dismissed EB-1C Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re: 12825338 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: NOV. 25, 2020 
Form 1-140, Immigrant Petition for a Multinational Executive or Manager 
The Petitioner, which describes itself as a franchised Indian vegetarian restaurant, 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-1" 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 on the ground that the Petitioner did not 
establish that the United States employer and the foreign employer have a qualifying relationship as 
required in section 203(b)(l)(C) of the Act and 8 C.F.R. § 204.5U)(3)(i)(C). The Petitioner filed a 
motion to reconsider, which the Director dismissed. 
The Petitioner filed an appeal with the AAO. We dismissed the appeal in a decision that was issued 
on January 24, 2020, determining that the Director was correct in concluding that the Petitioner did 
not establish a qualifying relationship between itself and the Beneficiary's prior foreign employer. 
On February 27, 2020, the Petitioner filed a motion to reopen and a motion to reconsider, together 
with a brief and additional documentation. We dismissed the combined motion on May 19, 2020, on 
the ground that it was untimely filed. The matter is now before us on another motion to reopen and 
motion to reconsider. Upon review, we will dismiss the motion(s). 
1. 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 
Our dismissal of the previous combined motion was based on the fact that it was filed 34 days after 
the service of our dismissal of the appeal, which did not comply with the regulatory requirement that 
a motion be filed within 33 calendar days of the service date of our unfavorable decision. See 8 C.F.R. 
§§ 103.5(a)(1)(i) and 103.S(b). The Petitioner was specifically advised on the cover page of our 
decision dismissing the appeal that any motion must be ti led within 33 days of the date of the decision. 
With its current combined motion the Petitioner submits copies of the brief and documentary materials 
submitted with its prior motion, as well as a cover letter addressing the untimeliness of that motion. 
The Petitioner also submits a copy of Executive Order No. 102 issued by Governor Philip D. Murphy 
of the State of New Jersey on February 3, 2020, addressing the spread of the novel coronavirus and 
establishing a coronavirus task force in the state, as well as a copy of an announcement by U.S. 
Citizenship and Immigration Services (USCIS), dated May 1, 2020, extending flexibility for 
responding to agency requests due to the COVID-19 pandemic. 
As its first line of argument the Petitioner asserts that the combined motion filed on February 27, 2020, 
was timely filed because the date of filing was the 33rd day after January 24, 2020, the date of the 
appellate decision. This claim is not correct. The 33rd day after January 24, 2020, was February 26, 
2020. Accordingly, the filing deadline for the motion was February 26, 2020. The Petitioner's motion 
did not meet this filing deadline. 
As its second line of argument the Petitioner asserts that even if its motion was untimely filed, USCIS 
has the discretion to accept a motion filed after the 33-day deadline if the delay was reasonable and 
beyond the control of the Petitioner. An exercise of such discretion is warranted in this case, the 
Petitioner asserts, because the filing was only one day late and "was due to the fast developing COVI D-
19 pandemic at that time which caused a delay in obtaining the required documents from their overseas 
branches." The Petitioner cites the executive order creating a coronavirus task force in New Jersey, 
dated February 3, 2020, as evidence that being "a big hospitality enterprise based in New York and 
New Jersey with overseas locations in the Middle East, Europe and Asia, they were unable to obtain 
the proper documents on time." The Petitioner also cites the USCIS announcement on May 1, 2020, 
by which "USCIS extended the flexibility to respond to RFEs and submit MTRs by 60 days." 
While the regulation at 8 C.F.R. § 103.5(a)(1)(i) does give us the discretion to excuse the late filing of 
a motion to reopen "where it is demonstrated that the delay was reasonable and was beyond the control 
of the applicant or petitioner," no such demonstration has been made by the Petitioner in this case. 
The Petitioner has not identified any documents submitted with its late-filed motion on February 27, 
2020, that were obtained from overseas, nor submitted any evidence of specific documents whose 
delivery was delayed by COVID-19. As for the announcement by USCIS on May 1, 2020, extending 
flexibility for responding to agency requests in view of COVID-19 by allowing USCIS to receive 
motions and other filings up to 60 days after their normal due dates, this flexibility only applies to 
decisions, requests, or notices issued between March 1 and July 1, 2020, as the announcement clearly 
states. Since our decision dismissing the Petitioner's appeal was dated January 24, 2020, it is not 
covered by the flexibility provisions that USCIS announced on May 1, 2020. Accordingly, the normal 
33-day filing period prescribed in the regulations applies to the Petitioner's combined motion 
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contesting our appellate decision. The filing deadline for that motion was February 26, 2020. 
Therefore, the Petitioner's combined motion filed on February 27, 2020, was not timely filed. 
In summation, the new facts and documentary evidence submitted in support of the current motion do 
not establish that the initial motion was timely filed or covered by the 60-day flexibility extension 
announced by USCIS. Nor has the Petitioner shown that the delay in filing the initial combined motion 
was reasonable or beyond its control. Therefore, the Petitioner has not presented proper grounds for 
reopening this proceeding under 8 C.F.R. § 103.5(a)(2). Likewise, the Petitioner has not shown that 
our decision dismissing the previous combined motion as late filed was based on any incorrect 
application of law or policy, as required by 8 C.F.R. § 103.5(a)(3) to reconsider our decision. 
111. CONCLUSION 
The Petitioner has not shown proper cause for reopening or reconsideration of our prior decision. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
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