dismissed EB-1C Case: Auto Dealership

U.S. Citizenship 
and Immigration 
Services 
In Re: 1834 7872 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 21, 2022 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, an auto and boat dealership, 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). 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
that: 1) the Beneficiary was employed abroad for at least one year in the three years preceding his 
entry into the United States as a nonimmigrant, 2) the Beneficiary had been employed abroad in a 
managerial or executive capacity, 3) the Beneficiary would be employed in the United States in an 
managerial or executive capacity, and 4) the Petitioner had established its ability to pay the 
Beneficiary's proffered wage. 
The Petitioner then filed an appeal. We dismissed the appeal, concluding the Petitioner did not 
demonstrate that the Beneficiary was employed abroad for at least one year in the three years preceding 
his entry into the United States to work for the Petitioner. We also agreed with the Director's 
conclusion that the Beneficiary would not be employed in the United States in a managerial or 
executive capacity and declined to address the remaining grounds of denial given that the identified 
grounds for ineligibility were dispositive. 1 The matter is now before us on a motion to reopen and a 
motion to reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. MOTION REQUIREMENTS 
1 The sole issue we will discuss in this decision is whether the Petitioner established that the Beneficiary was employed 
abroad for at least one year in the three years preceding his entry into the United States as a nonimmigrant. Since this 
issue is dispositive , we decline to reach and hereby reserve its arguments with respect to the other bases of our prior appeal 
dismissal. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on 
issues the decision of which is unnecessary to the results they reach") ; see also Matter of L-A-C-, 26 I&N Dec. 516, 526 
n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible) . 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application oflaw or U.S. Citizenship and Immigration Services (USCIS) policy and that the decision 
was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. 
§ 103.5(a)(3). The regulation at 8 C.F.R. § 103.S(a)(l)(i) limits our authority to reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reconsideration, a 
petitioner must not only meet the formal filing requirements ( such as submission of a properly 
completed Form I-290B, Notice of Appeal or Motion, with the correct fee), but also show proper cause 
for granting the motion. We cannot grant a motion that does not meet the applicable requirements. 
See 8 C.F.R. § 103.5(a)(4). 
We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested 
immigration benefit. A motion to reconsider must include an allegation of material factual or legal 
errors in the prior decision, supported by pertinent authority, and if there has been a change in law, a 
reference to the relevant statute, regulation, or precedent and an explanation of how the outcome of 
the decision is materially affected by the change. Matter of O-S-G, 24 I&N Dec. 56 (BIA 2006). 
II. ANALYSIS 
A. Motion to Reopen 
The sole issue we will address on motion is whether the Petitioner has established that the Beneficiary 
was employed by the foreign employer for at least one year in the three preceding his entry as a 
nonimmigrant into the United States per 8 C.F.R. § 204.5(j)(3)(i)(B). 2 
In our appeal decision, we emphasized that the Director specifically requested the Petitioner submit 
copies of foreign employer payroll records pertaining to the Beneficiary for the relevant one-year 
period. 3 However, we determined that the evidence submitted by the Petitioner in response to the 
Director's the request for evidence (RFE) did not constitute a payroll record sufficient to demonstrate 
that the Beneficiary was employed by the foreign employer for the required one year. We emphasized 
that the Petitioner's failure to submit this requested evidence precluded a material line of inquiry, and 
constituted grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). We stated that it was reasonable 
2 The Petitioner asserts that the Beneficiary was previously employed by its parent company, in an 
executive capacity since January 2005 and that he was transferred to his current position as its president in 2007. USCIS 
records show that the Petitioner first entered the United States in L-lA status to work for the Petitioner on June 28, 2007. 
3 As discussed in our prior decision, if a beneficiary entered the United States to work for a qualifying entity as a 
nonimmigrant (for example in H-lB or another work-authorized status), USCIS will reach back three years from the date 
of his or her admission to determine whether he or she had the requisite one year of employment. Matter of S-P- Inc., 
Adopted Decision 2018-01 (AAO Mar. 19, 2018); 8 C.F.R. § 204.5(j)(3)(i)(B). In his decision, the Director used the 
Beneficiary's entry in B-2 visitor status on January 14, 2006, as the end point of this three-year period (January 14, 2003 
- January 13, 2006). However, since this entry was not for the purpose of working for the same employer or for a subsidiary 
or affiliate of the foreign employer as a nonimmigrant, we did not use this date of entry to determine the relevant three­
year period during which the one year of foreign employment must be established. Sec id. Instead, we concluded that the 
requisite three-year period was from June 28, 2004, to June 27, 2007, the day before the Beneficiary's initial entry in L­
IA status to work for the Petitioner. The Petitioner concurs with this determination on motion. 
2 
for the Director to have requested this evidence to demonstrate his employment abroad from January 
1, 2005, to January 1, 2006, and that its non-existence or unavailability created a presumption of 
ineligibility. 8 C.F.R. § 103.2(b )(2)(i). 4 In addition, we emphasized that the Petitioner did not explain 
on appeal why the Beneficiary was not included in the foreign employer's organizational charts 
submitted in support of the petition and in response to the Director's RFE. We indicated that this 
evidence was inconsistent with provided support letters describing his role with the foreign employer 
and that this inconsistency raised by the Director had not been resolved on appeal with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). For these reasons, we concluded that the Petitioner had not established that the Beneficiary 
was employed by foreign employer for at least one year in the three years prior to his entry as an L­
lA nonimmigrant. 
