dismissed EB-1C Case: International Trade

(b)(6)
U.S. Departm ent of Homeland Security 
U.S. Ci tize nship and Immigr ation Services 
Admini strative Ap peal s Office (A AO) 
20 Massac husetts Ave. N.W. , MS 2090 
Washin gto n, DC 2052 9-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE : 
OCT 2 2 2013 
OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION : Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b )(I )(C) of the Immigration and Nationality Act, 8 U .S.C. § 1153(b )(I )(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS : 
Enclo sed please find the deci sion of the Administrative Appeals Office (AAO) in yo ur case . 
T his is a non-pre cedent deci sion. The AAO does not announce new constructions of law nor establish agency 
policy through non-pr ece dent deci sions. If you believe the AAO incone ctly 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 reo pen, respec tive ly. Any motion must be filed on a Notice of App eal 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.P.R. § 1 03.5 . Do not file a motion directly with the AAO. 
Thank you, 
1 ~onRos ~ 
Chief, Administrative Appeals Offi ce 
www.uscis.gov 
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(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director , Nebraska Service Center. Th e 
petitioner appealed the matter to the Administrative Appeals Office (AAO), which dismissed the appeal. The 
petitioner sub sequently filed two successive motions - first a motion to reopen and reco nsider and later a 
motion to reope n - both of which were dismis sed by the AAO. The matter is now before the AAO on a 
motion to reope n and reconsider. The AAO will dismi ss this motion. 
The petition er is a North Carolina corporation engaged in the busi ness of internation al trade . It see ks to 
employ the beneficiary as its vice president. Accordingly, the petitioner endeavors to classify the ben eficiary 
as an e mployment-based immigr an t 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 base d on two grounds of ineligibility , concluding that the petitioner failed to 
establish that: I) the beneficiary was employed abroad in a qualifying manageri al or executive capacity and 
2) the beneficiary would be employed in the United States in a qualifying managerial or exec utive capaci .ty. 
On February 15, 2012 , the AAO dismissed the petitioner's appeal, finding that the petitioner failed to state the 
beneficiary 's specific task s or to offer time allocation s for those task s with regard to the beneficiary ' s foreign 
and proposed employment. In addition to finding that the petitioner offered deficient job descr iption s, the 
AAO also qu es tion ed whether the petitioner sufficient staff to relieve the benefici ary from having tQ allocate 
his time primarily to the performance of the company's non-qualifying operational task s. Additionally , the 
AAO made a finding beyond the director's decision , concluding that the petitioner submitt ed insufficient 
documentation conc erning its claimed parent -subsidiary relationship with the beneficiary's last foreign 
employer. 
On motion, co unse l focused on the beneficiary's leadership position and introduced evidence addressing the 
two original gro und s for denial as well as a letter dated March 7, 2012 from the petitioner's accountant to 
addre ss the AAO 's add itional finding. 
The AAO dismissed the petitioner's motion in a decision dated March 4, 2013, concluding that the 
submi ss ion of evidence that had been prev iously submitted cannot be deem ed as being prev iously unav a ilable 
and thus does not meet the requirement s of a motion to reopen. Moreover , the AAO e mpha sized that the 
petitioner fail ed to provide a supplemental job description, which the dire cto r requested prior to the original 
denial , and therefore declined to consider the previously requested evidence, citing prece dent case law in 
support of its decision. See Matt er of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N 
Dec . 533 (BIA 1 988) . The AAO notified the petitioner that failure to submit requested ev idenc e that 
precludes a material I ine of inquiry shall be grounds for denying the petition. 8 C.F.R. § I 03 .2(b )( 14 ). 
With regard to the petition er's motion to reconsider, the AAO determined that counsel failed to cite any legal 
preced e nt or applicable Jaw that would indicate an error on the part of the AAO in dismi ss ing the petitioner' s 
appeal. The AAO also clarified that the beneficiary's leadership position is not synonymous with being 
employ ed in a mana gerial or executive capacity for the purposes of this immigrant visa classification . The 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
AAO pointed to its original decision, which listed numerous factors that are considered when making a 
determination as to whether the petitioner meets the evidentiary burden of establishing that the beneficiary 
would be employed in a qualifying managerial or executive capacity as those terms are defined at section 
I 0 I (a)( 44) of the Act. 
On second motion, the petitioner stated that an error was committed in translating the beneficiary's position 
title with regard to his position abroad , claiming that the beneficiary was employed abroad in the position of 
technical director rather than the position of technical manager. The petitioner's prior counsel made the 
distinction between the two position titles, claiming that the former position of technical director was 
indicative of an executive position, while the latter position is indicative of a first-line manageL Counsel 
asked the AAO to consider evidence pertaining to the foreign entity, including the beneficiary's job 
description and job descriptions of the beneficiary's subordinate and superior , as well as documents 
pertaining to the beneficiary's U.S. employment, including the U.S . entity's organizational chatt and 
documents of business transactions. 
