dismissed EB-1C Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-D-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 10, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of an ice cream franchise and educational products export business at the 
time of filing, 1 seeks to permanently employ the Beneficiary as its chief executive officer (CEO) 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. § 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 Nebraska Service Center denied the petition based on four grounds. After 
withdrawing three of those grounds, we dismissed the appeal, finding that the Petitioner did not 
establish, as required, that it would employ the Beneficiary in a managerial or executive capacity. We 
then denied the subsequent combined motion to reopen and reconsider, concluding that the Petitioner's 
submissions did not meet the requirements of either motion. 
On current motion, the Petitioner asserts that our prior decision was based on factual error and a 
misapplication of law. The Petitioner also provides an expert opinion letter to support the claim that 
the Beneficiary's proposed position would be in a managerial or executive capacity. 
Upon review, we will deny the combined motion to reopen and motion to reconsider. 
I. MOTION REQUIREMENTS 
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 
1 In our November 2018 decision denying the Petitioner's first motion, we found that the record contained insufficient 
evidence of the Petitioner's continued involvement in the educational products business, which was staffed and operational 
at the time of filing, but became minimally staffed at the time of adjudication. Although the Petitioner provided evidence 
showing that it commenced a home restoration business in 2016, we have declined to consider evidence pertaining to this 
third line of business because it did not exist in October 2015, when this petition was filed, and thus would not help to 
determine whether the Petitioner was eligible at the time of filing. See 8 C.F.R. § 103.2(b)(l). 
Matter of T-D-S- Inc. 
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). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
II. ANALYSIS 
The primary issue to be addressed in this decision is whether the Petitioner has offered new relevant 
facts supported by credible evidence or made arguments establishing that our decision to deny the 
prior motion was based on an incorrect application of law or USCIS policy with respect to the facts of 
this case. The Petitioner must establish that all eligibility requirements for the immigration benefit 
have been satisfied from the time of the filing (in this case, October 2015) and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). 
As a preliminary matter, we note that the review of any motion is narrowly limited to the basis for the 
prior adverse decision. Here, the subject of the prior decision was our denial of the Petitioner's first 
motion to reopen and reconsider. As such, the purpose of this decision is to examine any new facts 
and supporting evidence that pertain to the denial of that motion and to consider arguments 
establishing that our denial was based on a misapplication of law or USCIS policy. 
A. Motion to Reopen 
In denying the prior motion to reopen, we determined that the Petitioner did not offer new facts or 
provide evidence in support of new facts. In support of this motion, the Petitioner has offered new 
evidence in the form of an expert opinion letter, which addresses the merits of the findings we made 
in our first decision. However, this new evidence does not offer new facts establishing that we 
incorrectly denied the motion to reopen based on the record as constituted when that prior motion was 
adjudicated. Therefore, the Petitioner has not shown proper cause for reopening. 
B. Motion to Reconsider 
Turning to the motion to reconsider, we find that the legal brief and expert opinion letter that the 
Petitioner has offered in support of this motion does not establish that we misapplied the law or USCIS 
policy when we denied the prior motion to reconsider. In denying that motion, we reviewed the 
Petitioner's submissions and informed the Petitioner that we would exclude evidence pertaining to its 
home restoration business because that line of business was not part of the Petitioner's organization at 
the time this petition was filed; as such, the Petitioner could not rely on facts pertaining to that business 
in order to establish eligibility. 2 We found that the Petitioner did not establish that we dismissed the 
appeal based on an incorrect application of law or USCIS policy. 
We also addressed the Petitioner's contention that our decision contained "arbitrary conclusions" that 
are not supported by the totality of the evidence. Although we acknowledged that the Petitioner 
2 Notwithstanding the finding that the home restoration business is not relevant to the issue of the Petitioner's eligibility at 
the time of filing, we made note of multiple evidentiary deficiencies, which indicate that even if this line of business was 
relevant in the context of this petition, the evidence would not be deemed sufficient to support the Petitioner's claim 
regarding the Beneficiary's proposed position in a managerial or executive capacity. 
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Matter of T-D-S- Inc. 
submitted evidence demonstrating that the Beneficiary has the appropriate level of authority and is the 
senior employee, we pointed out that these are not the sole factors we considered in making a 
determination about the Petitioner's eligibility; we pointed to multiple evidentiary deficiencies 
regarding the Beneficiary's job duties and the Petitioner's staffing, consistently showing that we 
applied the preponderance of the evidence standard of proof and properly examined the evidence for 
relevance, probative value, and credibility within the context of the totality of the evidence. Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (quoting Matter of E-M-, 20 I&N Dec. 77, 79-80 
(Comm'r 1989)). 
Although the Petitioner offers a legal brief focusing on an expert opinion letter to support this motion, 
neither the brief nor the letter establishes that our prior decision was based on an incorrect application 
of law or USCIS policy. Despite the expert's professional qualifications and familiarity with the 
Petitioner's business activities and the Beneficiary's senior position within the scope of that business, 
there is no evidence that the opinion was based on a review of applicable immigration statutes and 
regulations. For example, the letter repeatedly refers to the Petitioner as being in the "start-up" stage 
of development, which indicates that the expert overlooked, or was unaware o±: the fact that unlike 
the regulations that pertain to nonimmigrant petitions filed on behalf of intracompany transferees, the 
regulations that govern immigrant petitions filed on behalf of multinational managers and executives 
make no exceptions for entities based on their respective phases of operation. The letter also 
repeatedly states that the start-up entity has a "particular need for individuals with executive-level 
skills, knowledge, and experience." We note, however, that the reasonable needs of the Petitioner will 
not supersede the requirement that the Beneficiary must be "primarily" employed in a managerial or 
executive capacity, rather than spending the majority of their time on non-qualifying duties. See 
sections 101(a)(44)(A) and (B) of the Act. Likewise, the textbook or common understanding of 
business terms will not supersede the statutory definitions; the applicable definition of manager and 
executive are contained in the statute at sections 101(a)(44)(A) and (B) of the Act. 
We may, in our discretion, use as advisory opinions 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 I&N Dec. 791 (Comm'r 1988). 
In sum, while we acknowledge that the Petitioner disagrees with our denial of the motion to reconsider, 
it has not provided evidence establishing that our findings were based on an incorrect application of 
law or 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). Therefore, the Petitioner has not 
shown cause for reconsideration. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Because the Petitioner has not shown proper 
cause for reopening or reconsideration, it has not met that burden. 
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Matter of T-D-S- Inc. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofT-D-S- Inc., ID# 3849670 (AAO July 10, 2019) 
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