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: NOV. 26, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an ice cream franchise operator and educational products exporter, seeks to 
permanently employ the Beneficiary as its chief executive officer (CEO) 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. § I 153(b)(I )(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 on multiple grounds. We dismissed 
the Petitioner's subsequent appeal determining that the record did not establish that the Beneficiary 
would be employed in a managerial or executive capacity. 1 The matter is now before us on a 
combined motion to reopen and motion to reconsider. 
On motion, the Petitioner asserts that we failed to consider the totality of the evidence· when 
evaluating whether the Beneficiary would be employed in a managerial or executive capacity and 
erroneously excluded evidence of a new line of business that the Petitioner launched while the 
petition was pending adjudication. The Petitioner maintains that it has established by a 
preponderance of the evidence that it will employ the Beneficiary in a managerial or executive 
capacity. 
Upon review, we will deny the combined motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, for instance, submission of a properly completed Form 1-2908, Notice of Appeal or Motion, with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.S(a)(l). 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ I 03.5(a)(2). A motion to reconsider must establish that we based our decision on an incorrect 
application of law or policy and that the de'cision was incorrect based on the evidence in the record 
1 We withdrew the Director's adverse findings with respect to three of the four grounds for denial. 
Matter <?fT-D-S-Inc. 
of proceedings at the time of the decision. A motion to reconsider must establish that we based our 
decision 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. A petitioner must support its 
motion to reconsider with a pertinent precedent or adopted decision, statutory or regulatory 
provision, or statement of U.S. Citizenship and Immigration Services (USCIS) or Department of 
Homeland Security policy. 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. 
11. ANALYSIS 
The primary issue in this matter is whether the Petitioner has established on motion that the 
Beneficiary would be employed in a managerial or executive capacity, as defined at section 
10l(a)(44) of the Act. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing in October 20 IS- and continuing 
through adjudication. 8 C.F.R. § I 03.2(b)(l). 
For the reasons discussed below, we will deny the motion to reopen and the motion to reconsider. 
While the current motion includes citations to the statutory requirements for this classification and 
USCIS policy, the Petitioner has not submitted new facts, nor has it explained how we incorrectly 
applied the law and policy to the facts presented. Accordingly, the Petitioner has not shown proper 
cause for reopening or reconsideration. 
Accordingly, the Petitioner has not shown proper cause for reopening or reconsideration. 
A. Previous AAO Decision 
In our decision dismissing the ~ppeal, we determined that the Petitioner had not adequately 
explained the Beneficiary's proposed job duties or established the specific tasks he would perform 
on a day-to-day basis. In making this determination, we addressed the position descriptions 
provided at the time of filing and in response to the Director's notice of intent to deny (NOID), 
noting that both descriptions provided a general overview of the Beneficiary's responsibilities 
without explaining his actual duties within the context of the Petitioner's different lines of business. 
With respect to the latter description, we observed that it contained references to the Beneficiary's 
oversight of positions that did not appear to exist within the Petitioner's organizational structure, 
which further limited the probative value of the listed duties. 
We also observed that the initial evidence suggested that the Beneficiary spends at least some 
portion of his time working at the Petitioner's ice cream store, noting that the Petitioner indicated on 
the store's organizational chart that the Beneficiary is required to "manage and guide the store 
team," and because there was evidence that he had completed "ServSafe Food Protection Manager" 
training. We emphasized that neither version of the Beneficiary's job description mentioned any on­
site responsibilities at the store and questioned if the descriptions accurately reflected how he would 
spend his time. 
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Malter of T-D-S- Inc. 
We also addressed the company's staffing and organizational structure as it existed at the time of 
filing. We acknowledged that the Petitioner later submitted evidence related to a third line of 
business - a home renovation business started in 2016 - but did not the address the evidence related 
to this business or its staff. We explained that such evidence could not establish the Beneficiary's 
eligibility at the time of filing. 
With respect to the educational products business, we found that this division appeared to have seven 
employees at the time of filing, but became minimally staffed while the petition was pending, which 
raised questions as to whether it continued to operate, and if it did, whether the Beneficiary had 
subordinates who could assist him with the non-managerial activities required to source, sell, and 
export educational and scientific products to customers in the Middle East. We further found that 
the evidence did not establish that the Bene·ficiary's subordinates in this line of business were 
managers, supervisors, or professionals. See section 10l(a)(44)(A)(ii) of the Act. 