On current motion, the petitioner claims that the petitioner repeatedly submitted the same evidence to suppott 
its nonimmigrant L-1 A petitions, which were filed on behalf of the same individual, and points out that the 
previously filed petitions had been approved. Given such approvals, the petitioner questions the validity of 
the director's denial and the subsequent dismissals of the appeal and two successive motions , claiming that 
U.S. Citizenship and Immigration Services (USCIS) has either failed to properly review or simply does not 
understand the petitioner's submissions with regard to the beneficiary's employment. The petitioner further 
suggests that users should interview in person anyone it deems necessary and grant the petitioner the 
oppOttunity for an in-person oral hearing during which the petitioner can provide an explanation of its 
eligibility and fully understand the grounds for the prior adverse findings so that the petitioner can correct any 
deficiencies . 
As indicated in the AAO's prior decisions, the regulations at 8 C.F.R. § 103.5(a)(2) state, 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 previous proceeding.' 
In the present matter, the petitioner's only submission is the supporting statement in which the petitioner 
explains the desired outcome of having filed the instant motion. The petitioner has not , however , provided 
any evidence , new or otherwise, in support of the motion. 
1 
The word "new" is defined as "l. having existed or been made for only a shott 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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NON-PRECEDENT DECISION 
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The AAO has issued three prior decisions determining that the petitioner failed to provide adequate evidence 
to support a favorable finding. It is apparent that the petitioner seeks to overcome the adverse finding s on 
motion. However, as indicated in the AAO's prior decision, a motion to reopen is not the proper vehicle with 
which to address the original findings of a service center. The petitioner was given an opp01tunity on appeal 
to overcome the director's findings. The primary focus of a motion to reopen is any evidence that was 
previously unavailable, which, if made available at the time of the appeal, could have resulted in withdrawal 
of one, or more than one, of the director ' s adverse findings. Any documents that were previously available or 
were created subsequent to the adverse decision for the purpose of overcoming prior adverse findings do not 
meet the criteria for a motion to reopen. The petitioner has not provided evidence to meet these requirements. 
Therefore, the motion will be dismissed in accordance with 8 C.P.R.§ l03 .5(a)(4), which states, in pertinent 
part, that a motion that does not meet applicable requirements shall be dismissed. 
Next, in support of the motion to reconsider, the petitioner must state the reasons for reconsideration and 
supp01t such motion by citing pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or U.S. Citizenship and Immigration (USCIS) policy. 8 C.P.R. § 1 03.5(a)(3). A 
motion to reconsider contests the correctness of the original decision based on the previous factual record, as 
opposed to a motion to reopen which seeks a new hearing based on new or previously unavailable evidence. 
See Matter of Cerna, 20 I&N Dec . 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in the 
proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the "additional legal 
arguments" that may be raised in a motion to reconsider should flow from new law or a de novo legal 
determination reached in its decision that could not have been addressed by the party. Matter of 0-S-G-, 24 
I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which a party may submit, 
in essence , the same brief or statements that were previously presented on appeal (or in support of a prior 
motion) and seek reconsideration by generally alleging error in the prior decision. !d. Instead, the moving 
party must specify the factual and legal issues raised on appeal that were decided in error or overlooked in the 
initial decision or must show how a change in law materially affects the prior decision. !d. at 60. 
In this case, the petitioner failed to support this motion with any precedent decisions or other comparable 
evidence to establish that the decision was based on an incorrect application of law or USCIS policy. The 
motion to reconsider will therefore be dismissed. 
Lastly, with regard to the petitioner's apparent request for an oral argument, the regulations provide that the 
affected party must explain in writing why oral argument is necessary. See 8 C.P.R . § 103.3(b). Furthermore , 
USCIS has the sole authority to grant or deny a request for oral argument and will grant argument only in 
cases involving unique factors or issues of law that cannot be adequately addressed in writing. In this 
instance, the petitioner identified no unique factors or issues of law to be resolved. Although the petitioner 
vaguely indicated that USCIS failed to review previously submitted evidence, the record shows that the 
petitioner ' s properly submitted evidence had been reviewed on more than one occasion and the AAO's prior 
decision not to review evidence was thoroughly explained and was based on the petitioner's earlier failure to 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
timely submitted requested documentation. Moreover, the written record of proceeding ·s fully represents the 
facts and issues in this matter . Consequently , the petitioner's request for oral argument is denied . 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's pnor 
decision to dismiss an appeal or extend a beneficiary's previously set departure date . 8 C.F.R. 
§ 1 03.5(a)( I )(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; Matter ofOtiende, 26 I&N Dec. 127 , 128 (BIA 2013). 
Here , the petitioner has not sustained that burden . 
ORDER: The motion is dismi sse d.