dismissed EB-1C Case: International Freight Forwarding

(b)(6)
DATE: AUG 2 8 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusett s Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: SELF-REPRESENTED 
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 incotTectly 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 the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
~R~~~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa pet1t10n was denied by the Director, Texas Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO), which dismissed the appeal. The 
petitioner subsequently filed a motion to reopen, which the AAO also dismissed. The matter is now before 
the AAO on a second motion to reopen. The motion will be dismissed. 
The petitioner is a Florida corporation engaged in the business of international freight forwarding. It seeks to 
employ the beneficiary as its marketing manager. 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 concluding that the petitioner failed to establish that: (I) the beneficiary was employed 
abroad in a qualifying managerial or executive capacity; and (2) the petitioner has a qualifying relationship 
with the beneficiary's foreign employer. 
The petitioner appealed the denial disputing the director's findings. In a decision dated June 19, 2012 the 
AAO dismissed the appeal affirming the director's decision on both grounds. 
In support of the first motion, the petitioner provided additional evidence and disputed the AAO's decision in 
a supplemental brief. However, in a decision dated May 7, 2013 the AAO concluded that the petitioner's 
submissions did not meet the regulatory requirements for a motion to reopen and therefore dismissed the 
motion. More specifically, the AAO questioned the relevance of the petitioner's organizational chart, given 
that the beneficiary's employment with the petitioning entity was not among the issues addressed either by the 
director in the original denial or by the AAO in its decision dismissing the appeal. The AAO further found 
that the evidence submitted on motion could have been submitted previously in support of the petition, in 
response to the director's notice of intent to deny (NOID), or on appeal. Lastly, the AAO rejected the 
petitioner's claim of ineffective assistance of counsel, pointing out that the petitioner failed to complete a 
three-step remedial process delineated in a Board of Immigration Appeals precedent decision. See Matter of 
Lozada, 19 I&N Dec . 637 (BIA 1988), affd, 857 F.2d 10 (1st Cir. 1988). 
In support of the current motion to reopen, the petitioner provides additional evidence addressing the 
beneficiary's employment abroad and the claimed qualifying relationship with the beneficiary's employer 
abroad. With regard to the beneficiary's employment abroad, the petitioner has submitted the following 
evidence: (1) a letter dated May 28, 2013 from a representative of the beneficiary's claimed foreign employer; 
(2) a set of un-translated payroll documents from 2005; and (3) an un-translated and undated foreign 
document, which the petitioner described as the foreign employer's social security tax information. With 
regard to the two latter sets of documents , the petitioner's failure to submit certified translations of the 
documents precludes the AAO from being able to determine whether the evidence supports the petitioner's 
claims. See 8 C.P .R.§ l03.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any 
weight in this proceeding. 
With regard to the petitioner's claimed qualifying relationship with the beneficiary's employer abroad the 
petitioner provides the following: (1) documents filed with the State of Florida on January 18, 2013 showing 
that sought and was ultimately granted authorization to 
conduct business in Florida; (2) a foreign document dated September 30, 2010 showing an ownership 
distribution scheme for ; (3) a document dated September 9, 2003 from an accountant who also 
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provided the own ership distribution scheme of as well as that of the U.S. petitioner; (4) a letter 
dated April 26, 2012 from Florida's Division of Corporations indicating that the petitioner filed an 
amendment to its Articles of Incorporation on April 24, 2012; and (5) a stock tran sfer document signed on 
October 20, 2010 showing a change of own ership pertaining to 
accompanied by newly issued stock certificate s reflecting the changes. 
As with document s submitted in support of the petitioner ' s earlier motion, the supporting documents that 
accompany the instant motion to reopen do meet the regulatory requirement s s pecified at 8 C.F.R. 
§ 1 03 .5(a)(2), which states, in pertinent part, that 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. 
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 previou s proceeding .' 
To the extent that a considerable portion of the documents enumerated above, including the documents that 
pertain to the petitioner's qualifying relationship (enumerated above in Nos . 1, 2, 4, and 5) reflect 
circum stances or events that had not yet taken place as of March 8, 2010 , the date the petition was originally 
filed, such documents are not relevant to th e issue of whether or not the petitioner had established eligibility 
at the time of filing. Precedent case law has established that a petitioner must show eligibility at the time of 
filing; a petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new set of facts. Matter of Kati gbak, 14 I&N Dec . 45,49 (Comm . 1971). 
Furthermore, with regard to the employment letter dated May 28, 2013, while the letter itself is new in the 
sen se that it was created in response to the AAO' s prior decision, the information contained in the letter 
cannot be deemed as new or previously unavailable. The record clearly shows that the subject of the 
beneficiary 's employment abroad was addre ssed as far back as May 17, 2010 when the director issued a 
NOID. The petitioner was given the opportunity to respond to the NOID and/or supplement the record on 
appeal with whatever evidenc e or information deemed necessary to establish eligibility. The motion to 
reopen is not intended for the purpose of allowing the petitioner multiple opportunities to respond to the 
director's or to the AAO's adver se finding s; rather , as previou sly indicate, the purpo se of this motion is to 
allow the AAO to consider evidence that was not available for review at the time of the AAO ' s May 7, 2013 
decision and thus could not have been submitted to support the prior motion. Here, the petitioner attempts to 
submit a letter containing information that could have been provided at any time prior to the AAO' s dismissal 
of the appeal . As such, the AAO will not consider the contents of the letter in this latest motion to reopen. 
Additionally, with regard to documents that predate the filing of the Form I-140 , the petitioner has neither 
claimed nor submitted evidence to establish that such documents were previously unavailable. It is therefore 
uncle ar why such documents were not submitted earlier-prior to the denial of the petition or, alternatively, 
prior to the AAO' s dismissal of the appeal. 
1 
The word "new" is defined as "l. having existed or been made for only a short time ... 3. Just discovered, 
found , or learned <new evidence> .. .. " WEBSTER'S NEW COLLEGE DICTIONARY 753 (3rd Ed., 2008)(emphasis 
in original) . 
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In summary, the AAO will not reopen this proceeding to consider documents that cannot be deemed as 
previously unavailable or documents that are irrelevant because they were either created for the sole purpose 
of addressing prior adverse findings or reflect circumstances or events that took place after the petition had 
been filed. 
Therefore, the motion to reopen 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 . 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.P.R. 
§ 103.5(a)(l)(iv) . 
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.