We also considered the staffing of the Petitioner's ice cream franchise, noting that although the 
Petitioner documented 17 employees in this business as of September 2015, five of those employees 
did not work in October 2015, while other staff received significantly reduced wages. We also noted 
some inconsistencies in the Petitioner's statements when comparing the claimed duties and salaries 
of the subordinate workers. We observed that the Beneficiary was initially claimed to hold the store 
general manager position, while subsequent versions of the ice cream store's organizational chart 
showed that position as vacant. Finally, we questioned whether one store assistant manager would 
fully relieve the Beneficiary from participating in the store's day-to-day operations and concluded 
that he would more likely than not be engaged in the daily supervision of the store activities at times. 
As such, we concluded that the evidence did not establish that his duties would be primarily 
managerial or executive in nature as of the date of filing. 
B. Motion to Reopen 
As noted, a motion to reopen is based on documentary evidence of new facts. 8 C.F.R. § 103.5(a)(2). 
The Petitioner's motion consists of a brief and a copy of our prior decision. Although the Petitioner 
states it is filing a "motion to reopen," the brief does not state any new facts, nor is it supported by 
documentary evidence. 
Therefore, the Petitioner has not satisfied the regulatory requirements for reopening and the motion 
to reopen is denied. 
C. Motion to Reconsider 
In support of its motion to reconsider, the Petitioner claims that we erred by failing to consider the 
company's third line of business, Restoration 1, in evaluating the Beneficiary's eligibility for the 
benefit sought. The Petitioner cites to 8 C.F.R. § 103.2(b)(l), emphasizing that this regulation 
requires the Petitioner to establish eligibility at the time of filing and continuing eligibility through 
adjudication, and requires consideration of any evidence submitted in connection with the benefit 
request. 
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Matter ofT-D-S- Inc. 
Our decision to exclude evidence related to the Petitioner's Restoration 1 franchise was based on our 
finding that the Petitioner had not established the Beneficiary's eligibility as of the date of filing. If 
a Petitioner does not demonstrate eligibility as of the priority date, then any subsequent change in 
operations will not cure that deficiency and the petition cannot be approved. 
The Petitioner provided evidence that it began doing business as Restoration 1 in 2016, providing J 
restoration services for damage caused by water, fire, and mo\d. The Restoration I franchise 
agreement indicates that the Petitioner's "designated manager" and one assistant were required to 
undergo three to four weeks of mandatory training from the franchisor. The Petitioner provided 
evidence that the Beneficiary completed the "Restoration I Training Program," as well as training to 
become a certified "Water Restoration Specialist." It is unclear why he would require this specialist 
training if he was not to be involved in the operational aspects of the business. The evidence 
submitted regarding Restoration 1 also shows that the Beneficiary was engaged in ordering supplies 
for this line of business. Based on this evidence, it is reasonable to determine that he spends some 
portion of his time performing non-managerial duties ass~ciated with this franchise business. 
The record contains conflicting information regarding Restoration 1 's staffing. The NOID response 
included an organizational chart showing that this line of business had six filled positions - sales 
manager, salesman, lead technician, and three technicians - and three vacancies for a sales 
supervisor, a second salesman, and a fourth technician. At the same time, the Petitioner submitted a 
Restoration 1 employee list that identified sixteen employees - a sales manager, a sales supervisor, 
six salespeople, and eight technicians. 2 Because of this unresolved discrepancy, we cannot 
determine who was working for Restoration I or whether it had suffici~nt staff to relieve the 
Beneficiary from involvement in its day-to-day operations. The submitted position descriptions also 
do not explain how the Beneficiary would divide his time between the Petitioner's different 
businesses. 
On motion, the Petitioner claims that the sales manager for Restoration 1 should be considered a 
subordinate supervisor or manager. The Petitioner did not provide a sufficiently detailed description 
for the Restoration 1 sales manager position to establish that this role is managerial, supervisory, or 
professional. In fact, the Petitioner only states tha( the sales manager will "manage and guide all the 
store team on the brand principles" but Restoration 1 does not operate a store. The Petitioner 
provided evidence that the individual identified as the sales manager holds certifications in water and 
fire restoration and mold remediation, and he is identified as a "technician" on many of the 
documents provided to establish that Restoration I was doing business. The record does not contain 
sufficient information to establish that this position is managerial or supervisory other than in 
position title. The Petitioner also claimed that all sales staff with Restoration 1 have a "university 
2 This discrepancy between the organizational chart and the accompanying employee list carries over to the other lines of 
business. At the time of the NOID response, the Petitioner claimed to have a total of 27 employees. It identified 26 
employees on its organizational chart. The Petitioner's quarterly federal tax return for the first quarter of 2017 also 
showed 27 employees. However, the accompanying employee lists identified a total of 47 workers, a number that is not 
corroborated by the supporting evidence. 
