dismissed EB-1C Case: Management

U.S. Department of Elomeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
DEC 0 8 20619 
FILE: - OFFICE: TEXAS SERVICE CENTER Date: 
SRC 02 037 54698 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant 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. 5 1153(b)(l)(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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reopen or reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Peny Rhew 
Chief, Administrative Appeals Office 
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DISCUSSION: The preference visa petition was initially approved by the Director, Texas Service Center. 
On further review of the record, the director determined that the petitioner was not eligible for the benefit 
sought. The director ultimately revoked the approval of the petition. The petitioner subsequently filed a 
motion to reconsider the decision revoking approval. The director dismissed the petitioner's motion. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its general manager. 
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. tj 1153(b)(l)(C), as a 
multinational executive or manager. The director determined that the petitioner failed to respond to the notice 
of intent to revoke and therefore failed to overcome the following adverse findings: 1) the beneficiary was 
not employed abroad in a qualifying managerial or executive capacity; 2) the foreign entity is not doing 
business; 3) the beneficiary will not be employed in a managerial or executive capacity; and 4) the petitioner 
failed to establish that it had the ability to pay the beneficiary's proffered wage from the date the Form 1-140 
was filed and continuing until the beneficiary obtains lawful permanent residence. 
On motion, counsel argued that U.S. Citizenship and Immigration Services (USCIS) failed to serve the 
petitioner with a copy of the notice of intent to revoke (NOIR) and asserted that the USCIS Tampa District 
Office had jurisdiction to consider the motion. Counsel further argued that failing to serve the petitioner with 
a NOIR was the equivalent to revoking the approval of the petition via automatic revocation, which does not 
apply to the petitioner in the present matter. 
In a decision dated January 8, 2008, the director dismissed the petitioner's motion to reconsider, finding that 
the petitioner was properly served with a copy of the NOR via the petitioner's attorney of 
record. The director further noted that the petitioner filed an untimely motion with the wrong USCIS office. 
Lastly, in consideration of 8 C.F.R. tj 103.5(a)(3), which discusses the regulatory requirements of a motion to 
reconsider, the director found that the petitioner failed to meet the necessary criteria and that granting the 
motion was therefore not warranted. 
On appeal, counsel reasserts his prior argument that USCIS failed to serve the petitioner with a copy of the 
NOIR or the final revocation notice. Counsel argues that USCIS erroneously served co~ies of both notices on 
counsel, had submitted a Form G-28, Notice of Entry of Appearance, to establish his representation of the 
petitioner. 
A review of the record, however, indicates that counsel's argument is not persuasive. As properly noted in the 
director's most recent decision, the record contains no evidence that the individual whom the petitioner had 
previously held out as its attorney of record had withdrawn his representation or that a new attorney had been 
chosen to represent the petitioner. While the record does contain a Form G-28 signed by ~r.on May 
25, 2004, counsel clearly articulated at the bottom of the notice itself that he was entering his appearance on 
behalf of the beneficiary for the purpose of appearing at the beneficiary's adjustment of status interview on 
May 25, 2004 at the USCIS Tampa office. Counsel made no indication that he was entering his appearance on 
behalf of the petitioner as well as the beneficiary. Therefore, USCIS had no reason to believe that Mr. 
whose representation of the petitioner had been accepted by USCIS, was no longer the petitioner's 
attorney of record. While Mr. has since submitted a properly executed Form G-28 in which he indicated 
his representation of the petitioner and the beneficiary, the Form G-28 that was executed in May 2004 only 
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established ~r.re~resentation of the beneficiary. In fact, while counsel's submission of the documents 
in Exhibits H through T establish USCIS's acceptance of Mr. representation of the beneficiary in regard 
to his filing of Form 1-485, Application to Register Permanent Resident or Adjust Status, there is no 
indication that USCIS accepted Form G-28 filed by ~r. in 2004 as an indication that such representation 
applied to the petitioner. 
In light of the above analysis, the MO finds that the NOIR and the final notice of revocation were both 
properly issued to the petitioner via its counsel of record. As such, counsel's argument that, in effect, the 
approval of the petition was automatically revoked without notice is erroneous and need not be further 
addressed. 
