dismissed EB-1C Case: Furniture Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-H- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 30,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a furniture retailer, seeks,to permanently employ the Beneficiary as its president 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 pem1anently transfer a qualified foreign employee to the United 
States to work in an executive or managerial capacity. 
The Director of the Texas Service Center originally denied the petition on four separate grounds and 
then affirmed the denial on three grounds after reopening the case on the Petitioner's motion. We 
dismissed the Petitioner's subsequent appeal from that decision, finding that the Petitioner had not 
overcome the Director's finding that the record did establish ( 1) that it has a qualifying relationship 
with the Beneficiary last foreign employer, or (2) that the Petitioner will employ the Beneficiary in a 
managerial or executive capacity. We further found that the Petitioner did not establish that the 
Beneficiary was or would be an employee with an employer-employee relationship with either the 
foreign entity or the petitioning company. 
In its combined motion to reopen and reconsider, the Petitioner submits additional evidence and 
addresses some of the deficiencies and unresolved discrepancies in the record discussed in our prior 
decision. 
Upon review, we will deny the combined motion. 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 1 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 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. § 1 03.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
.
Matter of A-H- Inc. 
II. ANALYSIS 
While the current motion includes some newly submitted evidence and explanations regarding issues 
raised in our prior decision, for the reasons discussed below, we find the Petitioner has not shown 
proper cause for reopening or reconsideration. 
A. Motion to Reopen 
On motion, the Petitioner submits documentary evidence, most of which has been submitted previously. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
Although the Petitioner submits a brief and evidence in support of the motion, it has not specifically 
explained the significance of all of the accompanying evidence or how this evidence overcomes our 
decision to dismiss its appeal. For example , the Petitioner notes that is submitting certain documents 
issued by government offices in Pakistan , intended "to substantiate that the Beneficiary 
holds executive or managerial position in ' and to prove the " legal status " of that entity , two 
points of fact that were not specifically at issue in our decision. We have reviewed the motion in its 
entirety and will address all relevant claims and evidence below. 
1. Qualifying Relationship 
To establish a "qualifying relationship" under the Act and the regulations , the Petitioner must show 
that the Beneficiary ' s foreign employer and the proposed U.S. employer are the same employer (a 
U.S. entity with a foreign office) or related as a "parent and subsidiary " or as "affiliates." See 
section 203(b)(l)(C) of the Act; see also 8 C.F.R . § 204.5(j)(2) (providing definitions of the tern1s 
"affiliate" and "subsidiary"). 
In determining that the Petitioner did not establish a qualifying relationship with the Beneficiary's 
fo~eign employer, we acknowledged the Petitioner ' s 
claim that the Beneficiary owns its claim that owns the petitioning U.S. company , 
and the Petitioner's submission of a stock certificate showing that owns its issued shares. 
However, w~ found that the Petitioner did not submit requested evidence to establish the foreign 
entity ' s purchase of the Petitioner ' s shares and further noted that the Petitioner ' s federal tax returns 
did not consistently reflect its ownership by the foreign entity. We further found insufficient 
evidence to support the Petitioner's claim that is owned by the Beneficiary. 
On motion, the Petitioner addresses our observation that its federal tax returns for the years 2007 
through 2009 did not include an IRS Form 5472, Information Return of a 25% Foreign-Owned U.S. 
Corporation, and thus did not support its claim that it is wholly owned by the Beneficiary's foreign 
employer. The Petitioner explains that "Form 5472 is required to show total payments made or 
received in any reportable transactions between each related party " and that "Form 5472 was not 
prepared ... because reportable transactions were not made between the petitioner and 
The Petitioner offers no further arguments with respect to its qualifying relationship with 
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Matter ofA-H-lnc. 
other than clarifying the foreign entity's address and the date the Beneficiary assumed control of the 
entity. 
While it is true that not every 25% foreign owned U.S. corporation is required to file a Form 5472 
with its federal tax return, we also noted in our decision that the Petitioner initially marked "no" in its 
tax returns where asked if it is owned by a foreign individual or entity and did not indicate any 
ownership by the foreign entity or any indirect ownership by the Beneficiary. We found that the 
Petitioner's amended tax returns, prepared after the Director questioned the Petitioner's relationship 
with the foreign entity in a notice of intent to deny, were insufficient to overcome this inconsistency. 
In addition, our decision, as summarized above, cited several other deficiencies and inconsistencies 
which prevented us from concluding that the Petitioner met its burden to establish a qualifying 
relationship with the Beneficiary's foreign employer. 
Specifically, the Petitioner has not addressed our finding that it did not demonstrate that the foreign 
entity actually paid for its ownership interest in the U.S. company. The evidence on motion, which 
includes national tax number certificates issued to the foreign entity by the Pakistan Federal Board of 
Revenue in 2007 and 2008, tends to support the Petitioner's claim that the Beneficiary is the foreign 
entity's sole owner, but does not resolve the issue of the U.S. company's ownership and therefore 
does not overcome our adverse finding. 
