dismissed EB-1C Case: Home Decor

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-U-G- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 24, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer and seller of cabinets and home decor, seeks to permanently employ the 
Beneficiary as a manager under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(I)(C), 
8 U.S.C. § 1153(b)(I)(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 record did not 
establish, as required, that: (I) in the three years preceding the filing of the petition or the 
Beneficiary's entry into the United States to work for the Petitioner, the Beneficiary has been 
employed by a qualifying entity abroad for at least one year in a managerial or executive capacity; 
and (2) the Beneficiary will be employed in the United States in a managerial or executive capacity. 
We dismissed the Petitioner's appeal from that decision, with an additional finding that the Petitioner 
had not shown that it had been doing business for at least a year prior to the tiling of the petition. We 
denied the Petitioner's motion to reconsider, and the matter is now before us on a motion to reopen. 
On motion, the Petitioner submits additional evidence and asserts that it has met its burden of proof. 
Upon de novo review, we will deny the motion to reopen. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on documentary evidence of new facts. See 8 C.F.R. § I 03.5(a)(3). We 
may grant a motion that satisfies the regulatory requirements and demonstrates eligibility for the 
requested immigration bene lit. 
II. ANALYSIS 
A. Qualifying Employment Abroad 
The Beneficiary entered the United States to work for another employer, and began working for the 
Petitioner while he was in the United States. The Petitioner employed the Beneficiary in the United 
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Maller (~[C-U-G- Corp. 
States at the time of filing. Therefore, the Petitioner must show that a qualifying entity employed the 
Beneficiary outside the United States for at least one year during the three years before the Petitioner 
hired the Beneficiary in the United States. See Malter of S-P-. Inc., Adopted Decision 2018-01 4 
(AAO Mar. 19, 20 18). 
As detailed in our appellate decision, issued in May 2017, we noted that the Beneficiary entered the 
United States in June 2011 and claimed to have begun working for the Petitioner in 2014. We found 
that the Petitioner had not con·oborated its claim to have employed the Beneficiary in 2014, but even 
assuming the. above dates, we found that the Beneficiary could not have worked the required year 
abroad during 
the three years before the Petitioner hired him. 
In our first decision on motion, we noted multiple discrepancies in the Petitioner's and the Beneficiary's 
accounts of the Beneficiary's past employment, and found that the Petitioner had not submitted enough 
evidence to overcome serious questions of credibility. 
On its second motion, the Petitioner submits a letter from an official of , the claimed 
foreign employer, indicating that the Beneficiary remained on the foreign company's payroll while he 
was in the United States. The qualifYing employment, however, must have occurred outside the United 
States; a beneficiary cannot qualify by working in the United States while on a foreign company's 
payroll. The Petitioner has not addressed or overcome this key finding on either of its two motions. 
The new letter on motion indicates that the Beneficiary "was properly included in the [Petitioner's] 
payroll starting [in the] year 2013," but the Petitioner does not submit payroll records to support this 
claim. Previously, the Director had specifically requested both the Beneficiary's exact starting date 
with the Petitioner, and a copy ofthe Beneficiary's IRS Form W-2, Wage and Tax Statement, for 2014. 
The Petitioner did not provide this infonnation. Without credible corroboration, the newly claimed shift 
in employment dates is not a ground for reopening the proceeding. 
The Petitioner also submits a translation of an organizational chart, previously submitted only in 
Portuguese. This document, too, is not a basis lor reopening the proceeding. The regulation at 8 C.F.R. 
§ I 03 .2(b )(3) requires l:crti fied English translations of foreign-language documents, and the Director 
cited the lack of such a translation in the original denial notice.
1 
However, the original denial notice is 
not under review at this late stage in the proceeding. The Petitioner's opportunity to address that 
decision was in October 2016, when the Petitioner appealed that decision. A motion does not trigger de 
novo review of the entire record of proceeding; it relates only to the most recent decision. In this case, 
the most recent decision is our October 2017 decision denying the Petitioner's first motion. The 
Petitioner must show that our decision was in error before we need revisit the underlying petition. 
1 Of greater concem, the Director doubted that the Beneficiary had worked for at all: the claim was 
poorly corroborated, and a previous filing contained much stronger evidence that the Beneficiary had worked for a 
different employer before entering the United ,States in 20 II. 
2 
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Maller ofC-U-G- Cm1J. 
