dismissed EB-1C Case: International Trade

(b)(6)
DATE: APR O 1· 2013 . OFFICE: TEXAS SERVICE CENTER 
J 
INRE: . Petitioner: 
· Beneficiary: 
p;s; !)eprtii~n! _o( H~melaild Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS2090 
Washington, DC 20529-2090 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a M~ltinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § ll53(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 law was inappropriately applied by_ us in reaching our decision, or you. have additional 
information that you wish to have considered, youmay file a motion to reconsider or a motion to reopen in 
~ccordance with the instril.ctions on Form 1-29!)13, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5 . . Do not file any motion 
directly with the AAO. Plea~e be aware that 8 C.F.R. § l03.5(a)(l)(i) requires that any motioO" must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
~ankyou, · 
i~~ Ul . . . .. _.,..,ji;Olll"~a 
·RQ!!;.Ro rg . 
1 &~cting · :er, A ministrative Appeals Office 
W'ww.uscis.gov 
(b)(6)
Page2 
.DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was dismissed. The 
matter is now before the AAO on motion 
to reopen and reconsider. The motion will also be dismissed. 
The petitioner is a Maryland corporation engaged in the business of international trade. It seeks to employ the 
beneficiary as its president. 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 the beneficiary would be 
employed in a managerial or executive capacity. 
The petitioner appealed· the denial disputing the director;s findings; The AAO dismissed the appeal, rejecting 
prior counsel's reliance on the petitioner's previously approved nonimmigrant petition. The AAO provided a 
thorough analysis of the job description offered by prior counsel and found that counsel's statements lacked 
credible and detailed information about the beneficiary's actual daily job duties. The AAO also noted, 
beyond the decision of the director, that the petitioner failed to provide sufficient evidence 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 prior employer abroad. 
On motion, the peti~ioner's new counsel asks the AAO to consider new evidence which he claims will 
establish that the beneficiary's proposed position with the U.S. entity is in a qualifying managerial or 
executive capacity. Counsel offers the foreign entity's trade license as a means of establishing that the work 
the beneficiary performed abroad was also in a qualifying managerial or executive capacity. Counsel neither 
disputes nor addresses the AAO's adverse finding with regard to the lack of evidence showing a qualifying 
relationship between the. petitioner and the beneficiary's foreign employer. Therefore, the petitioner 
effectively concedes to the AAO?s adverse finding on the issue of a qualifying relationship. 
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.1 - . 
In the instant case, the petitioner submits numerous subcontracts for hiring labor, contracts for the 
performance of various home renovation services, bank statements, .and tax returns. Although these 
documents reflect events that took place both before and after the filing of the petition, none are relevant in 
establishing that the beneficiary would be employed in the United States in a qualifying managerial or 
executive capacity. Furthermore, these documents do not meet the specific requirements of a motion to 
reopen. 
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 ll NEW RIVERSIDE UNIVERSITY DICTIONARY 792 
(1984)( emphasis in original). 
(b)(6)
.. .. !~ 
Page3 
While some of the documents were technically unavailable at the time of filing, it is important to note that the 
unavailability was due to the fact that some documents had not y~t been created because they reflected events 
that had not yet occurred. The .AAO notes ·that a petititm.er 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). With regard to .the documents that . 
reflected events that predated the filing of the petition, such documents were not unavailable and thus could 
have been submitted at any time prior to the AAO's last decision. 
Regardless, the .submitted documents are not relevant as they do not establish that: ( 1) the beneficiary was 
employed abroad in a qualifying managerial or executive capacity; or that (2) the petitioner had the ability to 
employ the beneficiary in a qualifying managerial or executive capacity at the time of filing. Therefore, the 
motion 
to reopen must be dismissed: 
Moving on to the 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 establish that the decision was based on an incorrect 
application of Jawor 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. 
In the instant matter, counsel does not cite any legal precedent or applicable law that would indicate an error 
on the part of the AAO in dismissing the petitioner's appeal. Therefore, the motion will be dismissed in 
accordance with 8 C.F.R .. § 10J.S(a)(4), which states, in' pertinent'-part, that a motion that does not meet 
applicable requirements sh&ll be dismissed. 
I 
As a fmal 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.F.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 ~titioner has not sustained that burden. 
ORDER: The motion is dismissed;