2. U.S. Employment in Managerial or Executive Capacity 
Am immigrant petition for a multinational executive or manager must be accompanied by evidence 
showing that the Beneficiary will be employed in the United States in a managerial or executive 
capacity as defined at section 101(a)(44) ofthe Act, 8 U.S.C. § 1101(a)(44). 
We found that the Petitioner provided a vague position description that did not demonstrate what the 
Beneficiary would actually do on a day-to-day basis, and was thus insufficient to support a finding 
that his duties would be primarily managerial or executive. We also considered the Petitioner's 
staffing levels, organizational structure, and the duties performed by subordinate staff~ noting that 
the Petitioner did not provide clear descriptions of duties performed by lower-level stafT or clearly 
delineate the reporting structure within the company, as the record seemed to indicate that the 
Beneficiary shared responsibility for oversight of lower-level store employees. We further noted 
that the Petitioner claimed that five of its nine employees had managerial job titles, and, given the 
nature of the Petitioner's business as a furniture retailer with multiple locations, questioned whether 
the managers and supervisors were actually performing their stated supervisory functions, rather 
than performing the day-to-day duties associated with operating the individual stores. 
On motion, Petitioner states it is providing "a detailed breakdown of some of the managerial tasks" 
the Beneficiary performs. Specifically, the Petitioner states that the Beneficiary ensures that store 
policies are applied and upheld by managers and employees on the sales floor anq provides two 
examples of policies he implemented, noting that he prohibited employees from smoking, and he 
implemented a policy for sales staff that requires them to take turns in greeting and assisting 
customers. The Petitioner asserts that this latter policy "shows that the Beneficiary is not involved in 
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Matter of A-H- Inc. 
the sales duties physically" and evidences his authority to oversee staff and the day-to-day functions 
of the store. 
The Petitioner further states that the Beneficiary's duties would include: directing the marketing 
department to develop appropriate signage and to determine when to launch sales and store 
promotions; controlling store expenses; encouraging the growth and development of managers and 
employees through training, delegation and personal example; occasionally monitoring customer 
inquiries, authorizing furniture replacements; and approving customer refunds. In response to our 
finding that there appeared to be significant overlap between the Beneficiary's duties and those the 
vice president, his claimed subordinate, the Petitioner notes that both the Beneficiary and the vice 
president have authority to hire and tire employees, and the Beneficiary sometimes works with the 
vice president to establish store policies. The Petitioner provides a state quarterly wage report from 
the second quarter of 2009 and points out that the Beneficiary and vice president both received the 
same salary and both perform "as the top level executives and managers for the company." 
While the information submitted on motion supports the Petitioner's claim that the Beneficiary has 
ultimate authority over the company consistent with a· managerial or executive position, the 
Petitioner has not established that the Beneficiary's actual day-to-day duties would be primarily 
managerial or executive in nature. The fact that the Beneficiary will manage or direct a business 
does not necessarily establish eligibility for classification as a multinational manager or executive 
within the meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" executive or managerial in nature. Sections 
101(A)(44)(A) and (B) ofthe Act. 
The duty description submitted on motion elaborates upon the Beneficiary's day-to-day tasks in 
some respects, but also suggests that those tasks include direct oversight of retail sales transactions 
and customer service issues, non-managerial functions thatwe would expect him to delegate to one 
of the three store managers the Petitioner claims he would supervise. Further, we already found that 
the Beneficiary appears to be the sole employee who is responsible for purchasing and administrative 
activities and the Petitioner has not contested this finding. For this reason, the newly submitted job 
duties are insufficient to overcome our previous finding that the Petitioner did not meet its burden to 
show that the Beneficiary would primarily perform managerial or executive-level tasks. 
Similarly, the fact that the Beneficiary instituted a "no smoking" policy and a policy that requires 
sales staff to take turns greeting customers is not sufficient to support the Petitioner's claim that the 
Beneficiary is not involved in the day-to-day operations of the Petitioner's three retail stores. None 
of the Petitioner's stores had even had multiple sales persons at the time of filing. Therefore, we find 
the Petitioner's claim that these two examples of policy-making demonstrate that "the beneficiary's 
subordinate staff performs the day to day functions and services which the beneficiary will have 
discretionary authority to oversee." These examples are indicative of his level of authority but do not 
further establish the nature of his typical job duties. 
At the time of tiling, the Petitioner claimed that it operated three retail furniture stores, each open 7 
days per week for 60 hours, including one store with a large warehouse also used for wholesales. 
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Matter of A-H-1nc. 
