dismissed EB-1C Case: Retail

identifying data deleted to 
revent clearly unwarr~nted 
kvasion of personal pnvacy 
PUBLlCCOPY 
FILE: Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
Date: DEC 1 62010 
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: 
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 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, / 
!~ .~ fpe~ryRh~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
petition. The petitioner subsequently filed a motion to reopen or reconsider. The director dismissed 
the motion based on a finding that it did not meet the relevant regulatory requirements at 8 C.F.R. § 
103.5. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner filed a Form 1-140, Immigrant Petition for Alien Worker, on July 27, 2007. The 
petitioner indicates that it operates a retail shoe store and seeks to employ the beneficiary as its 
manager. Under Part 2 of the Form 1-140, the petitioner checked box "c" for petition type, indicating 
that it sought to classifY the beneficiary as a "multinational executive or manager," an employment­
based immigrant pursuant to section 203(b)(1 )(C) of the Immigration and Nationality Act (Act), 8 
U.S.C. § I I 53(b)(I)(C). The record does not show that any initial supporting evidence was 
submitted with the Form 1-140. 
On November 17, 2008, the director denied the petition on the grounds that the petitioner had failed 
to submit the initial evidence required in connection with a petition filed under section 203(b)(I )(C) 
of the Act. Specifically, the director noted that the petitioner failed to submit the initial evidence 
required by the regulations at 8 C.F.R. § 204.5G)(3)(i). The director also found the petitioner failed 
to submit evidence of its ability to pay the beneficiary's proffered wage, pursuant to 8 C.F.R. § 
204.5(g)(2). Therefore, the director concluded that the petitioner has failed to establish the 
beneficiary's eligibility for classification as a multinational executive or manager under section 
203(b)(l)(C) of the Act. 
The petitioner filed a motion to reopen and reconsider on December IS, 2008, which was based on 
the following claims: (I) the petitioner erroneously designated the petition type as "multinational 
executive or manager" rather than "other worker"; (2) the petitioner submitted an approved labor 
certification application with the Form 1-140 which should have led the director to seek clarification 
as to the requested immigrant visa classification; and (3) the director failed to follow U.S. 
Citizenship and Immigration Services (USCIS) policy by failing to issue a request for evidence or 
notice of intent to deny before adjudicating the petition.! Finally, counsel submitted an amended 
Form 1-140, on which "other worker" is checked as the requested classification, along with 
supporting documentation. The AAO notes that this documentation did not include a copy of the 
beneficiary's approved labor certification application, but rather only an unexecuted copy of the 
application. Counsel claimed that the amended and supplemented petition should demonstrate the 
! In support of this claim, counsel cited to two USCIS 
requests for further evidence and notices of intent to deny. 
USCIS Associate Director of Operations, Requests 
16, and Memorandum of 
Page 3 
beneficiary's eligibility for classification as an "other worker" under Section 203(b )(3)(A)(iii) of the 
Act. 
The director dismissed the petitioner's motion to reopen and reconsider on January 23, 2009, 
concluding that the petitioner failed to meet the requirements for the grant of a motion as set forth at 
8 C.F.R. § !03.S(a). 
The petitioner filed the instant appeal on February 25, 2009. Counsel reiterates the arguments made 
in support of the motion, and further contends that "the Service erred in not reopening the 1-140 for 
adjudication after the motion was timely submitted with an amended petition, complete with the 
requisite supporting documentation along with assertions and evidence of an approved LC." 
Counsel cites to the unpublished AAO decision previously submitted with and discussed in the 
petitioner's motion. Counsel claims that the amended petition with new supporting documentation is 
sufficient to establish the beneficiary's eligibility as an "other worker" under Section 
203(b )(3)(A)(iii) of the Act. Finally, counsel asserts that the petitioner was unable to address the 
issue of the missing labor certification in a timely manner as it was operating under the "certain 
belief that the original [labor certification] was with the Service." 
Upon review, the AAO concurs with the director's decision that the petitioner has failed to establish 
eligibility for the immigrant classification stated on the petitioner's Form 1-140 and further finds that 
the director has properly dismissed the petitioner's motion to reopen and reconsider. 
I. The Law 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. - An alien is 
described in this subparagraph if the alien, in the 3 years preceding 
the time of the alien's application for classification and admission 
into the United States under this subparagraph, has been employed 
for at least 1 year by a firm or corporation or other legal entity or an 
affiliate or subsidiary thereof and who seeks to enter the United 
States in order to continue to render services to the same employer or 
to a subsidiary or affiliate thereof in a capacity that is managerial or 
executive. 
