dismissed EB-1C Case: Retail

(b)(6)
DATE: NOV 2 9 2013 OFFICE: TEXAS SERVICE CENTER 
INRE : Petitioner: 
Beneficiary: 
U.S . .Department of Homeland Security 
U. S. Citi zenship and Immig ration Service 
Administrativ e Appeals Office (AAO) 
20 Mass achuset ts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § ll53(b)(l )(C) 
SELF-REPRESENTED 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decision s. If you believe the AAO incorrectly applied current law 
or policy to your case or if you seek to present new facts for consideration, you may file a motion to 
reconsider or a motion to reopen, .respectively. Any motion must be filed on a Notice of Appeal or 
Motion (Form I-290B) within 33 days of the date of this decision . Please review the Form I-290B 
instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and 
other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
L~&-
1--Ron Rolrr~~rg 
Chief, Administrative Appeals Office 
www.usci.s.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center ("the director") initially approved the 
employment-based preference visa petition. Based on additional information and further review of 
the record, the director determined that the petitioner was not eligible for the benefit sought, served 
the petitioner with a notice of his intention to revoke (NOIR) approval, and subsequently revoked 
approval of the Immigrant Petition for Alien Worker (Form I-140). The Administrative Appeals 
Office (AAO) rejected the petitioner's timely appeal as improperly filed in accordance with 8 C.F.R. 
§ 103.3(a)(2)(v)(A)(1). Subsequently, the petitioner filed a motion to reopen or reconsider the 
AAO's decision, asserting that the appeal should not have been rejected. The director dismissed the 
motion as untimely but, as a matter of administrative discretion, the AAO considered the merits of 
the petitioner's claims and granted a de novo review of the record on certification. 1 The AAO 
affirmed the director's decision revoking the petitioner's approved Form I-140 petition. The matter is 
now before the AAO on a motion to reopen. The motion will be dismissed. 
The petitioner, a Texas corporation, operates two gift shops and seeks to employ the beneficiary as 
its executive 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. 
Although the director initially approved the petitioner's Form I-140, a Department of Homeland 
Security, Office of Fraud Detection and National Security (FDNS) report dated September 22, 2009 
provided potentially derogatory information about the continued operations of both the petitioner 
and the foreign entity. Additionally, in reviewing the record of proceedings, the director determined 
that the record as it existed at the time of approval was lacking certain required initial evidence and 
thus the petition should not have been approved. Accordingly, the director issued a notice of intent 
to revoke (NOIR) the approval of the petition on January 19, 2010. 
After considering the petitioner's response to the NOIR, the director revoked approval of the petition 
on March 12, 2010 concluding that the petitioner failed to overcome all of the bases for revocation. 
Specifically, the director revoked the approval based on a finding that the petitioner failed to 
establish: (1) that the beneficiary would be employed in the United States in a qualifying managerial 
or executive capacity; (2) that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity; and (3) that the petitioner and the beneficiary's foreign employer have a 
qualifying relationship. The director's ultimate conclusions were based primarily on the evidence of 
record as opposed to the findings of the FDNS report. 
I Like any users office, the AAO may avail itself of the certification process. See 8 C.F.R. § 103.4(a). 
As a matter of administrative discretion, the AAO may certify a decision to itself for review. The AAO 
limits this practice to cases involving exceptional circumstances; it "is not meant to be used as a general 
cure for filing defects or to otherwise circumvent the regulations ... . "Matter of Jean, 23 I&N Dec. 373, 
380 n 9 (AG 2002). Based on procedural errors by the director in the treatment of the petitioner's motion, 
the present case warrants such review. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
The AAO reviewed the record on certification and affirmed the director's conclusions that the 
petitioner failed to provide evidence to meet the eligibility requirements for the requested 
classification and therefore concluded that the approval of the petition was properly revoked. 
On motion, the petitioner submits an unsigned and undated brief asserting that USCIS erred by 
revoking the approval of the petition . Specifically, the petitioner asserts that USCIS' "findings of 
fraud are false" while acknowledging that the AAO stated that the approval was not in fact revoked 
based on any finding of fraud or information found in the FDNS report. Further, the petitioner 
requests that the matter be reopened and submits ten exhibits, identified as Exhibit A through Exhibit 
J, in support of its request. 
After reviewing the brief and the exhibits, the AAO finds that the petitioner's submission does not 
meet the requirements of a motion to reopen. The discussion below will address the requirements of 
a motion to reopen and explain how the supporting evidence falls short of meeting the relevant 
regulatory provisions. 
The regulation at 8 C.P.R. § 103.5(a)(2) states, 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? 
