dismissed EB-1C Case: Gas Stations And Convenience Stores

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-I- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 30,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which owns and operates gas stations and convenience stores, seeks to permanently 
employ the Beneficiary as its president and chief executive officer 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 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 denied the petition, concluding that the evidence of record 
did not establish, as required, that the Petitioner will employ the Beneficiary in the United States in 
an executive capacity. We dismissed the Petitioner's appeal from the Director's decision, finding 
that the Petitioner had not overcome the stated basis for denial of the petition. The matter is now 
before us on a motion to reopen and a motion to reconsider. 
On motion, the Petitioner submits additional evidence and asserts that we erred by not considering 
the Petitioner's changing circumstances. The Petitioner also asserts that the prior approval of a 
nonimmigrant petition on the Beneficiary's behalf shows that the Petitioner had established 
eligibility. 
We will deny both motions, because the Petitioner has not met the requirements for either type of 
motion. 
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. § 1 03.5(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 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). We may grant a motion that 
Matter of A-1- Corp. 
satisfies these requirements and demonstrates eligibility for the requested immigration benefit. We 
cannot grant a motion that does not meet these requirements. 8 C.F.R. § 103.5(a)(4). 
II. ANALYSIS 
Upon review, and for the reasons discussed below, we find the Petitioner has not shown proper cause 
for reopening or reconsideration. 
A. Motion to Reconsider 
The Petitioner filed its petition in October 2014, asserting that the Beneficiary qualities as a 
multinational executive. An executive capacity is an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B). 
On motion, the Petitioner notes that nearly two years passed between the petition's October 2014 
filing and its denial in July 2016. The Petitioner asserts that we should have considered the 
company's growth during that period. In our dismissal notice, we stated that these changes in the 
Petitioner's business do not show that the petition was approvable at the time of filing. The motion 
relies heavily on growth and restructuring that occurred after the filing of the petition. For instance, 
the Petitioner cites a 2016 organizational chart that shows "a Manager of Operations that oversees 
the day to day operations and ... [an] Assistant Manager of Operations and Sales Manager." None 
of these positions existed when the Petitioner tiled the petition in 2014. 
In addition, the Petitioner asks: ·'if a business closed when Service was ready to adjudicate the 
application, would Service not take the change in circumstances into consideration?" The post-tiling 
emergence of favorable circumstances is not equivalent or comparable to the emergence of 
unfavorable circumstances. By regulation, a petitioner must meet all eligibility requirements at the 
time of filing, and must remain eligible throughout the adjudication of the petition. See 8 C.F.R. 
§ 103 .2(b )(1 ). Under that regulation, which we cited in our prior decision, a business that was 
eligible at filing, but which later closed, would not satisfy the second part of the cited regulation. 
The Petitioner does not cite any statute, regulation, case law, or policy that would require us to 
consider the Petitioner's status at the time of adjudication rather than the time of filing. 
If a petition is not approvable when filed, new facts that arise later cannot cause a petitioner or 
beneficiary to become retroactively eligible as of the filing date. The Petitioner cannot secure a 
priority date to which it is not entitled, on the expectation that qualifying circumstances may arise 
while the petition is pending. Cf. Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971 ). 
For this reason, we need not consider the subsequent evolution of the company until and unless the 
Petitioner establishes that the petition was already approvable at the time of tiling. Discussion of the 
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Matter of A-1- Corp. 
Beneficiary's authority over the manager of operations and other newly created positions cannot 
show that the petition was already approvable when filed. 
The Petitioner makes general assertions about the role of an executive and asserts that the 
Beneficiary provides "strategic leadership for the company." The Petitioner states: 
Some of the Beneficiary ' s specific job duties include: (i) Negotiating and supervising 
the drafting of purchase agreements; (ii) Define project scope, goals and deliverables 
that support business goals in collaboration with senior management and team 
directors; (iii) Conducting competitive market intelligence: analyze and adjust 
positioning to retain and grow market leadership; (iv) Overseeing the legal and 
financial due diligence process and resolving any related issues; and (v) Developing 
and implementing plans to ensure [the Petitioner's] profitable operation. 
Most of the five items listed above are broad and general responsibilities rather than "specific job 
duties" that the Beneficiary undertakes to meet those responsibilities . Rather than explain or expand 
upon the elements listed above, the Petitioner cites the "attached statement from the Petitioner 
explaining [the Beneficiary's] job functions." The statement is a copy of a statement previously 
submitted in response to a request for evidence. That statement concerned the company as it existed 
in early 2016, more than a year after the filing date. For example, the statement discussed the 
Beneficiary's 2015 decision for the company to join the The 
Director quoted the Petitioner's 2016 statement at length in the denial notice, and then we addressed 
it in our dismissal notice. Its resubmission on motion introduces no new information into the record 
and the Petitioner does not identify any specific errors we made with regard to the 2016 statement. 
Furthermore, the information in the 2016 statement does not readily correlate to the five job duties 
(listed above) provided on motion. For example , while the Petitioner now states that the Beneficiary 
is responsible for "[n ]egotiating and supervising the drafting of purchase agreements;' the 2016 
statement (signed by the Beneficiary himself) indicated that "the company's subordinate staff have 
authority to negotiate with vendors." 
The Petitioner provides some additional details in the new brief on motion, but does not establish 
that these details applied at the time of filing. The Petitioner asserts that the Beneficiary "works with 
the in marketing. " As noted above, the Petitioner did not 
join the until 2015, and the Petitioner does not show, on motion, that it worked with the 
in 2014. 
