dismissed EB-1C Case: Management

6 
. identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac)' 
ptmuccopy 
File: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Securit) 
lJ. S. Cili/.ensilip and Immigration Services 
qlJiet' o/Administrative Appeals MS 2090 
Wa~hingtol1. DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: 
FEB 08 2011 
Petition: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)( I )(C) of the Immigration and Nationality Act. 8 U.S.c. § IIS3(b)( I )(C) 
IN 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, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. ~ 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief. Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the nonimmigrant visa petition. The 
petitioner filed a motion to reopen, which the director subsequently rejected as untimely filed. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner was incorporated in the State of Missouri and seeks to employ the beneficiary as its 
director. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)( I )(C) of the Immigration and Nationality Act (the Act), 8 U.s.c. 
§ 1153(b)( I )(C). as a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: I) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; 2) the petitioner failed to establish that the beneficiary would be employed in the United States 
in a managerial or executive capacity; and 3) the petitioner failed to establish that it has a qualifying 
relationship with the beneticiary's foreign employer. 
In response to the director's May 24,2006 decision, the petitioner's new counsel filed an untimely motion 
to reopen on or about September 29, 2006, four months and five days after the decision was issued on 
May 24, 2006. In defense of the petitioner's filing of an untimely motion, counsel raised the claim of 
ineffective assistance of counsel. Counsel does not address the merits ofthe director's decision. 
Upon review, the petitioner has failed to fulfill the prerequisites for allegations of ineffective assistance of 
counsel. See Matter of Assaad, 23 I&N Dec. 553 (BIA 2003); Matter of Grijalva, 21 I&N Dec. 472 (BIA 
1996); Malter of Lozada, 19 I&N Dec. 637 (BIA 1988)), '!fJ'd, 857 F.2d 10 (I st Cir. 1988). 
The AAO notes that any appeal or motion based upon a claim of ineffective assistance of counsel 
requires: (I) that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth 
in detail the agreement that was entered into with counsel with respect to the actions to be taken and what 
representations counsel did or did not make to the respondent in this regard, (2) that counsel whose 
integrity or competence is being impugned be informed of the allegations leveled against him and be 
given an opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has been 
filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal 
responsibilities, and if not, why not. Matter "f Lozada, 19 I&N Dec. at 637. 
In support of the above motion and claim, the petitioner submitted two photocopies of two different 
Notice of Entry of Appearance as Attorney or Representative, Form G-28s-one dated October 17, 200 I 
and the other dated September 23, 2003--establishing 
_was the petitioner's legal representative. Each of the Form G-28s indicated that 
representing the petitioner in the tiling of a Form 1-129. The record also contains a Form G-28 dated 
October 20, 2005 showing _ representation of the petitioner in the filing of a Form 1-140. 
Additionally, the petitioner provided copies of two Icttcrs--{)ne dated September I 2006 and the other 
dated September 16, 2006-both written by the beneficiary in his attempt to inform the 
head of the imm igration department of the law firm that previously employed the petitioner's prior 
counsel, of the lack of communication from the original attorney, the alleged negligence of the firm with 
regard to the beneficiary's ""lost" permanent resident status, and, in general, the firm's failure to properl) 
handle procedural matters concerning the filing of the petitioner's Form 1-140. 
In a decision dated October 24, 2006, the director determined that the petitioner failed to meet the first of 
the three-prong requirements set forth in Lozada. Specifically, the director determined that the petitioner 
failed to submit an affidavit setting forth in detail the agreement that was entered into with counsel with 
respect to the actions to be taken. Accordingly, in light of this determination, the director did not excuse 
the petitioner's untimely filing of the motion to reopen and rejected the motion pursuant to 8 C.F.R. 
§ 103.5(a)(I)(i), which states that a motion must be filed within 30 days of the decision it seeks to reopen 
or reconsider. 
On appeal, counsel challenges the director's decision, urging the AAO to review the previously submitted 
evidence. 
The respondent did not attach to the appeal a sworn affidavit setting out the alleged facts necessary to 
show a prima jacie claim of ineffective assistance of counsel. Matter of Lozada, 19 I&N Dec. at 637. 
This affidavit should have identified what the petitioner's former counsel did or failed to do and should 
have identified how the former counsel's action or inaction negatively afTected the outcome of the 
respondent's case. The affidavit should have also indicated that the respondent has notified the former 
counsel of the allegation of ineffective assistance, enabling the former counsel to respond to the 
allegation. In addition, the affidavit should have indicated that a complaint has been filed against the 
former counsel with the appropriate disciplinary authorities. See Matter of Grijalva, 21 I&N Dec. at 474. 
Although the AAO acknowledges the beneficiary's assertions of fact in his letter 
while the Form G-28s does serve as evidence of _ representation of the petitIOner, these 
documents cannot be submitted in place of an affidavit setting forth in detail the agreement that was 
entered into with counsel with respect to the actions to be taken. 
Furthermore, absent actual evidence, the assertions of the petitioner's new counsel do not establish the 
truth of the matter asserted. The unsupported assertions of counsel do not constitute evidence. Maller of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Maller of Laureano, 191&N Dec. 1 (BIA 1983): Maller 
ojRamirez-Sanchez, 17 I&N Dec. 503, 506 (B1A 1980). 
Finally, assuming arguendo that the petitioner had satisfied the criteria for a Lozada claim, the petitioner 
has not established that his former counsel's actions or failure to act constituted sufficient prejudice to 
warrant consideration of his late motion. While the petitioner asserts that the former counsel failed to 
provide a copy of the denial letter, it appears that the petitioner obtained a copy prior to filing the motion. 
However, the petitioner has not specifically identified any error of law or fact in the director's decision 
either on motion or on appeal. See 8 C.F.R. §§ I 03.3(a)( 1 )(v). Even if the AAO were to find that the 
petitioner established the ineffective assistance of counsel claim and allowed the late motion, the director 
would be compelled to deny the motion for failure to meet the requirements for either a motion to reopen 
or a motion to reconsider. 8 C.F.R. § 103.5(a)(2) & (3). 
Page 4 
On review of the record, the AAO concludes that the petitioner received a fair and complete adjudication 
of his immigrant visa petition. The petitioner had the opportunity to argue the merits of that adjudication 
through the filing of this late motion. but failed to do so. The failure to file a timely appeal does not 
automatically constitute sufficient prejudice to warrant consideration of his late motion on the basis of 
ineffective assistance of counsel. See Malter of Assaad, 23 I&N Dec. at 553. 
Accordingly, the AAO tinds that the director properly denied the petitioner's untimely motion. 
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. Therefore, the appeal will be dismissed. 
ORDER: The appeal is dismissed.