dismissed EB-1C Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-I- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 16,2015 
MOTION OF ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a "management, consulting, investment" company which operates a motel, seeks to 
employ the Beneficiary as its vice president under the multinational executive or manager immigrant 
classification. See Immigration and Nationality Act (the Act) § 203(b )(1 )(C), 8 U.S.C. 
§ 1153(b)(l)(C). The Director, Texas Service Center, denied the petition. We dismissed the 
Petitioner's appeal and denied its subsequent combined motion to reopen and reconsider as untimely 
filed. Subsequently, the Petitioner filed a second combined motion to reopen and reconsider, which 
we also denied. The matter is now again before us on a third combined motion to reopen and 
reconsider, in accordance with 8 C.F.R. § 103.5. The combined motion will be denied. 
In dismissing the Petitioner's appeal, we affirmed the Director's finding that the Petitioner did not 
establish that the Beneficiary has been employed abroad and would be employed in the United States 
in a qualifying managerial or executive capacity. 
On this third motion, the Petitioner asserts that we should review the motion to reopen and the 
motion to reconsider, and that the cumulative evidence in the record supports a finding that the 
Beneficiary has been and would be employed in a qualifying managerial or executive capacity. 
I. MOTION REQUIREMENTS 
For the reasons discussed below, this combined motion will be denied because the motion does not 
merit either reopening or reconsideration. 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F.R. § 103.5(a)(l)(i) includes the following statement limiting a USCIS 
officer's authority to reopen the proceeding or reconsider the decision to instances where "proper 
cause" has been shown for such action: "[T]he official having jurisdiction may, for proper cause 
shown, reopen the proceeding or reconsider the prior decision." 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal 
requirements for filing (such as, for instance, submission of a Form I-290B that is properly 
completed and signed, and accompanied by the correct fee), but the Petitioner must also show proper 
Matter of B-1- Corp. 
cause for granting the motion. As stated in the provision at 8 C.F .R. § 103 .5( a)( 4 ), "Processing 
motions in proceedings before the Service," "[a] motion that does not meet applicable requirements 
shall be dismissed." 
A. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 1 03.5(a)(2), "Requirements for motion to reopen," states: 
A motion to reopen must [(1)] state the new facts to be provided in the . 
reopened proceeding and [(2)] be supported by affidavits or other documentary 
evidence. 
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: 
Motion to Reopen: The motion must state new facts and must be supported 
by affidavits and/or documentary evidence demonstrating eligibility at the time the 
underlying petition ... was filed. 1 
Further, the new facts must possess such significance that, "if proceedings ... were reopened, with all 
the attendant delays, the new evidence offered would likely change the result in the case." Matter of 
Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 
(lOth Cir. 2013). 
B. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § 103.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must [(1)] state the reasons for reconsideration and 
[(2)] 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 [(3)], [(a)] when filed, also 
[(b)] establish that the decision was incorrect based on the evidence of record at the 
time of the initial decision. 
These provisions are augmented by the related instruction at Part 4 of the Form I-290B, which states: 
Motion to Reconsider: The motion must be supported by citations to 
appropriate statutes, regulations, or precedent decisions when filed and must establish 
1 Theregulation at 8 C.F.R. § I 03.2(a)(l) states in pertinent part: "Every benefit request or other document submitted to 
DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR 
chapter I to the contrary, and such instructions are incorporated into the regulations requiring its submission." 
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Matter of B-1- Corp. 
that the decision was based on an incorrect application of law or policy, and that the 
decision was incorrect based on the evidence of record at the time of decision. 
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 hearing based on new facts. Compare 
8 C.P.R. § 103.5(a)(3) and 8 C.P.R. § 103.5(a)(2). 
A motion to reconsider should not 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, 219 (BIA 1990, 1991) 
("Arguments for consideration on appeal should all be submitted at one time, rather than in 
piecemeal fashion."). Rather, any "arguments" that are raised in a motion to reconsider should flow 
from new law or a de novo legal determination that could not have been addressed by the affected 
party. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (examining motions to reconsider under a 
similar scheme provided at 8 C.P.R. § 1003.2(b)); see also Martinez-Lopez v. Holder, 704 F.3d 169, 
171-72 (1st Cir. 2013). Further, the reiteration ofprevious arguments or general allegations of error 
in the prior decision will not suffice. Instead, the affected party must state the specific factual and 
legal issues raised on appeal that were decided in error or overlooked in the initial decision. See 
Matter ofO-S-G-, 24 I&N Dec. at 60. 
II. DISCUSSION AND ANALYSIS 
The Director's initial decision to deny the petition, and our subsequent dismissal of the Petitioner's 
appeal, was based upon a finding that evidence of record did not establish that the Beneficiary was 
employeq abroad and would be employed in the United States in a qualifying managerial or 
executive capacity as defined at section 10l(a)(44) ofthe Act. On August 25, 2014, we rejected the 
Petitioner's first combined motion to reopen and reconsider as untimely filed. 