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Matter ofT-D-S- Inc. 
.. 
degree" but did not establish that a bachelor's degree is actually required to "deliver excellent 
customer service and exceed customer's expectation," which is how the sales positions are described 
in the record. 
For these reasons, including the activities, staffing and structure of Restoration 1 in our analysis does 
not support the Petitioner's claim that the Beneficiary was eligible for the benefit sought at the time 
of filing. The record also does not establish that his role in this business demonstrates his eligibility 
at the time of adjudication. The Petitioner did not describe the specific duties the Beneficiary would 
perform in rel.ation to Restoration 1. It submitted supporting evidence indicating that he is certified 
to actually provide the services of the business and performs non-qualifying duties such as ordering 
supplies. Based on this evidence, the Petitioner's claim that his role is limited to higher-level 
oversight of all three lines of business is not adequately corroborated. Further, the record does not 
contain consistent information regarding Restoration I's staffing or staffing needs in support of the 
Petitioner's claim that the Beneficiary would be relieved from involvement in non-managerial 
aspects of the business. 
The Petitioner further claims that our decision contains "arbitrary conclusions" which are not 
supported by the totality of the evidence. The Petitioner objects to our finding that the submitted 
position description is vague or generic, noting that such finding is in error because the Petitioner 
supported the description with "ample physical evidence of the executive or managerial decisions 
that beneficiary makes on every day basis." The Petitioner provides a list of previously submitted 
evidence, including: its organizational chart and employee list; insurance documentation, franchising 
agreements, leases and other business documents signed by the Beneficiary; the Beneficiary's 
business card showing his title as chief executive officer; and email correspondence showing that the 
Beneficiary has the authority to approve job offers, payroll processing, insurance claims, and other 
company actions. The Petitioner states that this evidence establishes that the Beneficiary "actually 
manages the organization, supervises and controls the work of other supervisor employees and 
exercises the direction over day-to-day operations, as opposed to being involved in the daily 
minutia." 
The Petitioner also objects to our finding that it did not adequately describe the Beneficiary's 
responsibility for "the future growth of the business," which the Petitioner stated would require 50% 
of his time. In this regard; the Petitioner states that the Beneficiary's decision to undertake a third 
line of business and to split the educational products business into two divisions provide evidence of 
his role in making decisions about the direction of the company. The Petitioner maintains that these 
decisions support its claims and that it did not merely make conclusory, unsupported statements 
regarding his role in the company. 
The previously submitted evidence that the Petitioner references on motion supports its claim that 
the Beneficiary has the appropriate level of authority over the business and that he is the senior 
employee. We acknowledged these facts in our decision, but emphasized that the fact that he 
manages the business as its senior employee does not necessarily his eligibility·for classification as a 
multinational manager or executive. By statute, eligibility for this classification requires that the 
duties of the position be primarily managerial or executive in nature. Sections IO I (a)(44)(A) and 
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Maller of T-D-S- Inc. 
(B) of the Act. While the Petitioner was able to provide examples of qualifying tasks, it did not 
adequately support its claim that these are the Beneficiary's primary duties, particularly when other 
evidence in the record suggests that he is in fact involved in non-managerial aspects of the various 
lines of business. 
Next, the Petitioner objects to our analysis of the staffing and structure of its ice cream 
franchise. Specifically, the Petitioner suggests that we erred by speculating about the company's 
reasonable staffing needs and did not support our finding that the Beneficiary would be involved in 
the day-to-day operations of the store. 
We observed that the Petitioner listed the Beneficiary as the "store general manager" on its initial 
organizational chart, but did not indicate how much time he dedicates to this role. We als9 noted 
that, on subsequent organizational charts, it showed the store general manager position as "vacant," 
but found that it had not been shown that anyone other than the Beneficiary had ever held the 
position. We also questioned whether one assistant store manager would be capable of fulfilling all 
of the necessary first-line supervisory and administrative tasks associated with operating a store that 
is open daily.3 
The Petitioner states that it "needs not to separate the percentage that the beneficiary spends at 
bec~mse it is one and the same organization." The Petitioner further emphasizes that it 
hired an assistant manager who was paid three times more than the lower level employees and dealt 
with the store's day-to-day operations. In addition, the Petitioner notes that, in response to the 
NOID, it provided an updated staff structure which showed two assistant managers, a 
store accountant, and six team leaders who "completely remove beneficiary from the need to attend 
to the daily minutia." 4 
The Petitioner further states that it is "unheard of for an ice cream shop to need to have an Assistant 
Manager present at all hours of the day. Therefore, having a full-time assistant manager is by 
preponderance of the evidence is sufficient to substantiate the successful sales of ice cream as well 
as sufficiently relieve the Beneficiary." 