We did not cite the a bsence of a translated orga nizational chart as a basis for dismissing the appeal or 
denying the Petitioner 's tirst motion. Instead , we found that, owing to a lengthy , disqual ifying 
interruption in his foreign employmen t, his employment abroad could not qualif y him for the bene fit 
soug ht, regardless of the circumstances of that employment. Additional details or claims about that 
foreign emplo yment cannot remedy the gap of more than two years in qualifYing employme nt. 
The Petitioner has not overcom e our finding that a more than two-year interrupti on in the Beneficiary's 
emp loyment abroad disqualities him from receiving benefits through the present petition. 
B. U.S. E mploymen~ in a Managerial or Execut ive Capacity 
In our appe llate decision, we exp lained why the Petitioner had not adequately estab lished that the 
Beneficiary's intended position qualifies as managerial or executive. Denying the Petitioner's first 
motion, we noted that the Petitioner had not overco me those findings, instead ofler ing the new claim 
that the U.S. company relies on the work of foreign employees working at On 
motion , the Petitioner doe s not add ress these findings. Instead , the Petitioner offers a general 
description of the Beneficiar y's intended duties in the United States, and states that we " must take into 
accou nt relevant evidence in the record concerning the reasonabl e needs of the o rganization as a 
whole." The Petitioner asserts that we " failed to acknowledge the extreme need the i>etitioner, in 
expa nsion, has to employ its managers with previou s experience. " This is not what the statute means by 
"the reasonable needs of the organization." Rather, section 101 (a)( 44)(C) of the Act states that we 
must take the reaso nable needs of the orga nization into account when considering the size r?f the 
organization ·s stc!ff 
We found that the Petit ioner has not estab lished that the Beneficiar y's intended posttton in the 
United States qualities as mana gerial or exec utive. On appeal, the Petitioner has not overcome this 
tinding or provided any new facts that wou ld warrant reopenin g the proceed ing. 
C. Doing Business 
ln our appe llate decision , we made a new findin g that the record docs not estab lish that the Petit ioner 
has been doin g busines s for at leas t one year prior to the date of fi ling the petitio n as required by the 
regulation at 8 C.F.R. § 204 .5U)(3)( i)(D). The regulations define "doing business" as the regular , 
systemat ic, and continuous provi sion of goods or services, and not the mere presence o f an agent or 
office. 8 C.F.R. § 204.5(j)(2). 
We noted that, while the Petitioner incorporated in 2013, its business permits date d from 
20 13, and "[t]he earliest invo ices and bank statements in the record date from Februar y 
20 14," less than a year before the petition's Sep tembe r 201 4 til ing date. We acknowledged that the 
Petitioner had subm itted a copy o f its 20 13 tax return , but we noted that it did "not sho\.V when in 
20 13 the Petitioner began providin g goods or serv ices." 
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Mauer ofC-U-G- Corp. 
In its first moti on, the Petitioner submitted another copy of its 2013 incom e tax return. In denying 
that m otion , we observed that we had already considered that document, and found it insufficient to 
establish a year of qualifying business activity. 
On its seco nd motion, the Petitioner su bmits yet another copy of its 2013 incom e tax return , stating 
that it shows that the Petitioner "was incorporated and doing business on 20 13," a year and a 
half before the September 2014 tiling date. The incorporation date, however , does not demonstrate 
or imply that the company began regularly , continuously, and systematically providing goods or 
services on that date. A comp any provides no goods or services simply by incorporating. 
The tax return summarizes all business activity that took place during calendar year 2013, but it does 
not tell us when that activity began. Without more precise documen tation showing when in 20 13 the 
Peti tioner began selling and installing cabinets and other tlxture s, the Petitioner has not show n that it 
was doin g business f-o r at least one year prior to the filing date in September 20 14. 
Becau se the 2013 tax return was already in the record , its resubmi ssion on motion does not introduce 
any new facts into the record , and therefore docs not merit reopening the proceeding . 
Ill. CONCLUSION 
The Petitioner, on motion, has not overcome the findings in our prior decision. The Petiti oner has 
not shown that the Beneficiary meets requirements regarding for eign emp loyment or the nature of 
the intended position in the United State s, and the Petitione r has not shown that it was doing 
business at least a year before it filed the petition. 
ORDER: The motion is denied. 
Cite as /vlaller (?( C- U-Ci- Corp., 10# 120 1761 (AAO Apr. 24, 20 18) 
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