dismissed EB-1C Case: Restaurant

(b)(6)
DATE: JUK 3 0 2015 
INRE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~~ Ron RosenbergJL'' I 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition on April 
30, 2013, and dismissed a subsequent motion to reconsider on July 29, 2014. The matter is 
currently before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petition will be denied. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
The petitioner indicated that it was established in and claims to operate as a restaurant. 
According to Part 6, Item 1 of the Form I-140, the petitioner seeks to employ the beneficiary as its 
managing director. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner submitted falsified documents in 
support of the petition. In addition, the director found the petitioner to be statutorily ineligible 
based on its failure to establish the following: (1) a qualifying relationship exists between the 
petitioner and the beneficiary's foreign employer abroad; (2) the foreign entity continues to do 
business; (3) the beneficiary was employed abroad in a qualifying managerial or executive capacity; 
(4) the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity; and (5) the petitioner had the ability to pay the beneficiary's proffered wage commencing 
on the date the petition was filed. The director ultimately denied the petition with an additional 
finding of fraud. 
The petitioner subsequently filed a motion to reconsider, which the director dismissed in a decision 
dated July 29, 2014. Although the director dismissed the motion based on the finding that the 
motion was untimely filed, he noted that, even if the motion had been timely, it would nevertheless 
of have been dismissed based on the finding that the petitioner's submissions did not warrant 
reconsideration of the original decision. The matter is now before our office on appeal. 
It is noted that the director stated: "If you disagree with this decision, you may appeal to the 
Administrative Appeals Office (AAO) .... " (Emphasis added). As this language indicates, an 
appeal is filed in response to a director's unfavorable action. In this matter, given that the 
unfavorable decision is with regard to the petitioner's motion, the scope of the appeal is limited to 
the director's decision on that motion. We see, for instance, that the regulatory provision at 8 C.F.R. 
§ 103.3(a)(2)(i) states: "The affected party must submit the complete appeal including any supporting 
brief as indicated in the applicable form instructions within 30 days after service of the decision." 
(Emphasis added). Thus, if the petitioner wished to appeal the director's decision to deny the petition, 
it should have elected to file that appeal within 30 days of the director's denial decision. However, in 
the present matter, the petitioner elected to file a motion instead of an appeal and, thereby, limited the 
scope of the current appeal to the merits of the director's decision to dismiss that motion. 
On July 29, 2014, the director dismissed the petitioner's motion. Although the director was correct 
in dismissing the motion, we 
find that the director erred in finding that the petitioner's June 3, 2013 
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filing of the motion to reconsider was untimely .1 Notwithstanding the director's error, we find that 
the decision to dismiss the motion was correct based on a proper application of the requirements of 
a motion to reconsider. As the petitioner did not establish that the director's original decision to 
deny the petition warranted reconsideration, the motion was properly dismissed. 
The record of proceeding that is currently before us contains: (1) the Form I-140 and supporting 
documentation; (2) the director's requests for additional evidence (RFE) and notice of intent to deny 
(NOID); (3) the petitioner's responses to each of the notices; (4) the director's April 30, 2013 denial 
letter; (5) the petitioner's first Form I-290B appeal, filed September 11, 2012 2 and an additional 
Form I-290B with the petitioner's Motion to Reconsider and supporting documents, filed on June 3, 
2013; 3 (6) the director's decision, dated July 29, 2014, dismissing the motion and affirming the 
original decision; and (7) the petitioner's appeal, consisting of the Form I-290B and supporting 
documents addressing the merits of the director's original decision denying the petition. 
II. LAW AND ANALYSIS 
A. Overarching Requirement for Motions by a Petitioner 
The provrswn at 8 C.F.R. § 103.5(a)(1)(i) includes the following statement limiting a U.S. 
Citizenship and Immigration Services (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 cause for granting the motion. As stated in the provision at 8 C.P.R. § 103.5(a)(4), 
Processing motions in proceedings before the Service, "[a] motion that does not meet applicable 
requirements shall be dismissed." 
