dismissed EB-1C Case: Cellular Phone Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 15, 2024 In Re: 30316085 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a cellular phone retailer, seeks to permanently employ the Beneficiary as its controller 
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 a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish it would employ the Beneficiary in the United States in an executive capacity, and that the 
Beneficiary was employed abroad in a managerial or executive capacity. We dismissed a subsequent 
appeal. The matter is now before us on motion to reconsider. 
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 reconsider must establish that our 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 proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant motions that satisfy these 
requirements and demonstrate eligibility for the requested benefit. Our review on motion is limited to 
reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). 
In dismissing the appeal, we determined the Petitioner did not meet its burden to demonstrate that the 
Beneficiary would be employed in the United States in an executive capacity as claimed, noting it had 
submitted inconsistent and inadequately supported assertions regarding his intended duties and level 
of authority. Further, we concluded that the Beneficiary had a disqualifying three-year break in the 
continuity of his employment within the Petitioner's multinational organization that prevents him from 
meeting the statutory foreign employment requirement for this classification. Finally, we determined 
the Petitioner did not meet its burden to establish the required qualifying relationship with its claimed 
foreign affiliate, observing that the record contained inconsistent and incomplete evidence of 
ownership for both the U.S. and foreign entities. 
On motion, the Petitioner contests the correctness of our prior decision and attempts to clarify certain 
inconsistencies in the record. With respect to the Beneficiary's proposed U.S. employment, the 
Petitioner explains a reference to an unrelated industry in his job description as a "typographical error." 
It also clarifies that the company organizational chart submitted on appeal was significantly different 
from the organizational chart submitted at the time of filing because the chart submitted on appeal 
depicted the company's staffing and structure at a later date. 
However, these explanations do not address how we misapplied the law or U.S. Citizenship and 
Immigration Services (USCIS) policy in concluding that the Petitioner did not meet its burden to show 
that, as of the date of filing in July 2022, the Beneficiary's offered position met all four elements set 
forth in the statutory of executive capacity at section 10l(a)(44)(B) of the Act, 8 U.S.C. 
§ 110l(a)(44)(B). Further, our decision did not rest entirely on observed inconsistencies in the 
Beneficiary's job description or the submitted organizational charts. Rather, we reviewed the totality 
of the evidence and explained why the Petitioner did not demonstrate that the Beneficiary would 
primarily perform executive duties and "direct the management of the organization" as required by 
section 10l(a)(44)(B)(l) of the Act. 
In addition, the Petitioner asserts "[y ]our officer neglects to comprehend that the beneficiary is 
responsible for filing the appropriate financial reports with respective authorities," that "any successful 
business must prepare financial reports," and that "these tasks are far beyond the duties of a manager 
or supervisor." However, we directly addressed these claims in our prior decision, noting that the 
Petitioner cited no source or authority to support its contention that "any ... business," regardless of 
its size or structure, requires an executive-level employee to take responsibility for its financial matters 
and to primarily perform duties consistent with the statutory definition of executive capacity. We did 
not question that the Beneficiary has some degree of discretionary authority over the company's 
financial activities; rather, we explained why this authority alone does not establish his eligibility for 
classification as a multinational executive. 
The Petitioner also addresses the Beneficiary's foreign employment, stating for the first time that he 
"has served as the Controller for the foreign company and he qualifies as a Specialized Knowledge 
Professional" in accordance with the definitions of "specialized knowledge" and "specialized 
knowledge professional" at 8 C.F.R. § 214.2(l)(l)(ii)(D) and (E). While the Petitioner appears to 
imply that USCIS should have considered whether the Beneficiary was employed abroad in a 
specialized knowledge capacity, the cited definitions are applicable only to petitions for L-1 
nonimmigrant intracompany transferees. The Petitioner's claim that the Beneficiary was employed 
abroad as a specialized knowledge professional, even if supported by the record, would not 
demonstrate his eligibility for the immigrant classification sought. 
Classification as a multinational executive or manager under section 203(b)(l)(C) of the Act may only 
be granted to a beneficiary who, in the three years preceding the filing of the petition, has been 
employed outside the United States for at least one year in a managerial or executive capacity as 
defined at section 10l(a)(44)(A) and (B) of the Act. In our prior decision, we emphasized that the 
Beneficiary, who had been in the United States in B-2 and F-2 nonimmigrant status for more than 
three years at the time of filing, had a disqualifying interruption in the continuity of his employment 
within the Petitioner's multinational organization. Accordingly, we concluded he could not meet this 
statutory requirement and would remain ineligible for this classification until he departs the United 
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States accrues a year of employment in a managerial or executive capacity with a qualifying entity 
outside the country. The Petitioner does not address this determination on motion and therefore has 
not established that our conclusion was based on an incorrect application of law or policy. 
Lastly, the Petitioner addresses our determination that the evidence submitted to establish its 
qualifying relationship with the Beneficiary's foreign employer was inconsistent and incomplete. The 
Petitioner claimed an affiliate relationship, as defined at 8 C.F.R. § 204.5(j)(2) and stated that the U.S. 
and foreign entities are both owned and controlled by the same two individuals (K-D- and M-D-). As 
noted in our prior decision, the evidence submitted to establish the ownership of the foreign entity 
consisted of a board resolution listing the "allotment of shares" in the foreign entity. We concluded 
that the document, because it was only partly legible, does not reliably identify the shareholders of the 
company. The Petitioner has not addressed this determination on motion. 
With respect to the U.S. company's ownership, we emphasized that the Petitioner did not submit 
relevant evidence such as copies of its stock ledger and stock certificates showing the allotment of the 
company's issued shares. Further, we noted that although the Petitioner was established as a Texas 
corporation in I I 2021, it submitted, without explanation, a copy of a partnership agreement 
detailing the initial capital contributions of the claimed owners. Finally, we emphasized that the 
Petitioner's 2021 federal income tax return indicates that R-D- owns 95% of the company's shares 
while R-P- owns 5% of the shares, and therefore contradicts the Petitioner's claim that M-D- and K­
D- own the company. 
On motion, the Petitioner asserts that K-D- and M-D-, as owners, each made a $20,000 capital 
investment in the company but "did not deem it necessary to issue stock certificates." Further, the 
Petitioner attempts to explain the discrepancies in ownership we observed in its 2021 income tax 
return. It states that its foreign owners report income from the business on their own individual tax 
returns, and that "Form 1125-E, Compensation of Officers reported the compensation paid to the 
beneficiary andl las employees of the business, not owners." 
The Petitioner's brief explanations do not overcome our prior determination on this issue or establish 
the claimed qualifying relationship. The Petitioner previously provided a complete copy of its 2021 
income tax return, including Schedule G, which identifies R-D- as the owner of 95% of its stock. 
Further, contrary to the Petitioner's assertion on motion, the submitted Form 1125-E also identifies R­
D- as the company's majority owner. The Petitioner does not claim that the tax return contains errors 
and has not adequately addressed the deficiencies in the record with respect to its claimed qualifying 
relationship with the foreign entity. 
For the reasons discussed, the Petitioner has not established that our previous decision was based on 
an incorrect application of law or policy at the time we issued our decision. Therefore, the motion to 
reconsider will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
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