dismissed EB-1C Case: International Trade

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PUBLIC COpy 
FILE: Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington, DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
Date: MAR 1 4 2011 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.s.c. § I I 53(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F. R. § 103 .5( a)( I )(i). 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO), where the appeal was dismissed. 
The petitioner subsequently filed a motion to reopen and reconsider seeking further review of the AAO's 
decision. The director erroneously assumed jurisdiction over the matter and issued an adverse decision 
affirming denial of the petition.' The petitioner subsequently appealed the director's dismissal of the motion 
and that matter is now before the AAO on appeal. Due to the director's error in assuming jurisdiction over the 
petitioner's motion, the AAO will withdraw the director's improperly issued decision on the motion. As it is 
clear that the petitioner filed its most recent appeal based on the director's erroneously issued decision on 
motion, a matter over which the service center did not have jurisdiction, the AAO will enter this decision on 
the previously filed motion to reopen and reconsider, which should have been forwarded to the AAO at the 
time it was filed. After giving full consideration to the petitioner's submissions on motion and in support of 
the most recently filed appeal, the AAO concludes that the petitioner did not meet the requirements for the 
benefit sought and the motion will therefore be dismissed. 
The petitioner is a Maryland corporation engaged in the business of acquiring and exporting various goods to 
China. It seeks to employ the beneficiary as its president and chief executive officer. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)( I )(C) of the Immigration and Nationality Act (the Act), 8 U .S.C. § 1153(b)( I )(C), as a multinational 
executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that: 1) the 
beneficiary was employed abroad in a qualifying managerial or executive capacity; and 2) the beneficiary 
would be employed in the United States in a managerial or executive capacity. The petitioner appealed the 
denial disputing the director's findings. Although the AAO withdrew the first ground as a basis for denial, 
the second ground was upheld and the denial was therefore affirmed on appeal. 
On motion, counsel submitted a brief pointing out that the petitioner had previously responded to the 
director's instructions in the RFE by providing what counsel deemed "a lengthy description of the 
[b]eneficiary's specific job duties which, we believe, are detailed, even minute, and inclusive." Counsel then 
went on to state that it is unreasonable to strictly quantify each job duty in terms of a specific time allocation, 
contending that the beneficiary's job duties are not static and will often include contract negotiation. 
Although counsel acknowledged the AAO's adverse comment as to the generality of one of the items listed in 
the percentage breakdown that was offered in response to the RFE, counsel stated that "it would be ridiculous 
[to] fix a time for this job duty." Counsel merely stated that the beneficiary advises his subordinate managers 
and executives to look for products on the market that meet customers' needs. No specific information was 
provided to establish the extent of the beneficiary's supervision over his subordinates or the specific length 
and nature of such interactions. 
In discussing the beneficiary's subordinates, counsel stated that their job duties are self-evident and failed to 
establish that the employees are actually managerial other than in position title. Counsel further stated that 
because of the petitioner's small size, the beneficiary's subordinates assume the various necessary clerical 
responsibilities. 
, The regulation at 8 C.F.R. § 1 03.5(a)(1 )(ii) states that the official having jurisdiction in the matter of a motion to reopen 
or reconsider is the official who made the latest decision in the proceeding. As the motion was filed in response to the 
AAO's adverse decision on appeal, the AAO retains jurisdiction in the instant matter. 
Page 3 
Additionally, the pelltlOner provided its 2007 and 2008 tax returns as well as evidence of business 
transactions that took place in 2008 and 2009. 
The AAO finds that the petitioner's submissions do not meet the requirements of either a motion to reopen or 
a motion to reconsider. 
The regulation at 8 C.F.R. § 103.5(a)(2) 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 previous proceeding2 
In the present matter, the only additional evidence that has been submitted applies to time periods that 
followed the filing of the instant Form 1-140. It is noted that a petitioner must establish 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 Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). As the petition in the 
present matter was filed in 2006, the evidentiary value of documents that address time periods following the 
filing of the petition is limited at best, as such documents do not establish whether the petitioner was eligible 
at the time of filing the petition. 
With regard to a motion to reconsider, the regulations at 8 C.F.R. § 103.5(a)(3) state the following, 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 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. 
In the present matter, the petitioner provides no pertinent precedent decisions, nor is there any evidence that 
the director's initial denial was incorrect based on the evidence provided at the time of the adverse decision. 
The AAO further notes that while a comprehensive review of the entire record is conducted on appeal, a 
review in the case of a motion to reconsider is strictly limited to an examination of any purported 
misapplication of law or service policy, which must be supported by precedent case law. Counsel's 
supplemental discussions of the beneficiary's proposed employment, including the additional statements 
describing the subordinate employees' job assignments, do not meet the provisions of a motion to reconsider. 
Any information regarding the beneficiary's proposed employment, particularly his job duties, should and 
could have been provided on appeal. There is no regulatory or statutory provision that allows a petitioner 
more than one appellate decision per every petition filed. In the present matter, an appellate decision was 
issued and the deficiencies were adequately addressed. The petitioner cannot rely on the filing of a motion as 
2 The word "new" is defined as "I. 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). 
Page 4 
an appropriate tool in order to revisit deficiencies that were previously addressed on appeal In a 
comprehensive analysis. 
Accordingly, the AAO will dismiss the petitioner's motion to reconsider in accordance with 8 C.F.R. 
§ 103.S(a)(4), which states, in pertinent part, that a motion that does not meet applicable requirements shall be 
dismissed. 
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.