dismissed EB-1C Case: Finance

U.S. Citizenship 
and Immigration 
Services 
In Re: 13391023 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 19, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner , describing itself as a leading international financial institution, seeks to permanently 
employ the Beneficiary as a senior vice president 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). 
The Director of the Nebraska Service Center denied the petition, concluding the Petitioner did not 
establish that (1) the Beneficiary would be employed in a managerial or executive capacity in the 
United States, and (2) the Beneficiary was employed abroad in a managerial or executive capacity . 
The Petitioner subsequently filed an appeal, which we dismissed. 
The matter is now before us on a combined motion to reopen and motion to reconsider. On motion, 
the Petitioner argues that its prior counsel failed to submit sufficient and accurate information in 
support of the petition, and further contends that we did not afford proper weight to its arguments and 
assertions presented on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon review, we will dismiss the motions . 
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 I-290B, Notice of Appeal or Motion, with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R . § 103.5(a)(l). 
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 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 
proceeding at the time of the decision . We may grant a motion that satisfies these requirements and 
demonstrates eligibility for the requested immigration benefit. 
II. INEFFECTIVE ASSISTANCE OF COUNSEL 
As a preliminary matter, we will address the Petitioner's claim that an ineffective assistance of counsel 
resulted in a denial of the underlying petition. See Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988), 
aff'd, 857 F.2d 10 (1st Cir. 1988). The scope of our review here is limited to our previous decision, 
which addressed the Petitioner's assertion that the petition was denied, in part, based on ineffective 
assistance of its previous counsel. We note that when a motion is filed, the petitioner may seek 
reopening or reconsideration of the immediate prior decision. See 8 C.F.R. § 103.5(a)(l)(i). 
On appeal, the Petitioner claimed that the discrepancies in the record regarding the Beneficiary's duties 
and the discrepancies regarding the job titles and duties of the Beneficiary's subordinate employees, 
which contributed to the petition's denial, were the result of former counsel's error, and requested that 
we afford no weight to those previously submitted documents. The Petitioner requested that we 
conduct de nova review of the newly submitted evidence on appeal, which included a more detailed 
statement of duties and updated organizational chart providing clarification regarding the titles and 
duties of the Beneficiary's subordinate employees, both of which were verified byl I 
internal auditor and authorized official of the Petitioner. Having considered the merits of the 
Petitioner's claims, we dismissed the appeal. The Petitioner was afforded the opportunity on appeal 
to supplement the record and clarify the noted discrepancies and inconsistencies attributed to former 
counsel; however, the newly submitted evidence was insufficient to warrant approval of the petition. 
Therefore, we do not find that, but for an ineffective assistance of counsel, the result of the Petitioner's 
previously filed appeal would have been different. 
III. MOTION DISCUSSION AND ANALYSIS 
In addition to the ineffective assistance of counsel assertion, the Petitioner asks us to reopen and/or 
reconsider our May 21, 2020, decision dismissing its appeal. 1 In order to establish merit for reopening 
that decision, the Petitioner must offer documentary evidence of new facts. In order to establish merit for 
reopening that same decision, the Petitioner must: (1) state the reasons why it believes that decision was 
based on an incorrect application of law or policy; and (2) specifically cite laws or policies that we 
misapplied in our prior decision. 
On motion, the Petitioner states that we "did not consider new evidence submitted with supporting 
documentation in the said appeal," and asserts that our appellate decision fails to provide a reasonable 
basis for the dismissal. 
1 We dismissed the appeal based on the Petitioner's failure to demonstrate that the Beneficiary would be employed in the 
United States in a primarily executive capacity, and reserved its arguments regarding whether the Beneficiary acted in a 
managerial capacity in his former position abroad. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies 
are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter 
of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
2 
A. Motion to Reopen 
On motion, the Petitioner does not directly address the requirements of a motion to reopen or identify 
any new facts that it seeks to introduce into the record. The Petitioner submits a motion brief and 
copies of previously submitted documentation, along with the following new documentation: 
1. Copy of email message from the Beneficiary td I ofl I dated 
May 18, 2016; 
2. Copy of news article;.......:.e=n=ti..:..:tl:..:.e..:..:d~._ ___________________ __. 
I I' datedl O l 2015; 
3. Copy of the Petitioner's FY 2019 FINCO's Corporate Loan and its Risk 
Management Plan; and . 
