dismissed EB-1C Case: International Trade

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DATE: MAR 0 ~ 2013 OFFICE: NEBRASKA SERVIcrE CENTER 
INRE: ·Petitioner: 
Beneficiary: 
U.S. Department ofHomeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
W~shinglon , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a MJltinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(I)(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 casd must be made to that office. · 
If you believe the law was inappropriately applied by us L reaching our decision, or .you have additional 
information that you wish to have considered, you may filel
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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 request can be found , at 8 dF.R. § 103.5. Do not file any motion 
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directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l )(i) requires that any motion must be filed 
within 30 days of ~he decision that the motion seeks to recon~ider or reopen. 
Thank you, ., 
' 
L4-J( Ron Rosenberg . 
Acting Chief, Administrative 
Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied oy the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals! Office (AAO) where the appeal was dismissed. 
The matter is now before the AAO on motion to reopen and reconsider. The motion will be dismissed. 
The petitioner is a North Carolina corporation engaged in lhe business .of international trade. It seeks to 
employ the beneficiary as its vice president. Accordingly, th~ petitioner endeavors to classify the beneficiary . I 
as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § ll53(b)(l )(C), as a multinational execu~ive or manager. 
The director denied the petition based on two groun~s of inlligibility co~cluding that the petitioner failed to 
establish that: 1) the beneficiary was employed abroad in a lqmilifying managerial or executive capacity and 
2) the beneficiary would be employed in the United States in j ~ualifying managerial or exe.cutive capacity. 
The petitioner appealed the denial disputing the director's findings. In a decision dated February 15, 2012, 
the AAO dismissed the appeal affirming the director's a~verse conclusions. The AAO found that the 
petitioner offered deficient job descriptions, which failed to,describe the beneficiary's foreign and proposed 
employment using specific tasks and time allocations. The AAO also questioned whether the petitioner was . I 
adequately staffed at the time the petition was filed such that it would have been able to relieve the 
beneficiary from having to allocate his time primarily to thb performance of the petitioner's non-qualifying 
operational tasks. 
Additionally, the AAO determined, beyond the decision of the director, that the pet1t1oner submitted 
insufficient documentation concerning its claimed parent-subsidiary relationship with the beneficiary's 
employer abroad. 
On motion, counsel submits a brief asserting that the beneficiary is head of the petitioning entity and that as 
such "his primary duties are inherently managerial or exechtive in nature" and that "to interpret otherwise 
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would mean tha~ there is on [sic] one leading the company.j' This assertion indicates that counsel identifies 
the beneficiary's leadership position as being synonymous with being employed in a qualifying managerial or 
executive capacity. 
Additionally, in an effort to address several of the. AAO's adverse findings, counsel offers the following 
supplemental documents: I) an hourly breakdown of thel duties and responsibilities that the beneficiary 
performs on a weekly basis; 2) a letter dated March 7, 2012 from the petitioner's accountant containing the 
petitioner's ownership breakdown; and 3) a duplicate of a pr~viously submitted letter containing a description 
of the beneficiary's employment abroad. 
Turning first to the petitioner's motion to reopen, the regul~tions 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. I 
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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 
In the present matter, the petitioner provides the hourly breakdown and statement from its accountant in 
support of the motion. However, the AAO finds that neither !document fits the above regulatory requirement. 
With regard to the hourly breakdown, the AAO notes that this information was originally requested by the 
director in a request for evidenc_e issued prior to the origin~! decision. The petitioner failed to submit the 
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requested information and the AAO later pointed out the deficiency in its February 15, 2012 decision. The 
AAO also notified the petitioner that failure to submit requbsted evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. §1103.2(b)(l4). Therefore, as such evidence was 
clearly available at the time of the original .request, the AAO will not consider the previously requested 
evidence when it is submitted for the first time on appeal or bn motion. See Matter of Soriano, 19 I&N Dec. I , 
764 (BIA 1988); Matter ofOba~gbena, 19 I&N Dec. 533 (Bi 1988). 
Similarly, the statement from the petitioner's CPA cannot be deemed as evidence that was previously 
unavailable and thus will not be considered as part of the betitioner's motion to reopen. Accordingly, the 
evidence .submitted does ~ot meet the requirements of a moiio11 to reopen and the motion must therefore be 
dismissed. 
Next, turning to the petitioner's motion to reconsider, the regulation at 8 
C.F.R. § 103.5(a)(3) states, in 
pertinent part: 
A motion to reconsider must. state the 
reasons for reconsideration and be supported by any 
pertinent precedent decisions to es.tablish that th6 decision was based on an incorrect 
application of law or Service policy. A motion to rdconsider a decision on an application or 
petition must, when filed, also establish that the deci~ion was incorrect based on the evidence 
· of record at the time of the initial decision. 
In the instant matter, counsel does not cite any legal prec~dent .or applicable law that would indicate an error 
on the part of the AAO in dismissing the petitioner's abpeal. The AAO further notes that counsel ' s 
assumption that the petitioner ' s leadership position is synodymous with being employed 'in a managerial or 
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executive capacity is incorrect. As noted in the AAO's prior decision, there are numerous factors that are 
considered in order to determine whether the petitioner mee~s the evidentiary burden of establishing that the 
beneficiary would be employed in a qualifying managerial of executive capacity as those terms are defined at 
section 10I(a)(44) of the Act. USCIS reviews the totalityj of the record when examining the petitio~er's 
claim. The relevant factors include the beneficiary's job description,_ the petitioner's organizational structure, 
the job duties of the beneficiary's subordinates, the presenJe of other employees to relieve the beneficiary 
from having to primarily perform operational tasks, the natu~e of the petitioner's business, and any othq that 
may_ impact the beneficiary's role w~thin the orga~iz~tion . lThus, while the beneficiary's leadership ro~e is 
clearly one factor .that the AAO constders, the quahfymg na ure of the proposed employment does not hmge 
on whether the beneficiary assumes the lead or senior positioh within a given entity. 
1 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 IT NEW RIVERSIDE UNIVERSITY DJCfiONARY 792 
(1984)(emphasis in original). 
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Regardless, as noted above, counsel failed tq cite any legal precedent or applicable law in support of the 
motion to .reconsider. Therefore, the motion will be dismiJsed in accordance with 8 C.F.R. § 103.5(a)(4), 
which states, in pertinent part, that a ~otion that does not meJt applicable requirements shall be dismissed. 
As a final note; the proper filing of a motion to reopen · a~dlor reconSider does not stay the AAO's prior 
decision to dismiss an appeal or extend a beneficiary's previou~ly set departure date. 8 C.F.R. 
§ l03.5(a)(l )(iv). 
In visa petition proceedings, the burden of proving eligibilitYj 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.