dismissed EB-1C Case: Convenience Stores

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-1-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 20,20 18 
MOTION 001 ADNtlNlSTRA TIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , 
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which has operated various convenience stores in Texas , seeks to permanently 
employ rhe Beneficiary as its president under the first preference immigrant classification for 
multinational execu tive s or managers. See Immigration and Nati ona lity Act (the Act) 
section 203(b)(l)(C) , 8 U.S.C. § 11 53(b)( l)(C ). This classification allows a U.S. employer to 
pem1anently transfer a qualifi ed fo reign emp loyee to the United States to \·Vork in an exec utive or 
managerial capacity. 
The Director of the Texas Service Center approved the petition but later revoked that approval. The 
Director concluded that the Petitioner did not establish, as required: ( 1) a qualifying relationship 
between the Petitioner and the Beneficiary's foreign emplo yer; (2) that the Beneficiary will be 
employed in the United States in a managerial or executive capacity ; (3) that the Beneficiary had been 
employed abroad in a managerial or execut ive capacity; and (4) the continued existence of a valid job 
offer. The Director also entered a tinding of willfu l misrepresentation of a material tact. We agreed 
with all of the Director 's reasons for revocat ion of the approval and dismissed the Petitioner's appeal. 
The Petitioner subse quentl y filed two comb ined motions to reopen and r econsider, which we denied. 
The matter is now before us on a third combined motion to reopen and reconsider. On motion, the 
Petitioner objects to our finding that which the Petit ioner claims is its 
affiliate, cannot be considered the successor-in-interest to the Petitioner in this matter , which ceased 
its own business operations in 20 11. The Petitioner also incorporates , but does not repeat, the 
argumen ts made in its prior appeal and motion filings. 
Upon review , we will den y the combined motio n. 
1 The Petilioner name on the Fonn 1-2908, Notice of Appeal or Motion is" 
filed the Fonn 1-140 petition. A new entity, 
was incorporated in Texas several years later. Both corporations use the same address, and the 8 eneticiary is an officer of 
both companies. There is no provision for substitution of a petitioner in an already-pending proceeding. Therefore, we do 
not recognize the claim that is now the petitioner. This finding does not affect the validity of the motion tiling, 
because the Beneficiary remains as the president of , and he signed the Fonn 1-2908, Notice of Appeal or Motion. We 
will therefore consider the motion to be properly filed by . the original petitioner. 
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Ma uer (?(S-1-. Inc. 
I. MOTION REQU IREMENTS 
To merit reope ning or recons idera tion, a petit ioner must meet the formal filing requirement s (such 
as, for instance, submi ssio n 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. § I 03.5(a)( I). 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopen ed procee ding; and (2) be supported by affi davits or other documentary evidence . 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establi sh that our decision was based on an incorrect 
applicati on of law or poli cy and that the deci sio n was incorrec t based on the evidence in the reco rd 
of proceedings at the time of the decis ion . 8 C.F.R. § 103.5(a)(3). We may g rant a motion that 
satisfies these requiremen ts and demonstrates eligibility for the requ ested immigration benefit. 
While the cur rent combined motion briefly addresses a tindin g made in our mos t r ecent prior 
decision s, the Petitioner does not address or attemp t to overcome all grounds for revocatio n. 
Further , it has not submitt ed any " new facts" or shown how o ur den ial of its second motion to 
reopen and reco nsider was based on an incorrect application of law or policy. For the reaso ns 
discussed below , we find the Petitioner has not shown proper cause for reop ening or recon sideration. 
II. ISSUES RAIS ED ON MOTION 
Our 20-page appe llate decision , iss ued Septemb er 27, 2016, pro vided deta ils about the procedura l 
history of the case, the mu ltipl e g rounds for revoca tion , and the gro unds for our dismissal of the 
appeal. This dec ision i s not a de novo reheari ng on the merit s of the underlying petitio n and we will 
not repeat those details here unless such detail s a re relevant to this proceed ing. We will limit our 
consider ation t o new argument s and newly submitted evidence submi tted with this third combined 
motion, which consists of a brief, a printout of a Wikipedia entry for ' ' a printout of the 
Franchis e Tax Acco unt Stat us of " 'in Texas, and a photograph of an 
stgn. 
A. Statu s of the Petitioner's Business and Validity of Job Offer 
The Director found, and we agree d, that the Peti tioner appear s to ·have stopp ed doing business, 
detined as the regular, systema tic, and continu ous provision of goods and/o r service s, and not the 
mere presence o f an agent or office. 8 C.F.R . § 204 .5(j)(2). For instance, the Petiti oner's 2012 and 
20 13 income tax returns showed no income and no expenses. The Director concluded that there is 
no longer a valid job offer from the U.S. employer that filed the pet itio n, as requir ed by 8 C.F.R. 
§ 204.5(j)(5) . 
On app eal, the Petitioner asserted that is the Petitioner' s successo r-in-intere st. We found 
that the Petitioner had made con flicting and unsubstantiate d claims, and we agreed with the 
Direc tor's finding that the petiti oning company has not demo nstrated ongoi ng business activity or a 
continu ed bonafide intent to emplo y the Beneficiary. We noted that the Petitioner still exis ts as an 
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Mauer ofS-1-. Inc. 
active corporation , registered in the State of Texas, and that a corpora tion cannot have a successo r­
in-interest while the original corporation still exists. 
