dismissed EB-1C Case: Jewelry And Art

(b)(6)
bATE: NOV 2 5 2013 
INRE: Petition¢r: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
u;s. Department of Homeland Security 
U. s.' Citizenship and Immigration Service 
Adrriinistrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , OC 20529~ 2090 
U.S. Citiz€11Shlp 
and IInmigtation 
Services 
Fll..E: 
PETITION: Immjgr~.!Jt 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. § ll53(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 c.onstructions of law not 
establish agency policy t,hrough non-precedent decisions. If you believe the AAO incorrectly 
applied c1.irrent law ot policy to your case or if you seek to present new facts for consideration, yo~ 
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-290.8) within 33 days of the date of this decision. Please 
review tbe ForQJ. I~290B instructions at http:/lwww.uscis.gov/forms for the latest information 
on fee, filing location, ~nd oU1er requireDients. See also 8 C.P.R. § 103.5. Do not file a motion 
directly wjth the AAO. 
Thank you, 
41.~ 
Ch1ef, AdmtiJ.Istrative Appeals Office 
\ 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
. DISCUSSION: The Director, Texas Servic~ Center, den,ied the immigrant visa petition. Th~ 
petitioner appealed this denial to the Administrative Appeals Office (AAO), art<t on September 6, 
2012, the AAO dismissed the appeal. The petitioner subsequently filed a motion' to reopen artd 
reconsider tbe AAO's dismissal of the appeal. The AAO dismissed both motions and the matter is 
now before the AAO on a second motion to reopen lU).d _reconsider. The motion will be dismissed. 
The petitioner is a Delaware corporation operating as a jewelry and art dealer. It seeks to employ the 
beneficiary as its president and general manager. Accordil)gfy, the petitioner endeavors to classify 
the beneficiary as an employment-based immigrant pursuant to · section 203(b)(1)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § l153(b)(l)(C), as a multinational executive or 
manager, 
On March 3, 2011, the director denied the petition oil three alternative grounds, conchidiilg that the 
petitioner failed to est~blish: (1) that it would employ the beneficiary in a qualifying managerial or 
executive capacity; (2) that the petitioner has a qqahfying relationship witb tbe beneficiary's foreign, 
employer; and (3) that it has the ability to pay the beneficiary's proffered wage. On April 4, 2011, 
~e petitioner appealed the denial disputing the director's findings. On September 6, 2012, the AAO 
dismissed the appeaL Th~AAO provided~. U1orough ~~lysis ofthe eviqeQce and detennined that the 
record of proceeding contained insufficient evidence to establish eligibility for the benefit sought 
under the applicable statutory and regulatory provisions. 
On October 5, 2012, the petitioner filed a motion to reopen and a motion to reconsider the AAO's 
decision. On June 29, 2013, the AAO dismissed the motion as the petitioner failed to submit arty 
new evidence or cite any legal precedent or applicable law that would indicate an error on the part of 
the AAO in dismissing the petitioner's appeal. 
On August 8, 2013, the petitioner filedthe instant motion to reopen and motion to reconsider the 
AAO's decision of June 29, 2013. The petitioner presents a brief and additional evidence on motion. 
First, turning to the motion to reopen, the regulation at 8 C.F.R. § 103.5(a)(2) states, in pertiilent part: 
"A motion to reopen must state the new facts to be provided in the reopened proceeding and be 
supported by ~fidavits or otller 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 The new facts submitted on motion must be material and previously 
unavailable, and could not have been discovered earlier . in the proceeding. Cf 8 C.F.R. 
§ 1003.Z3(b)(3). 
the instant motion consists of a brief submitted by the petitioner, a new organizational chart for the 
U.S. company, and additional information on the company's new business venture. On motion, the 
petitioner explains tha.J its business has expanded into the wholesale and retail distribution of an 
. ~ . 
1 The word'''new'' is defined as· "l. having existed or been made for only a short time ... 3. Jus_t discovered, 
found, or learned <new evidence> .... " WEBSTER'S NEW COLLEGE DICfiONARY 753 (2008)(emphasls in 
original}. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
alkaline water product called The petitioner claims that this new business 
development is relevant to the case as it has "caused a broader and bigger scope of work for [the 
beneficiary] as the President of the company." The petitioner goes on to explain the beneficiary's 
role in the business expansion and the steps she took to take on the distribution of this product in the 
Philippines. Here, the petitioner is presenting new evidence in an attempt to meet the requirements 
of a motion to reopen. However, the petitioner must establish eligibility at the time of filing; a 
petitio!). camtot be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new set of facts. Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). The petitioner must 
establish that the position offered to the beneficiary when the petition was filed merits classification 
as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. :248, 249 (Reg. 
Comm't 1978). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of /zummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). Thus, the documentation fails to meet the requirements for a motion to reopen 
at 8 C.P.R.§ 103.5(a)(2). Accordingly, the motion to reopen will be dismissed. 
The AAO will now consider the petitioner's 
motion to reconsider. A motion to recons"ider must state 
the reasons fo.r reconsideration and be supported by citations to pertinent statutes, regtJ,lations, and/or 
precedent decisions to establish that the decision was based on an incorrect application of law or 
U.S. Citizenship and Immigration Services (USCIS) policy. A motion to reconsider a decision on an 
application or petition must, when fi.led, also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. See 8 C.F.R. § 103.5(a)(3) (requirements for a 
motion to reconsider) and the instructions for motions to reconsider at Part 3 of the Form I-290B. 
In the instant matter, the petitioner states that it has multiple independent contractors receiving 
direction from the beneficiary, and it employs a marketing and sales staff, a bookkeeper, and an 
administrative assistant who perform the non-managerial duties for the company. The petitioner 
contends that the company's size is not indicative of the beneficiary's lack of executive status and 
references an AAO non-precedent decision where it Was found that a sole employee was an 
executive. The reference made by the petitioner is not relevant in this case as the AAO found that 
the beneficiary primarily performs non-qualifying duties and the lack of subordinate staff indiCates 
that she does not have employees to relieve her from p~rfotrnirtg such non-qualifying duties. In this 
instance, the lack of employees hinders the beneficiary from performing the duties of an executive or 
manager. In sum, the petitioner has not submitted any evidenc~ that would meet the requirements of a 
motion to reconsider. 
Furthermore, a review of the record and the prior decisions indicates that the director and the AAO 
properly applied the statute and regulations to the petitioner's case. The petitioner's primary 
complaint is that the AAO dismissed the appeal and subsequent motion; however, both the director 
and the AAO have provided the petitioner with detailed statements regarding the requirements to 
establish eligibility for the benefit sought. As previously discussed, the petitioner has not met its 
burden of proof 8lld the denial was the proper result tmder the ~pplicable st~tqtory and regul~tory 
provisions. Accordingly, the petitioner's claim is Without merit. Thus, the motion to reconsider must 
be dismissed. ' 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
It should be noted for the record that, unless USCIS ditects otherwise, the filing of a motion to reopen 
or reconsider does not stay the execution of any decision in a case or extend a previously set departure 
date. 8 C.F.R § 103.5(a)(l)(iv). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. § 1361. The petitioner has not met th::J.t burden. Accordingly, the motions will be dismissed, the 
proceedings will not be reopened or reconsidered, and the previous decisions of. the director and the 
AAO will not be disturbed. 
ORDER: The motion is dismissed.