The language of the statute is specific in limiting this provision to only those executives or managers 
who have previously worked for the firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. No labor certification is required for this classification. The prospective 
employer in the United States must furnish a job offer in the form of a statement, which indicates 
that the alien is to be employed in the United States in a managerial or executive capacity. Such a 
statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. § 204.5(j)(5). 
The regulation at 8 C.F.R. § 204.5(j)(3)(i) indicates that the required initial evidence includes a 
statement from an authorized official of the petitioning United States employer which demonstrates: 
(A) If the alien is outside the U.S., in the three years immediately preceding the 
filing of the petition, the alien has been employed outside the U.S. for at least 
on year in a managerial or executive capacity by a firm or corporation, or 
other legal entity, or by an affiliate or subsidiary of such a firm or corporation 
or other legal entity: or 
(B) If the alien is already in the U.S. working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a 
nonimmigrant, the alien was employed bv the entity abroad for at least one 
year in a management or executive capacity; 
(C) The prospective employer in the U.S is the same employer or a subsidiary or 
affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) The prospective U.S. employer has been doing business for at least one year. 
The regulation at 8 C.F.R. § 103.2(b)(8)(ii), the revision of which went into effect on June 18,2007, 
states: 
If all required initial evidence is not submitted with the application or petition or does 
not demonstrate eligibility, USCIS in its discretion may deny the application or 
petition for lack of initial evidence or for ineligibility or request that the missing 
initial evidence be submitted within a specified period of time as determined by 
USCIS. 
II. Discussion 
A. The Petition and Denial 
The petition filed the Form 1-140, Immigrant Petition for Alien Worker, on July 27, 2007. As noted 
above, where asked to indicate the petition type on the Form 1-140, the petitioner marked box c, "A 
multinational executive or manager." The petitioner indicated at Part 6 that the beneficiary's 
proposed job title is "manager," and provided a brief description of job duties typical of a retail 
manager. 
The record shows that the petitioner filed the Form 1-140 and filing fee by certified mail in a 
standard letter-sized envelope with no supporting documentation. The AAO notes that the Form 1-
Page S 
140 specifically requests that the petitioner provide the DOLIETA Case Number under Part S if the 
petition is one which requires an approved labor certification. The petitioner left this item blank. 
The director denied the petition on November 17,2008 based on the petitioner's failure to submit the 
required initial evidence pursuant to 8 C.F.R. §§ 204.S(g)(2) and 204.SG)(3)(i). The director relied 
on the discretionary authority granted to him by 8 C.F.R. § 103.2(b)(8)(ii), which provides that 
USCIS may deny a petition for lack of initial evidence. The director's decision to deny the petition 
based on the lack of initial evidence was clearly within his discretionary authority and was therefore 
appropriate. 
While the director could have requested the required initial evidence for the requested classification, 
he was under no obligation to do so. Further, the petitioner has since conceded that the beneficiary 
did not qualifY under the requested classification. Had the director requested the required initial 
evidence for a multinational manager or executive, the petitioner could not have established the 
beneficiary's eligibility. 
Finally, even assuming, arguendo, that the petitioner had requested the correct classification on the 
Form 1-140, it would have been within the director's discretionary authority to deny the petition 
based on lack of initial evidence. In order to establish the beneficiary's eligibility as an "other 
worker," the petitioner must provide evidence of its ability to pay the proffered wages, a labor 
certification from the department of labor, and evidence that the beneficiary meets the educational, 
training, experience and other requirements of the labor certification. See 8 C.F.R. §§ 204.S(g)(2), 
204.S(l)(i) and 204.S(l)(ii)(D). The petitioner has not established that any of this evidence was 
submitted. 
B. The Petitioner's Motion and Appeal 
The petitioner filed a motion to reopen and reconsider on December IS, 2008. The motion was 
accompanied by the following: a brief from counsel; an amended Form 1-140 in which the petitioner 
requested the "other worker" classification and provided the beneficiary's DOLIET A case number; 
an unexecuted and uncertified copy of the beneficiary's DOL Form ETA 7S0, Application for Alien 
Labor Certification; a letter from the beneficiary's prior employer confirming his work experience; 
the beneficiary's resume prepared in 2008; and evidence of the petitioner's ability to pay the 
beneficiary's wages. 
The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that 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. 
