dismissed EB-1C Case: Management

identifying data deleted to 
prevent dearly unwal:'ranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: FEB 17 2012 
IN RE: Petitioner: 
Beneficiary: 
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 
OFFICE: NEBRASKA SERVICE CENTER 
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. § IlS3(b)(l)(C) 
ON 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 I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 
J03.5(a)(J)(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 
, ' 
DISCUSSION: The nonimmigrant visa petition was denied by the director, Nebraska Service 
Center. The Nebraska Service Center granted a motion to reopen and affirmed the director's 
decision. The Administrative Appeals Office (AAO) summarily dismissed the subsequently 
filed appeal. The matter is now before the AAO on a motion to reopen and/or motion to 
reconsider. The motion will be dismissed and the director's and the AAO's decision will be 
undisturbed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its general 
manager. Accordingly, the petitioner endeavors to classifY the beneficiary as an employrnent­
based immigrant pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.c. § I I 53(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on the following two grounds: I) the petitioner failed to 
establish that the beneficiary was employed abroad in a managerial or executive capacity; and, 2) 
the petitioner failed to establish that the beneficiary would be employed in the United States in a 
qualifYing managerial or executive capacity. 
On July 7, 2008 the petitioner filed Form I-290B as a motion to reconsider the director's 
decision. In a decision dated July 23, 2008 the director affIrmed the denial decision. On August 
22, 2008 the petitioner filed an appeal. In a decision dated July 8, 2009 the AAO summarily 
dismissed the appeal since the petitioner did not "offer any explanation as to the specifics on 
record that contradict the director's decision or show how the director's findings were erroneous. 
On July 22, 2009 counsel for the petitioner filed a Form 1-290B and identified it as a Motion to 
Reconsider and a Motion to Reopen. On motion, counsel contends that the petitioner previously 
submitted a brief in support of the appeal that details specific reasons why the director's findings 
were erroneous. 
Counsel's assertions do not satisfY the requirements of either a motion to reopen or a motion to 
reconsider. 
The regulations 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. I 
A review of the evidence that the petitioner submits on motion reveals no fact that could be 
considered new under 8 C.F.R. § 103.5(a)(2). The evidence submitted was either previously 
available and could have been discovered or presented in the previous proceeding, or it post-dates 
the petition. 
I The word "new" is defmed as "I. having existed or been made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> .... " WEBSTER'S IT NEW RIVERSIDE UNIVERSITY DICTIONARY 792 
(1984)(emphasis in original). 
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In addition, the motion does not satisfY the requirements of a motion to reconsider. 8 C.F.R. § 
103.5(a)(2) states, 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 Service 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. 
A review of the record and the adverse 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. The appeal brief is virtually the same as the 
brief submitted in the initial motion to reopen the director's decision. In addition, the appeal 
brief re-submits the duties filed previously and resubmits the evidence provided in support ofthe 
July 2008 motion. As previously discussed, the petitioner has not met its burden of proof and the 
denial was the proper result under the regulation. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit 
sought. See Matter of Brantigan, II I&N Dec. 493 (BIA 1966). The petitioner must prove by a 
preponderance of the evidence that the beneficiary is fully qualified for the benefit sought. 
Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of E-M-, 20 I&N Dec. 77, 79-
80 (Comm. 1989); Matter of Sao Hoo, II I&N Dec. lSI (BIA 1965). 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
applicant's claim is "probably true," where the determination of "truth" is made based on the 
factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 
1989). In evaluating the evidence, Matter of E-M- also stated that "[t]ruth is to be determined 
not by the quantity of evidence alone but by its quality." Id. Thus, in adjudicating the application 
pursuant to the preponderance of the evidence standard, the director must examine each piece of 
evidence for relevance, probative value, and credibility, both individually and within the context 
of the totality ofthe evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, 
and credible evidence that leads the director to believe that the claim is "probably true" or "more 
likely than not," the applicant or petitioner has satisfied the standard of proof See U.S. v. 
Cardozo-Fonseca, 480 U.S. 421 (1987) (defining "more likely than not" as a greater than 50 
percent probability of something occurring). If the director can articulate a material doubt, it is 
appropriate for the director to either request additional evidence or, if that doubt leads the 
director to believe that the claim is probably not true, deny the application or petition. Here, the 
submitted evidence does not meet the preponderance of the evidence standard. As noted in the 
director's decision and the AAO's decision, the petitioner did not provide sufficient evidence to 
establish eligibility. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are 
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. AbudlJ, 485 U.S. 94 (1988)). A party seeking to 
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reopen a proceeding bears a "heavy burden." INS v. Abudl!, 485 U.S. at 110. With the current 
motion, the movant has not met that burden. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 ofthe Act, 
8 U.S.C. 1361. The petitioner has not sustained that burden. 8 C.F.R. § 103.5(a)(4) states that 
"[aj motion that does not meet applicable requirements shall be dismissed." Accordingly, the 
motion will be dismissed and the previous decisions of the director and the AAO will not be 
disturbed. 
ORDER: The motion is dismissed.