dismissed EB-1C Case: Management

(b)(6)
DATE: 
JUN 2 9 2013 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file 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 motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
~Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The petitioner filed an appeal seeking review by the Administrative Appeals Office (AAO). The AAO 
dismissed the appeal. The matter is again before the AAO on a combined motion to reopen and 
motion to reconsider. The joint motion will be dismissed. 
The petitioner is a Delaware corporation that seeks to employ the beneficiary as its president and 
general manager. 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. 
In a decision dated March 3, 20 11, the director denied the petition based on the following grounds 
of ineligibility: (1) failure to establish that the beneficiary's proposed employment with the U.S. 
entity would be within a qualifying managerial or executive capacity; (2) failure to establish that the 
petitioner has a qualifying relationship with the beneficiary's foreign employer; and (3) failure to 
establish the ability to pay the beneficiary's proffered wage. 
Thereafter, the petitioner and its counsel submitted an appeal of the decision. The AAO reviewed 
the evidence and determined that the record of proceeding contained insufficient evidence to establish 
eligibility for the benefit sought under the applicable statutory and regulatory provisions. The AAO 
provided a detailed statement regarding the deficiencies in the record of proceeding and dismissed 
the appeal. 
The matter is once again before the AAO. As indicated by the 
check mark at box F of Part 2 of the 
Form I-290B, the petitioner elected to file a combined motion to reopen and motion to reconsider. 
On motion, the petitioner submits a brief and additional evidence. The AAO reviewed the record of 
proceeding in its entirety before issuing its decision. 
First, turning to the motion to reopen, the regulation at 8 C.F.R. § 1 03.5(a)(2) states, in pertinent 
part: "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.' 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. 
§ 1003.23(b)(3). 
In this matter, the motion consists of the Form I-290B, along with the petitioner's brief and the 
following documents: (1) a list entitled "Summary of Sales Agents"; (2) a list entitled "Summary of 
Contractors"; (3) copies of checks written by the petitioner; (4) invoices; (5) a spreadsheet referred 
to by the petitioner as a stock ledger; and (6) professional services agreements and related 
documents. 
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 NEW COLLEGE DICTIONARY 753 (2008)(emphasis in 
original). 
(b)(6)
Page 3 
The AAO reviewed the information presented but notes that the petitioner has not submitted factual 
information or changed factual circumstances that were not considered and could not have been 
presented in the initial proceeding. Here, the evidence submitted on motion does not contain 
material, new facts that were previously unavailable. As the documentation submitted on motion 
was previously available or could have been obtained prior to the motion, and as none of it is "new" 
or supports material new facts, there is no basis for the AAO to reopen the proceeding. Thus, the 
documentation fails to meet the requirements for a motion to reopen at 8 C.F.R. § 1 03.5(a)(2). 
Accordingly, the motion to reopen will be dismissed. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS 
v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden" of proof. INS v. Abudu, 485 U.S. at 110. With the 
current motion, the movant has not met that burden. The motion to reopen will be dismissed. 
The AAO will now consider the petitioner's motion to reconsider. A motion to reconsider must 
state the reasons for reconsideration and be supported by citations to pertinent statutes, regulations, 
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 filed, 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. 2 · 
In the instant case, the petitioner claims that it has provided sufficient evidence to establish eligibility 
for the benefit sought. Although the petitioner states its disagreement with the prior decision, the 
petitioner does not cite a statutory or regulatory authority, case law, or precedent decision to 
establish that the decision was based on an incorrect application of law or USCIS policy. The 
petitioner has not established that the decision was incorrect based on the evidence of record at the 
time of the decision. In short, the petitioner has not submitted any evidence 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 director denied the petition; 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 and 
the denial was the proper result under the applicable statutory and regulatory provisions. 
2 
The provision at 8 C.F.R. § 103.5(a)(3) states that 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 Service policy." This regulation is supplemented by the 
instructions on the Form I-290B, by operation of the rule at 8 C.F.R. § 103.2(a)(l). Part 3 of the Form 
I-2908 submitted by the petitioner states: "Motion to Reconsider: The motion must be supported by 
citations to appropriate statutes, regulations, or precedent decisions." 
(b)(6)
Page4 
Accordingly, the petitioner's claim 1s without merit. Thus, the motion to reconsider must be 
dismissed. 
In addition, the joint motion shall also be dismissed for failing to meet another applicable filing 
requirement. Specifically, the regulation at 8 C.F.R. § 103.5(a)(l) states , in pertinent part, the 
following: 
(iii) Filing Requirements-A motion shall be submitted on Form I-2908 and may be 
accompanied by a brief. It must be: 
* * * 
(C) Accompanied by a statement about whether or not the validity of the 
unfavorable decision has been or is the subject of any judicial proceeding and, if 
so, the court , nature, date, and status or result of the proceeding; 
In this matter, the submission constituting the motion does not contain a statement as to whether or 
not the unfavorable decision has been or is the subject of any judicial proceeding as required by 
8 C.F.R. § l03.5(a)(l)(iii)(C). Thus, the petitioner failed to comply with the requirements as set by 
the regulations for properly filing a motion. 
The regulation at 8 C.F.R. § 103.5(a)(4) states that a motion which does not meet applicable 
requirements must be dismissed. Therefore, because the instant motion does not meet the 
applicable filing requirement as stated at 8 C.F.R. §103.5(a)(l)(iii)(C), it must also be dismissed for 
this reason. 
It should be noted for the record that, unless USCIS directs 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). 
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 .