4. Copy of the Petitioner's Corporate Website and Excerpt from its FY19 Annual 
Report. 
According to the Petitioner, the news article discussing tQe acouisition o 
I I and the email message from the Beneficiary tol l o .. f..,.1 ======a~,1-. n-w-h1-. c_h_t_h_,e 
Beneficiary declines to pursue a commercial lending opportunity toLJ, are intended to demonstrate 
the global opportunities available to the Petitioner at the discretion of the Beneficiary. The Petitioner 
claims that the email is an example of the manner in which the Beneficiary exercises strategic decision 
making on an executive level, noting that the Beneficiary's decision likely avoided severe financial 
repercussions for the Petitioner's global portfolio. This documentation, however, is dated 2015 and 
2016, respectively, and it is unclear why such evidence was not previously submitted by the Petitioner 
for consideration. Nevertheless, the Petitioner has not demonstrated that this documentation, which 
refers to actions taken by the Beneficiary several years prior to the filing of the petition, represents 
new facts for purposes of a motion to reopen. The new facts must possess such significance that "the 
new evidence offered would likely change the result in the case." See Matter of Coelho, 20 I&N Dec. 
464, 4 73 (BIA 1992). In other words, a motion to reopen should only be granted under a limited set 
of circumstances where the Petitioner demonstrates that the new evidence would result in a different 
outcome. See id. Upon review, the Petitioner has not demonstrated that this newly submitted evidence 
would have resulted in a different decision. 
The Petitioner also submits a copy of its FY 2019 FINCO's Corporate Loan and its Risk Management 
Plan, an internal document that the Petitioner asserts corroborates its claim that the Beneficiary sets 
goals as part of his executive-level tasks, along with copies of its corporate website and excerpt from 
its FY19 annual report demonstrating the Petitioner's global network. According to the Petitioner, 
this documentation demonstrates the current status of the Petitioner's global network and the manner 
in which the Beneficiary will be required to function in an executive capacity. However, we will not 
consider this documentation. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of filing and continuing through adjudication. 
8 C.F.R. § 103.2(b)(l). Here, the petition was filed in August 2018. While the submitted 
documentation is noted, we cannot consider documentation not in existence at the time of filing in 
support of the contention that the Beneficiary's employment will be in a primarily executive capacity. 
A petitioner must establish that the position offered to a beneficiary, when the petition was filed, merits 
classification as a managerial or executive position. See 8 C.F.R. § 103.2(b)(l). 
3 
The Petitioner does not state new facts supported by affidavits or documentary evidence sufficient to 
meet the requirements of a motion to reopen. In sum, the Petitioner did not offer new evidence that 
"would likely change the result in the case." See Coelho, 20 I&N Dec. at 473. Therefore, the Petitioner 
has not shown cause to reopen this matter. 
B. Motion to Reconsider 
To satisfy the requirements of a motion to reconsider, the Petitioner must show that our appellate 
decision contained errors of fact, law, or policy that affected the outcome of that decision. In 
dismissing the Petitioner's appeal, we agreed with the Director's assessment that the job description 
provided for the Beneficiary's position in the United States lacked sufficient details and contained 
numerous unresolved discrepancies. We also acknowledged the Petitioner's explanation for those 
discrepancies, and evaluated the new evidence it submitted in an attempt to clarify the record and 
resolve those inconsistencies. 
