dismissed EB-1C Case: Management

(b)(6)
DATE: 
J 
SEP 2 5 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
u,s. Department of Homeland Security 
U.S. Citizenship and linmigtatioil 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 )(1 )(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does n0t announce new constructions of l<:lw nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for c.onsideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeai or Motion (Form I-290B) 
within 33 days of .the datt:; of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a 01otio11 directly witb the AAO. 
Thank 
you, 
i~ . 
'A_on Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
'­\ 
NON-PRECEDENT DECISION 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The petitioner 
appealed the matter to the Administrative Appe~ls Office (AAO). The appeal was dismissed resulting in the 
petitioner's filing of a motion to reopen and reconsider, which the AAO also dismissed. The matter is now 
before the AAO on a second motion to reopen and reconsider. The motion will be dismissed. ! 
The petitioner is a Fiorida corporation that ~ks to employ the beneficiary as its ex¢cutive. The petitioner seeks 
to classify the benefiCiary as an employlllent-b~sed immigrant pursuant to section 203(b )(1 )(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 reviewed.the petitioner's submissions and ·determined that the petitioner failed to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive position fot at least one out of the 
three years prior to his entry to the United States a.s a nonimmigrant to work for the petitioning employer. 
8 C.F.R. § 204.5(j)(3)(i)(B). The second ground for denial was based on the common Jaw definition of the term 
''employee." Namely, the director concluded that the petitioner failed to establish that it and the benefidary 
would have an employer-employee relationship. Given the two adverse findings, the dire.ctor issued a declsion 
dated August 18, 2009 denying the petitioner's Fohn 1-140. 
The petitioner subsequently filed an appeal disputing th~ director's findings. The AAO dismissed the appeal, 
rejecting the petitioner's reliance o~ the Adjudicator's Field Manual (AFM). The AAO determined that reliance 
on the AFM was misplaced, arid clarified that the AFM is an internal tool that is intended for use by USCIS 
employees in the course of their reviews of petitioners' respective records. The AAO stated that the AFM is not 
to be used as a substitute for statutory or regulatory provisions and noted that the AFM does not have the effect 
. of binding precedent. 
The AAO concluded that the petitioner failed to properly address the issue of the beneficiary's employment 
abroad, which served as the main basis for denial. The AAO declined to aqdte.s.s the issue that clea)t with the 
common law definition of "employee," concluding tll~t there was no need to address tM common law issue 
When there was a clear statutory basis for dismissing the appeal. 
in support of the first motion, counsel submitted a brief asserting that the AAO dismissed the appeal based on 
''an il)coi:Tect factual basis, and incorrect misrepresentation of the full decision ." Counsel inexplicably 
contended that the AAO failed to address the issue of a qualifying relationship, despite the fact that this issue 
wa,s not a basis for the director; s denial, and proceeded to restate. portions of the director's discussion regarding 
the common law definition of the term "employee," making references to regulations that pertain to the L-1 
nonimmigrant petition for intracompany transferees. 
The AAO dismissed the petitioner's motion, concluding that counsel did not introduce any new facts or 
evidence in support of a motion to reopen. With regard to the motion to reconsider, the AAO determined that 
the precedent case law that counsel cited in his supporting brief did not establish that the AAO's decision on 
appeal was based on an incorrect application of law or Service policy pursuant to 8 C.F.R. § 1 03.5(a)(3). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
In support of the current motion to reopen and reconsider; counsel submits another brief in which he again raises 
the issue of employer~employee relationship between the petitioner and the beneficiary and cites precedent case 
law that addresses only the common law issue. Counsel again fails to address ,the beneficiary's employment 
abroa.d, ciesp!te t_he fa~t thaf the AAO's finciing on appea( was based primarily on this issue. Counsel asks the 
AAO to consider what he deems as new evidence; which consists of the foreign ent_ity' s balance sheet for 2012, 
the petitioner's quartefly tax returns and employer's reports for 2012 and 2013, ~he petitioner's federal tax return 
for2011, and afederal tax return for for 2012. 
The regulations <Jt 8 C.F.R. § 103.5(a)(2) state, in pertin¢nt part, that a motion to reopen must state the new facts 
to be provided in the reopened proceeding and be supported by affidavit!l or other documentary evidence. 
Based on the plain meaning of ''new," a new fact is found to be eyidence that was not ~vailable and could not have 
been· discovered or presented in. the previous. proceeding. 1 
In the instant case, the petitioner's motion to reopen is primarily based on docurnent.s that are ·entitely irrell~vant 
to the issue of the beneficiary's employment capacity abroad, which is the primary basis for deniaL Moreover, a 
number of the documents were available at the time the petitioner filed its prior motion. 
Next, with re.g·ard to the petitioner's motion to reconsider, it is noted that ·. in order to meet the regulatory 
requirements the petitioner must state the reasons for reconsidera.tion and support the motion by submitting any 
pertinent precedent decisions to establish that the decision was based on an incorrect applic::ltion of laW or U.S. 
Citizenship and immigration (USCIS) polici 8 C.P.R. § 103.5(a)(3) . . A motion to reconsider contests the 
correctness of the prior decision based on the previous factual record, as opposed to a motion to reopen which 
seeks a new he(lring b<Jsed on new or previously unavailable evidence. See Matter ofCerna, 20 I&N Dec. 399, 
403 (BIA 1991). ' 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in the 
proceedings. St;e Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the "additional legal 
arguments'' that may be raised in a motion to reconsider should flow from new law or a de novo l(!g~l 
determination reached in Its dedsion that could riot have been acidressed by~ the party. Matter of 0-S-G-, ~4 
I&N Dec. 56i:58 (BIA ~006) . Further, a motion to reconsider is n?t a process by which a party may submit: in 
essence •. the same brief presented on appeal and seek reconsideration by generally alleging error in the ptiot 
decision. !d. Instead, the moving party must specify the factual and legal issues raised on appeal that were 
decided in error or overlooked in the initial decision or must show how a change in law materially affects the 
prior decision. 14. at 60. 
In the present matter, the current motion is supported by the sa~e legal argument counsel previously raised in. 
the support of the prior motion. Despite the AAO's determination finding the legal argument insufficient to 
meet the requirements of a motion to reconsider, counsel disregards the AAO's finding and proceeds to address· 
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 NEW COLLEGE DICTIONARY 753 (3td pd., 2008)(emphasis in 
original). · 
(b)(6) NON-PRECEDENT DECISION 
Page4 
only the common law issue that the AAO declined to address in its original decision dismissing the appeal. 
. ' . 
Counsel has failed to support his motion with any precedent decisions or other comparable evidence to establish 
that the AAO's decision was based on an incorrect application of law or USCIS policy. The motion to 
reconsider will be dismissed. 
In light of the above findings, the motion to reopen and reconsider will be dismissed in accordance with 
8 C.P.R. § 103.5(a)(4), which states, in pertinent part, that a motion that does not meet applicable requirements 
shall be dismissed. As a final 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: 
§ 1 03.5(a)(l )(iV). 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 1-iere, 
the petitioner has not sustained that burden. 
ORDER: The motion is dismissed.