dismissed EB-1C Case: Furniture Sales

U.S. Citizenship 
and Immigration 
Services 
In Re : 25801616 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 27, 2023 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a seller of furniture products, 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. § l 153(b)(l)(C) . This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United 
States to work in a managerial or executive capacity . 
The Director of the Nebraska Service Center denied the petition, concluding the Petitioner did not 
establish, as required, that: ( 1) it had been doing business for more than one year prior to the date the 
petition was filed; (2) it had the ability to pay the Beneficiary's proffered wage as of the date the 
petition was filed; (3) the Beneficiary was employed abroad in a managerial or executive capacity; 
and (4) the Beneficiary would be employed in the United States in a managerial or executive capacity . 
The Petitioner filed a motion to reopen and a motion to reconsider, which was granted by the Director 
and which affirmed the denial of the petition on the same grounds. The Director also determined the 
Petitioner did not demonstrate that the Beneficiary would be an employee of the Petitioner or that an 
employer-employee relationship would exist. 
We dismissed the Petitioner's appeal, concluding that the Petitioner did not demonstrate that the 
Beneficiary would be employed in a managerial or executive capacity, and we declined to address the 
remaining grounds given that this identified basis of ineligibility was dispositive . 1 The Petitioner filed 
a motion to reopen and a motion to reconsider, and two subsequent motions to reconsider , that we 
dismissed. The matter is now before us again on a motion to reconsider. 
1 The sole issue we will discuss in this decision is the only issue discussed in our prior appeal and motion decisions ; 
namely, whether the Petitioner established that the Beneficiary would be employed in a managerial or executive capacity. 
Since this issue is dispositive , we decline to reach and hereby reserve its arguments with respect to the other bases of our 
prior appeal dismissal. 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) . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
Petitioner's motion to reconsider. 
I. MOTION REQUIREMENTS 
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). We may grant a motion that satisfies these requirements 
and demonstrates eligibility for the benefit sought. The scope of a motion is limited to "the prior 
decision." 8 C.F.R. § 103.5(a)(l)(i). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reconsider to instances where the 
Petitioner has shown "proper cause" for that action. Thus, to merit reconsideration, a petitioner must 
not only meet the formal filing requirements (such as submission of a properly completed Form 
I-290B, Notice of Appeal or Motion, with the correct fee), but also show proper cause for granting the 
motion. We cannot grant a motion that does not meet the applicable requirements. See 8 C.F.R. 
§ 103.5(a)(4). 
II. ANALYSIS 
In our prior decisions dismissing the Petitioner's appeal and subsequent motions, we concluded that 
the Petitioner did not demonstrate that the Beneficiary would be employed in a managerial or executive 
capacity in the United States as of the date the petition was filed. We pointed to various reasons why 
the submitted evidence was insufficient. For instance, we emphasized material inconsistencies 
between the Beneficiary's job duty descriptions, documentation on the record reflecting his 
performance of non-qualifying operational duties, the generic nature of his claimed qualifying duties, 
the lack of supporting documentation reflecting his performance of qualifying managerial or 
executive-level duties, and evidence demonstrating that the Petitioner had only two employees when 
the petition was filed in December 201 7. 
In support of the current motion, the Petitioner reiterates the same contentions submitted in support of 
its prior motion to reconsider and attaches a copy of our most recent decision dated September 16, 
2022. Specifically, the Petitioner again asserts that the Beneficiary's duty description is sufficiently 
detailed to establish that he will be employed in a qualifying capacity in the United States. Despite 
this assertion, we note that the Petitioner continues to ambiguously discuss the Beneficiary as being 
employed in both an executive and a managerial capacity as we noted in our prior decision. Again, a 
petitioner claiming that a beneficiary will perform as a "hybrid" manager/executive will not meet its 
burden of proof unless it has demonstrated that the beneficiary will primarily engage in either 
managerial or executive capacity duties. See section 10l(a)(44)(A)-(B) of the Act. While in some 
instances there may be duties that could qualify as both managerial and executive in nature, it is the 
petitioner's burden to establish that the beneficiary's duties meet each criteria set forth in the statutory 
definition for either managerial or executive capacity. A petition may not be approved if the evidence 
of record does not establish that the beneficiary will be primarily employed in either a managerial or 
executive capacity. Here, as with the prior motions, the Petitioner continues to ambiguously discuss 
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the Beneficiary as qualifying as an executive and manager, interchanging the use of these terms in its 
motion brief. 
The Petitioner also "insists" that its 2020 tax return, submitted in support of its most recent motion to 
reconsider, establishes that it has sufficient subordinate staff to relieve the Beneficiary from 
performing non-qualifying duties as well as its ability to pay the proffered wage. As discussed in our 
prior decision, however, this evidence is not relevant to the time the petition was filed and therefore is 
not probative in demonstrating the Beneficiary's eligibility at that time. Moreover, although we 
advised the Petitioner in our prior decision that a motion to reconsider is not the proper motion under 
which to submit new evidence, the Petitioner disregards that statement and erroneously continues to 
rely on evidence that came into existence subsequent to the petition's filing in support of its current 
motion. 2 
To establish merit for reconsideration of our latest decision, the Petitioner must both state the reasons 
why it believes the most recent decision was based on an incorrect application oflaw or policy, and it 
must also specifically cite laws, regulations, precedent decisions, and/or binding policies it believes 
we misapplied in our prior decision. The Petitioner cannot meet the requirements of a motion to 
reconsider by broadly disagreeing with our conclusions; the motion must demonstrate how we erred 
as a matter of law or policy. See Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (finding that a 
motion to reconsider is not a process by which the party may submit in essence, the same brief and 
seek reconsideration by generally alleging error in the prior decision). 
Although we acknowledge the Petitioner's submission of a brief and the general assertions of error 
contained therein, we determine the Petitioner does not directly address the conclusions we reached in 
our immediate prior decision or provide reasons for reconsideration of those conclusions. The 
Petitioner does not provide specific reasons why these prior conclusions were inconsistent with 
applicable law or policy, nor does it demonstrate the Beneficiary's eligibility for the benefit sought. 
Moreover, the brieflacks any cogent argument as to how we misapplied the law or policy in dismissing 
the prior motion to reconsider. 
For the foregoing reasons, the Petitioner has not met the requirements of a motion to reconsider; as 
such, it must be dismissed pursuant to 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
2 Eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b )(1 ); see also Matter of lzummi, 22 l&N Dec. 169, 
175-76 (Assoc. Comm'r 1998); Matter of Katigbak, 14 l&N Dec. 45, 49 (Reg. Comm'r 1971). 
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