In this matter, the petitioner submitted an unsigned and undated brief in support of its motion . The 
brief includes another duty description for the beneficiary's employment abroad and with the U.S 
petitioner, and additional duty descriptions for other employees. Further, the petitioner provides 
additional discussion about the qualifying relationship between the foreign company and the U.S. 
petitioner but does not address the dispositive fact that the foreign company is no longer in 
existence. The declarations provided on motion are not affidavits as they were not sworn to or 
affirmed by the declarant before an officer authorized to administer oaths or affirmations who has , 
having confirmed the declarant's identity, 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, do they contain the requisite statement, permitted by 
Federal law, that the signers, in signing the statements, certify the truth of the statements, under 
penalty of perjury. 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. 183, 188-89 n.6 (1984); Matter of Ramire z-Sanche z, 17 
I&N Dec. 503 (BIA 1980). 
None of the petitioner's exhibits could be characterized as 'new' for the purpose of reopening this 
matter since all evidence submitted on motion was either available or discoverable prior to this 
proceeding. Some of the evidence has already been submitted and considered. Of the remaining 
2 The word "new" is defined as "1. 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
exhibits, the petitioner fails to explain their relevance or why they satisfy the requirements of a 
motion to reopen. 
Specifically, exhibits A and B are copies of the beneficiary's Form I-94 document s dated June 11, 
1999 and May 22, 2000 respectively. These documents are not new and the petitioner did not explain 
why they are relevant to this motion. Further , the petitioner submitted an unsigned and undated copy 
of its Policy and Procedure Manual as Exhibit e and its Employee Evaluation Form as Exhibit D but 
failed to explain why the documents had not been presented earlier or why they are relevant to the 
issue of the beneficiary's employment with the petitioner in a managerial or executive capacity. The 
petitioner submits three documents in support of its assertion that the beneficiary was employed 
abroad in a primarily manageri al or executive capacity: (1) the foreign company' s partnership deed 
dated January 1988 (Exhibit E) ; (2) the petitioner's letter dated May 21, 2003, which was submitted 
in support of a request to extend this beneficiary's L-1A visa (Exhibit F); and (3) the benefici ary's 
payroll records with the foreign employer for the period July 1999 through August 2000 (Exhibit G). 
Exhibits E and G were available and could have been presented prior to filing this petition , in 
respon se to the NOIR, or even on appeal and therefore, cannot be consid ered new. Furthermore, 
many payroll and wage documents were already submitted and considered in this matter. Exhibit F is 
dated after the original filing of this petition but it is a letter prepared by the petitioner and it could 
have been crafted at any time in support of this petition, therefore it is not new. The petitioner's 
2002 organizational chart (Exhibit H), the petitioner' s 2002 wage and tax statements for all 
employees (Exhibit I), and a joint venture agreement between the foreign company and the petitioner 
dated December 3, 1999 (Exhibit J) were all available or could have been discovered prior to this 
proceeding and therefore , they are not new and do not satisfy the requi rements of a motion to 
reopen . 
Although the petitioner did not explicitly move for reconsideration of this matter , the AAO notes 
that the requirements of such a motion have not been met. 
The regulation at 8 C.F.R . § 103.5(a)(3) state s, in pertinent pmt : 
A motion to recon sider must state the reasons for reconsideration and be supported by 
any pertinent precedent decisions to establish that the deci sion 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 deci sion. 
The petitioner did not cite any legal precedent or applicable law that would indicate a misapplication 
of law or USers policy part of the AAO. Therefore, the motion will be dismis sed in accordance 
with 8 e .F.R. § 103.5(a)(4), which states, in pe1tinent part, that a motion that does not meet 
applicable requirements shall be dismi ssed. 
Furthermore, the motion shall be dismissed for failing to meet an applicable requirement. The 
regulation at 8 e.F .R. § 103.5(a)(l)(iii)(e) require s that motions be "[a]ccompanied by a statement 
about whether or not the validity of the unfavorable decision has been or is the subject of any 
judicial pro ceeding." The motion does not contain the statement required by 8 e.F.R. § 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
103.5(a)(l)(iii)(C). The regulation at 8 C.F.R. § 103.5(a)(4) states that a motion which does not 
meet applicable requirements must be dismissed. Therefore, becau se the instant motion did not meet 
the applicable filing requirements listed in 8 C.P.R. § 103.5(a)(1)(iii)(C), it must also be dismissed 
for this reason. 
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.F.R. 
§ 103.5(a)(1)(iv). 
In visa petition proceedings , it is the petitioner 's burden to establi sh eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). The petitioner has not sustained that burden. 
ORDER: The motion is dismissed .