dismissed EB-1C Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 13550041 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 4, 2021 
Form 1-140, Petition for Multinational Manager or Executive 
The Petitioner seeks to permanently employ the Beneficiary as its chief executive officer 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)(l)(C) . 
The Director of the Nebraska Service Center denied the petition and dismissed the Petitioner's 
following motion to reconsider. We dismissed the Petitioner's subsequent appeal. 1 We agreed with 
the Director that the record did not establish the Beneficiary's proposed U.S. employment in an 
executive capacity as asserted . We reserved review of the Director's other finding that the Petitioner 
did not demonstrate the Beneficiary's required employment abroad in a managerial or executive 
capacity. 
The Petitioner subsequently filed a motion to reopen and a motion to reconsider , together with a brief 
and additional documentation. We dismissed the combined motion, affirming that the record did not 
establish the Beneficiary's proposed U.S. employment in an executive capacity , and additionally 
noting that the record did not demonstrate that the Petitioner had the requisite qualifying relationship 
with the Beneficiary's foreign employer. 2 The matter is now before us on another motion to reopen 
and motion to reconsider. Upon review, we will dismiss the motions . 
I. MOTION CRITERIA 
A motion to reopen must state new facts, supported by documentary evidence . 8 C.F.R . § 103.5(a)(2). 
In contrast , a motion to reconsider must establish that the challenged decision misapplied law or U.S. 
Citizenship and Immigration Services policy based on the record at that time. 8 C.F.R. § 103.5(a)(3) . 
We may grant motions that meet these requirements and establish eligibility for a requested benefit. 
II. DISCUSSION AND ANALYSIS 
Our dismissal of the previous combined motion was based on the fact that the motion did not meet the 
applicable requirements of a motion to reopen or reconsider set out at 8 C.F.R. § 103.5. In the same 
1 See Matter of P-T-, Inc., ID# 6108556 (AAO Oct. 8, 2019). 
2 See Matter of P-T-, Inc., ID# 8745618 (AAO Jun. 23, 2020) . 
decision, we also observed that the Petitioner had not established a qualifying relationship between 
the Petitioner and the Beneficiary's foreign employer. See 8 C.F.R. § 204.5(j)(3)(i)(C). When a 
motion is filed, 8 C.F.R. § 103.5(a)(l)(i) authorizes us to reconsider or to reopen the immediate prior 
decision which, in the matter of the instant motion, is our decision of June 23, 2020. 
In support of the instant combined motion, the Petitioner submits the following documentation: 
1. Opinion letter byl I Esquire 
2. Excerpt from Functions of Management by Dr. S.V. Shinde 
3. A list of sources on the web with the expression "helps and directs" 
4. Copies of emails between the Petitioner and counsel 
5. A copy of the petitioner's Form 941, Employer's Quarterly Federal Tax 
Return, for the second quarter of 2017 
6. Copy of Matter ofZ-A-, Inc. 
7. Copy of Matter of E-M-
8. Copies of the Petitioner's Forms l 120X, Amended Corporation Income Tax 
Return, for 2016, 2017, 2018 and 2019 
9. COUPDAT acknowledgement from the SEC 
10. Copy of Petitioner's Form 1120, U.S. Corporation Income Tax Return for 2019 
11. Independent assessment of the records ofl I 
12. Letter froml I chartered accountants in India, regarding 
ownership of the foreign employer 
A. The Motion to Reopen 
In our previous decision, we determined that the Petitioner had not demonstrated that the Beneficiary 
would perform primarily executive-level duties. Specifically, we noted that the Beneficiary's 
involvement in the creation of business proposals did not appear to be an executive duty, as such a 
task does not appear to involve directing an organization's management or establishing its goals and 
policies. See section 10l(a)(44)(B) of the Act (defining the term "executive capacity"). We 
determined that the Petitioner's claim that the Beneficiary "helps and directs the CMO and the CFO 
to create business proposals" indicates that the Beneficiary performs, to an extent, the same duties as 
those of his subordinates. Noting that the Petitioner did not demonstrate how much time the 
Beneficiary would spend on the non-qualifying duty of creating business proposals, we concluded that 
the record did not establish that he would primarily perform executive-level duties. 
On motion, the Petitioner claims that we misinterpreted the phrase "helps and directs" in dismissing 
the previous motion, and submits several documents in support of this assertion. The Petitioner 
submits a letter from~ _____ ___. Esquire, who claims that our interpretation of the phrase 
"helps and directs" when discussing the Beneficiary's involvement in the generation of the company's 
business proposals does not equate to "participate," noting that "the very essence of management is 
the participation of the managers in helping are directing their employees to accomplish the goals of 
their company." 
