dismissed EB-1C Case: Advertising And Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 5, 2025 In Re: 36632338 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, an advertising and marketing consulting service, seeks to permanently employ the 
Beneficiary as its general manager under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ l 153(b )(1 )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that: (1) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer; 
(2) the Petitioner will employ the Beneficiary in the United States in an executive capacity; (3) the 
Beneficiary has been employed abroad in an executive capacity; and (4) the Petitioner has the ability 
to pay the Beneficiary's proffered wage. 
We dismissed a subsequent appeal. In our appellate decision, we agreed with the Director that the 
Petitioner had not established that it has a qualifying relationship with the Beneficiary's former 
employer abroad. Because this issue was sufficient to detennine the outcome of the appeal, we 
reserved the other three issues on appeal. The matter is now before us on motion to reopen. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We may grant motions that satisfy these requirements and demonstrate eligibility for 
the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that new 
evidence have the potential to change the outcome). 
On motion, the Petitioner submits an amended 2022 income tax return. The Petitioner asserts that the 
amended return corrects an error on the earlier version, which raised questions about the relationship 
between the petitioning U.S. employer and the Beneficiary's former employer abroad. 
Upon review of the new evidence, and further examination of the evidence submitted previously, we 
conclude that the Petitioner has established a qualifying relationship by a preponderance of the 
evidence. Nearly all the evidence ofrecord points tol Ias the sole member of 
the limited liability company (LLC) that filed the petition. The information on the 2022 income tax 
return indicates otherwise by omission, but we must follow the preponderance of the evidence. If 
information on a tax return were, on its own, conclusively determinative, then it is relevant that most 
of the tax returns in the record, including the amended 2022 return, reflec _________ 
sole membership. 
Also, the record does not contain conflicting evidence identifying different members of the petitioning 
LLC. The company agreement submitted with the petition does not show any capital contribution 
from but it does not show any such contribution from any other party either. The 
agreement is between the Petitioner and I Iand the agreement says: "The initial 
Managers and Member of the Company are the Persons executing this Agreement." 
Even if there is some doubt as to the truth, if a petitioner submits relevant, probative, and credible 
evidence that leads us to believe that the claim is "more likely than not" or "probably" true, the 
petitioner has satisfied the standard of proof. Matter of Chawathe, 25 I&N Dec. at 376, citing INS v. 
Cardoza-Fonseca, 480 U.S. 421,431 (1987). 
Although we have concluded that a qualifying relationship probably exists between the two employers, 
the new evidence does not change the outcome of the appeal underlying the motion. There remain the 
three other grounds for denial, which the Director set forth in the denial notice and which we reserved 
in our appellate decision. As we will explain below, the underlying appeal remains dismissible even 
without the issue of the Petitioner's qualifying relationship with the Beneficiary's foreign employer. 
The Petitioner specified that it the Beneficiary's position is "executive-level," and therefore we need 
only consider the requirements of an executive capacity, not a managerial capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders. Section 101(a)(44)(B) of the Act. 
If a petitioner establishes that the offered position meets all four elements set forth in the statutory 
definition, the petitioner must then prove that the beneficiary will be primarily engaged in executive 
duties, as opposed to ordinary operational activities alongside the petitioner's other employees. See 
Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether the beneficiary's 
duties will be primarily executive, we consider the description of the job duties, the company's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding the beneficiary's actual duties and role in 
the business. 
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In the denial notice, the Director concluded that the Petitioner did "not show that the beneficiary directs 
the management of the organization or a major component or function of the organization." The 
Director raised other issues as well, but directing the management is a required, integral element of 
the definition of executive capacity. If the Petitioner does not meet this requirement, then it has not 
established that the Beneficiary's U.S. position qualifies as executive. 
Therefore, we will discuss the question of whether the Petitioner has established that the Beneficiary 
would direct the management of the U.S. organization or a major component or function thereof. 
When the Petitioner filed the petition in June 2023, the Beneficiary was already in the United States 
working for the Petitioner in L-lA nonimmigrant status. The Petitioner initially submitted a job 
description that focused on broad responsibilities, and indicated that the Beneficiary would spend 20% 
of his time "overseeing organizational structure, management and development." 
On Form I-140, asked to specify the "Current Number of U.S. Employees," the Petitioner answered 
"5." An accompanying organizational chart, however, shows 10 U.S. positions subordinate to the 
Beneficiary. Specifically, the chart names a director of operations, a creative director, and eight field 
staff, all of whom report directly to the Beneficiary. The petitioner did not submit job descriptions for 
these positions. 
In a request for evidence (RFE), the Director stated that the Petitioner's "statement does not show that 
the beneficiary directs the management of the organization or a major component or function of the 
organization." The Director requested a clear description of the Beneficiary's duties and job 
descriptions for the Beneficiary's subordinates. 
In response, the Petitioner submitted a re-worded job description that added few new details to the 
Beneficiary's duties in the United States. The Petitioner asserted that "the Beneficiary directly 
oversees two executives, [the] Director of Operations and [the] Creative Director." The Petitioner did 
not explain how these two positions are executive, as the Petitioner claimed, or address the Director's 
request for information about the subordinate positions to show that the Beneficiary would direct the 
management of the organization or a major component or function of the organization. The individual 
who signed this letter stated his title as "Human Resources Executive," but the accompanymg 
organizational chart identifies the same person as the director of operations. 
The Director denied the petition, stating that the Petitioner's statement does not show that the 
Beneficiary directs the management of the organization or a major component or function thereof. 
The Director also observed that the number of employees on the organizational chart does not match 
the number the Petitioner claimed on Form I-140. 