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.2 
2 The word "new" is defined as "I. having existed or been made for only a short time ... 3. Just 
discovered, found, or learned <new evidence> ... " Webster's II New Riverside University Dictionary 
792 (1984) (emphasis in original). 
Page 6 
With respect to the 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 [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. 
On motion, counsel for the petitioner claimed that the petitioner prepared and filed the Form 1-140 
without the assistance of counsel, and due to its "lack of sophistication or understanding," marked 
the "multinational executive or manager" (box "c") rather than "other worker" (box "g") 
classification. Counsel further claimed that, along with the Form 1-140, the petitioner had submitted 
a labor certification certified by the Department of Labor. Counsel contended that USCIS must have 
received the labor certification because the petitioner's name and address were left off the Form 1-
140, thus USCIS must have relied on the labor certification for that information.3 Therefore, 
counsel asserted that USCIS was aware of a discrepancy with respect to the requested classification, 
because the petitioner submitted a labor certification, yet requested classification of the beneficiary 
in a preference which requires no labor certification. Counsel relied on an unpublished AAO 
decision to stand for the proposition that "an obvious error in designating the correct preference 
category constitute[s] sufficient grounds to reopen a denial ofa Form 1-140." 
Counsel further claimed that the petitioner's motion to reconsider should be granted as USC IS failed 
to apply its policy correctly in denying the petition without issuing a request for evidence or a notice 
of intent to deny. In support of this claim, counsel cited to the two above-referenced USCIS 
memoranda issued in February 2005 and June 2007. 
The director dismissed the petitioner's motion to reopen and reconsider on January 23, 2009. The 
director found that the petitioner failed to cite to pertinent precedent decisions establishing that the 
decision was based on an incorrect application of law or policy, or that the decision was incorrect 
based on the evidence of record at the time of the initial decision. Further, the director noted that, 
contrary to the petitioner's claim, the record contained no labor certification or related 
documentation, nor did the petitioner provide any new evidence that could not have been submitted 
with the initial filing. Therefore, the director concluded that the petitioner failed to meet the 
requirements for the grant of either a motion to reopen or a motion to reconsider, and the director's 
decision dated November 17,2008 remained undisturbed. 
On February 25, 2009, the petitioner filed the instant appeal. On appeal, counsel for the petitioner 
argues that the director erred by failing to take into account the fact that the petitioner actually 
submitted the original approved labor certification with the Form 1-140. Counsel insists that the 
"original [labor certification] is in the possession of [USerS] and if it is not in the file, then [USerS] 
3 The AAO notes that the Form 1-140 does in fact include the name and address of the petitioner. 
has lost the [labor certification]." Counsel claims that the "only mistake made [by the petitioner] in 
filing was checking the wrong box on Part 2 of the application." Counsel contends that the fault 
must lie with USCIS in that "it is completely conceivable that the Service lost the original [labor 
certification] as it receives thousands of documents daily that can easily be and are misplaced and 
lost." Counsel submits a copy of the labor certificati~with a certification date of April 
9,2007 and a declaration dated March 23, 2009 by_ the petitioner's president, who 
states that the petitioner "consulted with the instructions for the 1-140 and mailed the application 
with the original approved labor certification and a check for the filing fees." 
Counsel further contends that USCIS also erred by "abusing its discretion and violating fundamental 
fairness in summarily denying the 1-140 one year and four months after its filing, resulting in the 
expiration of the [labor certification]'s validity period, the loss of eligibility under INA §245(i) and 
the loss of the April 30, 2001 priority date." Counsel cites to and resubmits the USCIS memoranda 
on the issuance of requests for evidence and notices of intent to deny and discussed in the petitioner's 
motion. Counsel claims that had USCIS issued a notice, it "would have alerted the petitioner to the 
'lost [labor certification], and incorrect selection of the classification and given the Petitioner an 
opportunity to correct and clarify the issues." 
In addition, counsel argues that "the Service erred in not reopening the 1-140 for adjudication after 
the motion was timely submitted with an amended petition, complete with the requisite supporting 
documentation along with assertions and evidence of an approved LC." Counsel again cites to the 
unpublished AAO decision previously submitted with and discussed in the petitioner's motion. 
Counsel claims that the amended petition with new supporting documentation is sufficient to 
establish the beneficiary's eligibility as an "other worker" under Section 203(b )(3)(A)(iii) of the Act. 
