dismissed EB-1C Case: Tv Broadcasting

(b)(6)
I 
DATE' MAR 12 2013 
INRE: 
I 
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. C_itizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER FILE: 
PETITION: Immigrant Petition for Aiien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(l)(C) ofthe Immigration·and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please fmd the decision of the Administrative Appeals Office in your case. All of the 
documents related· to this matter have 
been retu.rlled to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your' ca.se must be made to that office. 
Ifyou 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 .t.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, 
• 
1 Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
\ 
www.uscis.gov 
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• 1 
Page2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service 
Center, and a subsequent motion to reopen and/or reconsider was dismissed by the Director. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is engaged in TV broadcasting, and it seeks to employ the beneficiary as vice 
president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment­
based immigrant pursuant to section 203(b)(1)(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 20, 2011, the director denied the petition concluding that: (1) the petitioner failed to 
establish the existence ofa qualifying relationship between the b<?neficiary's foreign employer 
and the petitioner; (2) the petitioner failed to establish that the beneficiary's proposed 
employment with the U.S. entity would be within a qualifying managerial or executive capacity; ' . -
and, (3) the petitioner failed to establish that the beneficiary's employment abroad was within a 
qualifying managerial or executive capacity. 
The petitioner subsequently filed a Form I-12908. The Form I-1290B was initially received on 
September 22, 2011 but was subsequently rejected by United States Citizenship and Immigration 
Services (''USCIS"). USCIS sent a Form I-797C, Rejection Notice, to the petitioner with a 
notice date of September 28, 2011, that indicated that the Form I-2908, the fees _and supporting 
documentation were being returned to the petitioner since the Form I-2908 was rejected. The 
form stated that the Form I-2908 was rejected because the application was not fully completed 
as one or more fields of Part 2. Information about Appeal or Motion, was not properly 
completed. 
The petitioner re-filed the Form I-12908 on October 3, 2011, or 44 days after the decision was 
. issued, indicating_ that it was filing a motion to reopen and/or a motion to reconsider. 
Accordingly, the 
motion_was untimely filed. 
The regulation at 8 C.F.R. § 1 03.5(a) states that any motion to reopen a proceeding before the 
service filed by an applicant or petitioner 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. 
On April24, 2012, the director dismissed the motion concluding that the motion was received 
untimely and the petitioner did not provide an excusable reason for the delay. 
On May 24, 2012, the petitioner filed a new Form'I-290B to appeal the director's decision. On 
appea~ the petitioner contends that the initial Form I-2908 was filed properly and was not 
untimely. On appeal, the petitioner states that ''unfortunately, your mailing clerks returned this 
mail package include [sic] filing fee check of$630 to the petitioner dated on September 30, 2011 
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due to unknown reason." The petitioner also states that the ''petitioner has also resubmitted this 
package to your office on 9-30-2011 by express mail," and ''this was the main reason why your 
office finally received this file on Oct 3, 2011." 
The petitioner's brief on appeal does not overcome the director's decision concluding that the 
previous motion was untimely filed. The petitioner does not acknowledge that it received a 
Form I~797C, Rejection Notice, that clearly explained that the Form I-2908 was rejected since 
the form was not complete. The petitioner also does not provide any explanation as for the 
reason the motion was filed late. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the bur~en of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). · 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit 
sought. See sec. 291 ofthe Act, 8 U.S.C. 1361; see 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, 3 76 (AAO 201 0). 
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 of Chawathe, 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 det~ed 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 th~ fact 
to be proven .is probably true. 
Here, the submitted evidence does not meet the preponderance of the evidence standard. 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. 
The petitioner has not sustained that burden. 
ORDER: · The appeal is dismissed.