In the most recent prior motion , the Petitioner attempted to clarity that there was a merger in which 
"too k over everything " from The Petitioner submitted a letter from 
chief executive of its claimed parent company, in support of its claim. stated that the parent 
decided to merge its two U.S. subsidiaries together, with the newer company being the successor. He 
stated "we don't believe that the mere fact that we kept filing the necessary papers with the Texas 
Secretary of State destroy s our role as 'successor- in-interest,' noting that the companies "simply wanted 
to comply with state law s." 
We detenn ined that statement was not persuasive , and found that, if the Petitioner had 
merged into it woul? not need to m~i ntain its corporate status with state authorities in order to 
remain in c01npliance with state laws. Rather, we noted that the expected course of action would be to 
file a certificate of merger with the Texas Secretary of State, with only one company surviving as a 
registered, acti ve entity in the state. We also determin ed that the Petitioner did not provide 
document
ary evidence that a merger occurred. 
In addition, we emphasized that U.S. Citizens hip and Immigration Services (USCJS) policy does not 
allow for the consideration of successor-in interest claims in the case of an immigrant petition tor a 
multinationa l 
manager.2 As such, we rejected the Petitioner's claim that could be substituted 
for the original petitioner, and found that the Petitioner had not estab lish that it continues to do 
business and intends to employ the Beneficiary. 
In its current motion, the Petiti oner objec t s to our finding that the continued existen ce of and 
as separa te business entities in the State of Texas tends to undermine the Petitioner's assertion 
that a merger occu rred. The Petitioner provides examples of mergers, such as the merger of 
and to lorm in which both entities continued to exist. . The Petitioner maintains 
that the cornmon parent of and determined that they would not forfeit or dissolve the 
corp orate charter of as they did not want to lose the right to use the name or the goodw ill and 
vendor acco unt s attached to that name . 
2 Specifically, we cited to a 2009 memorandum, which states: 
Successor-in-interest determinations are principally relevam to the contmUtng validity of a labor 
certification . . . . An employer seeking to classify the alien as an EB I Multi-National Executive or 
Manager . . . must file a new 1-1 40 petition and establish the alien' s eligibility under the requested 
category's specific eligibility requirements. 
Memorandum fiom Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, HQ 70/6.2. AD 09-37, 
Successor-in !meres/ DeterminCifions in Adjudication of Form '/-140 Petitions; Adjudicator's Field Manual (A FM) 
Update to Chapter J 2. 2(b)(5) (A 0 09-3 7) I 0 (August 6, 2009), http://www.uscis.gov/lawsfpolicy-memoranda. 
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Maller ofS- 1-. Inc. 
The Petitioner goes on to state that the entities are not separate, but rather act as one, with 
fitting the definition of a "successo r-in-int erest" which is able to offe r the Benefi ciary the same 
position offered by . in the instant 1-140. 
Howe ver, the Petitioner does not address our prior finding that a successor -in-inter est m ay not be 
substituted for an original petitione r in a case involving a multin ational mana ger or execu tive . 
Moreov er, there were a numb er of other evidenti ary deficiencies concerning the claim ed relationship 
betwe en and that were discu ssed in our prior deci sions . Even if the Petitioner had 
overcome our finding that there was insufficient evide nce that a bona fide merger occurred in this 
case, the fact remain
s that is no longer doing busines s, cannot offer employme nt to the 
Benefi ciary, and cannot be rep laced by a successor-in-interest. 
Accordingly , the Petitioner has not overcome our previous adverse findi ngs with respect to the 
Petition er's status or the validity of the job offer. 
B. Incorpora tion of Previous Arguments 
The Petitioner also states that it is incorporating its argument that "it is not proper to re-adjudicate a 
petition that was approved in 2005 and re-affirm ed twice under the standards of adjudication today and 
now revok ed." It also maint ains that USCIS "exe rcised extraordin ary delay in acting on the 1-485 
application s fo[r] the benefici ary and his family ." We addressed both of these arguments at leng th in 
our prior decis ions. Th_e Petit ioner's repetition of arguments from its appeal a nd prior motions does not 
demon strate error in our decision to deny the seco nd combined motion, and does not establish grounds 
for reconsider ation. Further , as noted, the Petitio ner has not attempted to overco me 
all gro unds fo r the 
revocation of this petition and therefore has not shown eligibility for the benefit sought. 
III. CONCLUSION 
The statement and material s s ubmitted in support of the instant combined motion to reope n and 
recon sider do not establi sh eligibility for the benefi t sought , nor do they addres s all of the g rounds 
for revocatio n that we originally upheld in dismissing the Petiti oner's appeal. The Petiti oner has not 
shown that we base d our most recent prior deci sion on an incorr ect app licati on of law or poli cy, or 
that the decision was incorr ect based on the evidence in the record of proceeding at the tim e of that 
decision. 
ORDER: The motion to reopen is denied . 
FURTHER ORDER: The motion to recons ider is denied . 
Cite as Maller (~lS-I-. Inc., 10# 1117290 (AAO Mar. 20, 2018) 
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