dismissed EB-1C Case: Retail

(b)(6)
DATE: MAR 0 8 2013 
INRE: · Petitioner: 
Beneficiary: 
I 
r 
U.S. Department of Homeland Secnrlty 
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: TEXAS SERVICE CENTER 
) 
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 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 y~ur 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)(l)(i) requires any motion to be filed within 
. 30 days of the decision that the motion seeks to reconsider or reopen. 
Tha*you, 
• 
Ron Rosenberg . 
Acting Chief, Administrative Appeals Office \ 
) 
1;1 
' www.uscls.gov 
(b)(6)
Page2 
DISCUSSION: The nonimmigrant visa petition was denied by the director, Texas Service Center. 
The Administrative Appeals Office (AAO) summarily dismissed the subsequently fileq appeal and 
dismissed a subsequently filed motion to reopen and reconsider. The matter is now before the AAO 
on a second motion to reopen and reconsider. The motion will be dismissed and the director's and the 
AAO's decisions will be undisturbed. 
The petitioner is a Florida corporation that is engaged in the retail sale of imported products, and 
seeks to employ the beneficiary a8 its Vice President/Financial Manager. 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)(l)(C), as a 
multinational executive or manager. 
On January 26, 2009, the director denied the petition concluding that the petitioner failed to establish 
that the beneficiary would be employed in the United States. in a quaiifying managerial or executive 
capacity. 'On May 14, 2010, the AAO summarily dismissed the appeal. On March 14, 2012, the 
AAO dis~issed the subsequently filed motion to reopen and reconsider. · . 
Ori April 17, 2012, counsel for the petitioner .filed Form 1-2908 and stated that it is filing a motion to 
reopen and a motion to reconsider, and a brief and/or additional evidence is attached. The petitioner 
had the option of filing a motion to reopen or a motion to reconsider the AAO's most recent decision 
within 33 days of service pursuant'to 8 C.F.R. §103.5. ,The regulation at 8 C.F.R. § 103.5(a) states that 
any motion to reopen a proceeding before USCIS must be filed within 30 days of the decision that the 
motion seeks to reopen, except that failure to file before this period expires, may be excused in the 
discretion of the Service where it is demonstrated that a delay was reasonable and beyond the control of 
the applicant or petitioner. 
TheAAO issued its last decision on March 14, 2012. The AAO properly gave notice to the petitioner 
that it could file a motion in accordance with 8 C.F.R. § 103.5. ·Although counsel dated the Form I-
2908 April 11, 2012, it was not received by the service center until April 17, 2012, or 34 days after 
the decision was issued. The motion was filed late because the motion was sent to the incorrect 
address and not to the address stated in the instructions for the Form 1-2908. AccOrdingly, th,e 
motion was untimely filed. 
As a matter of discretion, the applicant's failure to file the motion within the period allowed will not be 
excused as either.reasonable or beyond the control ofthe applicant. Accordingly, 'the motion will be 
dismissed as untimely filed. 
Furthermore, on motion, counsel for the petitioner contends that the AAO erred in summarily dismissing 
the prior appeal since. the previous attorney did in fact- file an appeal brief. Upon review of the prior 
appeal brief, the previous attorney also sent the brief to the incorrect address and thus, did not file the 
appeal correctly. 
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 CF:R 103.5,(a)(4) states that "(a] motion 
that· do·es not meet applicable requirements shall be dismissed:" Accordingly, the motion will be 
(b)(6)
Page3 
dismissed, the proceedings will not be reconsidered, and the previous decisions of the director and the 
AAO will not be disturbed. 
ORDER: The motion will be dismissed. The director's and AAO's decision will be undisturbed. 
The petition remains denied.