Upon review, we are not persuaded byl Is claims. First.I I does not describe the 
credentials that qualify her to opine upon the duties of the proffered position. Moreover, the record 
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does not include evidence thatl I has published, conducted research, run surveys, or engaged 
in any enterprise, pursuit, or employment - academic or otherwise - regarding the executive nature of 
the duties of the proffered position. The record does not include any relevant research, studies, 
surveys, or other authoritative publications as part of her review and/or as a foundation for her 
opinion. 3 In addition, her general conclusions about the manner in which the phrase "helps and 
directs" is interpreted in a management environment are not persuasive, given the Petitioner's 
assertion that the proffered position is primarily executive, and not managerial, in nature. 
We may, in our discretion, use as advisory opinion statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. However, where an opinion 
is not in accord with other information or is in any way questionable, we are not required to accept or 
may give less weight to that evidence. Matter of Caron Int'!, 19 l&N Dec. 791 (Comm'r 1988). 
The Petitioner also submits a "snippet" from the book Functions of Management by Dr. S.V. Shinde. 
The Petitioner's submission contains what appears to be a photocopy of page 1 of this publication, and 
highlights the phrase "helps and directs" in the following sentence: "All organizations - business, 
political, cultural or social are involved in management because it is the management which helps and 
directs the various efforts toward its various purpose." In addition, the Petitioner submits a "list of 
sources on the web" that use the phrase "helps and directs" in a management context. The Petitioner 
draws no direct inference as to how these sources relate to our analysis in our prior decision. 
Moreover, as noted above, the Petitioner's reliance on the general usage of the phrase "helps and 
directs" in a management context is not persuasive here, as the Petitioner asserts that the proffered 
position in this matter is primarily executive. 
The Petitioner has not clarified how much time the Beneficiary would devote to non-qualifying duties, 
such as the creation of business proposals . Although the Petitioner submits several documents in 
support of its assertion that we misinterpreted the phrase "helps and directs" when reviewing the 
Beneficiary's stated duties, the Petitioner did not address our conclusion that the record, as constituted, 
does not establish that the duties of the Beneficiary will be primarily executive in nature. 
In our prior decision, we also determined that the Petitioner had not sufficiently established its number 
of employees at the time of filing, thus precluding a determination that the Petitioner's organizational 
structure would support the Beneficiary's employment in an executive capacity. In dismissing the 
previous motion, we concluded that the discrepancies noted in our dismissal of the appeal remained 
unresolved . 
Initially, we determined that the Petitioner had six total employees, based on its representation in Part 
5, 2.c. of its Form 1-140 petition . However, the Petitioner's initial organizational chart indicated 17 
employee positions. In its previous motion, the Petitioner claimed that, as of the petition's filing, the 
chart shows the company's employment of 10 people in the United States, and the inflated number 
was due to its inclusion of all the employees of its affiliated companies in India and China. 4 
3! !vaguely cites to American Business Studies , Management Hardcover , March 1, 1988 by Harold Koontz, and 
quotes an individual identified as "F.W. Taylor." No formal citations are provided. 
4 In accepting the Petitioner's explanation, we acknowledged that U.S. managers or executives may supervise foreign 
employees who assist U.S. operations. See Matter ofZ-A- , Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016) (holding 
that foreign staff may relieve an L-lA manager in the United States from performing non-managerial duties). 
3 
In dismissing the prior motion, we acknowledged how the Petitioner's listing of foreign workers on 
its initial organizational chart appeared to inflate its number of employees, and that its payroll 
summary for the two weeks including the petition's filing supports the company's employment of 10 
people at that time. However, we noted that additional discrepancies in the Petitioner's number of 
employees remained. Specifically, we noted that the Petitioner had not explained why the Form I-140 
states the company's employment of only six people, and that the payroll summary as of the petition's 
filing did not indicate that all the Petitioner's employees worked foll-time. We pointed out that the 
payroll summary demonstrated that five of the employees received wages of $500 or less for the 
bi-monthly period. Additionally, we noted that the payroll summary omitted the name of the 
company's vice president of engineering, whom the initial organizational chart lists as a senior 
manager, and that a later organizational chart identifies the 10th worker on the payroll summary as a 
research and design engineer. We concluded that the record did not establish the company's 
employment of a vice president of engineering at the time of the petition's filing. See 8 C.F.R. 
§ 103 .2(b )(1) (requiring a petitioner to establish eligibility "at the time of filing the benefit request" 
and continuing throughout the adjudication); see also Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies of record with independent, objective evidence 
pointing to where the truth lies). 