The Petitioner's second combined motion to reopen and reconsider, filed on September 11, 2014, 
demonstrated that the untimely filing of the first combined motion was reasonable and beyond the 
Petitioner's control. Consequently, as we have the discretion to excuse the late filing of a motion to 
reopen in such situations under 8 C.F.R. § 103.5(a)(l)(i), we granted review ofthe motion to reopen 
component of the combined motion in our decision dated May 22, 2015, but determined that the 
motion to reopen did not meet the applicable requirements set forth at 8 C.P.R. § 103.5(a)(2). We 
did not grant the motion to reconsider, noting that we do not have the authority to exercise similar 
discretion for untimely motions to reconsider. It is this May 22, 2015 decision that is the subject of 
the motion currently before us. 
A. Motion to Reopen 
Upon review of the documents submitted in support of the motion to reopen, we find that the 
Petitioner has not provided new evidence. In its brief, the Petitioner alleges no new facts. The 
substance of the Petitioner's argument is that the Director's September 18, 2013 decision of denial 
and our March 19,2014 dismissal ofthe subsequent appeal were in error. 
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Matter of B-1- Corp. 
The submission constituting the combined motion currently before us consists of the Form I-290B, 
Notice of Appeal or Motion, a brief, and additional documentation. 
The Form I-140, Immigrant Petition for Alien Worker, was filed on August 8, 2008, and several of 
the documents submitted on motion are dated after August 2008. On motion, the petitioner submits 
copies of the following documents: IRS Form 1120, U.S. Corporation Income Tax Return, for 2013 
and 2014; Schedule K-1, Shareholder's Share of Income, Deductions, Credits, etc. for 2014 and 
2013; and IRS Form W-2, Wage and Tax Statement, for all of its employees in 2014. Thus, all of 
the documents submitted on motion post -date the filing of the Form I -140. The Petitioner noted that 
in our previous decision, we identified case law regarding a nonimmigrant visa petition rather than 
an immigrant visa. However, the case law regarding immigrant petitions also indicates that a 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 
I&N Dec. 45,49 (Comm'r 1971). 
All of the documents submitted in support of this motion to reopen were previously available or are 
documents that are relevant to the Petitioner after the petition was filed. For example, the Petitioner 
submits a support letter that reiterates the duties the Beneficiary performed abroad and in the United 
States. The information in this document was previously available. Further, the Petitioner has not 
established that the evidence submitted on this motion would change the outcome of this case if the 
proceeding were reopened. 
"There is a strong public interest in bringing [a case] to a close as promptly as is consistent with the 
interest in giving the [parties] a fair opportunity to develop and present their respective cases." INS v. 
Abudu, 485 U.S. 94, 107 (1988). 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 petitioner and its counsel have not met that 
burden. 
Because the Petitioner has provided no new facts or new evidence, let alone facts or evidence likely 
to change the result of that decision, the motion to reopen will be denied. 
B. 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 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) (detailing the 
requirements for a motion to reconsider). 
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Matter of B-1- Corp. 
In our May 22, 2015 decision, we rejected the Petitioner's second motion to reconsider, based on the 
untimely filing of the Petitioner's first motion to reconsider which was rejected on August 25, 2014. 
We noted again that unlike motions to reopen, we have no discretionary authority to excuse the late 
filing of a motion to reconsider. The motion currently before us does not address our lack of 
discretionary authority to excuse an untimely motion to reconsider, and has not established that our 
most recent decision rejecting the Petitioner's motion to reconsider was incorrect based on the 
evidence of record at the time of the initial decision. 
Further, reviewing the merits of the motion to reconsider, the Petitioner has not established that the 
evidence submitted on motion would change the outcome of this case if the proceedings were 
reconsidered. 
With respect to our finding that the evidence of record did not establish that the Beneficiary was 
employed by the foreign entity in a qualifying managerial or executive capacity, the Petitioner 
asserts on motion that we erred in determining that the Petitioner provided an overly broad 
description for the Beneficiary and that the submitted description contained several non-qualifying 
duties. In our appeal decision, we listed some of the Beneficiary's job duties and noted that the 
Petitioner did not provide sufficient detail of the day-to-day duties the Beneficiary performed 
abroad. Instead, the Petitioner provided broad duties such as "oversee[ s] and manages Accounts, 
Finance, Sales and Operations departments." 
In addition, since the Petitioner did not provide corroborating evidence of the foreign company's 
organizational structure, we cannot determine if the foreign company had accounts, finance, sales or 
operations departments for the Beneficiary to oversee. As noted in our decision, the organizational 
chart of the foreign company identified three directors, seven managers, and a large staff but did not 
explain why a gas station would require so many directors and managers. The Petitioner explained 
that this gas station is not like a gas station in the United States as it also supplies "gas, petrol and 
diesel to many smaller dealers, and at our location we had exclusive contracts with big distributors 
of many types of consumer products." However, the Petitioner did not provide any contracts or 
other information to explain the work the foreign company does above and beyond selling gasoline. 
