dismissed EB-1C Case: Wholesale, Retail, And Investment

(b)(6)
DATE: APR 0 2 21WJ'ICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S; Depa!1iuent ofHomeland 8ecurity 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citiz~nship . 
and Immigration 
Services 
FILE: 
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 find the decision of the Adlninistrative 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 law was inappropriately applied by us in reaching our decision, or you have additional 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 
C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Fonn J.,290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
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Acting Chief, 'Administrative Appeals Office 
www.uscis.gov 
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Page2 
DISCUSSION: The preference visa petition was initially approved by the Director, Vermont Service Center. 
Upon further review of.the record, the Director, Texas Service Center, determined that 
the petitioner was not 
eligible for the benefit sought. Accordingly, the director properly served the petitioner with a notice of his 
intention to revoke the. approval of the preference visa · petition, and his reasons therefore. The director 
ultimately revoked the approval of the petition and the petitioner subsequently filed an appeal with the 
Administrative Appeals Office (AAO) where the appeal was summarily. dismissed. The matter is now before 
the AAO on motion to reopen. The AAO will dismiss the petitioner's motion. 
The petitioner claimed to be a wholesale, retail, and investment operation seeking 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)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(C), as a multinational executive or manager. The director revoked the petition, concluding that 
the petitioner failed to establish that: ( 1) the beneficiary was employed abroad in a qualifying managerial or 
executive capacity; (2) the beneficiary's proposed position with the U.S. entity would be in a managerial or 
executive capacity; and (3) the petitioner contin.ues to do business in the United States. Additionally, as a 
result of the beneficiary's interview at the New York District Office, the director found that the petitioner 
submitted inconsistent evidence and thus concluded that the evidence was unreliable and insufficient for the 
purpose of establishing eligibility. 
On appeal, counsel provided an overview of the procedural events that took place since the petitioner filed the 
Form 1-140 and indicated that a brief and/or additional information would be submitted within 30 days in 
support of the appeal. However, by May 12, 2011, when the AAO reviewed the appeal, the record did not 
contain evidence showing that it had been supplemented in any way since the appeal was filed on Novem~er 
23, 2010. The AAO therefore summarily dismissed the appeal pursuant to the regulation at 8 C.F.R. 
§ 103.3(a)(l)(v) which states, in pertinent part: 
An officer to whoman appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of fact 
for the appeal. -
On motion, coun:;el provides evidence showing that therecord was, in fact, supplemented witha statement 
from counsel requesting additional time in which to provide further supporting evidence. Counsel provided 
an explanation of her own personal reasons for the request of an extension oftime. Counsel's supporting 
evidence shows that her statement was submitted on December 1·7, 2010, approximately five months prior to 
the AAO's review of the record. 
The regulations at 8 C.F,R. § l03.5(a)(2) 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 
1 The word "new" is defined 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 DICTIONARY 792 
(1984)(emphasis in original). 
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Page 3 
In the present matter, the only evidenct: counsel submitted in support of the motion dealt directly with 
counsei' s personal reasons for being unable to submit supporting evidence that pertained to the AAQ's 
summary · dismissal of the appeal. The AAO finds that counsel's circumstances, while regrettable on a 
personal level, had ·nothing to do with the AAO's ~asis for dismissing· the appeal. In fact, even if the AAO 
had received counsel's statement prior to its consideration of the appeal, the statement would have had no 
impact on the AAO's final detennination: Coun~el's statement did not identiry specifically any erroneous 
conclusion of law or statement of fact. Therefore, the AAO' s ability to review counsel' s statement at the time 
of the appellate review would not have led the AAO to reach a different conclusion. 
Similarly, in reviewing counsel's statement in the scope of a motion to reopen, the AAO finds that counsel 
has failed to state any new facts or provide affidavits or other documentary evidence that pertain to the 
AAO's 
basis for dismissing the appeal. Therefore, the motion will be dismissed in accordance with 8 C.F.R. 
§ 103.5(a)(4), which states, in pertinent part, that a motion that does not meet applicable requirements shall be 
dismissed: 
As a final note; the proper filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
decision to .dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.F.R. 
§ 103.5(a)(l)(iv). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought· remains entirely with the 
petitioner. Section 291 of th!! Act; 8 U.S.C. § 1361 .. Here, the petitioner has not sustained that burden. 
ORDER: The motion is' dismissed.