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. 20,2018 
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 classitication for multinational executives or managers. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. §I I53(b)(l)(C). This 
classitication 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 originally denied the petition on four separate grounds and 
then aflirmed the denial on three grounds after reopening the case on the Petitioner's motion. We 
dismissed the Petitioner's subsequent appeal, finding that the Petitioner had not overcome the 
Director's finding that the record did establish (I) that it has a qualifying relationship with the 
Beneticiary last foreign employer, 1 or (2) that the Petitioner will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner subsequently filed three 2 combined motions to 
reopen and reconsider, which we denied. 
The matter is now before us on a fourth combined motion to reopen and reconsider. The Petitioner 
submits a brief and additional evidence in support of its claim that it meets all eligibility 
requirements for the benetit sought. 
Upon review, we will deny the combined motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal tiling 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. § I 03.5(a)( I). 
1 
We further found that, had the Petitioner adequately substantiated its claim that the Beneficiary solely owns and 
controls both the Petitioner and the foreign entity, then it would also have to address the issue of whether the Beneficiary 
had an employer-employee relationship with both entities. 
2 Two of these three combined motions were filed almost contemporaneously (three days apart) in response· to our 
dismissal of the Petitioner's appeal. We denied one as untimely and addressed the merits of the other in separate 
decisions. 
.
Mauer of A-H- Inc. 
A motion to reopen must state new facts and be supported by documentary eviden ce. 8 C.F.R. 
§ 103.5(a)(2 ). A motion to reconsider must establish that we base d our decision on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in t he record 
of proce ed ings at the time of the decision. A p etitioner must support its motion to recons ider with a 
pertinent precedent or adopted decision, statutory or regulator y p rovi sion, or statement of U.S. 
Citizenship and Immigration Services (USCIS) or Departmen t of Homeland Security policy. 
8 C.F.R. § 103.5(a)(3). We may grant a motion that satistles these requirements and demon strates 
eligibility for 
the requested immigration benefit. 
II. ANAL YSIS 
While the current motion include s some newly submitted evidence and explanations, we find the 
Petitioner has not shown proper cause for reopening or reconsideration. 
A. Motion to Reopen 
Although the Petitioner submits a brief and evidence in support of the motion , it has not specifica lly 
explained the significance of all of the accompanying evidence (such as bank statement s and 
purchase invoices from 2009) or how this evidence overcomes our decision to dismiss its appeal. 
Further, many of the argument s made and the evidence submitted are not "new," as they appear 
elsewhere in the record of proceeding. Reasserting previously stated facts or resubmittin g previously 
provided evidence does not constitute " new facts." 
We have reviewe d the motion in its entirely and will address all releva nt claim s and evidence below . 
1. Qualifying Relation ship 
To establ ish a "q ualifying relationship" under the Act and the regulat ions, the Petition er must show 
that the Benefic iary's fore ign emp loyer and the proposed U.S. empl oye r are the same employer (a 
U.S. entit y with a foreign oflice ) or related as a "parent and subsidiar y" or as "affi liates." See 
§ 203(b)(I)(C) of the Act; see also 8 C.F.R . § 204.5(j)(2) (prov iding definiti ons of the terms 
"affiliate " and "subsidiary "). 
In determinin g that the Petitioner did not establish a qualifying relation ship with the Beneficiary's 
foreign employer, we acknowledged the Petitioner's 
claim that the Beneficiar y o\vns its claim that owns the petitioning U.S. company
, 
and the Petitioner's submis sion of a stock certiticate showing that owns its issued shares. 
However , we found that the Petitioner did not submit requested evidence to estab lish the fore ign 
entity's purcha se of the Petitioner 's shares. 
As in the prior motions, the Petitioner has not addressed this defic iency. The Petition er re-submits a 
copy of its 
stock ce rtificat e, articles of incorpora tion, and initial registratio ns to do business in Texas , 
and does not addre ss our reasons f·o r denial by submitted new facts or new evidenc e doc ument ing the 
foreign entity 's purchase of the petitioning entity. 
2 
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Maller of A-H- Inc. 
The Petitio ner also submit s updated evidenc e perta ining to the foreign e ntity' s ongoing operations, 
includi ng a food license renewa l issued by the offic~ (ide ntifying 
' as the '' licen see"), recent .utilit y bills, and sa les and purc hase invo ices 
from 2017. The Petitioner state s that the Benefici ary's access to these document s establishes his 
position as a manager or" executive for the foreign entity, a fact which is not at issue in this matter. 
While this e vidence shows that the foreign entity ·continues to do business in Paki stan, it does not 
addres s the deficiencies raised in our prior decis ions. Further, if ano ther person is 
currentl y the " licensee" of the foreign sole proprietorship , this would tend to undermine the 
Petition er's clai m that the Beneficiary owns the foreign.entity. 
The Petitioner has not submitted new facts or evidence to overcome ou r previous a dverse findings 
regarding this issue. 
2. U.S . Employm e nt in Managerial or Executive Capacit y 
An immigrant petition for a multin ational executive or manager mus t be accompanied by evidence 
showing that the Beneficiary will be employed in the United States in a managerial or exec utive 
capacity as defined at section IOI(a)(44) ofthe Act , 8 U.S.C. § JJOJ (a)(4 4). 
