dismissed EB-1C Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re: 16842957 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 23, 2021 
Form I-140, Immigrant Petition for a Multinational Executive or Manager 
The Petitioner describes itself as a franchised Indian vegetarian restaurant and seeks to permanently 
employ the Beneficiary as a human resources manager under the preference immigrant classification 
for multinational executives or managers. See Immigration and Nationality Act (the Act) section 
203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This employment-based "EB-I" immigrant classification 
allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to 
work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that the United States employer and the foreign employer have a qualifying 
relationship. The Petitioner filed a motion to reconsider, which the Director dismissed. Likewise, we 
dismissed the Petitioner's appeal and the two subsequent motions to reopen and reconsider . In our 
latest decision, we affirmed our May 2020 decision where we dismissed the Petitioner's February 
2020 motion as untimely filed. The matter is now before us on a third combined motion to reopen and 
motion to reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the Petitioner's combined 
motion to reopen and reconsider. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R 
§ 103 .5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
The issue to be addressed in this decision is whether the Petitioner has offered new relevant facts 
supported by credible evidence or made legal arguments establishing that our decision to dismiss the 
prior combined motion to reopen and reconsider was based on an incorrect application of law or 
users policy with respect to the facts of this case. The Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing (in this case, 
September 2015) and continuing through adjudication. 8 e.F.R. § 103 .2(b )(1 ). 
As a preliminary matter, we note that the review of any motion is narrowly limited to the basis for the 
prior adverse decision. As such, we will examine any new facts and supporting evidence that pertain 
to the dismissal of the prior motion and we will consider arguments establishing that our prior decision 
to dismiss the Petitioner's June 2020 motion was based on a misapplication oflaw or users policy. 
A. Motion to Reopen 
As noted above, 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. 8 e.F.R. § 103.5(a)(2). 
In the matter at hand, the Petitioner does not offer new facts and instead restates arguments that were 
previously made in support of the June 2020 motion. Because the Petitioner has not met the 
requirements of a motion to reopen, the motion must be dismissed. 8 e.F.R. § 103.5(a)(4). 
B. Motion to Reconsider 
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 
users 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. 8 e.F.R. § 103 .5(a)(3). As discussed below, this motion does not meet these requirements. 
In our decision from November 2020, we identified notable deficiencies in the Petitioner's arguments. 
First, we noted that the Petitioner incorrectly argued that its February 2020 motion was timely filed, 
even though the motion was filed on February 27, 2020, rather than February 26, 2020, the actual 
filing deadline for that motion. We also noted that despite our discretion to excuse the untimely filing 
of a motion to reopen, the regulation only permits us to use that discretion "where it is demonstrated 
that the delay was reasonable and was beyond the control of the applicant or Petitioner." Based on a 
review of the record, we determined that the Petitioner did not identify any documents that were 
obtained overseas, nor did it submit evidence of specific documents whose delivery was delayed by 
something that was beyond the Petitioner's control. See 8 e.F.R. § 103 .5(a)(l )(i). Because of these 
evidentiary deficiencies, we determined that the Petitioner did not demonstrate that an exercise of 
discretion excusing the untimely motion to reopen was warranted. 
We also rejected the Petitioner's assertion that the "fast developing eOVID-19 pandemic" and a May 
2020 users announcement, which extended the filing flexibility to motions, warranted an exercise of 
discretion in excusing the Petitioner's untimely filed motion. Namely, we pointed to the lack of 
evidence showing that the delivery of specific documents was delayed due to eOVID-19. We also 
noted that because our decision dismissing the Petitioner's appeal was issued in January 2020, the 
May 2020 announcement, which applied to decisions, requests, or notices that were issued between 
March 1 and May 1, 2020, was not applicable in the matter at hand. 
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In sum, we provided a comprehensive analysis of the Petitioners claims and submissions and explained 
that the Petitioner did not show that our decision dismissing the preceding combined motion as 
untimely was based on any incorrect application oflaw or policy. 
On current motion, the Petitioner contends that even if the motion was untimely filed, the untimeliness 
was due to the COVID-19 pandemic. Thus, the Petitioner reiterates the same argument it made in 
support of its June 2020 motion and asks that we give '"due weightage" to the parent company's 
overseas location and the inability of the company head to return from the Middle East, where he is 
claimed to have been "stuck" as a result of COVID-19. However, the Petitioner does not address our 
finding that there was a lack of evidence showing that the delivery of specific documents was delayed 
due to COVID-19. Likewise, the Petitioner did not off er evidence to support the claim that the 
untimely filing of the February 2020 motion was "solely due" to difficulties that resulted from the 
COVID-19 pandemic. Further, although the Petitioner asserts that the untimeliness of its motion was 
"insignificant" and that an exercise of discretion is therefore warranted, we note that there is no 
regulatory provision that would allow us to excuse the untimely filing of a motion to reconsider. See 
8 C.F.R. § 103.S(a)(l)(i). 
In light of the above, the Petitioner has not established that we misinterpreted the facts or misapplied 
the law or USCIS policy in assessing the evidence. Therefore, the Petitioner has not met the 
requirements of a motion to reconsider. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration 
and has not overcome the basis for dismissal of the prior motion to reconsider. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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