On motion, the Petitioner does not address the personnel discrepancies discussed above. Rather, it 
states that its claim of six employees on the Form I-140 petition was a "clerical error," and submits 
copies of two email messages from the Petitioner to its counsel dated July 2020, questioning this 
number. The Petitioner also submits a copy of its Form 941, Employer's Federal Quarterly Wage 
Report, for the second quarter of 2017, indicating that the Petitioner had 10 employees during that 
period. 
This new documentation does not resolve the discrepancies noted above. The Petitioner's emails to 
its counsel questioning the number of employees claimed on the Form I-140 do little to clarify the 
noted inconsistencies, and it is unclear why the Petitioner waited until July of 2020 to inquire about 
this significant error. Notably, no response from counsel clarifying the discrepancy or confirming that 
it was in fact a clerical error was submitted. Moreover, the submission of the quarterly tax return 
simply states the number of employees the Petitioner has during the period from April 1, 2017, until 
June 30, 2017. The document is not accompanied by an employee list, and this document does little 
to clarify the personnel discrepancies noted in our previous decision. 
The Petitioner has not resolved these additional discrepancies in its number of employees at the time 
of the petition's filing, which casts doubts on the reliability of the company's evidence and the ability 
of the company's staff to support the Beneficiary and allow him to primarily perform executive duties. 
See Matter of Ho, 19 I&N Dec. at 591. 
The Petitioner also submits documentation to refute our determination that the record does not 
establish a qualifying relationship between the Petitioner and the Beneficiary's foreign employer. A 
petitioner for a multinational manager or executive must show that it, a subsidiary, or an affiliate 
employed a beneficiary abroad. 8 C.F.R. § 204.5(j)(3)(i)(C). Here, the Petitioner asserts the 
Beneficiary's foreign employment by the company's Indian affiliate. The term "affiliate" includes 
"one of two legal entities owned and controlled by the same group of individuals, each individual 
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owning and controlling approximately the same share or proportion of each entity." 8 C.F.R. 
§ 204.5(j)(2). 
Initially, the Petitioner submitted documentation showing that the Beneficiary, the COO (who is also 
the Beneficiary's spouse), and another individual each respectively owns 46.73 percent, 46.73 percent, 
and 6.54 percent of both the Indian company and the Petitioner, which was incorporated in 2011. In 
our prior decision, we noted that the Petitioner's 2016 Form 1120, U.S. Corporation Income Tax 
Return, states that the Petitioner has only two shareholders. If the Petitioner has only two owners and 
the Beneficiary's Indian employer has three, then, contrary to the definition of the term "affiliate," 
"the same group of individuals" would not own and control both entities. See 8 C.F.R. § 204.5(j)(2). 
On motion, the Petitioner submits a copy of its Forms l 120X, Amended U.S. Corporation Tax Returns, 
for the years 2016, 2017, 2018, and 2019. The notation in the explanation of changes section indicates 
that it "changed number of shareholders from 2 to 3," and the Petitioner relies on these amendments 
to establish that a qualifying relationship existed at the time of filing. Specifically, the Petitioner states 
that the use of "default values" in its software generated errors in its shareholder information in the 
initial returns. 
A petitioner for a multinational manager or executive must demonstrate a qualifying relationship with 
a beneficiary's foreign employer at the time of a petition's filing and throughout the petition's 
adjudication. See 8 C.F.R. § 103.2(b)(l) (requiring a petitioner to establish eligibility "at the time of 
filing the benefit request" and continuing throughout the adjudication). Although the Petitioner 
recently amended its tax returns to modify its number of shareholders, it is unclear whether a 
qualifying relationship existed based on an affiliate relationship between the Petitioner and the Indian 
entity at the time of filing. Moreover, the actual changes made to the shareholder information in the 
amended tax returns, specifically the name(s) of the shareholders and their percentages of ownership, 
were not provided. Therefore, even if the Petitioner's amended tax returns legitimately corrected an 
error, we cannot determine whether the U.S. entity was an affiliate of the Indian entity at the time of 
filing without specific information regarding the identity and percentage of ownership of each 
shareholder. 
We also previously noted that a company with the same name as the Petitioner incorporated in a 
different state (Colorado) in 2019, and that public records showed that the new corporation had the 
same federal employer identification number (EIN) as the Petitioner with three shareholders: the 
Beneficiary; the Petitioner's COO; and the Petitioner's CMO, who is a different person than the 
Petitioner's third shareholder represented in the petition. We noted that if the Petitioner converted or 
merged into the new corporation, it is not clear that the record would demonstrate a qualifying 
affiliation between the Petitioner and the Beneficiary's former employer, as "the same group of 
individuals" would not own and control both entities. See 8 C.F.R. § 204.5(j)(2). 
