dismissed EB-1C Case: Retail

identifYing data deleted to 
prevent clearly unwarranted 
invasion of personal pri vacy 
PUBLIC COPY 
DATE: AUG 1 6 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
u. S. Citizenship and Immigration Services 
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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1 )(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(1 )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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 in 
accordance with the instructions on 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)(1)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the director, Nebraska Service Center. The 
Administrative Appeals Office (AAO) dismissed the subsequently filed appeal. The matter is now before the 
AAO on a motion to reopen and reconsider. The motion will be dismissed. 
The petitioner is a Texas corporation that is a "retail outlet." It seeks to employ the beneficiary as its 
PresidentlDirector. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(1 )(C), as a multinational executive or manager. 
On August 12, 2010, the AAO affirmed the director's decision concluding that the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity, and the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
Counsel submitted Form 1-290B on September 13, 2010, as a motion to reopen and reconsider. On the Form 1-
290B, counsel states that "it was mentioned in the denial that the Petitioner had not submitted a job description 
for the beneficiary with the foreign company." Counsel further noted that "apparently, we had simply neglected 
to enclose another copy ofthese items with the 1-140 petition." 
As noted in the AAO's decision, the petitioner did not provide a job description for the beneficiary's 
employment abroad with the 1-140 petition, but did submit this documentation in response to the director's 
request for evidence. The AAO's decision stated that in response to the RFE "the petitioner submitted two 
separate attachments, one describing the beneficiary's foreign position and the other describing the beneficiary's 
proposed position." The AAO provided an analysis of the job descriptions of the foreign position and the 
proposed position and explained how both positions do not qualifY as employment in a managerial or executive 
capacity. Thus, counsel was incorrect in stating that the AAO denied the petition based on the fact that the 
petitioner did not submit a job description for the foreign employment and the proposed employment. 
On motion, the petitioner submits a job description for the foreign employment and an organizational chart, and 
a job description for the proposed duties. The evidence submitted on motion is very similar to the evidence 
submitted initially with the 1-140 petition and in response to the director's request for evidence. 
Counsel's assertions do not satisfY the requirements ofa 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 does not submit any document that would meet the requirements of a motion to 
reconsider. 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 does not provide any evidence to 
establish that the AAO's decision was incorrect. 
In addition, the motion does not satisfy the requirements of a motion to reopen. The regulations at 
8 C.F.R. 103.5(a)(2) states, 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 not 
have been discovered or presented in the previous proceeding. t 
A review of the evidence that the petitioner submits on motion reveals no fact that could be considered new 
under 8 C.F.R. 103.5(a)(2). On motion, the petitioner submits a job description of the beneficiary's position 
with the foreign company, and an organizational chart of the foreign company, and a job description for the 
proffered position. The job descriptions are similar to the documentation submitted previously. In addition, 
counsel does not explain that this information was previously unavailable and could not have been discovered or 
presented in the previous proceeding. The documentation presented on motion does not overcome the concerns 
addressed in the director's denial and the AAO's dismissal of the appeal. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SojJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
On the motion Form 1-290B, counsel for the petitioner contends that the "petitioning company gross almost 
$3,000,000.00 in annual sales and now has 10 employees. Certainly, it needs a manager to oversee it." Counsel 
failed to provide any evidence to corroborate this claim. In addition, the AAO must review the petitioner's 
organization as it was on the date the 1-140 petition was filed, in this case, on January 22, 2007. The petitioner 
must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter 
of Michelin Tire Corp., 171&N Dec. 248 (Reg. Comm. 1978). 
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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. 
1361. The petitioner has not sustained that burden. 8 CFR 103.5(a)(4) states that "[aj motion that does not 
meet applicable requirements shall be dismissed." Accordingly, the motion will be dismissed, and the 
previous decisions ofthe director and the AAO will not be disturbed. 
ORDER: The motion is dismissed. 
1 The word "new" is defmed 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).