On motion, the Petitioner submits additional evidence it contends demonstrates that the Beneficiary 
was employed by the foreign employer for at least one year. Specifically, the Petitioner provides 
documentation from the "BPS Social Security Institute," it explains as a "state-owned ... social security 
institute," reflecting that the Beneficiary was paid by the foreign employer from March 2003 through 
January 2005. The Petitioner asserts that the provided foreign employment contract signed in 
December 2004 and the provided foreign employer "payroll records" from January 2005, through 
January 2006, demonstrate that the Beneficiary was employed by the foreign employer for the required 
one year in the three preceding his entry into the United States on June 28, 2007. 
The Petitioner has not submitted sufficient new evidence to establish that our prior decision to dismiss 
the appeal was in error. First, the Petitioner was put on notice by the Director to submit evidence to 
establish that the Beneficiary was employed abroad for at least one year during the three year 
qualifying period and given a reasonable opportunity to provide this evidence in response to the 
Director's RFE. The Petitioner does not articulate on motion why this evidence was not reasonably 
available at the time of the RFE. As such, we are not required to consider this evidence now on motion. 
Matter of Soriano, 19 I&N Dec. 764 (BIA 1988) and Matter of Obaigbena, 19 I&N Dec. 533 (BIA 
1988) 
Regardless, even if we consider the evidence submitted on motion, the Petitioner provides foreign 
documentation from a social security agency in the country of the foreign employer showing payments 
to the Beneficiary by the foreign employer from March 2003 to January 2005. However, the requisite 
three-year period within which the Petitioner was required to demonstrate the Beneficiary's foreign 
employment for at least one year was from June 28, 2004, to June 27, 2007, the day before the 
Beneficiary's initial entry in L-lA status to work for the Petitioner. Therefore, the documentation 
submitted on motion only reflects payments made to the Beneficiary by the foreign employer during 
the applicable three-year qualifying period from June 2004 through January 2005, or for only 
approximately six months. 
Further, the Petitioner does not explain why the provided documentation from the foreign social 
security institute does not reflect at least one full year of employment with the foreign employer, 
including payments during the Beneficiary's asserted employment from January 2005 to January 2006. 
4 We also noted that the Petitioner submitted foreign employer payroll records for a period during which it did not claim 
that the Beneficiary was employed with the company. 
3 
The fact that payments to the Beneficiary from the foreign employment after January 2005 are not 
included in the foreign social security documentation is particularly questionable since this document 
reflects his payroll history during the period of "04/1996-02/2021." As such, the Petitioner provides 
documentation on motion that leaves only further uncertainty as to whether he was employed abroad 
for at least one year as claimed during the three-year qualifying period. The Petitioner must resolve 
discrepancies and ambiguities in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Beyond this new evidence, the Petitioner only resubmits assertions we addressed in our previous 
appeal decision. For instance, the Petitioner again points to foreign employer "payroll records." 
However, as the Director, as we, previously discussed, the asserted foreign payroll records are not as 
asserted, but merely a submitted list of check numbers and the dates these asserted checks were issued 
to the Beneficiary. There is no documentary evidence of payments from the foreign employer being 
issued to, and received by, the Beneficiary during the claimed one year of foreign employment. The 
Petitioner's continued failure to submit this evidence leaves only further question as to the 
Beneficiary's claimed foreign employment. Again, the Petitioner's failure to submit this requested 
evidence continues to preclude a material line of inquiry and constituted grounds for denying the 
petition, and our dismissal of the appeal. 8 C.F.R. § 103.2(b)(14). The Petitioner does not indicate on 
motion why our prior dismissal of the appeal on this basis was in error. 
In addition, we previously noted that the Petitioner did not explain on appeal why the Beneficiary did 
not appear in the foreign employer's organizational charts submitted in support of the petition and in 
response to the Director's RFE. We indicated that this evidence was inconsistent with its support 
letters describing the Beneficiary's role with the foreign employer and that this inconsistency raised 
by the Director had not been resolved on appeal with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. at 582, 591-92. Once again, the Petitioner does not 
address this material discrepancy on motion. 
Therefore, for the foregoing reasons, the Petitioner has not submitted sufficient new facts supported 
by affidavits or documentary evidence to demonstrate that our prior dismissal of the appeal was in 
error or to establish the Beneficiary's eligibility for the benefit sought. 8 C.F.R. § 103.5(a)(2). As 
such, the motion to reopen must be dismissed. 
B. Motion to Reconsider 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). As indicated in the prior section, the Petitioner only 
points to the previously submitted evidence and asserts that this demonstrates that the Beneficiary was 
employed abroad for at least one year in the three preceding his entry into the United States to work 
for the Petitioner. However, on motion, the Petitioner does not specifically articulate why our prior 
decision to dismiss the appeal was based on an incorrect application oflaw of policy at that time. For 
this reason, the motion to reconsider will also be dismissed. 
III. CONCLUSION 
4 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
our prior decision. The motion to reopen and motion to reconsider will be dismissed for the above 
stated reasons. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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