· nonimmigrant classification, rather than 
when the beneficiary entered into the United States on a TN nonimmigrant classification. Counsel 
further states that when the beneficiary entered the U.S. as a TN nonimmigrant on March 3, 2006, the 
beneficiary was to provide services as a Computer Analyst "under a corporation-to-corporation contract 
between the Canadian company and various US clients." In addition, counsel states that during the 
beneficiary's stay in TN nonimmigrant classification, he continued to serve the foreign company as 
CEO and President. 
On motion, the petitioner submits addendums to letters previously submitted by the companies that 
utilized the beneficiary's services when he was in the United States in TN nonimmigrant classification. 
The new letters state that the beneficiary worked at the companies pursuant to a contract between the 
U.S. client and the beneficiary's foreign company. Counsel claims that the beneficiary was still 
employed by the foreign company when he was working in the U.S. in TN nonimmigrant classification. 
However, the AAO noted that the beneficiary did not enter the United States in TN nonimmigrant 
classification to render services to the same employer or to a subsidiary or affiliate thereof in a capacity 
that is managerial or executive. The petitioner did not provide sufficient evidence to establish that at the 
time the beneficiary entered the United States to work in TN nonimmigrant classification for various 
U.S. companies, those employ~rs had a qualifying relationship with the beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that 
the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. 
entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
§ 203(b)(l)(C) of the· Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R.. § 204.50)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). In this case, the petitioner did not establish that the 
beneficiary's.employer when.he first entered into the United States has a qualifying relationship with the 
beneficiary's foreign employer. 
Counsel also claimed that when the beneficiary was in the United States in TN nonimmigrant 
classification he was still in the role of CEO and President for the foreign company. However, the 
petitioner failed to provide any corroborating evidence for this claim and failed to explain how the 
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beneficiary could have a full-time job in the United States as a Computer Systems Analyst while also 
filling the position of CEO and President for the Canadian parent company. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft 
ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Furthermore, even if the petitioner can prove that the beneficiary entered the United States as a TN 
nonimmigrant to work with the beneficiary's foreign employer, or a company that has a qualifying 
relationship with the foreign company, it still cannot establish that the beneficiary was working in a 
managerial or executive capacity when he entered the United States in TN nonimmigrant classification. 
The Service· does not feel that Congress intended that nonimmigrant managers or executives who have 
already been transferred to the United States should be excluded from this classification. Therefore, the 
regulation provides that an alien who has been a manager or executive for one year overseas, during the 
three years preceding admission as a nonimmigrant manager or executive for a qualifying entity, would 
qualify." See 56 Fed. Reg. 30703,30705 (July 5, 1991) (emphasis added). 
The beneficiary was employed as a Computer Systems Analyst when he was employed in the U.S. in 
TN nonimmigrant classification. The petitioner did not provide a job description for this position and 
did not establish that the beneficiary was in a managerial or executive capacity. · 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly supports 
the pivotal 
role of a clearly definedjob description, as the actual duties themselves reveal the true nature. 
of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.ff'd, 905 
F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, USCIS reviews the. 
totality of the record, which includes not only the beneficiary's job description, but also takes into 
account the nature of the petitioner's business, the employment and remuneration of employees, as well 
as the job descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a 
complete understanding of a beneficiary's actual role within a given entity. 
The definitions ofexecutive and managerial capacity have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions.· Second, the 
petitioner must prove that the benefiCiary primarily performs these specified responsibilities and does 
not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 
1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary was 
employed in a managerial or ~xecutive capacity when he entered the United States in TN nonimmigrant 
classification. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
See sec. 291 of the Act, 8 U.S.C. 1361; see also Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). 
The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the 
benefit sought. Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
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The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's claim is 
·"probably true," where the determination of "truth" is made based on the factual circumstances of each individual 
case. Matter ofChawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). 
In evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its quality. 
/d. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director 
must examine each piece of evidence for relevance, probative value, and credibility, both individually and within 
the context of the totality of the evidence, to determine whether the fact to be proven is probably true. 
Here, the submitted evidence does not meet the preponderance of the evidence standard. As noted in the 
director's decision and the AAO's decisions, the petitioner did not provide sufficient relevant, probative, 
an<;l credible evidence to establish the petitioner meets the regulatory requirements to establish eligibility 
for the I-140 immigrant visa petition. 
Motions for the reopening of immigration proceedings are disfavored for the same .reasons as are petitions 
for rehearing and motions for. a new trial on the basis of newly discovered evidence. 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 burden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met 
that burden. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. 1361. The petitioner has not sustained that burden. 8 CFR 103.5(a)(4) states that "[a] motion 
that does not meet applicable requirements shall be dismissed." Accordingly, the motion will be 
dismissed, the proceedings will not be reconsideted, and the previous de~isions of the director and the 
AAO will not be disturbed. 
ORDER: The motion will be dismissed. The director's and AAO's decision will be undisturbed. The 
petitioner is denied ..