dismissed EB-1C Case: Retail / Gas Station

(b)(6)
DATE: 
NOV t 4 2013 
INRE: . Pe~ition~r: 
Beneficiary: 
I 
OFFICE: TEXAS SERVICE CENTER 
p.~. P~part~ep.t of Homeland. Security 
U.S. Citizenship andJnunigratiOQ Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington: DC 20529-2090 
U.S. CitiZenship 
and Immigration 
Services 
FIT..,E: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) oftbe ~mr:nigration aod 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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not ahnou.nce new constructions of law nor establish, agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current I.a.w or policy to 
your case or if you seek to present new facts for consideration, you may flle a motion to reconsider ot a 
tn.otion 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 t)lis qecision. Please review the Form 1-2908 instructions at 
http://www.uscis.gov/forms for the latest information oil fee, filing location, and oth~r r¢qUjre!iJ~nts. 
See also 8 C.F.R. § 103.5. Do not file a mo.tion directly with theAAO. 
Thlou, ... 
):-Ron Rpi:f-
Chief, Administrative Appeals Office 
\. .. · 
www.usciS.gov 
(b)(6) r 
Page2 
DISCUSSION: The Director, texas Service Center, denied the petition for an immigrant visa, and the 
Administrative Appeals Office (AAO) dismissed the petitioner's appeal. The matter is now before the AAO 
on a rnotion to reopen and a motion to reconsider. The AAO will dismiss the motion to reopen. The AAO 
will grantthe motion to teconsid~r, in part, and affirm its previous decision. 
Tbe petitioner is a corporation organized In the State of Florida o etating a gas station, convepjen~e store and 
cat wash. The petiti_oner claims to be a subsidiary of located in Illdia. The 
petitioner seeks to employ the beneficiary as its president. Accordingly, the petitioner endeavors to classify 
t,he beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immi,gration and 
Nationality Act (tJl,e Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on three independent grol!nds of ineligibility, finding that the petitioner 
failed to establish: (1) that it has 
a qualifying relationship with the beneficiary's foreign employer:; (2) that the 
foreign employer empJoyed the benefiCiary in a managerial or executive capacity; and (3) that the beneficiary 
would be employed in a qualifying managerial ot executive capacity in the United States. 
The petitioner sl)l;>sequently filed an appeal. The AAO dismissed the petitioner's appeal and affirmed the 
director's decision to deny the petition. The ~AO coocurre<l wit.h the director's finding that the petitioner had 
failed to establish that it had a qualifying relationship with the foreign employer. The AAO noted the 
petitioner's failure to submit evidence sufficient to establish the foreign employer's purchase of a majority of 
the petitioner's sbates. The AAO also concluded that the petitioner failed to establish that the beneficiary was 
employed in a qualifying managerial ot executive capacity abroad. ln dislllissing the appeal, the AAO 
emphasiZed that the petitioner provided a vague duty 
description for the beneficiary and further noted tbal 
there were unresoJved discrepancies in the record with respect to the foreign entity's staffing levels and 
organizational structure during the beneficiary's period of ernploy111ent abroad. Further, the AAO concurred 
with the director's determination that the petitioner had not demonstrated that it wotild employ tbe beneficiary 
in a qualifying managerial or executive capacity, emphasizing that the petitioner provided a vague description 
of the beneficiary's job duties that was inconsistent with his asserted role. Ill addition, the AAO emphasized 
the petitioner's failure to provide duty descriptions fot many of the beneficiary's subordinates and ~lso noted 
v:1rious discrepancies in the petitioner's submitted organizational chart. 
The petitioner now files a motion to reopen and reconsider the previous AAO decision. 
On motion, counsel contends that the record clearly establishes that the foreign einployet has "de jure" control 
over the petitioner through its ownership of 51% of the petitioner's shares. Counsei states that there is no 
legal basis for tl!e AAO's imposition of an evidentiary requirement requiring the petitioner submit evidence to 
show the foreign employer's purchase of 510 of the petitioner's 1,000 outstanding shares in April 2008. 
