dismissed EB-1C Case: Real Estate Development / Import-Export

U.S. Department ot Homeland Sccuritj 
20 Mass Ake. N W , Rtn. A3032 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
JAN 1'1 zoos 
FILE: - Office: CALIFORNIA SERVICE CERER Date: 
WAC 00 133 53066 
* 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration a$ Nationality Act, 8 U.S.C. 6 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
qa Fobert P. Wiemann, -1 Director 
I*S" 
inistrative Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, initially approved the employment-based visa 
petition. Upon review of the record, the director properly issued a notice of intent to revoke and ultimately 
revoked approval of the 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 California in February 1996. It purports to 
develop real estate and import and export construction materials and related equipment. It seeks to employ 
the beneficiary as its president. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employn~ent-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 initially approved the petition on November 24, 2000. Upon review of the record, 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. After properly issuing a notice of intent to revoke, the director 
revoked the approval of the petition on December 6, 2002. In a December 16, 2003 decision, the AAO 
affirmed the director's decision. 'The AAO also determined, beyond the decision of the director, that the 
petitioner had not established its ability to pay the beneficiary the proffered wage. 
On the Form I-290B Notice of Appeal, filed on January 16, 2004, counsel for the petitioner indicated that a 
brief or further evidence would be submitted to the AAO in 30 days. To date, careful review of the record 
reveals no subsequent submission; all other documentation in the record predates the issuance of the notice of 
decision. Further, in order to properly file a motion, the regulation at 8 C.F.R. $ 103.5(a)(l)(i) provides that 
the affected party must file the motion within 30 days of service of the unfavorable decision. If the decision 
was mailed, the motion must be filed within 33 days. See 8 C.F.R. 5 103.5a(b). The failure to file before this 
period expires may be excused at the discretion of the AAO where it is demonstrated that the delay was 
reasonable and beyond the control of the petitioner. 8 C.F.R. 5 103.5(a)(l)(i). Counsel has not requested that 
a late-filed brief be excused and accepted as evidence in support of the petitioner's motion. 
Counsel's statement on the Form 1-290B reads: 
The AAO improperly ignored and did not give appropriate weight to citations to cases 
supporting [the petitioner's] multinational manager or executive petition. The cases supported 
the petitioner's arguments that the number of employees and size of a company do not determine 
whether a position is an executive one or not. Furthermore the AAO improperly ruled on an 
issue not raised on appeal: the ability to pay the preferred wages. This issue was raised by 
neither the USCIS nor the petitioner. It was not a basis of the denial. The AAO therefore was 
without authority to review this issue. The AAO also igaored the higher burden placed on the 
USCIS in revoking a visa as established by precedent case law. 
The regulat~on 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 pro\ ided In the reopened procccd~ng and be supported by affidavits or other documentary ev~dence." Based 
on the plain meanlng of "new," a new fact IS found to be ev~dence that was not available and could not have been 
discovered or presented in the previous proceeding. The petitioner has not submitted new facts supported by 
affidavits or other documentary evidence. 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. 3 14,323 (1 992)(citing lTNS v. Abzrd~f, 485 U.S. 94 ( 1988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Abuclzc, 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. 5 103,5(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. First, the AAO reiterates that unpublished 
decisions are not binding on Citizenship and Immigration Services (CIS) in its administration of the Act. See 
8 C.F.R. $103.3(c). Second, an application or petition that fails to comply with the technical requirements of 
the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer  enterprise.^, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
200l), qfd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting 
that the AAO reviews appeals on a de novo basis). Third, Section 205 of the Act, 8 U.S.C. 1155, states: "The 
Attorney General may, at any time, for what he deems to be good and sufficient cause, revoke the approval of 
any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of'fitime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of'Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter ofEstimc, 19 I&N 450 (BIA 1987)). 
Counsel has not provided a proper basis to reconsider the previous decision and has ignored longstanding 
precedent decisions and the regulations pertinent to this visa classification. 
The burden of proof in these proceedings rests solely with the petitioner. Section 29 1 of the Act, 8 U.S.C. (i 
1361. The petitioner has not sustained that burden. The regulation at 8 C.F.R. (i 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.