We found that the Petition er prov ided a vague position description that did not demon strate what the 
Beneficia ry would actuall y do on a day-to-day basis, and was thus ins uffi cie nt to support a finding 
that his duti es wou ld be prim arily manag erial or executive. We also considered the · Petitioner' s 
staffing leve ls, organizational structure , and the duties performed by subordinate staff: noti ng that 
the Petitioner did not provid e clear descriptions of duties perform ed by lowe r-le vel staff or clear ly 
delineate the repo rting structure within the ·comp any. We further n oted that the Peti tio ner claimed 
that 5 of its 9 employees had managerial job titles, and, given the natur e of the Petiti one r's business 
as a furniture retailer with multiple locations, questioned whether the managers and supervi sors were 
actually performing their stated supervisor y functions , rather than performi ng the day -to-day dut ies 
associated with operating the indi vidual stores. 
While the Petitioner addre sses this issue in its brief, many of its argum ents are essentially the same 
as those it made in earlier briefs, are not "new facts," and have already been addressed in our prior 
decision s. Similarly, all supporting evidence rela.ted to this issue has been submitted previou sly . 
Wh ile the informat ion submitted on motion supports the Petitioner' s cla im that the Ben eficia ry has 
ultimate authorit y over the compa ny, the Petition er h as not submitt ed any new facts to establish that 
the Beneficiary's actual day-t o-day duties would be primaril y managerial or executive in nature. 
The fact that the Beneficiary will manage or direct a busines s does not necessa rily establish 
eligibility for classification as a multinational manage r or executive within the mea~ing of section 
10l(a)(44) of the Act. By statute, eligibilit y for this classific ation requ ires that the dutie s of a 
position be "primarily" executive or managerial in nature . Sect io.ns 10J(A)(4 4)(A) and (B) of the 
Act. 
3 
Maller of A-H-Inc. 
In our prior decisions, we questioned whether the Petitioner's staff would be sufficient to perform 
the operational duties associated with the Petitioner's business, and relieve the Beneficiary from 
significant involvement in retail store operations and other non-managerial duties as part of his daily 
routine. 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. 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 tiling, who made 
deliveries for all three stores. Beyond these employees, the Petitioner had a vice president, who is 
claimed to perform duties similar to the Beneliciary's, and a contracted accountant. We emphasized 
that it was 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. 
The Petitioner attempts to address our findings regarding the company's staffing by noting that "the 
business ran smoothly with the staff in place during the well-known economic crash of 2007-2008," 
and that "two trained and experienced personnel placed at each location have sufficient man power 
to perform their tasks." The Petitioner notes that the Beneficiary hired additional staff in 2009 so 
that the Beneficiary could focus "solely on managerial tasks." This explanation does not address our 
concerns regarding the staff in place at the time of tiling in 2010. The fact that the business 
remained operational during an economic downturn does not establish that the Beneficiary's staff 
relieved him from significant involvement in the day-to-day operations of the business so that he 
could perform primarily managerial duties. Again, the Petitioner indicated that each of its locations 
was open for 7 days a week for 60 hours and it has not shown how it maintained this operating status 
with only two statr available to till these hours, and given the size of the retail stores in question. 
The Petitioner's unsupported explanation that two staff per store was "sufficient" does not 
adequately address our findings and it submits no new evidence with respect to this issue. 
Finally, the Petitioner reiterates its prior claims that our finding that the Beneficiary does not 
primarily oversee managerial or prof'essiona13 employees is a "misconception." The Petitioner has 
not submitted new facts or evidence in support of this claim. The Petitioner previously claimed that 
"retail furniture sales is a professional occupation that require[s] a bachelor's degree in marketing or 
business administration," and it now claims that its sales positions require a degree in "marketing, 
interior design or business administration." 
3 In evaluating \Vhether 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 I 0 l(a)(32) of the Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers. physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academics. 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. 
4 
Matter of A-H- Inc. 
Once again, the Petitioner has not submitted evidence in support of its assertion that the 
Beneficiary's subordinates are professionals, such as evidence that its sales persons actually possess 
bachelor's degrees in the stated fields. Regardless, the Petitioner has not established that a 
bachelor's degree is actually necessary to perform retail sales duties or the sales statTs 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 Petitioner has not provided new facts or evidence on motion to show 
proper cause for reopening and has not establi~hed that the Beneficiary would be employed m a 
managerial or executive capacity. 
3. Employer-Employee Relationship 
In dismissing the appeal, we emphasized that section 203(b )(I )(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 10 l(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 from the classification sought. 
As in its previous filings, the Petitioner makes general claims regarding a "distribution of power 
among the senior managers/executives of both entities," but does not directly address our specific 
findings that, based on its previous claims, no one is in position to control the Beneficiary's work, 
subject him to firing, or share in the profits, losses or liabilities of either entity. Further, this general 
claim of a "distribution of power" is not 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. § 1 03.5(a)(3). A motion to reconsider must be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of USC IS or 
Department of Homeland Security policy. 
. 5 
Muller of A-H- Inc. 
Although the Petitioner provided a briet: 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. 
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 Malter ofA-H-Inc., ID# 1086857 (AAO Mar. 20, 2018) 
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