Counsel asserts that Florida corporate law does not requite the actual purchase of shares, but that snares may 
be exchanged for "any consideration,'' including ''tangible or intangible property.'' As such, counsel states 
that the AAfY s focus on the purchase price and transfer of consideration is misplaced. Ill support of the 
motion, the . petitioner resubmits its articles of incorporation, stock certificates, stock transfer ledger and 
corporate tax retUrns iil order demonstrate the foreign employer's 51% ownership of the petitioner. 
(b)(6)
Page3 
The petitioner also submits additional evidence in support of its assertion that the foreign entity employed the 
ben~Hciaty in a qualifying managerial or executive capacity. This evidence includes letters of support from 
former business associates, a,s well as bank letters attesting to the beneficiary's control of substantial assets. 
Counsel asserts that the additional evidence demonstrates the nature and scope of the beneficiary's financial 
holdings, his reputation in the business community in Trinidad and Tobago, and his former executive 
management of tile foreign employer. 
Additionally, counsel asserts that the petitioner currently employs sufficient employees in the United States to 
perform the day-to-day operational duties of the business thereby establishing that the beneficiary is more 
likeiy than not functioning as th~ president and highest level executive of the petitioner. On motion, the 
petitioner provides a financial statement and. lease executed by the beneficiary as evidence of his executive · 
capacity with the petitioner. 
The purpose ·of a motion to reopen or motion to reconsider is different from the purpose of an appeal. Whiie 
·; 
the AAO conducts a comprehensive, de novo review of the entire record on appeal, the AAO's review in this 
matter is limited to the narrow issue of whether the petitioner has presented and documented new facts or 
documented sufficie:ilJ reasons, supported by pertinent law and precedent decisions, to warrant the re-opening 
or reconsideration of the AAO's decision to dismiss the petitioner'~ previous appeal. 
The. regulation at 8 C.P.R. § 103.5(a)(2) states: 
A motion to reopen must state the new facts to be provided in the reopened proceeding 
an:d be supported by affidavits or other documentary evidence. 
The petitioner has not submitted sufficient new facts or new evidence in support of its motion to reopen the 
rnatt.er. As noted above, the petitioner resubmitted its articles of incorporation, stock certifica~es, stock 
transfer ledger and corporate ta.l{ returns in an effort to demonstrate that the petitioner is 51% controlled by 
the foreign employer. However, the evidence provided on moHon with respect to demonstrating a qualifying 
relationship is not new evidence, but evidence that was already considered by the AAO in dismissing the 
petitioner's appeal.1 
Ii1 support of its assertion that the foreign entity employed the beneficiary in a qualifying managerial or 
executive capacity, the petitioner submits several letters from all of which are dated in 
2008. The letters, which were provided by a local business association, a business assoCiate, a bank, and an 
insurance company, attest to the beneficiary's job title with the foreign entity, his business acumen, his work 
ethic, his personal income and financial a,ssets, and the foreign entity's ~ssets. In addition, the petitioner 
provides two excerpts from local papers reflecting the beneficiary acting i.n the capacity of vice president of 
the 
The petitioner has not submitted new facts or evidence t9) satisfy the requirements of a motion to reo~n. 
Fir.st, t.lle evidence submitted by the petitioner is not considered new as ali of the letters predate the filing of 
1 Tbe word "new" is defined as '!l. having existed or been made for only a short time . .. 3. Just discovered, 
found, or learned <new evidence> .... " Webster's II New CoUege Dictiona_ry 736 (200l)(emphasis in original). 
(b)(6)
Page4 
the petition in April 2012 by several years and therefore could ha,ve been submitted previously. Regardless, 
the evidence submitted by the petitioner is not relevant to determining whether tbe beQeficiary acted in a 
qua,lifying managerial or executive capacity. While the evidence suggests that the beneficiary was regarded 
as a successful busines_s person, the evidence provided on motion with respect to the beneficiary's foreign 
employment does not address the underlying grounds for denial of tbe pet_it~on, I)_(,lmely, the petitioner's failure 
to provide a detailed descnption of the beneficiary's duties and failure to resolve inconsistencies in the record 
regarding the foreign, entity's staffing levels and organizational structure during the beneficiary's ·period of 
employment abroad. AS such, the petitioner has not Submitted new evidence to reopen the matter with respect 
to the beneficiary's foreign employment. 