Each store employed one store manager and one sales person. The Petitioner also employed one 
truck driver and one loader, both part-time employees at the time of filing, who made deliverie~ for 
all three stores. Beyond these employees, the Petitioner had a vice president, who is claimed to 
perform duties similar to the Beneficiary's, and a contracted accountant. It remains unclear how two 
store personnel would be able to handle all day-to-day functions of each large retail furniture store, 
given the stated operating hours and the Petitioner's claim that the sales persons also perform 
unloading, packing, cleaning, and inventory duties. Although we addressed the size of the 
Petitioner's staff as one factor in our adverse determination, the Petitioner's motion does not address 
the company's structure or how work was distributed among the six store employees. 
Finally, the Petitioner claims that our finding that the Beneficiary does not primarily oversee 
managerial or professional employees is a "misconception" and states that it previously submitted an 
organizational chart showing the Beneficiary holding the highest position in the company. However, 
in dismissing the Petitioner's appeal, we considered the Beneficiary's senior position in the 
organizational hierarchy and explained in detail why his placement on the organizational chart was 
insufficient to establish his eligibility as a multinational manager or executive. Our finding was 
based on a review of the totality of the evidence in the record and not merely the organizational 
chart; we did not question the Petitioner's claim that the Beneficiary is the senior employee. 
In response to our finding that the Petitioner did not establish that retail furniture sales position. is a 
professional position, the Petitioner states "(a ]!though knowledge of furniture products and have 
related work experience is essential, retail furniture sales is a professional occupation that require[ s] 
a bachelor's degree in marketing or business administration." While this is a new claim, the 
Petitioner has not submitted any evidence in support of this assertion, such as evidence that its sales 
persons actually possess bachelor's degrees in the stated fields. In addition, in evaluating whether a 
beneficiary manages professional employees, we must evaluate whether the subordinate position 
requires a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. 
§ 204.5(k)(2) (defining "profession" to mean "any occupation for which a U.S. baccalaureate degree 
or its foreign equivalent is the minimum requirement for entry into the occupation"). Section 
10l(a)(32) of the Act, states that "[t]he termprqfession shall include but not be limited to architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or seminaries." 
Therefore, we focus on the level of education required by the position, rather than the degree held by 
subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that 
term is defined above. In the instant case, the Petitioner has not established that a bachelor's degree 
is actually necessary to perform retail sales duties or the sales staffs stated ancillary duties, which 
include cleaning display areas and shelves, packing customer purchases, receiving and unpacking 
new merchandise, and ensuring the accuracy of shipments. 
For the reasons discussed, the newly submitted brief and evidence do not establish eligibility that the 
Beneficiary would be employed in a managerial or executive capacity. 
Matter of A-H- Inc. 
3. Employer-Employee Relationship 
In dismissing the appeal, we emphasized that section 203(b)(l)(C) of the Act states that only 
beneficiaries who were ·"employed" abroad and are coming to the United States to "continue to 
render services to the same employer or to an affiliate or subsidiary thereof' will merit classification 
as a multinational manager or executive. We further noted that the terms "executive capacity" and 
"managerial capacity" as defined at section 101 (a)( 44) of the Act, specifically apply to "the 
employee" of a "United States employer." 
Although we found insufficient evidence to support the Petitioner's claims regarding its qualifying 
relationship with the foreign entity, we noted that if what the Petitioner claimed is true, then the 
Beneficiary's ultimate ownership and "exclusive and total control" over the Petitioner would 
disqualify him for the classification sought. We found that the evidence was insufficient to establish 
that the Beneficiary was an "employee" of the foreign entity or will be an "employee" of the 
Petitioner. 
The Petitioner states that the evidence submitted on motion demonstrates "that there is a distribution 
of power among the senior managers/executives of both entities and the beneficiary does not hold 
supreme authority alone." However, the Petitioner provides no other explanation of any "new facts" 
that would overturn our previous determination and it is unclear which evidence is purported to 
support its claim. The Petitioner has not directly addressed our specific findings that, based on its 
previous claims, no one is in position to control the Beneficiary's work, subject him to tiring, or 
share in the profits, losses or liabilities of either entity. This general claim of a "distribution of 
power" is not adequately supported in the record and does not overcome our previous determinations 
regarding the employer-employee relationship. 
In sum, the newly submitted evidence does not overcome the grounds for dismissal and establish 
eligibility for the benefit. Therefore, the Petitioner has not shown proper cause to reopen the 
proceeding. 
B. 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 US CIS or 
Department of Homeland Security policy. 
Although the Petitioner provided a brief, it does not cite to any relevant statute, regulation or policy 
document as required, nor did it otherwise allege an incorrect application of law or policy in our 
prior decision. We have already addressed the claims made in the Petitioner's brief. The Petitioner 
has not established that our prior decision was incorrect at the time of that decision. 
Therefore, the Petitioner has not shown proper cause for reconsideration. 
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Matter of A-H- Inc. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper. cause to reopen the proceeding or 
proper cause for reconsideration. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of A-H- Inc., ID# 267419 (AAO Mar. 30, 2017)