dismissed EB-1C Case: Retail

(b)(6)
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DATE: MAR o· 7 2013 
INRE: Petitioner: 
Beneficiary: 
U.S;Depiirt:i:iient.ofHomelaild Security 
lJ. S. Citi~enship.and.Immigratioll Se!Vices. 
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 . 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. § 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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with the 
field office or service center that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. 
Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any 
motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. , -
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The preference visa petition was denied by the director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO), where the appeal was 
dismissed. The matter is now before the AAO on a motion to reopen and reconsider. The motion will be 
dismissed; the previous decisions will not be disturbed. 
The petitioner is an Ohio corporati0n engaged in retail and it seeks to employ the beneficiary as an 
executive. Accordingly, the petitioner endeavors to classify the beneficiary as a multinational executive 
or manager pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(1)(C). 
The director denied the petition on October 29, 2009, concluding that: (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 the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. · 
The petitioner subsequently filed an appeal which the AAO dismissed on February 7, 2012, affirming 
the director's original findings. 
On March 1, 2012, the petitioner filed Form I-290B and states that it is filing a motion to reopen and a 
motion to reconsider. The petitioner submitted a brief in support of the motion. 
As a· preliminary matter, the AAO notes that while an appeal and a motion are both remedial actions, the 
legal purpose of an appeal is entirely distinct from that of a motion to reopen/reconsider. The AAO 
reviews appeals on a de novo basis, allowing the petitioner to supplement the record with any evidence 
oi documentation that the affected party feels may overcome the grounds for the underlying adverse 
decision. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) . . However, the AAO's review of a 
motion to reopen or a motion to reconsider is limited to evidence that fits the specific criteria discussed 
at 8 C.P.R. § 103.5(a)(2) and 8 C.P.R. § 103.5(a)(3), respectively. Submitting evidence that 
does not fit 
the regulatory criteria will not suffice. 
The regulations at 8 C.P.R. § 103.5(a)(2) state, in pertinent part: "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 nothave been discovered or presented in the previous proceeding.1 · 
On motion, counsel for the petitioner provided a brief that outlines sections of the AAO's decision and lays 
out the grounds for challenging the decision. The petitioner did not submit any additional evidence. 
Since counsel submits a legal brief, and the affected party presents no new evidence, the motion reveals 
no fact that could be considered new under 8 C.P.R.§ 103.5(a)(2). 
1 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). 
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The regulations outline the requirements of a motion to reconsider. 8 C.F.R. § 103.5(a)(2) states, 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 Service 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 contends that AAO was incorrect in stating that only the petitioner's eligibility will 
be addressed in the present matter and not eligibility based on the beneficiary's positions in two other 
U.S. businesses of which the beneficiary is a principal owner. Counsel states that information regarding 
the beneficiary's duties with the other companies is important to the examination of his executive duties 
since "it can be demonstrated that he has been a chief executive of two or three functioning corporation, 
then it is both implicit and explicit, particularly when substantiated by supporting documentation, that he 
is not a daily low legal worker." 
However, as noted by AAO, the petition was filed by the specific employer on record and not by the 
other two businesses. The beneficiary's duties with other companies are irrelevant to the current 
petition. Section 204(a)(l)(F) of the Act specifically provides: "Any employer desiring and intending to 
employ within the United States an alien entitled to classification under section ... 203(b)(l)(C) ... may 
file a petition with the [Secretary of Homeland Security] for such classification." (Emphasis added.) 
The AAO must review the beneficiary's duties as to his role with the employer that filed the petition, 
and not with other unaffiliated companies1• If one of the other two businesses intends to employ the 
beneficiary, then it would be appropriate for that employer to file a separate visa petition pursuant to 
section 204(a)(l)(F) of the Act. · 
Counsel correctly notes that USCIS should review the all the facts and the beneficiary's duties before 
making a final decision. When examining 
the managerial or executive capacity of a beneficiary, USCIS 
reviews the totality of the record, including descriptions of a beneficiary's duties and his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in 
a business. However, the · facts must be regarding the petitioning entity and not entities that are not 
affiliated with the petitioner and do not work closely with the petitioner in providing services. 
Counsel also states that the "AAO's denial goes on to pick apart whether at any specified time there 
were eight or fifteen employees; the exact titles of foreign employees, and numerous other small details 
from a huge volume of evidence that has been submitted in this file." The AAO's decision clearly laid 
out inconsistencies in the organizational charts, along with discrepancies in the claimed number of 
employees, which undermine the credibility of the petitioner. 
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 of Ho, 19 I&N Dec. 582, 
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591-92 (BIA 1988). If USCIS fails to believe that a fact sta_ted in the petition is true, USCIS may reject 
that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see alsoAnetekhai v. INS, 876 F.2d 1218, 1220 
(5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. 
v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
A review of the record and the adverse decision indicates that the director and the AAO properly applied 
the statute and regulations to the petitioner's case. The petitioner's primary complaint is that the director 
denied the petition. The petitioner insists that it provided sufficient documentation and that the 
petitioner's business is important. However, both decisions clearly outlined the conflicting information 
and the 
the documentation that the petitioner failed to submit. Ultimately, despite the voluminous 
recorp, the petitioner submitted insufficient evidence to establish eligibility for this immigration visa. 
· Accordingly, the petitioner's claim is without merit. 
. In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
See sec. 291 of the Act, 8 U.S.C. 1361; sec also Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). 
The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the 
benefit sought. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010) . . 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's claim is 
"probably true," where the determination of "truth" is made based on the factual circumstances of each individual 
case. Matter ofChawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77; 79-80 (Comm'r 1989)). 
In evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by its quality. 
/d. Thus, in adjudicating the. application pursuant to the preponderance of the evidence standard, the director 
must examine each piece of evidence for relevance, probative value, and credibility, both individually and within 
the context of the totality of the evidence, to determine whether the fact to be proven is probably true. 
Here, the submitted evidence does not meet the preponderance of the evidence standard. As noted in the 
director's decision and the AAO's decisions, the petitioner did not provide sufficient relevant, probative, 
and credible evidence to establish the petitioner meets the regulatory requirements to establish eligibility 
for the 1-140 immigrant visa petition. · 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are petitions 
for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 
U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen· a proceeding 
bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. ·With the current motion, the movant has not met 
that burden. 
The regulation at 8 CFR § .103.5(a)(4) states that "[a] motion that does not meet applicable requirements 
shall be dismissed." Accordingly, the motion will be dismissed, the proceedings will not be 
reconsidered, and the p~evious decisions of the director and the AAO will not be disturbed. 
ORDER: The motion will be dismissed. The director's and AAO's decisions will not be disturbed. 
The petition is denied.