dismissed EB-1C Case: Metal Fabrication Equipment

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 02 201 50866 Office: CALIFORNIA SERVICE CENTER Date: 
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. tj 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
94 e FRO ert P. Wiemann, Director 
Administrative Appeals Office 
h 
WAC 02 20 1 50866 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based visa petition. The 
Administrative Appeals Office (AAO) dismissed a subsequently filed appeal. The matter is now before the 
AAO on a motion to reopen and reconsider. The motion will be dismissed. 
The petitioner is an organization incorporated in the State of Texas in 1982. It imports metal fabrication 
equipment manufactured by its parent company and modifies and customizes the equipment for the United 
States market. It seeks to employ the beneficiary as its California branch manager. 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. $ 1153(b)(l)(C), as a multinational 
executive or manager. 
The director determined that the petitioner had not established that the beneficiary would be employed in a 
managerial or executive capacity for the United States entity. In a December 16, 2003 decision, the AAO 
affirmed the director's decision. 
Counsel for the petitioner submits a motion to reopen or in the alternative a motion to reconsider. Counsel 
asserts that the motion to reopen is based on new facts that have developed since the original petition was 
filed, in particular, the extensive system of dealerships developed by the beneficiary on behalf of the 
petitioner's California branch office. Counsel does not submit argument as a basis for the motion to 
reconsider. 
The regulation at 8 C.F.R. 5 103.5(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. Counsel asserts that the beneficiary's development of an 
extensive system of dealerships in the two years since the filing of the petition should be considered new and 
a basis to reopen the previous proceeding. However, a petitioner must establish eligibility at the time of 
filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of 
facts. Mutter OfKutighuk, 14 I&N Dec. 45, 49 (Comm. 197 1). Likewise, the petitioner's revised description of 
the beneficiary's duties and documents submitted establishing the growth of the petitioner since the petition was 
filed are not relevant to this proceeding. 
In addition, the petitioner's statement provided on motion is not an affidavit as it was not sworn to or affirmed 
by the declarant before an officer authorized to administer oaths or affirmations who has, having confirmed 
the declarant's identity, administered the requisite oath or affirmation. See Bluck!s Law Dictionary 58 (7th 
Ed., West 1999). Nor, in lieu of having been signed before an officer authorized to administer oaths or 
affirmations, do they contain the requisite statement, permitted by Federal law, that the signers. in signing the 
statements, certify the truth of the statements, under penalty of perjury. 28 U.S.C. 5 1746. Such unsworn 
statements made in support of a motion are not evidence and thus, as is the case with the arguments of 
counsel, are not entitled to any evidentiary weight. See INS' v. Pliirz~mthj~u, 464 U.S. 183, 188-89 n.6 (1984); 
Muttc~l- of Rar7zire~-Sirriche,-, 17 I&N Dec. 503 (RIA 1980). 
WAC 02 20 1 50866 
Page 3 
The petitioner has not submitted new facts supported by affidavits or other documentary evidence. Motions for 
the reopening of imrnibmtion 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. Abtlrltr, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden." 
INS v. Abttdtr, 485 U.S. at 110. With the current motion, the movant has not met that burden. The motion to 
reopen will be dismissed. 
The regulation at 8 C.F.R. 3 103.5(a)(3) 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. 
Neither counsel nor the petitioner has submitted any pertinent precedent decisions to establish that the AAO 
decision was based on an incorrect application of law or policy. The record contains no basis to reconsider the 
previous decision. The motion to reconsider will be dismissed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. The regulation at 8 C.F.R. 5 103.5(a)(4) states: "[a] motion that does 
not meet applicable requirements shall be dismissed." Accordingly, the motion will be dismissed, the 
proceedings will not be reopened, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.