dismissed EB-1C Case: Management

(b)(6)
DAT~UG 1 3 2013 
INRE: 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) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1 )(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 not announce new constructions of law 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 consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date 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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~-6~ 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petttiOn was denied by the Director, Texas Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was dismissed and 
the matter is now before the AAO on a combined motion to reopen and reconsider. The motion will be 
dismissed. 
The petitioner is a New York corporation that seeks to employ the beneficiary in the United States as its 
president. 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. 
§ ll53(b)(l)(C), as a multinational executive or manager. The director denied the petition concluding that the 
petitioner failed to establish that the beneficiary had been employed abroad and that he would be employed in 
a managerial or executive capacity. 
The petitioner appealed the denial disputing the director's findings. After a comprehensive review of the 
record , the AAO determined that the petitioner successfully overcame the adverse finding pertaining to the 
beneficiary's employment abroad. However, the AAO dismissed the appeal based on a determination that the 
petitioner failed to establish that the beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity. 
On motion, counsel submits a brief addressing the AAO's various adverse findings regarding the 
beneficiary's proposed U.S . employment . Specifically, counsel provides background information in an effort 
to clarify the petitioner's practice of hiring part-time employees to address certain operational business 
complications. Additionally, the petitioner provides the following: (l) two statements dated June 28, 2013 -
one from the petitioner's vice president and the other from the petitioner's president , both of whom described 
the petitioner's setbacks and its plans for future expansion; (2) invoices for equipment purchased; (3) an 
undated statement from the petitioner's sales department manager ; (4) a statement dated June 28, 2013 from 
the petitioner's independently contracted electrician briefly addressing the petitioner's problems with power 
outages; and (5) an undated document titled, "Joint Petition Statement," signed by the petitioner's 20 part­
time employees who explained that they currently work part-time because the petitioner does not have enough 
work to accommodate full-time employees. 
Turning first to the motion to reopen , the regulations at 8 C.P.R. § 103.5(a)(2) state, in pertinent part, that the 
motion 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. 1 
In the instant matter , while the petitioner has provided documents in an effort to address the AAO's prior 
adverse findings, such documents cannot be deemed new simply by virtue of having been created in response 
to the AAO' s decision. Moreover, the statements that document the petitioner's various operational hurdles 
do not shed light on the job duties the beneficiary was expected to perform at the time of filing or whether the 
job duties to be performed would be primarily within a qualifying managerial or executive capacity. Finally, 
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 (3rd Ed., 2008)(emphasis 
in original). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
the petitioner previously stated in its response to the-RFE that the majority of its employees do in fact work 
full-time , and subsequently failed to address the director's observation that the company's IRS Form W-2s 
indicated otherwise . Regardless, the petitioner has· not presented document s that satisfy the requirements for 
a motion to reopen. 
Next, turning to the petitioner's motion to reconsider, the pertinent regulatory provision requires the petitioner 
to state the reasons for reconsideration and provide supporting evidence in the form of pertinent precedent 
decisions to establish that the AAO ' s prior decision was based on an incorrect application of law or U.S. 
Citizen ship and Immigration (USCIS) policy . 8 C.P.R. § 103.5(a)(3) . A motion to reconsider contests the 
correctness of the original decision based on the previous factual record, as opposed to a motion to reopen 
which seeks a new hearing based on new or previously unavailable evidence . See Matter of Cerna, 20 I&N 
Dec. 399,403 (BIA 1991). 
Furthermore, a motion to reconsider cannot be used to raise a legal argument that could have been raised 
earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal argument s" that may be raised in a motion to reconsider should flow from new law or a de 
novo legal determination reached in its decision that could not have been addressed by the party. Matter of 0-
S-G- , 24 I&N Dec . 56, 58 (BIA 2006). 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 . !d. at 60. 
In this case, counsel failed to support his motion with any precedent decisions or other comparable evidence 
to establish that the decision was based on an incorrect application of law or USCIS policy. 
In light of the above, the motion to reopen and reconsider will be dismi ssed 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 dismis s an appeal or extend a beneficiary' s previously set departure date. 8 C.P.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.