On motion, the Petitioner claims that the new entity is "a completely different entity" from the 
Petitioner, and that it was created by counsel as a "placeholder entity" to raise funds for one of the 
Petitioner's proposed projects. The Petitioner claims that the use of the same EIN was an error, and 
submits evidence that a new EIN has been assigned to the Colorado entity. While we acknowledge 
that the two entities now have different EIN numbers, the creation of this new entity in light of the 
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ownership issues with the original entity still raises doubts regarding the claimed qualifying 
relationship. 5 
The Petitioner does not state new facts supported by affidavits or documentary evidence sufficient to 
meet the requirements of a motion to reopen. As the record on motion does not include new, relevant 
evidence regarding these issues, the Petitioner has not shown proper cause to reopen this matter. 
B. Motion to Reconsider 
With respect to the motion to reconsider, the Petitioner asserts that the evidence it submitted is 
sufficient to satisfy the preponderance of evidence standard and that we did not apply this standard 
when adjudicating this matter. As stated in our prior decision we follow the preponderance of the 
evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). This 
standard requires that a petitioner establish that it meets each eligibility requirement of the benefit 
sought by a preponderance of the evidence. Id. at 375-76. To determine whether a petitioner has met 
its burden under the preponderance standard, we consider not only the quantity, but also the quality 
(including relevance, probative value, and credibility) of the evidence. Id. at 376; Matter of E-M-, 
20 I&N Dec. 77, 79-80 (Comm'r 1989). In this matter, the Petitioner does not articulate probative 
reasons which establish that our previous decision was based on an incorrect application of the 
preponderance of evidence standard in this matter. 
The Petitioner also asserts that we misinterpreted the Beneficiary's executive duties performed on 
behalf of the U.S. entity, as well as the claimed duties of its COO. We reviewed this previously 
submitted information and conclude that Petitioner did not provide the requisite detail regarding the 
COO's duties, or the Beneficiary's actual tasks and the amount of time that would be devoted to the 
performance of non-qualifying duties. Further, the Petitioner declined to address our conclusion that 
the Beneficiary's involvement in the creation of business plans constituted non-executive duties. The 
record on motion does not include persuasive argument contrary to our conclusion. 
The Petitioner also addresses our determination regarding the unresolved discrepancies regarding its 
compensation of senior managers. The Petitioner previously claimed that its two senior managers 
agreed to forego all of their wages in exchange for the opportunity to obtain future ownership interests 
in the company. In our prior decision, we noted that the Petitioner had not explained why it paid its 
senior managers wages in 2017 and 2018 if the two managers had agreed in 2016 to forego wage 
payments. On motion, the Petitioner simply states that "after working for a long time without much 
compensation, the managers' [sic] needed some compensation to cover up a part of their costs in 
2017/2018 so some compensation was paid in 2017 & 2018." 
Previously, we determined that the wage payments to the managers cast doubt on the authenticity and 
validity of their stock option agreements, as well as the claimed full-time nature of the managers' 
work. We also concluded that the amounts cast doubt on the managers' ability to relieve the 
Beneficiary from performing non-qualifying tasks and to allow him to primarily focus on executive 
5 We acknowledge the Petitioner's submission of a letter from.__ _____ ____, chartered accountants in India, 
regarding ownership of the foreign employer. However, as discussed above, the ownership composition of the U.S. entity, 
not the foreign entity, is at question here. 
6 
duties as the requested immigrant visa classification requires. The Petitioner's brief statement on 
motion does not resolve these discrepancies. 
The Petitioner also challenges our determination that the record as constituted contained insufficient 
evidence that the Beneficiary's subordinates or others would perform critical operational duties, such 
as the formalization and protection of intellectual property (IP). Specifically, we noted that the 
Petitioner's 71-page patent specification bears the Beneficiary's name, and that the record lacks 
evidence that others prepared it on his behalf On motion, the Petitioner simply asserts that it hired 
drafters to prepare the patent application, and simply claims that it has demonstrated that others would 
relieve the Beneficiary from performing operational IP duties by a preponderance of the evidence. 
The Petitioner, however, submitted no evidence in support of this contention. 
The Petitioner, on whom the burden of proof rests, 6 does not offer evidence or credible argument 
establishing that the prior 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 proceeding at the time of the decision. 
For the reasons listed above, the Petitioner has not shown proper cause to reconsider the previous 
decision. 
III. CONCLUSION 
The Petitioner has not shown proper cause to reopen this matter and has not shown proper cause to 
reconsider the previous decision. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
6 As in all visa petition proceedings, the burden of proof rests with the Petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
7