dismissed EB-1C Case: Product Development

US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: CALIFORNIA SERVICE CENTER Date: DEC 0 2 7.009 
WAC 05 126 53801 
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. 5 1 153(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 oftice. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
deny Rhew 
hief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
petitioner subsequently filed a combined motion to reopen and reconsider before the director, who dismissed 
the motion and affirmed the prior decision. The matter is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its director of product 
development. 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. 
5 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on the following grounds: 1) the petitioner failed to establish that the 
beneficiary's proposed employment would be within a managerial or executive capacity; and 2) the petitioner 
failed to establish that it has a qualifying relationship with the beneficiary's foreign employer. On motion, the 
petitioner, through counsel, provided a brief disputing both grounds for denial. Counsel claimed that new 
evidence was being submitted in the form of information regarding the petitioner's prior use of an outside 
payroll service. Counsel also asserted that the record contains substantial evidence to establish that the 
requisite qualifying relationship exists between the beneficiary's foreign and U.S. employers. 
The director rejected counsel's argument and dismissed the motion, finding that the petitioner failed to cite 
any pertinent precedent decisions establishing that the director's adverse determination was erroneous at the 
time of the initial decision. Accordingly, the director concluded that the petitioner failed to establish that 
reconsideration of the denial was warranted. 
On appeal, counsel addresses the director's initial denial, asserting that the director's adverse findings were 
duly addressed on motion. However, the fact that counsel addresses the merits of the director's original 
decision, rather than the latest decision regarding the previously filed motion, indicates that counsel has 
misconstrued the distinction between a motion and an appeal, each of which serves a different purpose and is 
subject to a different scope of review. 
The regulation at 8 C.F.R. 5 103.5(a)(2) states, in pertinent part, that 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.' 
The regulation at 8 C.F.R. fj 103.5(a)(3) states the following, 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 CIS 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. 
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 I1 NEW RIVERSIDE UNIVERSITY DICTIONARY 792 
(1984)(emphasis in original). 
Page 3 
The above provisions indicate that the scope of review in the case of a motion is strictly limited, regardless of 
whether the petitioner files a motion to reopen, which seeks examination of new evidence, or a motion to 
reconsider, which seeks to establish any nlisapplication of law or service policy. In the present matter, while 
the petitioner offered evidence that was not previously offered, there is no indication that such evidence was 
previously unavailable. Thus, while the director did not expressly address the provisions of a motion to 
reopen, the proceeding did not warrant reopening in light of the petitioner's failure to provide new evidence. 
Counsel's submissions also did not warrant reconsideration of the director's decision, as no pertinent 
precedent decisions were cited to establish that the director's decision was erroneous based on the record as 
constituted at the time of the denial. 
Although the petitioner has since filed an appeal from the director's decision dismissing the motion, it is noted 
that the scope of the AAO's appellate review is limited to the subject matter addressed in the decision that is 
being reviewed on appeal. As the subject matter of the director's decision is limited to an explanation of how 
the petitioner's submissions fell short of meeting the requirements of a motion, the AAO's scope of review 
must be confined to a determination of whether the director's dismissal of the petitioner's motion was 
warranted. Based on the appellate brief and other documents that have been submitted in support of the 
appeal, counsel assumes that the AAO's appellate review applies to all of the director's prior decisions. 
However, the AAO does not have the authority to rule on any decision other than the one that is being 
appealed. 
While a petitioner may subject the director's adverse decision to review either on appeal or on motion, the 
petitioner in the present matter chose the latter option, thereby placing the matter before the director per 
8 C.F.R. 5 103.5(a)(l)(ii), which states that jurisdiction over any given matter rests with the official who 
made the latest decision in the proceeding. As the director made the decision that served as the basis for the 
motion, the director is therefore the official with whom jurisdiction over the motion remains. Although the 
petitioner clearly has the right to appeal the director's decision with regard to the motion, the AAO's 
discussion must be limited to the subject matter of the decision that the petitioner has appealed. In the present 
matter, the director's decision is limited to a discussion of why the petitioner's motion was dismissed. 
Therefore, the AAO's decision is limited to a determination of whether the director's decision was correct. In 
reviewing the petitioner's submissions in support of the motion, the AAO finds that the director's decision was 
warranted and the motion was properly dismissed. See 8 C.F.R. 5 103.5(a)(4). 
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. 5 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion is dismissed.