The Petitioner does not address our finding that the Petitioner has consistently identi tied a 
store general manager position, that it initially claimed that the Beneficiary himself held 
this position when the petition was filed, and that it provided evidence that the Beneficiary had 
obtained a ServSafe food manager's certificate. If the assistant manager is the only supervisory 
employee reasonably needed to operate the store, it is unclear why the Petitioner ever identified the 
Beneficiary in the store manager position, why he was trained as a store manager, why it continued 
to list the store manager position as "vacant," or why it would have needed to hire a second assistant 
3 We estimated that the store is likely open 60 or more hours per week. We note that the ~ecord contains a photograph of 
the store hours sign which shows that it operates for 72 hours per week. 
4 As noted the Petitioner submitted two different staff structures for the shop in response to the NOID. The 
organizational chart listed one assistant store manager, four team leaders, and IO or 15 employees in 
total. The _ to which the Petitioner refers was submitted concurrently, but I isted 26 
employees, a number which is not supported by any corroborating evidence. 
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Maller ofT-D-S- Inc. 
manager, as claimed in response to the NOID. The Petitioner's claim that a single supervisory 
employee and a variable number of are sufficient to perform all of the non-managerial 
tasks involved in operating the franchise is not sufficiently supported in light of these unanswered 
questions. 
In addition, the Petitioner's franchise agreement with requires that "franchisee or a 
designated and approved manager shall . . . devote full time, energy, and best efforts to the 
management and operation of Franchisee's store." The agreement also requires that the franchisee 
"at all times" during the term of the agreement, have "a supervisor managing the operation of the 
Store who has successfully completed the Franc,hisor's training program." ' 
With respect to the Petitioner's claim that the assistant manager position is paid three times as much 
as the lower level staft: we again note that the Petitioner indicated that every employee of 
is paid an hourly wage between $10.00 and $12.00 according to the "staff structure" 
chart submitted in response to the NOID. The Petitioner did not provide evidence that the individual 
identified as assistant manager had completed the training program, ServSafe training, or 
had been approved by the franchisor to serv~ as the designated manager. 
For all of these reasons, the Petitioner's claim that we made an arbitrary determination regarding the 
Beneficiary's role in the franchise, or substituted our own estimation of the store's 
reasonable staffing needs, is not supported. The arguments submitted on motion do not overcome 
our determination that the Beneficiary would more likely than not be involved in the day-to-day 
operations of the store. 
Tuming to the educational products business, we observed in our decision that the staffing had been 
decreased from seven employees at the time of filing, to only one employee at the time of the NOID 
response. We questioned how the business continued to operate without the Beneficiary's 
involvement in its day-to-day activities and determined that he would not be performing primarily 
managerial duties with respect to this business line. On motion; the Petitioner noted that the 
company's structure "fluctuated" and states that we "cannot negate the beneficiary's top executive or 
managerial capacity ... because the business evolves." However, this statement is not responsive to 
our finding that this business line was minimally staffed at the time of adjudication. Considering 
that the Petitioner claims that the educatjonal products business was projected to support I 0 
positions at the time of filing, a decrease in staff from seven employees to one employee is not 
merely a fluctuation or a sign that the business "evolved." It remains unclear whether the Petitioner 
continued to be involved in this line of business at the time of adjudication , and if it was, how it 
functioned without the Beneficiary's involvement in non-managerial activities. 
Finally, the Petitioner noted that USCIS has approve~ three L-1 A nonimmigrant intracompany 
transferee petitions that it previously filed on behalf of the Beneficiary, and states that such 
approvals provide "independent evidence that beneficiary will perform in an executive or managerial 
capacity." We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter of 
Church Scientology Int'/, I 9 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng ·g. ltd. v. 
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Mauer of T-D-S- Jnc. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Furthermore, we ~re not bound to follow a 
contradictory decision of a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 
WL 282785, at *3 (E.D. La. 2000), afj'd, 248 F.3d 1139 (5th Cir. 2001). As such the prior L-lA 
approvals do not serye as "independent evidence" of the Beneficiary's eligibility for this immigrant 
classification. 
For the foregoing reasons, the Petitioner has not established that our prior decision misapplied law or 
policy or that it was incorrect at the time of that decision. Therefore, the Petitioner has not shown 
proper cause for reconsideration. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopemng or 
reconsideration. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of T-D-S- Inc., ID# 1780497 (AAO Nov. 26, 2018) 
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