The Petitioner states that the Beneficiary "will be responsible for" several tasks and duties listed on 
motion. The phrase "will be responsible" shows that the list is prospective rather than referring to 
the Beneficiary's responsibilities at the time of filing. The listed elements appear to be broad and 
generic, with aspects that do not apply to the company. For example , the Petitioner states that the 
Beneficiary will be "the key U.S. contact for the shareholders of the foreign company." The foreign 
entity is a partnership rather than a corporation with shareholders , and the partners are the 
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Matter of A-1- Corp. 
Beneficiary and his brother. The list also states that the Beneficiary "will be responsible for ... 
[e]nsuring the marketing of products to consumers according to the parent company's guidelines." 
There is no "parent company"; the foreign company has no ownership interest in the petitioning U.S. 
company. Instead, the companies are affiliates because the Beneficiary owns 51% of the foreign 
partnership and all shares of the U.S. corporation. Furthermore, the foreign company is a furniture 
manufacturer and the Petitioner has not shown that the foreign company established guidelines 
relating to the operation of convenience stores and gas stations. 
The Petitioner states that, in our first appellate decision, we "overlooked the Service· s egregious 
errors in fact and understanding and failed to address the issues raised [in the] Petitioner's brief" 
The Petitioner does not identify these errors and issues, except to assert that the Director should have 
considered the company's structure at the time of the denial instead of at the time of filing. The brief 
on motion also refers to the Beneficiary's discretionary authority over the company, but we did not 
dispute that the Beneficiary controls the company in this way. At issue is not the extent of the 
Beneficiary's authority, but rather the amount of time the Beneficiary devotes (and devoted at the 
time of filing) to those duties rather than to non-executive operational and administrative tasks. 
The Petitioner states that the denial of the petition jeopardizes the Beneficiary's investment in the 
company and the jobs of the company's employees. We recognize these issues, but they do not 
establish that the Beneficiary qualifies for the immigrant classification sought. The statute and 
regulations include specific non-waivable requirements which the Petitioner has not met. There exists a 
separate immigrant classification for entrepreneurs who create jobs for U.S. workers. See section 
203(b)(5) of the Act. Buying a business and hiring U.S. workers do not intrinsically qualify a 
beneficiary for classification as a multinational executive. 
The Petitioner notes that the Vermont Service Center approved a petition to classifY the Beneficiary as 
an L-1 A intracompany transferee in a managerial or executive capacity, and has twice extended the 
Beneficiary's L-1 A status. Because the L-1 A classification has similar core requirements as the 
immigrant classification the Petitioner now seeks for the Beneficiary, the Petitioner states that the 
Directors ofthe Vermont and Texas Service Centers "[came] up with different conclusions based on the 
same evidence." 
In matters relating to an extension of nonimmigrant visa petition validity involving the same petitioner, 
beneficiary, and underlying facts, we will generally give some deference to a prior determination of 
eligibility. However, prior approvals do not create an automatic entitlement to the approval of a 
subsequent petition for renewal of that visa. The prior approvals may have resulted from error or 
oversight. See, e.g., Royal Siam Corp. v. Chertoff; 484 F.3d 139, 148 (1st Cir 2007); Matter o,(Church 
Scientology Int '!, 19 I&N Dec. 593, 597 (Comm'r 1988). Each petition filing is a separate proceeding 
with a separate record and a separate burden of proof. In making a determination of statutory eligibility, 
we are limited to the information contained in that individual record of proceeding. 8 C.F.R. 
§ 1 03 .2(b )( 16)(ii). 
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Matter of A-1- Corp. 
In the present matter, the Director of the Texas Service Center reviewed the record of proceedings for 
the immigrant petition and concluded that the Petitioner was ineligible for the classification sought. In 
both the RFE and the final denial, the Director clearly articulated the objective statutory and regulatory 
requirements and applied them to the case at hand. If the previous petitions relied on the same evidence 
as the petition now before us, the approvals would constitute error on the part of the Director of the 
Vermont Service Center. 
The Petitioner's motion to reconsider does not establish that our decision was based on an incorrect 
application of law or policy. It also does not establish that the decision was incorrect based on the 
evidence in the record of proceedings at the time of the decision. Therefore, we deny that motion. 
B. Motion to Reopen 
A motion to reopen must introduce new facts, with supporting evidence. 8 C.F.R. § 103.5(a)(2). 
Apart from redundant copies of previously submitted materials, the Petitioner's new evidence on 
motion consists of photographs of the Petitioner's stores; licenses and permits relating to those 
stores; and tax documents that show the Petitioner's staffing in late 2016. 
The tax documents from 2016 are new to the record, but are not relevant to the issue in dispute 
because they cannot establish eligibility as of the 2014 filing date. The existence and operation of 
the Petitioner's stores has not been in dispute, and therefore the photographs and copies of licenses 
and permits do not introduce relevant new facts into the proceeding. 
The motion to reopen does not include new facts that relate to the core question of eligibility at the 
time of filing. Therefore, we will not grant the motion to reopen. 
III. CONCLUSION 
The motion to reconsider does not identify errors of law or policy, and does not establish that our 
decision was incorrect when issued. The motion to reopen includes no relevant new facts. 
Therefore, we will deny both motions. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of A-1- Corp., ID# 737729 (AAO Oct. 30, 2017)