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: SEPT. 14, 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)(1)(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 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 denial where the Director determined that the record did establish: (1) that the 
Petitioner has a qualifying relationship with the Beneficiary's last foreign employer; or (2) that the 
Petitioner will employ the Beneficiary in a managerial or executive capacity. Further, while we 
determined that the record lacked sufficient evidence to substantiate the Petitioner's claims regarding 
the Beneficiary's ownership of the foreign entity and the foreign entity's ownership of the Petitioner, 
we found that even if those claims were substantiated, the Petitioner would have to address the 
question of whether the Beneficiary had an employer-employee relationship with his foreign and 
U.S. employers. We dismissed the subsequent appeal and two combined motions to reopen and 
reconsider. 1 The matter is now before us on a third combined motion to reopen and reconsider. 
Upon review, we will deny the current motions. 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by 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 
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In our decision, dated March 30, 2017, addressing the Petitioner's combined motion to reopen and motion to reconsider 
assigned a receipt humber ending in 7, we acknowledged that the Petitioner filed two duplicate combined motions. We 
denied the combined motion that was assigned a receipt number ending in 7 as untimely filed and provided a full 
decision on the merits of the timely filed combined motion to reopen and reconsider assigned a receipt number ending in 
2. As indicated, we denied the combined motion. 
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Matter of A-H- Inc. 
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. § 103.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
II. ANALYSIS 
While the current motion includes some newly submitted evidence and explanations regarding issues 
raised in our prior decision, for the reasons discussed ~elow, 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 had been submitted previously. 
As in our prior decision, we note that 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 is unclear that the 
arguments made and the supporting evidence submitted are "new" as compared to the prior 
submissions. As with the prior motion, the Petitioner has not specifically explained the significance of 
all of the accompanying evidence or demonstrated how this evidence overcomes our decision to deny 
the prior motion to reopen and motion to reconsider, where we addressed the lack of evidence showing 
that a qualifying relationship exists between the Petitioner and the Beneficiary's employer abroad, the 
managerial or executive nature of the Beneficiary's proposed position, and the Beneficiary's employer­
employee relationship with his employer abroad and with the U.S. entity. 
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. § 204.50)(2) (providing definitions of the terms 
"affiliate" and "subsidiary"). 
In the present matter, while we expressly stated in our prior decision that neither the Beneficiary's 
managerial or executive position with the foreign entity nor the foreign entity's "legal status" were 
specifically addressed in our decision on appeal, the Petitioner resubmits and asks us to consider certain 
foreign-issued documents intended "to substantiate that the Beneficiary holds executive or managerial 
position in and to prove the "legal status" of the foreign entity. The Petitioner contends that 
these documents were submitted "to further substantiate the qualifying relationship between the 
Petitioner and the Beneficiary's foreign employer." However, the Petitioner does not 
address or provide 
evidence to resolve the discrepancies that we noted concerning the exchange of funds as proof of the 
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Matter of A-H-Inc. 
foreign entity's purchase of the Petitioner's shares, which was the main basis for finding the lack of a 
qualifying relationship between the Petitioner and the foreign entity. Although the Petitioner claims that 
this current motion is supported by new evidence in addition to evidence-that was previously submitted, 
it does not specifY .which evidence is new or explain how the purportedly new evidence overcomes the 
adverse finding in our prior decision regarding the issue of a qualifying relationship. 
2. U.S. Employment in a Managerial or Executive Capacity 
As stated in our prior decision, an 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 10l(a)(44) ofthe Act, 8 U.S.C. § 110l(a)(44). 
In our prior decision, we gave due consideration to the Beneficiary's job description, finding that while 
the record adequately documents the Beneficiary's ultimate authority over the company consistent with 
a managerial or executive position, a number of tasks attributed to the Beneficiary's position involv~ 
non-managerial functions. We explained that the Petitioner had direct oversight of retail transactions 
and customer service issues, which were among the Beneficiary's non-managerial functions. In the 
current support brief, the Petitioner attributes similar non-managerial functions to the Beneficiary's 
proposed position, claiming that the Beneficiary "assisted in the development of solutions for customer 
issues, concerns, complaints and suggestions with customer centricity." These customer-related duties 
add to our prior concerns regarding the overall time the Beneficiary would allocate to the Petitioner's 
operational and administrative functions as opposed to managerial tasks. 