Counsel asserts that the petitioner was unable to address the issue of the missing labor certification 
in a timely manner as it was operating under the "certain belief that the original [labor certification] 
was with the Service." 
Upon review, the AAO concurs with the director's decision that the petitioner has failed to establish 
eligibility for the immigrant classification stated on the petitioner's Form 1-140 and further finds that 
the director has properly dismissed the petitioner's motion to reopen and reconsider. 
First, the AAO recognizes that counsel's claim on appeal is premised on the petitioner's and counsel's 
claim that a labor certification was submitted with the initial Form 1-140. However, nothing in the 
record indicates that a labor certification from the U.S. Department of Labor was indeed submitted 
with the Form 1-140 or at any time prior to the instant appeal. Contrary to counsel's claim, the fact 
that USCIS knew the name and address of the petitioner is not an indication that the labor 
certification was in the record, as the petitioner actually provided that information on the 1-140. 
Counsel's assertion that the USCIS must have received and lost the beneficiary'S labor certification 
because "it receives thousands of documents daily that can easily be and are misplaced and lost" is 
nothing more than pure conjecture. The unsupported statements of counsel on appeal or in a motion 
are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 
183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Page 8 
The AAO notes that the petitIOner submitted a declaration from its president, stating that the 
petitioner "consulted with the instructions for the 1-140 and mailed the application with the original 
approved labor certification and a check for the filing fees." However, this declaration does not 
suffice as evidence that the labor certification was actually mailed with the Form 1-140. The 
declaration is not an affidavit as it was not sworn to or affirmed by the declarant before an officer 
authorized to administer oaths or affirmations who, having confirmed the declarant's identity, has 
administered the requisite oath or affirmation. See Black's Law Dictionary 58 (7th Ed., West 1999). 
Nor, in lieu of having been signed before an officer authorized to administer oaths or affirmations, 
does it contain the requisite statement, permitted by Federal law, that the signer, in signing the 
statements, certifies the truth of the statements, under penalty of peIjury. 28 U.S.C. § 1746. Such 
unsworn statements made in support of a motion are not evidence and thus, as is the case with the 
arguments of counsel, are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. at 
188-89; Matter a/Ramirez-Sanchez, 17 I&N Dec. at 503. 
Even if the AAO were to declaration on its face, her statements are still 
insufficient evidence that a labor was indeed submitted with the initial petition. _ 
that the petitioner "consulted with the instructions for the 1-140" prior to mailing~ 
petition. However, if the petitioner in fact followed instructions on the Form 1-140 for the 
preference type that was checked, i.e. "multinational executive or manager," then it would not have 
submitted the labor certification as none is required for that category. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter 0/ Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
Based on the evidence submitted, the petitioner has not shown that at the time the petition was filed, 
it was meant to be anything other than a Form 1-140 petition for classification of the beneficiary as a 
"multinational executive or manager." The petitioner did not provide the beneficiary's DOLIET A 
Case Number on the Form 1-140 or submit the beneficiary'S labor certification from the Department 
of Labor. Therefore, the petitioner's claim that the director should have noted a discrepancy in the 
submitted evidence and sought clarification from the petitioner is unpersuasive. Absent any 
indication in the initial petition that the petition type was anything other that of "multinational 
executive or manager," the director acted within his discretion in denying the petition for lack of 
required initial evidence specific to that petition type, without further notice to the petitioner, as 
discussed above. 
Even assuming, arguendo, that the petitioner had chosen the "other worker" classification on the 
Form 1-140, the director's decision to deny the petition based on failure to provide required initial 
evidence still would be appropriate since the initial petition was not accompanied by, and the 
petitioner failed to show that it did in fact submit with the initial petition, a labor certification as 
required under 8 C.F.R. § 204.5(l)(3)(i). 
Counsel relies on two USCIS memoranda in support of the contention that USCIS should have 
issued a request for evidence or notice of intent to deny prior to denying the petition. However, the 
AAO notes that the memoranda in question were dated February 16, 2005 and June 1, 2007, 
Page 9 
respectively, and therefore were superseded by the revised regulations at 8 C.F.R. § 103.2(b)(8)(ii), 
which were implemented on June 18, 2007 and in effect at the time this petition was filed in July 
2007. Further, with regards to counsel's assertion that a request for evidence or notice of intent to 
deny "would have alerted the petitioner to the 'lost [labor certification]' and incorrect selection of the 
classification and given the Petitioner an opportunity to correct and clarify the issues," counsel is 
reminded that in visa petition proceedings, the burden of proving eligibility for the benefit sought 
remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 136\. As noted earlier, the 
Form r -140 on its face gave uscrs no indication that there were material errors, whether or not 
inadvertent, in the petition requiring rectification prior to adjudication. 
