dismissed EB-1C Case: Cheese Manufacturing

MATTER OF Q-P-G- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer and distributor of cheese, seeks to permanently employ the 
Beneficiary as its production manager 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). 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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that: (1) it will employ the Beneficiary in the United States in a managerial 
capacity; (2) the Beneficiary was employed abroad in a managerial capacity prior to his entry to the 
United States to work for the Petitioner as a nonimmigrant; and (3) it has a qualifying relationship 
with the Beneficiary's foreign employer. The Petitioner appealed the denial to us. We dismissed the 
appeal, finding that the Petitioner had overcome only the third ground for denial. 
The matter is now before us on a motion to reopen and a motion to reconsider. On motion, the 
Petitioner submits updated organizational, financial, and business documents and asserts that we 
erred by emphasizing the company's small staff, without considering outsourced labor. 
We will deny both motions. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. We will discuss the requirements of each type of 
motion below. We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
The regulation at 8 C.F.R. § 103.S(a)(l)(i) limits our authority to reopen the proceeding to instances 
where the petitioner has shown "proper cause" for that action. Thus, to merit reopening, 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 
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Matter of Q-P-G- LLC 
the motion. We cannot grant a motion that does not meet applicable requirements. See 8 C.F .R. 
§ 103.5(a)(4). 
II. MOTION TO REOPEN 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). The Petitioner has 
submitted some evidence that is new to the record. For the reasons explained below, however, we 
find that this evidence does not warrant reopening of the proceeding or approval of the petition. 
In our decision, we acknowledged that the Beneficiary "may exercise discretion over the Petitioner's 
operations and possess authority with respect to discretionary decision-making," but we found that 
the Petitioner did not show that the Beneficiary's duties are primarily managerial as required by 
section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). We found that the Petitioner had not 
met this burden, in part because "the organizational chart submitted at the time of filing ... showed 
... six employees involved in manufacturing, and no sales or distribution staff." The Petitioner later 
clarified that the Beneficiary's subordinates consisted of two part-time employees and several 
contractors, none of whom earned amounts consistent with year-round, full-time employment. We 
concluded that "it appeared that the Beneficiary would spend his time primarily on sales and 
distribution activities." 
On motion, the Petitioner states that it "makes use of third-party providers to alleviate the more 
ordinary tasks from the beneficiary's time," and therefore "does not need to rely on its own 
infrastructure and resources to meet the non-managerial day-to-day needs of the business." The new 
evidence submitted on appeal relates to this assertion. The Petitioner submits: 
• Sales data from January-April 2017 and January-April 2018; 
• A revised organizational chart, including third-party service providers; 
• Copies of invoices from suppliers and a shipping company, dated January-April 2018; 
• A copy of the Petitioner's membership card; 
• A copy of the Petitioner's 2017 tax return; and 
• The Beneficiary's "Updated Job Description." 
The documents from 2017 and 2018 do not establish proper cause to reopen the proceeding, because 
they cannot establish eligibility as of the petition's filing date in October 2016. The Petitioner does 
not establish, on motion, that similar arrangements were in place at the time of filing, and therefore 
we need not examine the merits of the 2017-2018 materials here. The new job description is very 
different from the description submitted with the original 2016 filing. As we noted in the dismissal 
notice, a petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
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Matter of Q-P-G- LLC 
The only new document that is, on its face, applicable at the time of filing is the Petitioner's 
t membership card, showing that the Petitioner has been a member since 
2007. This membership, however, does not establish that the Beneficiary's duties are primarily 
managerial; it merely identifies where the Petitioner obtains needed supplies. 1 
Because the Petitioner has not shown that the newly submitted evidence establishes that the petition 
was approvable at the time of filing, the motion to reopen is denied. 
III. 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). A motion to reconsider must be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and Immigration Services or Department of Homeland Security policy. 
In our dismissal notice, we agreed with the Director's finding that the Petitioner did not establish 
that the Beneficiary was employed abroad, and will be employed in the United States, in a 
managerial capacity, as required by 8 C.F.R. § 204.50)(3). 
The Petitioner asserts that its reliance on the "outsourcing of labor" to "third-party providers" 
relieves the Beneficiary from having to perform non-qualifying tasks, allowing him "to focus on the 
essential function [ofJ growth and development." As noted above, the Petitioner does not show that 
it relied on these third parties at the time of filing, because the invoices date from more than a year 
after the filing date. 
Two of the suppliers are cheese wholesalers, and the Petitioner acknowledges that it relies on an 
outside supplier "for mass production of [its] most-popular product." This appears to be a major 
revision of a central claim, because the Petitioner originally called itself a producer of cheese, rather 
than simply a reseller of products manufactured elsewhere. Specifically, the Petitioner had initially 
stated that the foreign parent company "engages in the production and distribution of specialty 
cheeses," and "provides the rennet, cultures, equipment, and knowledge," which the Petitioner 
"implements ... to provide the same products and service in the United States," using a "very 
specialized" "manufacturing process" that required the Beneficiary's experience and knowledge. 
Subsequent submissions demonstrated that the Petitioner has no full-time manufacturing staff, and 
the invoices submitted on appeal show that the Petitioner purchases hundreds of pounds of cheese 
every month. In this way, the Petitioner's reliance on outside suppliers may relieve the Beneficiary 
from having to perform certain tasks, but it also relieves the Petitioner from employing the 
manufacturing staff that formed a core element of the Petitioner's initial claim. 
1 We also note that the Petitioner, a limited liability company, did not form until March 2009, almost a year and a half 
after the membership date on the membership card. The Petitioner does not address or explain this discrepancy. 
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Matter of Q-P-G- LLC 
The other suppliers named in the motion brief - a transportation service and a restaurant supply 
wholesaler - do not affect our prior decision, because we had made no finding that transporting 
cargo or procuring inventory prevented the Beneficiary from primarily performing managerial tasks. 
With respect to the Beneficiary's earlier employment abroad, we made the following findings: 
• The initial job description appeared to indicate that "the Beneficiary primarily performed 
non-managerial duties associated with purchasing, product development, product 
warehousing, inventory, and product quality." 
• The Petitioner did not provide enough information about the foreign entity's staffing to show 
that the company "had sufficient staff to relieve the Beneficiary from performing primarily 
non-managerial duties associated with the production, sale, and distribution of the company's 
products" or "that the Beneficiary supervised subordinate managers, supervisors, or 
professionals while employed abroad." 
• A new job description submitted on appeal "bears no resemblance to the one submitted 
previously," even though they both referred to the same period of employment. Also, its 
origin was questionable because, although the same person purportedly provided both 
versions, the signatures on the two documents did not resemble one another. 
On motion, the Petitioner does not address any of these findings. Therefore, the Petitioner does not 
establish that our earlier decision was in error on any of the above points. 
The Petitioner's assertions on motion do not establish proper cause for reconsideration. 
IV. CONCLUSION 
The Petitioner did not establish that we erred in our prior decision, or submit new evidence to show 
that the petition was approvable at the time of filing. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofQ-P-G- LLC, ID# 1642165 (AAO Sept. 19, 2018) 
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