The MO also takes note of counsel's Exhibit G, submitted in support of the appeal. Specifically, counsel 
provides evidence establishing that the petitioner's prior attorney of record was disbarred on June 5, 2006 and 
was therefore no longer practicing law as of that date. However, the Form G-28 alone will lead USCIS to 
acknowledge an attorney as representing an applicant or petitioner in an immigration proceeding. While the 
USCIS may request further evidence that the individual holding him-herself out as a qualified representative 
is authorized to act in a representative capacity, USCIS is under no obligation to request such evidence or to 
conduct any further investigation to determine a representative's active bar status. See 8 C.F.R. $ 292.4(a). In 
essence, if the petitioner wished to have someone other than Mr. as its representative, it was the 
petitioner's responsibility to submit a properly executed Form G-28 signed by the petitioner and the new 
representative. As the petitioner had not submitted such documentation, USCIS had no reason to believe that 
any notices sent to Mr. on the petitioner's behalf would not reach the petitioner in an expeditious 
manner. 
Next, the MO will determine whether the director was correct in finding that the petitioner failed to meet the 
regulatory requirements for 8 C.F.R. 8 103.5(a)(3), which states 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 instant matter, counsel did not cite any legal precedent or applicable law that would indicate an error on 
the part of the AAO in dismissing the petitioner's motion. Therefore, the director was right to comply with 
8 C.F.R. 8 103.5(a)(4), which states, in pertinent part, that a motion that does not meet applicable 
requirements shall be dismissed. 
Additionally, the director properly pointed out that the petitioner failed to file the motion in a timely manner 
and further noted that the motion was filed with the wrong office. 
Pursuant to 8 C.F.R. 8 103.5(a)(l)(i), the following time restrictions apply to motions to reopen and 
reconsider: 
Any motion to reconsider an action by the Service filed by an applicant or petitioner must be 
filed within 30 days of the decision that the motion seeks to reconsider. Any motion to 
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reconsider an action by the Service filed by an applicant or petitioner must be filed within 30 
days of the decision that the motion seeks to reconsider . . . , except that failure to file before 
the period expires, may be excused in the discretion of the Service where it is demonstrated 
that the delay was reasonable and was beyond the control of the applicant or petitioner. 
While not expressly discussed in the director's decision, it appears that the director may have excused the 
petitioner's late filing of the motion. However, the cause for the late filing is unclear. In fact, the AAO 
cannot rule out the possibility the late filing was caused by the petitioner submitting the motion to the wrong 
USCIS office. Regardless, there is no evidence that the petitioner demonstrated that the delay in the filing of 
the motion was reasonable and beyond the petitioner's control. As such, the director erred in failing to reject 
the untimely filed motion. 
Lastly, the motion shall be dismissed for failing to meet two other applicable requirements. The regulation at 
8 C.F.R. $5 103.5(a)(l)(iii) lists the filing requirements for motions to reopen and motions to reconsider. 
Section 103.5(a)(l)(iii)(C) requires that motions be "[alccompanied by a statement about whether or not the 
validity of the unfavorable decision has been or is the subject of any judicial proceeding." Section 
103.5(a)(l)(iii)(E) requires that motions be submitted "to the office maintaining the record upon which the 
unfavorable decision was made." In this matter, the motion does not contain the statement required by 
8 C.F.R. fj 103.5(a)(l)(iii)(C). Moreover, as explained by the director, the motion was originally submitted to 
the Tampa service office, which is not the office maintaining the record upon which the unfavorable decision 
was made. Instead, the petitioner was obligated to file the motion with the Texas Service Center within the 
applicable timeframe. The regulation at 8 C.F.R. fj 103.5(a)(4) states that a motion which does not meet 
applicable requirements must be dismissed. Therefore, because the instant motion did not meet the applicable 
filing requirements listed in 8 C.F.R. fj 103.5(a)(l)(iii)(C) and (E), it must also be dismissed for this reason. 
The burden ofproof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. 
The petitioner has not sustained that burden. 
Title 8 C.F.R. 6 103.5(a)(4) states that "[a] motion that does not meet applicable requirements shall be dismissed." 
Accordingly, the director was correct in dismissing the motion. The appeal will be dismissed and the previous 
decision of the director will not be disturbed. 
ORDER: The appeal is dismissed.