In addition, the organizational chart does not identify any cashiers or clerk positions for running the 
gas station. It was not unreasonable to question the accuracy of the submitted organizational charts 
in light of this evidence. The Petitioner has not provided sufficient evidence of the organizational 
structure of the foreign company and thus, it has not established that the Beneficiary was employed 
in a managerial or executive capacity. 
On motion, the Petitioner asserts that we erred in finding that the Beneficiary's position description 
for the foreign company contained several non-qualifying duties and that "market research and 
contract negotiations are highly professional areas, which were handled by the beneficiary as 
Director of the foreign entity." However, performing the actual tasks of market research and 
contract negotiation is an operational task of running the business operations, and even "highly 
professional" duties do not equate with duties in a managerial or executive capacity as those terms 
are defined at section 101(a)(44) of the Act. An employee who "primarily" performs the tasks 
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(b)(6)
Matter of B-1- Corp. 
necessary to produce a product or to provide services is not considered to be "primarily" employed 
in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see also Matter o.f Church 
Scientology International , 19 I&N Dec. 593, 604 (Comm'r 1988). 
Turning to the Beneficiary 's proposed U.S. employment, the Petitioner asserts that the proffered 
position qualifies as executive and that we erred in not applying the required preponderance of the 
evidence standard. Our appeal decision applied the "preponderance of the evidence" standard that 
requires that the evidence demonstrate that the petitioner's claim is "probably true," where the 
determination of "truth" is made based on the factual circumstances of each individual case. Matter 
ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 
(Comm'r 1989)). In evaluating the evidence, the truth is to be determined not by the quantity of 
evidence alone but by its quality. !d. Our decision included a detailed discussion of the Petitioner's 
evidence and explained why the evidence did not establish eligibility. 
On motion, the Petitioner does not address of the specific evidentiary deficiencies, discrepancies and 
omissions in the record which led us to conclude that the Petitioner did not meet its burden of proof. 
For example, we noted that the Petitioner stated at the time of filing that it will provide management 
services to four clients as evidenced by agreements provided with the initial petition. In response to 
the request for evidence, the Petitioner continued to state that it would provide services to the 
companies listed in the agreements. Only in response to the Director's notice of intent to deny 
(NOID) did the Petitioner state that the "management contracts we entered into with the above listed 
entities, were agreed to, but never fulfilled." The Petitioner also explained that it could not fulfill the 
contracts submitted with the petition because the Petitioner entered into an agreement to lease three 
and handle the management services of the three motels. The Petitioner also 
submitted two lease agreements indicating that the Petitioner is the new tenant of two 
The leases are signed in 2008 when the current petition was filed; thus, it is not clear why 
the Petitioner declined to mention this change in business operations earlier and waited until the 
response to the NOID. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
In addition, the lease agreements signed by the Petitioner are for leases that expired on December 31 , 
2008 and April 14, 2009, respectively. There is no evidence that the Petitioner renewed these leases 
and continues to rent the in and Virginia. In addition, the 
Petitioner did not provide any agreement to corroborate its assertion that it has been contracted to 
provide management services to the two motels. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
o.fSojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasur e Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). 
Finally, the Petitioner 's organizational chart does not reflect an organizational structure of a 
company that manages multiple motels. The chart identifies a vice president who in tum supervises 
Matter of B-1- Corp. 
a general manager accounting and finance, general manager sales and marketing, general manager, 
operations and administration, and general manager information technology. Under these four 
managers, the chart identifies a financial manager, accountant, bookkeeping clerk, sales and 
marketing manager, business development manager, sales/customer services staff, administrative 
assistant, human resources, administrative clerk, and network administrator. The chart does not 
identify any positions that are typical of a motel operation such as housecleaning, maintenance, front 
office manager, front office staff, and reservations staff. Furthermore, upon review of the IRS 
Forms W-2 for the Petitioner's employees in 2008, most of the employees received salaries of under 
$7,000.00 for the year, and several received less than $500.00. It is unclear what positions these 
employees held or how the company was staffed and structured at the time of filing. The Petitioner 
has not provided sufficient evidence of the organizational structure of the company and thus, it has 
not established by a preponderance of the evidence that the Beneficiary will be employed in an 
executive capacity. Again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. at 165. Overall, on motion, the Petitioner has not adequately addressed the specific evidentiary 
deficiencies address in our initial decision. 
We conclude that the documents constituting this motion to reconsider do not articulate how our 
decisions or the Director's decision misapplied any pertinent statutes, regulations, or precedent 
decisions to the evidence of record at the time those decisions were rendered, such that the 
proceedings would warrant reconsideration. Accordingly, the motion to reconsider will be denied. 
III. CONCLUSION 
The Petitioner should note 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, 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 of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the combined motion will be denied, 
the proceedings will not be reopened or reconsidered, and our previous decision will not be 
disturbed. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of B-1 Corp., ID# 14879 (AAO Dec. 16, 20 15)