On motion, the Petitioner repeats these job descriptions and quotes from previously submitted 
documentation, including the executive position verification letter and letter of attestation prepared by 
I I Although the Petitioner claims that we did not fully consider this evidence in light 
of the Petitioner's complex global network, we note that merely repeating information already in the 
record does not establish that we erred in our appellate decision. The Petitioner does not claim that 
we materially misquoted or omitted information from those job descriptions in our prior decision, and 
we note that our prior decision thoroughly addressed the duties of the proffered position. 
In our decision, we acknowledged the Petitioner's assertion that the Beneficiary would manage the 
company's "overall FINCO's commercial lending practice" ranging from "corporate funding 
operations and management, commercial mortgage loans (CML) and special asset management, 
international export financing, and corporate client development." Further, although we 
acknowledged the differing versions of duties submitted in the record, we focused on evaluating the 
new statement of duties provided on appeal, as requested by the Petitioner, and restated those duties 
in our appellate decision. We determined, however, that the Petitioner listed several non-qualifying 
operational tasks reflective of the Beneficiary's direct performance of financial services rather than 
executive-level goal and policy setting. 
Specifically, we stated the following: 
For instance, the Petitioner stated the Beneficiary would be tasked with securing 
clients, providing updates to senior management on the company's loan portfolio, 
overturning loan approvals, and performing supplemental analysis on corporate limits. 
Likewise, it indicated the Beneficiary would provide opinions on possible 
repercussions on the expected return of the company's overall loan portfolio and 
interest rate changes and submit inputs about factors that may affect the credit support. 
It also explained that the Beneficiary attended specific industry events, performed ad 
hoc and random tests to "review the loan management framework" and reviewed 
"enhancements of existing credit ratings of the outstanding borrower." Further, the 
Petitioner stated the Beneficiary would be involved in "what-if scenario testing done 
to quantify the impact of unusual/unforeseen events on credit risks analysis," reporting 
4 
to the company's "top management regarding delinquent loan details," and "routinely 
check[ing] the procedural aspect of loan management ... entailing credit risk 
management activities." 
In sum, a substantial portion of the Beneficiary's duty description appeared to reflect 
that he would be primarily tasked with performing financial analysis, acting in an 
advisory and operational role for the benefit of the company's executives. In fact, the 
Beneficiary's duty description indicated he would be "involved in" the decision­
making process, but not making executive-level decisions in his own right. The 
Petitioner asserted on the record that the Beneficiary oversaw a team of professionals 
to whom he delegated the non-qualifying aspects of his department, including the 
apparent operational tasks mentioned above. However, there is no supporting evidence 
on the record of the Beneficiary directing his claimed subordinates or delegating 
non-qualifying operational tasks to them. 
On motion, the Petitioner simply asserts that we did not examine the Petitioner's description of duties 
in its entirety, and merely asserts that we "instead adopt the carved-out phrase out of it." The Petitioner 
relies on the newly submitted documentary evidence discussed above, such as the Beneficiary's email 
correspondence tol land the FYI 9 documentation, and concludes that the newly submitted 
evidence (which we decline to consider), coupled with the previously submitted documentation on 
appeal, clearly establishes the Beneficiary's executive capacity. We disagree. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 101 (a)( 44 )(B) of the Act. 
In dismissing the appeal, we noted that the Petitioner did not sufficiently document what proportion 
of the Beneficiary's duties would be executive functions and what proportion would be 
non-qualifying. Since the Beneficiary's duties included both executive tasks and administrative or 
operational tasks, but the time the Beneficiary would spend on these different duties was not 
quantified, we noted that we could not determine whether the Beneficiary is primarily performing the 
duties of an executive. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
In addition, we determined that the record lacked sufficient evidence to substantiate the Beneficiary's 
performance of executive-level duties, such as the marketing, corporate, or lending strategies he 
directed, the policies and procedures he put in place, financial investments he decided on, marketing 
activities he oversaw, or human resources plans or "major departments" he implemented. We found 
the lack of detail noteworthy in light of the Petitioner's assertion that the Beneficiary has been acting 
in the proposed role as a nonimmigrant in the United States since August 2014. 2 The Petitioner further 
2 We acknowledge that USCIS previously approved nonimmigrant petitions filed on behalf of the Beneficiary. However, 
the mere fact that USCIS, by mistake or oversight, approved a visa petition on one occasion does not create an automatic 
entitlement to the approval of a subsequent petition. See, e.g., Royal Siam Co1p. v. Chertoff, 484 F.3d 139. 148 (1st Cir 
2007); Matter of Church Scientology Int'!, 19 l&N Dec. 593, 597 (Comm'r. 1988). Each nonimmigrant petition filing is 
a separate proceeding with a separate record and a separate burden of proof In making a determination of statutory 
eligibility, USCTS is limited to the information contained in that individual record of proceeding. 8 C.F.R. 