While the Petitioner asserts that the Beneficiary "ensured the store works ethically and in compliance 
with internal regulations and external laws," the Petitioner did not identify any "internal regulations" or 
"external laws" that affect the Beneficiary's daily tasks and require his attention on a daily or weekly 
basis. The Petitioner also broadly states that the Beneficiary "has the ability to lead business through 
people on a senior level by demonstrating strong leadership capabilities," but does not provide examples 
of leadership tasks that are a routine part of the Beneficiary's day-to-day function. The actual duties 
themselves reveal the true nature ofthe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), C?ff'd, 905 F.2d 41 (2d. Cir. 1990). Here, the Petitioner does not provide 
additional information about the Beneficiary's daily job duties that would lead us to conclude that the 
Beneficiary would be employed in a managerial or executive capacity. 
Aside from the Beneficiary's job duties, we also consider the Petitioner's staffing levels, 
organizational structure, and the duties performed by subordinate staff. In our prior decision we 
questioned the Petitioner's ability to relieve the Beneficiary from having to primarily perform its 
operational and administrative tasks given the existence of three store locations operating 60 hours 
per week with a limited staff of only one manager and one sales person at each location and only two 
part-time employees - consisting of one loader and truck driver - to deliver the merchandise to 
customers. On motion, the Petitioner claims that the sales people assist with unloading, packing, 
cleaning, and conducting inventory, and further states that all store employees "received 
comprehensive training covering business acumen and professional skills development" to ensure 
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Matter of A-H- Inc. 
that they can "perform at a high level." We find these statements insufficient to establish that the 
Petitioner was· adequately staffed such that it had the capacity to relieve the Beneficiary from 
performing primarily non-managerial duties at the time of filing. While the Petitioner claims that 
"the number of personnel managing individual stores grew" and refers to the employee quarterly 
wage reports to support this claim, the submitted wage reports cover periods in 2009, which precede 
the date this petition was filed and therefore do not establish the Petitioner's eligibility at the time of 
filing. See 8 C.F.R. § 103.2(b)(l). 
Finally, the Petitioner addresses our finding that the Beneficiary does not primarily oversee 
managerial or professional employees, claiming that~ the subordinate managers supervise sales, 
administrative, and warehouse employees. However, the Petitioner has not identified any 
administrative or warehouse personnel for the managers to oversee. Although the loader can 
conceivably be deemed a warehouse employee, the Petitioner had only one such employee, who 
worked only on a part-time basis, and was claimed to be the subordinate of the truck driver rather 
than any of the store managers. Moreover, the Petitioner states that "the primary responsibilities of 
the subordinate managers include to be [sic] a sales team participant by working with clients, prepare 
estimates and bids that meet specific customer needs and help close deals when necessary." This 
statement indicates that the store managers are mainly involved in sales-related tasks and are not 
truly managers as their respective position titles may suggest. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter (~f Chawathe, 25 I&N Dec. 
369, 376 (AAO 201 0). The Petitioner does not provide any evidence on motion to show that the 
Beneficiary's subordinates either possess baccalaureate degrees or that such degrees are required to 
carry out the client-based sales work they carry out within the scope of a furniture store. !d. 
3. Employer-Employee Relationship 
The last issue we addressed in our prior decision is the employer-employee relationship between the 
Beneficiary and his foreign and U.S. employers. In our prior decision, we found the Petitioner's 
reference to "a distribution of power among the senior managers/executives of both entities" and its 
claim that "the beneficiary does not hold supreme authority alone" to be insufficient. We concluded that 
the Petitioner's statements did not amount to "new facts" that would warrant overturning our previous 
determination. 
In support of the current motion the Petitioner more specifically claims that the Beneficiary's "level of 
performance in the organization is in fact subject to judgement by the [B]eneficiary's father and the vice 
president of [the Petitioner]." The Petitioner has provided no evidence to support these claims, nor has 
it clarified how the Beneficiary could be subject to the authority of a vice president, who serves as one 
of the Beneficiary's subordinates. If USCIS finds reason to believe that an assertion stated in the 
petition is not true, USCIS may reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. 
§ 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 
705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
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Matter of A-H- Inc. 
In sum, the newly submitted evidence does not overcome the grounds for denying the motion and 
establish eligibility for th~ 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 USCIS 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. 
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-lnc., ID# 601130 (AAO Sept. 14, 2017) 
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