The AAO further finds unpersuasive counsel's claim that the director's denial of the petitioner's 
motion to reopen or reconsider is in error. 
The petitioner's motion to reopen was premised on the existence and purported previous submission of a 
labor certification which was certified on April 9, 2007. This date, along with the petitioner's claim that 
the labor certification was submitted with the initial petition, demonstrates that the labor certification 
was available and could have been presented at the time the petition was filed. Furthermore, the 
petitioner's motion to reopen did not include a copy of a labor certification certified by the Department 
of Labor. The petitioner submitted an unexecuted copy of the application in support of the motion. At 
most, the evidence submitted on motion established that a labor certification application had been filed 
on the beneficiary's behalf. 
Similarly, the amended petition and supporting evidence consist of information and documentation that 
predate the filing of the initial petition, and therefore would have been available at the time of the initial 
filing. As such, the evidence submitted to the director on motion could not have been considered 
"new," and consequently the petitioner has failed to meet the requirements of a motion to reopen 
under the regulation at 8 C.F.R. § 103.5(a)(2). 
With respect to the motion to reconsider, as previously discussed, counsel has not demonstrated that 
the director's decision to deny the petition was based on an incorrect application of law or uscrs 
policy. Counsel cites to uscrs policy memoranda that were superseded by regulation prior to the 
filing of the instant petition. Counsel cites to and submits an unpublished AAO decision in support 
his argument that the director erred in refusing to reopen the petition for adjudication based on the 
amended petition submitted on motion. However, while 8 C.F.R. § 103.3(c) provides that AAO 
precedent decisions are binding on all uscrs employees in the administration of the Act, 
unpublished decisions are not similarly binding. Further, counsel has furnished no evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decision, nor 
does a review of the unpublished decision itself reveal analogous facts. As such, the director 
appropriately determined that the petitioner failed to meet the requirements of a motion to 
reconsider. 
The regulations at 8 C.F.R. § 103.5(a)(4) states, in pertinent part, that a motion that does not meet 
applicable requirements shall be dismissed. Accordingly, the director's decision to dismiss the 
petitioner's motion to reopen and reconsider was appropriate. 
Page 10 
The AAO acknowledges that the record as presently constituted contains the beneficiary's labor 
certification from the Department of Labor, evidence of his qualifications under the "other worker" 
preference category, and evidence of the petitioner's ability to pay the proffered wage. However, 
the fact remains that the petitioner requested that the beneficiary be granted classification as a 
multinational manager or executive at the time the petition was filed. As stated above, counsel's 
assertion on motion and again on appeal is that USCIS should accept an amended petition executed 
after the petition was denied because the petitioner prepared the initial petition without the assistance of 
counsel and believed that it had selected the appropriate category for a "manager." The purposes of 
appeals and motions are set forth in the regulations at 8 C.F.R. §§ 103.3 and 103.5. These regulations 
do not afford the petitioner the opportunity to submit new or amended petitions to correct its own 
admitted error. 
A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts. See 8 C.F.R. § 103.2(b)(l2); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 1971). Therefore, a petitioner may not 
make material changes to a petition that has already been filed in an effort to make an apparently 
deficient petition conform to USCIS requirements. See Matter of [zummi, 22 I&N Dec. 169, 175 
(Comm'r. 1998). Counsel is not persuasive in arguing that the amended petition changing the 
requested employment-based preference category does not constitute a material change. A material 
fact is one that is "significant or essential to the issue or matter at hand." Black's Law Dictionary 
611 (7th ed. 1999). In general, material means "of such a nature that knowledge of the item would 
affect a persona's decision-making process." [d. at 991. We find that the requested preference 
category is significant and impacts the adjudication of the petition, and is thus material to the 
processing of the case. 
In order to be meritorious in fact, a petition must meet the statutory and regulatory requirements for 
approval as of the date it was filed. Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008). 
Regardless of why the petitioner selected the "multinational executive or manager" classification on 
the Form 1-140, the petition did not meet the regulatory requirements for approval on the date it was 
filed, and the petitioner concedes that the beneficiary is not eligible under the requested 
classification. As such, the petition may not be approved. 
The petition will be denied, and the appeal will be dismissed, for the above stated reasons. In visa 
petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.