dismissed EB-1C Case: Trading And Consulting

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: OFFICE: NEBRASKA SERVICE CENTER FILE: 
MA~ 2 91013 
INRE: Petitioner: 
Beneficiary: 
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 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. 
Thank you, 
t~ jRon Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The AAO dismissed the 
petitioner's appeal and its subsequent motion to reopen and reconsider. The matter is now before the AAO 
on a 
second motion to reopen and reconsider, which will also be dismissed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its president. 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. The original denial of the petition was based on the director's conclusion that the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
After reviewing the matter on appeal, the AAO affirmed the director's conclusion, finding that a considerable 
portion of the beneficiary's time would be allocated to operational tasks and that he therefore would not be 
primarily employed in a qualifying managerial or executive capacity. The AAO observed that various 
elements of the beneficiary's job description-those pertaining to his oversight of employees with 
managerial position titles-were not depicted in the petitioner's organizational chart. The AAO also noted 
that the petitioner failed to comply with the director's request for the submission of IRS Form W-2s for 
2007, which could have assisted in clarifying questions about the petitioner's staffing at the time the Form I-
140 was filed. 
Additionally, the AAO issued two adverse conclusions beyond the director's decision, finding that the 
petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity and that the petitioner failed to provide sufficient evidence to establish that it has a 
qualifying relationship with the beneficiary's foreign employer. 
On motion, the AAO determined that the petitioner overcame the prior adverse finding regarding the 
petitioner's qualifying relationship with the beneficiary's foreign employer. However, in light of the 
petitioner's failure to address the AAO's concerns with regard to the beneficiary's employment abroad, the 
AAO determined that the petitioner effectively conceded the AAO's adverse finding. With regard to certain 
tax documents that the petitioner submitted in support of the first motion, the AAO declined to review 
evidence that was previously submitted and had been reviewed in the course of issuing the decision on 
appeal and whose evidentiary value was extremely limited given that the 2006 tax documents do not help to 
establish the petitioner's eligibility as of March 30, 2007 when the Form 1-140 was filed. 
The AAO also rejected the petitioner's submission of 2007 IRS Form W-2s, which were provided for the 
purpose of establishing whom the petitioner employed at the time of filing. In light of the fact that these 
documents were originally requested in an RFE notice dated March 31, 2009, the AAO declined to review 
these documents, which should have been submitted in response to the original notice instead of being 
offered for the first time on motion, which the petitioner filed on December 3, 2010, approximately twenty 
months after the request was issued. See Matter of Son·ano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
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On the petitioner's current motion to reopen and reconsider, counsel asserts that the AAO failed to take into 
account the petitioner's 
reasonable needs in. light of its overall purpose and stage of development. Counsel 
points to the two major divisions-trading and consulting services-within the petitioner's organization and 
asserts that the beneficiary oversees the work of five professional employees who provide services to the 
petitioner's clients. 
Additionally, counsel challenges the AAO's earlier fmding that IRS Form 1099s for 2006 were irrelevant. 
Counsel contends 
that the documents were submitted because they had been previously requested by the 
director in the RFE and further asserts that the documents are relevant for the purpose of establishing the 
petitioner's ongoing business operation. 
The AAO will first turn to the regulations at 8 C.F.R. § 103.5(a)(2) which state, 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.1 
In the present matter, the petitioner does not state any new facts in support of the motion. Rather, counsel 
attempts to return to the basis for the director's original decision and the AAO's subsequent findings when 
reviewing the matter on appeal. However, the AAO points out that both the original denial and the AAO's 
appeal decision have been previously addressed in two separate decisions. In order to meet the requirements 
of this motion, the petitioner must provide evidence of new facts that came into being since the AAO issued 
its latest decision. Merely attempting to resurface previously addressed fmdings in order to overcome the 
original ground for denial will not satisfy the requirements of a motion to reopen. 
Furthermore, with regard to counsel's assertion that the 2006 tax documents are relevant for the purpose of 
establishing that the petitioner had been doing business for one year, the AAO points out that neither the 
director nor the AAO (in either of its prior decisions) made any adverse fmdings regarding the issue of doing 
business. Therefore, the AAO affirms its prior finding that the 2006 tax documents were irrelevant to the 
discussion at hand. 
Turning now to the 
motion to reconsider, the regulations at 8 C.F .R. § 1 03.5(a)(3) state, 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 USCIS 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. 
1 
The word "new" is defmed 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 DICfiONARY 792 
(1984)(emphasis in original). 
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In the present matter, counsel does not cite any legal precedent or applicable law that would indicate an error 
on the part of the AAO in dismissing the petitioner's motion. Instead, counsel cites Matter ~f Soriano, 
asserting that the director "never requested additional evidence discussed in [the] AAO's discussion." As 
counsel failed to expressly say which "additional evidence" the AAO discussed that had not been previously 
requested by the director, it would appear that the objection stems from the additional ineligibility grounds 
the AAO discussed in its appellate decision. In reviewing the matter, the AAO notes that it allowed 
the 
submission of and actually conducted a review of evidence that the petitioner submitted with regard to the 
issue of a qualifying relationship. In fact, in its decision regarding the petitioner's first motion the AAO 
withdrew its adverse finding regarding the issue of a qualifying relationship, implicitly acknowledging that 
the petitioner's first opportunity to address the adverse fmding would have been in the first motion. 
However, the petitioner did not address the AAO's second additional adverse finding with regard to the 
beneficiary's employment abroad. This failure to address the finding in the prior motion would preclude the 
petitioner from addressing that finding at a future time. Moreover, there is no evidence that the petitioner has 
addressed the adverse finding regarding the beneficiary's employment abroad. It is simply unclear from the 
little information counsel provides on motion what further evidence the petitioner is looking to submit 
beyond that which has already been submitted. 
In light of the above, the petitioner's motion to reopen and reconsider will be dismissed in accordance with 
8 C.P.R. § 103.5(a)( 4), which states, in pertinent part, that a motion that does not meet applicable 
requirements shall be dismissed. 
Lastly, the motion shall be dismissed for failing to meet an applicable requirement. The regulation at 
8 C.P.R. § 103.5(a)(l)(iii)(C) requires 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 proceeding." In this matter, 
the motion does not contain the statement required by 8 C.F.R. § 103.5(a)(l)(iii)(C). The regulation at 
8 C.P.R. § 103.5(a)(4) states that a motion which does not meet applicable requirements must be dismissed. 
Because the instant motion did not meet the applicable filing requirements listed in 8 C.P.R. 
§ 103.5(a)(l)(iii)(C), it must also be dismissed for this reason. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion is dismissed.