dismissed EB-1C Case: Real Estate Investment

(b)(6)
U.S. Department of Homeland Seciiri~· 
U.S. Citizenship and lmmigra:tion Service s 
Administrative Appeals Office (AAO) 
:;? 20 Massachusetts Ave., N.W., MS 2090 
Washington, pc ~0529-2090 
U.S. Citizenship 
and Immigration · 
Services 
DATE: 
SEP 1 8 2013 
OFFICE: TEXAS SERVICE CENTER 
INRE : 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration aild Nationality Act, 8 U.S.C. §' ll53(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS : 
. Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
Th_is is a ilon-ptecederit decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions . If you believe the AAO incorrectl:y-applied c1,1ttent l~w or poliCy to 
your case or if you seek to present new fac~s 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 instrgctiQnS 3t 
http://www.uscis.gov/forms for the latest information on fee, filing locatio.,, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Tban.kyou, 
jL-RonR senberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa ~tition. The petitioner 
appealed this denial to the Administrative Appeals Office (AAO), and, on May 23, 20i3, the AAO summarily 
dismissed the appeal. The matter is now before the AAO on a motion to reopen, in accordance with 8 C.F.R. 
§ l03.5. The motion will be dismissed. 
The petitioner is a real estate investment company organized in the State of Tex~s. It seeks to employ the 
beneficiary as its president and chief executive officer. 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. 
On A:ugust 1, 2009, the direc.tor denied the petition, concluding that the petitioner had not established it would 
employ the beneficiary in a primarily managerial or executive capacity. Specifically, the director noted that 
the organizational chart indicates that the beneficiary supervises "5_employ~es including contractors and 
subcontraGtors." The dire~tor foun9 that "[g]iven the limited staffing level Of [the company] ... it can only be 
concluded that the bulk_ or primary part of the beneficiary's proposed job assignment in the United States will 
be outside the scope of the 'executive' or 'managerial' capacities as defined." 
On September 1, 2009, counsel for the petitioner filed .an appeal, contending that the director erred in denying 
the petition based on the small size of the company. Counsel further asserted that the benefici~ry manages 
and directs not only staff, but the company's central function, and that the majority of his duties fall within the 
Statutory definition of a "rpanager" or "eXecutive.'' On June 10, 2013, the AAO dismissed the petitioner's 
appeal on two alternative grounds, concluding that: (1) the petitioner failed to establish that the beneficia.ry 
would be employed in: the United States in a primarily executive or mani:lgerial capacity, lJ,Jld (4) the record is 
insufficient to establish that tl}e beneficiary wa.s employed abroad in an executive or managerial capacity, as 
required by the statute . The AAO thoroughly addressed counsel's objections to the denial of the petition. 
The AAO found that the petitioner did not IJrovide any substantive details regarding the beneficiM)''s actUal 
dt~ties or the amount of tirne he allocates to specifiC:: duties, such that it could be concluded that he performs 
primarily qualifying tasks . The AAO further found that the petitioner had not established that its regular staff 
included anyone other than the beneficiary, and failed to provide evidence of payments to· its claimed 
contractors; thus, it remained unclear who, if anyone, would be available to rel.ieve the beneficiary from 
perfonning non"mi:lrw,geri_al tasks associated with the business's day-to-day operations, such as sales, 
'mjlrkeOng, bookkeeping, research, invoicing, licensing, and other administrative and operational functions. · 
the petitioner subsequently filed the instant motion to reopen the AAO's decision of June lO, 2013. On 
motion, the ·petitioner submits a letter in which it reiterates that the bem~ficiary will be empl<;>yed. in a q(lalifying 
executive capacity. 
The regulation at 8 C.F.R. § 1 03.5(a)(2) states: 
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. 
the regulation at 8 C.F.R. § 103.5(a)(4) states, in pertinent part: ''A motion that does not meet applicable 
requirements shall be dismissed." 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
On motion, the petitioner submits two letters bearing the beneficiary's signature, reiterating that the 
, beneficiary will be employed in an executive capacity. Both letters contain vague references to the 
beneficiary's executive position at the U.S. company, however, the information presented does not provide 
any new facts and is not supported by any documentary evidence. 
The AAO's decision clearly indicated that the petitioner failed to provide sufficient information to 
demonstrate that the beneficiary's position and duties at the U.S. company qualify hiin as an executive or as a 
manager. Specifically, as noted above, the AAO found that the petitioner did not provide any substantive 
details regl!tding the beneficiary's actual duties or the amount of time he allocates to specific duties, such that 
it could be concluded that he performs primarily qualifying tasks. This failure of documentation is important 
because several of the beneficiary's assigned tasks do not fall directly under traditional ·managerial or 
executive duties as defined in the statute. The petitioner's description of the beneficiary's job duties does not 
establish what proportion of the beneficiary's duties are managerial or executive in nature, ano what 
proportion are actually non-managerial. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
man~geria1 in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp, 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cit. 
1990). The actual duties themselves reveal the true nature of the employment. /d. at 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The AAO further found that the 'petitioner did not establish that it employs staff to perform several of the 
duties claimed to be delegated to staff by the beneficiary. The petitioner has not addressed this issue on 
motion. When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality 
of the record, including descriptions of a beneficiary's duties and those of his or her subordinate employees, 
the nature of the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. 
The instant motion consists solely of the petitioner's assertions that the beneficiary is an executive and 
explains the hardships .. his family would suffer if this visa petition were not approved. The petitioner has not 
presented ~ny new evidence relevant to the AAO's decision to dismiss ~he appeal. Furthermore, in its 
decision, the AAO also foufid that the record was insufficient to establish that the beneficiary Was employed 
abroad in an executive or managerial capacity, as required by the statute. On motion, the petitioner ignores 
this portion of the AAO's decision and does not address the beneficiary's position or duties at the foreign 
entity. Accordingly, the motion will be dismissed for failing to meet the applicable requirements. 
The purpose of a motion to reopen is different from the purpose of an appeaL While the AAO conducts a 
comprehensive, de novo review of the entire record on appeal, a review in the case of a motion to reopen is 
strictly limited to an examination of any new facts, which must be supported by affidavits and documentary 
evidence. As such, the AAO's review in this matter is limited to the narrow issue of whether the petitioner 
has presented and documented new facts to warrant the re-opening of the AAO's decision issued on June 10, 
2013. The petitioner has not met this burden. 
In addition, the regulation at 8 C.F.R. § 103.5(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a 
statement about whether or not the validity of the unfavorable decision ha~ been or is the subject of any· 
judicial proceeding.'' The petitioner's motion does not contain this statement. The regulation at 8 C.F.R. § 
103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. Therefore, 
(b)(6)
NON"PRECEDENT l)ECISION 
Page'4 
because the instant motion does not meet the applicable filing requirements listed in 8 C.F.R 
§ 103.5(a)(l)(iii)(C), it must also be dismissed for this re.ason. 
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same reasons as 
petitions for rehearing and inotlons for a new trial on the basis of newly di~covered evid~nce . See INS v. Doherty, 
502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (i988)). A party seeking to reopen a proceeding 
bears a "heavy putcj.en." !NS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that 
burden. 
Finally, it should be noted for the record that, unless USCIS directs o~erwise, the filing of a motion does not stay 
the execution ofany decision in a case ot extend. a previously set departure ga~e . 8C.F.R. § 103.5(a)(l)(iv). 
lil vis.a 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 .pee. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The motion is dismissed.