With respect to the benefiCiary's employment in the United States, the petitioner submits a ''Gas 
Station/Convenience Store Lease'' dated February 26, 2009 which includes .the beneficia,ry's signature on 
behalf of the petitioner, and a ''Closing Statement" also dated February 26, 2009, specifying the detail_s of a 
sale of the gas sta(ion/9()nv~nience store to the petitioner In FL. However, the submitted 
evidence cannot be considered new evide11ce, as it pre.-Q.ates We filing of the petition by three years. Further 
the evidence is not relevant to demonstrating that the benefic•ary will act in a qualifying managerial or 
execu(ive cap~city. The AAO does not question whether the petitioner owns a business in the United States, 
whether it conducts buSiness; qr whether the benefiGiru-y has signatory authority for the petitioner. However, 
an individual will not be deemed an executive under the Statute simply because they have an exequtjve title or 
because they "direct" the enterprise as the owner or- sole managerial employee. The petitioner has not 
submitted any new eVidence to demonstrate tne beneficiary will primarily focus on setting the broadgoals and 
policies of the organization rather than the day-to-day operations of the enterprise. See section 101 (a)( 44 )(B) 
ofthe Act, 8 U.S.C. § 1101(a)(44)(B). In fact, the petitioner has again failed to submit new evidence relevant 
to overcoming the specific grounds for denial of the petition. Specifically, the petitioner has not submitted 
·any additional evidence relating to the benefidary's a,ctl!al ¢ty-to-da,y duties, nor ha,s it attempted to resolve 
the discrepancies in the record within regard to the petitioner's staffing and organiiational structure. 
In sum, the petitioner bas not subrnitted evidence that s~tisfies the requirements of a motion to reopen and 
thus the·motion to reopen will be dismissed. 
The regulation at S C.F.R. § 103.5(a)(3) states: 
I 
A motion to reconsider must state the · reas~ms for recol)sideration and re. supported by 
any pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or [U.S. Citizenship and Immigration Services (lJSCIS)] policy. A 
motion to reconsider a decision on an application or petition inust, when filed, also 
establish that the decision was incorrect based on the evidence ofrecord at the time ofthe 
initial deci~ion. 
This regulation is supplemented by the instructions on the Follll I-290"B, Notice of Appeal or Motion, by 
operation of the rule at 8 C.F.R. § 103.2(a)(l) that allsubmissioils must comply with the instructions that 
appear on_@y foni1 prescribed for those submissions.2 With regard to motions for reconsideration, Part 3 of 
2 The regulation at 8 C.P.R. § 103.2(a)(l) states in pertinent part: 
(b)(6)
Page 5 
the Form I-290B submitted by the petitioner states: "Motion tp Reconsider: The motion must be supported 
by cit<ttions to appropriate statutes, regulations, or precedent decisions." 
As previously noted, counsel ~sserts on motion that the director and the AAO applied an evidentiary 
requirement not supported by law by requiring that t,he petitioner to submit evidence of monies, property, or 
otner considera:tion furnished by the foreign employer in exchange fot ownership of 510 shares out of the 
petitioner's 1,000 outstanding sb_(lfes. Counsel asserts that the petitioner has demonstrated with the 
preponderance of the evidence that tM foreign employer h<ts "de jure" control of the petitioner in form of· 
stock certificates, a stock 
ledger, and tax documentation. Co1..1nsel states that the stock issuance to t_he foreign 
employer Was in full compliance with Florida law. Counsel references Florida law which states that 
consideration may ''consist of any tangible ot intangible property or benefit to the corporation, including cash, 
promissory notes; services performed, promises to perform services evidenced by a written contract, or other 
securities of the corporaJion." 
TI:te petitioner has stated sufficient legalreasons to reconsider whether it bas a qualifying relll.tionshjB with the 
foreign employer. IJowever, following a reconsideration of this matter, the AAO does not find counsel's 
assertions persuasive. 