1 
Given that the Form I-29GB receipt date fell on a Monday, it must be deemed as timely filed, despite the 
fact that USCIS did not receive the appeal until the thirty fourth day after the date the denial was issued. 
2 
The record shows that the petitioner originally filed a Form I-29GB seeking to appeal the director's NOID, 
dated August 1, 2G12. Upon reviewing the matter, we rejected the appeal as improperly filed, pointing out 
that the regulation at 8 C.P.R. § 103.3(a)(1)(ii) allows the filing of an appeal only in an instance where an 
unfavorable decision on a petition has been issued. As the director did not issue an unfavorable decision 
until April 30, 2013, there was nothing to appeal on September 11, 2012 when the petitioner filed an appeal. 
3 The record shows that the petitioner initially filed a motion to reconsider on May 30, 2013. However, a 
note on the Form I-290B indicates that the filing was rejected due to a bounced check. The petitioner 
subsequently refiled the motion, which users received on June 3, 2013. 
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B. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § 103.5(a)(1)(i)(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 3 of the Form I-290B, which 
states: 
Motion to Reconsider: The motion must be supported by citations to appropriate 
statutes, regulations, or precedent decisions. 
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 
id. 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 of previous 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. 
C. Discussion and Analysis 
As indicated above, the director's initial decision to deny the petition was based upon the director's 
finding of fraud and the conclusion that the petitioner did not meet the eligibility criteria based on 
five individual grounds. However, as the petitioner elected not to appeal the original denial, the 
matter that is now before us on appeal is the director's later decision dismissing the petitioner's 
motion to reconsider. In other words, the issue currently before us is whether the director was 
correct in issuing the July 29, 2014 decision dismissing the motion to reconsider. As will be 
discussed below, we find that the director's decision to dismiss the motion was correct. 
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As a preliminary matter, it is worthwhile to note that a motion to reconsider is not a vehicle for introducing 
evidence on the merits of the petition that was not before the director at the time of his or her decision to 
deny the petition. As quoted above, "A motion to reconsider a decision on an application or petition 
must ... establish that the decision was incorrect based on the evidence of record at the time of the 
initial decision." We find that the petitioner's submissions did not meet the requirements of a motion to 
reconsider. 
On appeal, the petitioner contends that the director made numerous errors in his factual findings, 
including his findings concerning the beneficiary's entry and exit dates into and out of the United 
States, the sworn statements the beneficiary made at a U.S. embassy in India, and suspension of the 
petitioner's attorney's credentials. The petitioner states that "[t]here has been no intention to commit 
fraud" and maintains that all information pertaining to the beneficiary is accurate. The petitioner then 
proceeds to address the director's findings of ineligibility, offering information to overcome those 
findings. 
On motion the petitioner was required to specifically and sufficiently articulate why the director's 
decision denying the petition was based on an incorrect application of law or users policy. However, 
the petitioner did not specify or articulate why the director's original decision was incorrect; nor did the 
petitioner cite any relevant statute, regulation or relevant precedent decision that would support a 
contention that the director's decision to deny the petition was based upon a misapplication of statute, 
regulation, or users policy to the evidence of record before the director at the time of the decision to 
deny the petition. 
On appeal, the petitioner is wholly focused on addressing the grounds for the July 29, 2014 denial of the 
petition, which is not the subject of the instant filing and is not now before us. The only issue correctly 
before us on appeal is whether the director was correct to dismiss the motion to reconsider in his 
immediate prior decision. However, the petitioner did not address that issue. 
As the appeal does not establish that the director's decision to dismiss the motion to reconsider was 
incorrect, the appeal will be dismissed, and the petition will be denied. 
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 USeiS 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) (requirements for a motion to reconsider) 
and the instructions for motions to reconsider at Part 3 of the Form l-290B. 
We find that the director did not err in dismissing the motion to reconsider, as the documents constituting 
that motion to reconsider did not articulate how the director's decision to deny the petition misapplied any 
particular pertinent statutes, regulations, policies or precedent decisions to the evidence of record that 
was before the director when the director rendered the decision to deny the petition. 
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III. CONCLUSION 
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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.