remanded EB-1C Case: Import/Export

MATTER OF E-USA, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: J_LJLY 26, 2018 
PETITION: FORM I-140;IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an import/export company with various subsidiary businesses, seeks to permanently 
employ the Beneficiary as its president under the first preference immigrant classification for 
multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record ·did not 
· establish, as claimed, that the Beneficiary has been employed abroad, and will be employed in the 
United States, in an executive capacity. The Petitioner filed a joint motion to reopen and reconsider, 
which the Director denied. 
The matter is now before us on appeal. On appeal, the Petitioner disputes the denial of the petition. 
We will withdraw the Director's decision and remand the matter for the entry of a new decision 
consistent with the following analysis. 
The Petitioner did not appeal the initial denial of the underlying petition. Rather, the Petitioner 
appealed the Director's subsequent finding that the motion did not meet the requirements of a 
motion to reopen, a motion to reconsider, or both. Therefore, the merits of the denial order, and of 
· the underlying petition, are not before us. The only issue before us is whether the Director properly 
found that the motion did not meet applicable requirements. 
A motion to reopen ~ust state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). In denying the motion to reopen, the Director briefly described the evidence 
submitted on motion, and concluded that the evidence was not "new" because the Petitioner could 
have submitted it earlier (and was, in fact, instructed to do so). The Director stated: "A motion to 
reopen ... seeks a fresh determination based on newly discovered facts or change in the petitioner's 
circumstances since the time of the decision." 
The regulation at 8 C.F.R. § 103.5(a)(2), however, does not define what constitutes a "new" fact, nor 
does it mirror the Board of Immigration Appeals' (the Board) definitio~ of "new" at 8 C.F.R. 
Matter of £-USA, Inc. 
§ 1003 .2( c )(1 ) ( stating that a motion to reopen will not be granted unless the evidence "was not 
available and coul_d not have been discovered or presented at the former hearing"). Unlike the Board 
regulation, we do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable. Instead, we interpret "new facts" to mean facts that are relevant to the issue(s) 
raised on motion and thJt have not been previously submitted in the proceeding, which includes the 
original petition. Reasserting previously stated facts or resubmitting previously provided evidence 
does not constitute "new facts." 
In this instance, the newly submitted _evidence directly addressed findings in the denial notice. In a 
· request for evidence, the Director asked the Petitioner to submit copies of IRS Forms W-2, Wage 
and Tax Statements, for all its employees. The Petitioner submitted only the Beneficiary's form, 
along with other tax and payroll documents relating to other employees. The Director denied the 
petition, in part because the Petitioner had not submitted the requested forms. 
On motion, the Petitioner submitted the forms and stated that it misunderstood the previous 
instruction. This submission addresses a stated ground for denial, and therefore the Director should 
have considered the merits of this evidence. 
Because the Director has not yet addressed the merits of the motion to reopen, the proceeding is not 
ripe for us to consider the merits of the evidence submitted on motion or with the underlying 
petition .. We ·have overruled the Director's finding that the evidence is not "new," but the Director 
must make the initial determination as to whether the newly submitted evidence overcomes the 
earlier denial of the petition. 
The Petitioner, in its latest filing, seeks to contest the denial of the underlying petition. The 
regulations allow the Petitioner 33 days to file a timely appeal. See 8 C.F.R. § 103.3(a)(2)(i); 
103 .8(b ). The filing of a motion does not reset this filing period. Because the Petitioner did not file 
this appeal within 33 days of the original denial, we cannot accept it as timely filed with respect to 
that decision. The Petitioner's appeal is timely only with respect to the Director's latest decision. 
· Because we find that the Petitioner filed a proper motion to reopen, we need not address in detail the 
separate motion to reconsider, which concerns the question of whether the underlying decision was 
incorrect based on the evidence in the record of proceedings at the time of that decision. See 
8 C.F.R. § 103.5(a)(3). The Director should, however, consider the merits of the Petitioner's 
assertion that the Director overlooked details in employer letters in the record; this is a non-trivial 
allegation of an error of fact. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter of E-USA, Inc., ID# 1409968 (AAO July 26, 2018) 
2