dismissed EB-1C Case: Restaurant

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PUBLIC COpy 
Date: APR 2 7 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
u. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was dismissed. The 
AAO's adverse decision prompted the petitioner to file a motion to reopen and reconsider, which the AAO 
also dismissed. The matter is now before the AAO on a second motion to reopen and reconsider. This 
motion will be dismissed. 
The petitioner is a Florida corporation that owns and operates a restaurant. It seeks to employ the beneficiary 
as its president. 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 based on two 
independent grounds of ineligibility: 1) the petitioner failed to establish that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity; and 2) the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. 
On appeal, the petitioner's prior counsel disputed the director's conclusions and submitted a brief and 
additional documents, which the AAO considered prior to dismissing the appeal. The AAO concluded that 
the petitioner failed to overcome either of the two grounds cited in the director's decision and also issued an 
additional finding beyond the director's decision, concluding that the petitioner failed to provide sufficient 
evidence to show that it has a qualifying relationship with the beneficiary's foreign employer. The AAO 
pointed to an inconsistency between the petitioner's articles of incorporation, which showed that the petitioner 
was authorized to issue 50,000 shares of stock, and the petitioner's stock certificate no. 5, which indicated that 
a total of only 1,000 shares were authorized to be issued. The AAO also observed that Schedule L of the 
petitioner's 2005 tax return lacked any indication that the petitioner had been compensated for the stock it 
claims to have issued in 2004. 
On first motion, the petitioner's new counsel submitted a brief in which he referred to purchase documents, 
which he offered as evidence of the foreign entity's purchase of the U. S. restaurant. Counsel claimed that the 
stock sale was not reflected in the petitioner's 2005 tax return because the foreign entity's funds were used to 
purchase the restaurant rather than the petitioner's stock. 
The AAO found that counsel's statements were not persuasive as the assertions put forth were not supported 
by documentary evidence. The AAO pointed out that, while the petitioner provided a purchase document for 
Big Pete's Pizzeria, the document showed that the beneficiary rather than the foreign entity purchased the 
restaurant and no additional evidence was submitted to establish that the foreign entity gave the beneficiary 
money specifically to make the purchase at the foreign entity's request. See Matter of Soffici, 22 I&N Dec. 
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On current motion, counsel submits a statement reasserting claims previously made with regard to the 
petitioner's use of the foreign entity's funds for the purchase of a restaurant. In support of the claims being 
made, counsel offers a letter from the partners of the foreign entity as well as an affidavit from the beneficiary 
to further clarify the basis of the qualifying relationship claim. 
Counsel also challenges the relevance of the cases cited by the AAO, claiming that there is no regulation or 
case law precedent that requires the petitioner to provide evidence showing that it was compensated for the 
issuance of stock. 
The AAO again finds that counsel's assertions do not meet the requirements of a motion to reopen and 
reconsider. 
First, with regard to a motion to reopen, the regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that 
the petitioner must state the new facts to be provided in the reopened proceeding and the new facts must 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. 1 
In the present matter, the facts put forth in counsel's statement are merely a restatement of the assertions that 
were previously made in the prior motion. Thus, while the petitioner submits an affidavit to support the facts 
that are being put forth, the facts being asserted cannot be deemed as new and thus do not meet the 
requirements of a motion to reopen. 
Next, with regard to a motion to reconsider, the regulations at 8 C.F.R. § 103.5(a)(3) state, 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 USCIS 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. 
Here, counsel focuses on the cases cited in the AAO's prior decision, contending that the cited cases do not 
expressly require a petitioner to provide evidence showing that it had been compensated by its parent entity 
for the issuance of stock. However, as general evidence of a petitioner's claimed qualifying relationship, 
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The AAO further points out that when, as in the present matter, an inconsistency exists in the record, it is 
particularly crucial for the petitioner to be able to provide independent objective evidence to support the 
assertions being made and to overcome the inconsistency. Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Moreover, USCIS has the 
discretion to request evidence, beyond the initial evidence required by regulation, in order to determine 
whether the petitioner is eligible for the immigration benefit it seeks to obtain. See 8 C.P.R. § 1 03.2(b )(8)(iii). 
Here, the evidence submitted in support of the petitioner's initial motion failed to address a valid issue 
concerning the lack of evidence showing that the foreign entity offered some form of consideration in 
exchange for the petitioner's issued stock. 
Moreover, as with the previous motion, counsel does not cite any legal precedent or applicable law that would 
indicate an error on the part of the AAO in dismissing the petitioner's prior motion. 
Therefore, in accordance with 8 c.P.R. § 103.5(a)(4), which states, in pertinent part, that a motion that does 
not meet applicable requirements shall be dismissed, the AAO will hereby dismiss the motion. 
Lastly, the AAO notes that even if the petitioner was successful in overcoming the additional issue regarding 
a qualifying relationship, the record clearly shows that the director's original decision, which the AAO 
affirmed by dismissing the appeal, cited two other grounds for denial-the petitioner's failure to establish that 
the beneficiary was employed abroad in a qualifying managerial or executive capacity and that he would be 
employed in the United States in a qualifying managerial or executive capacity. There is no evidence 
showing that the petitioner has overcome or even addressed either of the director's original adverse findings 
in the present motion. The AAO therefore finds that the petitioner has ultimately conceded the two original 
adverse findings as grounds for denial. 
As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.P.R. 
§ 103.5(a)(1)(iv). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion is dismissed.