§ 103.2(b )( l 6)(ii). For the reasons discussed above, the record in the instant petition lacks sufficient evidence to establish 
5 
asserts that we erred in our evaluation regarding the Beneficiary's subordinates, and that we ignored 
clarification with regard to the correct organizational structure of the Petitioner. In denying the appeal, 
we acknowledge that our discussion addressed the multiple organizational charts submitted in the 
record and the discrepancies contained therein. On motion, we note the Petitioner's resubmission of 
what it asserts is the chart that correctly presents the organizational structure of the Petitioner; 
specifically, that the Beneficiary will oversee a manager, who oversees an assistant manager, who in 
tum oversees an associate. The Petitioner concludes that the record clearly reflects that the Beneficiary 
oversees three professional subordinates that will relieve him from performing non-qualifying duties. 
As noted previously, the organizational chart does not appear to reflect the Beneficiary acting within 
a complex organizational hierarchy, but shows him overseeing three (asserted) professional 
subordinates. Further, we noted that the record did not corroborate the Beneficiary's oversight of any 
subordinates, nor was there sufficient evidence of him setting the broad goals and policies of the 
organization. In contrast, we noted that, according to the Petitioner, the Beneficiary would be tasked 
with the "selection of managers and other high-level staff: and [the] establishment and formation of 
major departments." The organizational chart, however, does not reflect his responsibility for this 
type of organizational structure. 
Furthermore, we noted in our prior decision that the organizational chart, resubmitted here, showed 
15 total employees; however, the Petitioner's state employer's quarterly wage documentation from the 
third quarter of 2018 reflected 24 employees, and few of the individuals listed in the tax documentation 
match those included in the organizational chart. The Petitioner does not address this discrepancy on 
motion. This unresolved material discrepancy leaves substantial uncertainty as to whether the 
Beneficiary acts in an executive-level role in the United States. The Petitioner must resolve 
inconsistencies and discrepancies in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Finally, we note the Petitioner's reference to an unpublished decision in which we determined that a 
beneficiary met the requirements of serving in a managerial and executive capacity for L-1 
classification even though he was the sole employee. The Petitioner has not established that the facts 
of this petition are analogous to those in the unpublished decision. Also, while 8 C.F .R. § 103 .3( c) 
provides that our precedent decisions are binding on USCIS, unpublished decisions are not similarly 
binding. 
As noted in our prior decision, the Petitioner provided evidence indicating that the Beneficiary would 
primarily act in an operational role monitoring the company's loan activities, performing research and 
testing, and advising upper level management, rather than acting in an executive capacity in an 
elevated position within a complex organizational hierarchy. Based on the assertions in its appellate 
brief and new supporting documentation, we determined that the preponderance of the evidence 
indicated that the Beneficiary would be primarily tasked with the organization's day-to-day loan 
operations rather than its broad goals and policies. On motion, the Petitioner has not shown that our 
appellate decision contained errors of law or policy, or that the decision was incorrect based on the 
that the Beneficiary would be employed in a primarily executive capacity. 
6 
record at the time of that decision. Therefore, the motion does not meet the requirements of a motion 
to reconsider and must be dismissed. 
IV. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
the previous decision or otherwise established eligibility for the immigrant benefit sought. In visa 
petition proceedings, it is a petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
7