On appeal, the Petitioner stated that it previously submitted "position profiles and curriculum vitae of 
subordinate staff," and that "the Beneficiary directly oversees two managers." Statements in a brief, 
motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight. Matter 
ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998). We find no subordinate job descriptions in the record. The 
lists of evidentiary exhibits submitted with the initial filing and the RFE response do not refer to job 
descriptions or curricula vitae for the Beneficiary's U.S. subordinates. Therefore, the record does not 
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establish the Petitioner's claim, on appeal, that it had previously submitted this evidence to establish 
that the Beneficiary directs the management of the organization. Neither the Petitioner's appeal nor 
its subsequent motion to reopen includes this information. 
An executive directs the management of the organization, major component, or essential function of 
a given organization by controlling the work of managerial or lower-level executive employees. See 
generally 2 USCIS Policy Manual L.6(D),https://www.uscis.gov/policy-manual. See also BlueStar 
Cabinets, Inc. v. Jaddou, No. 21-10116, 2022 WL 4364734, at *7 (5th Cir. Sept. 21, 2022) (holding 
that "' [ d]irect[ing] the management of the organization' necessarily includes directing managers of 
the organization.") 
We conclude that the Petitioner has not provided sufficient information about the Beneficiary's 
subordinate staff to establish that the company has a subordinate level of management that warrants 
executive supervision or control. The Director notified the Petitioner of this deficiency in both the 
RFE and the denial decision. 
Regarding the discrepant number of employees, the Petitioner stated, on appeal: "The petition 
contained evidence of employing ten (10) individuals at the time of responding to the Request for 
Evidence, and five (5) individuals when the petition was initially filed." But the organizational chart 
showing ten employees was submitted with the initial filing in June 2023. The chart identifies all ten 
employees by name, and therefore does not reflect vacant positions that the Petitioner expected to fill 
in the future. The initial filing also included copies of claimed pay receipts indicating that all ten 
named individuals were on the payroll in January-May 2023. 
The pay receipts appear to show only one full-time employee in 2023, the year the Petitioner filed the 
petition. Specifically, the individual identified as the director of operations worked full-time, earning 
about $17.31 per hour ($36,000 per year) in 2022, reduced to about $11.54 per hour ($24,000 per year) 
in 2023. This same individual stated his title as "Human Resources Executive" when he signed a letter 
attesting to the Beneficiary's employment at the petitioning company. Other pay receipts appear to 
indicate that each of the nine remaining subordinates, including the individual identified as the 
Petitioner's creative director, earned $75 per hour, but worked less than 16 hours per month. 1 
In response to the RFE, the Petitioner submitted copies of job offer letters issued to six of the 
individuals named on the organizational chart. None of these letters show job titles matching the titles 
on the chart. Five of the letters, all issued to employees identified as "field staff" on the organizational 
chart, offer the position of"Human Resources Executive" at a minimum-wage salary of $15,080 per 
year. Two of these letters are dated March 29, 2023, before the filing date; the other three are dated 
December 19, 2023, several months after the filing date. The Petitioner has not explained why it 
offered the same job to five different people, including multiple offers on the same day. Counting the 
previously discussed letter in the RFE response, the record refers to six different employees as the 
"Human Resources Executive," a title that does not appear on the U.S. organizational chart. 
1 The "Rate" column is blank on each of the semimonthly pay receipts, but we can calculate that rate because the receipts 
show "7.85" under the "Hours" column, and "588.75" under the "Amount" column. If these figures are incorrect, then the 
most direct evidence of the Petitioner's employment of subordinate staff contains errors which diminish the probative 
value of the pay receipts. By signing the Form 1-140, the Petitioner certified under penalty of perjury that the information 
submitted with the petition is complete, true, and correct. 
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We further note that, although the job offer letters are dated March and December 2023, the recipients 
are all named on purported payroll records dated January 2023 or earlier, indicating that the Petitioner 
already employed all these individuals at the time of the claimed job offers. 
In the sixth job offer letter, dated September 19, 2022, the Petitioner offered the pos1t10n of 
"Administrative Assistant," with an annual salary of $15,080, to the individual now identified as the 
"Creative Director." The Petitioner has previously referred to this position as both managerial and 
executive. 
None of the job offer letters are consistent with either the organizational chart or the purported payroll 
records, which casts doubt on the true nature and positions of the Petitioner's employees. 
The Petitioner has not provided job descriptions for the Beneficiary's subordinate U.S. staff, nor has 
the Petitioner submitted any other evidence to establish that any of those subordinates are managers 
or executives as claimed. Materials identifying six different people as the Petitioner's "Human 
Resources Executive" raise serious concerns of credibility. 
The purported pay receipts show low salaries, all below $16,000 per year, which raise further questions 
about the nature of the employees' work and the nature and extent of the Petitioner's business 
activities. Those same pay receipts also contain further discrepancies. The receipts show the same 
partial bank account number for nine of the ten employees, and one of the receipts shows a "Check 
Date" of"0l/15/2022" for the "Period Ending 01/01/2023," nearly a year later. The Petitioner has not 
resolved these inconsistencies and discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence 
submitted in support of the requested immigration benefit. Id. 
For the above reasons, the Petitioner has not met its burden of proof to establish that it has a 
management structure for the Beneficiary to direct in an executive capacity. The evidence and 
information submitted on motion would not have changed the outcome of our appellate decision if 
they had been in the record at that time. Therefore, we will dismiss the motion. We continue to reserve 
the remaining two grounds for denial of the petition, relating to executive capacity abroad and the 
Petitioner's ability to pay the Beneficiary's proffered wage. 
ORDER: The motion to reopen is dismissed. 
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