The regull).tions specific(llly allow the director to request additional evidence in appropriat~ cases. ·.See 8 
C.P.R. § 204.5(j)(3)(ii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock: certificates into tl!e means by which stock ownership 
wa_s t.\Cquired. As requested by the .d-irector, evidence of this nature should include documentatiOrt qf rnonies, 
property; or other consideration furnished to the entity in exchange for stock ownership. Additional 
supporting evidence would include stock py.rchase agreements, subscripti()n agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest As such, USCIS may request any reasonably available evidence it deeins relevant to 
establishing eligibility. However, beyond the stock tr~sfer log, the petitioner has continually failed to submit 
evidence sufficient to support that the foreign employer actually paid consideration for stock in the petitioner, 
-~includ.i.ng actual evicience of this money being paid to the petitioner, relevant minutes reflecting· this 
transaction, or other such evidence to .support tl}e transactio}). Also, the petitioner has not explained why this 
evidence is not available. To the contrary, counsel merely Cites Florida law noting that · consideration mll.y 
come in various forms. · 
However; the nature of the consideration in this case is not in dispute, as the stock ledger reflects that the 
foreign employer paid $510 in excbange f()r ·its interest in the petitioner. Therefore, other forms of 
consideration are not relevant to this matter, and the petitioner has faiied to offer arty other cla_il_lled forms of 
consideration exchanged for the petitioner's stock. As such, counsel's reference to Florida law is not 
per~t.ta~ive and the record remains deficient with respect to the foreign entity's acquisition of the petitioner's 
(E]very application, petition, appeal, motion, request; or other docyment subQljtted on the 
form prescribed by this chapter shall be executed and filed in accordance with the instructions 
oil the fortn, such iiJ.Stnictions ... being hereby incorporated into tbe particular section of the 
regulations requiring its submission. 
(b)(6)
Page6 
stock. the non~existence or other unavailability of required evidence creates a presumption of ineligibility. 
8 C.P.R. § 103.2(b)(2)(i). WithoUt document~ evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Mqtter of Obqigbena, 19 I&N Dec-. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983 ); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Finally, counsel ha.s not cited pertinent law or provided sufficient reasons to establish that the AAO 
Incorrectly concluded that tl).e beneficiary was not employed abroad and would not be employed inthe United 
States in a qualifying managerial or executive capacity. Iil fact, counsel does not articulate any specific error 
tn<~,c:le on tile pa.rt of the AAO with respect to these grounds of ineligibility. Iil dismissing the appeal, the AAO 
found that the petitioner had failed to submit a sufficiently detailed description of the beneficiary's duties 
abroad or his duties with the petitioner. rhe AAO further noted that th~re were deficiencies and unresolved 
incO.nsistencies in the record with respect to the staffing levels and organiZational stru.cture of both the foreign 
employer and the pet_itioner; 
OJJ motion, counsel does not address these findings, nor does the ·petitioner submit additional explanations ot 
doeinnentation to overco111e the evidentiary deficiencies that led to the dismissal of-the petitioner's appeal. 
Rather, counsel appears to request another de novo review of tbe record to determine whether the beneficiary 
qllalifies as a manager or executive abroad and in the United States, which this office has alreac:ty provided. . 
Therefore, the petitioner has not Stated suffiCient reasons, supported by pertinent precedent decisions, to 
reconsider this office's previous determination that the petitioner failed to establish that the benefiCiary was 
ertiploye<J abroad or would be employed in the United States, in a qualifying managerial or executiv~ 
capacity. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as petitions for 
rehearing and motions for a new trial on tile b$is of newly discovered evidence. See 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 bea.rs·a. "heaVy 
burden." INS v. Abudu, 485 U.S. at 110. 
As a final note, the proper filing of a inotion to reopen and/or reconsi(ler does not stay the AAO's prior 
decision to dismiss an appeal or extend a berteficiatis previously set depatt;ute date. 8 C.F.R. 
§ 103.5(a)(l)(iv). 
Iil visa petition proceedings, it is the petitioner's burden to establish 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). 
Here, that burden has not been met. 
ORDER: The motion to reopen is dismissed. The AAO's decision dated August 22, 2013 is affirmed.