dismissed EB-1C Case: Jewelry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 12, 2024 In Re: 29024248 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner - a jewelry designer, maker, and seller - seeks to employ the Beneficiary as its 
president. The company requests his classification under the employment-based, first-preference (EB-
1) immigrant visa category as a "multinational executive." See Immigration and Nationality Act (the 
Act) section 203(b )(1 )(C), 8 U .S.C. § 1153(b )(1 )(C). This category allows multinational organizations 
to transfer qualified noncitizens from abroad to permanently work in the United States in managerial 
or executive capacities. 
The Director of the Nebraska Service Center denied the petition and the Petitioner's following two 
combined motions to reopen and reconsider. The Director concluded that the company neither 
demonstrated the Beneficiary's required employment abroad for at least one year in the claimed 
executive capacity, nor his proposed U.S. employment in the same claimed capacity. On appeal, the 
Petitioner contends that the Director disregarded and misanalysed evidence. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that the record supports the Director's dismissal of the company's most recent 
motions. We will therefore dismiss the appeal. 
I. LAW 
A noncitizen qualifies as a multinational executive if - in the three years before their U.S. admission 
- they worked abroad for at least one year in a managerial or executive capacity. Section 203(b )(1 )(C) 
of the Act; 8 C.F.R. § 204.5(j)(3)(i)(B). A multinational executive must also seek to provide executive 
services in the United States for the same foreign employer or its subsidiary or affiliate. Id.; see 
generally 6 USCIS Policy Manual F.(4)(A), www.uscis.gov/policy-manual. 
TI. ANALYSIS 
A. The Motion to Reopen 
A motion to reopen must state "new facts," supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). "A motion that does not meet applicable requirements shall be dismissed." 8 C.F.R. 
§ 103.5(a)(4). 
The Director dismissed the Petitioner's latest motion to reopen, finding that it lacked new facts. On 
appeal, the company does not dispute the dismissal. The Petitioner therefore has effectively "waived" 
challenge to the motion's dismissal. See, e.g., Matter of O-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 
2021) (citing Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)). We therefore affirm the 
Director's dismissal of the company's latest motion to reopen. 
B. The Motion to Reconsider 
The Director found that the Petitioner's latest motion to reconsider did not provide sufficient reasons 
for the petition's approval. See 8 C.F.R. § 103.5(a)(3) 
(requiring that a motion to reconsider "establish 
that the [prior] decision was based on an incorrect application of law or [USCIS] policy"). On appeal, 
the Petitioner contends that the Director disregarded and misanalysed evidence of the Beneficiary's 
employment abroad and the company's proposed U.S. employment of him. 
1. The Beneficiary's Foreign Employment 
The record shows that the Beneficiary works in the United States for the Petitioner, the affiliate of his 
foreign employer. The Petitioner must therefore demonstrate that, in the three years before his U.S. 
entry as a nonimmigrant, he worked abroad for at least one year in the claimed executive capacity. 
See section 203(b )(I )(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(B). Under USCIS policy: 
The 1-year foreign employment requirement is only satisfied by the time a beneficiary 
spends physically outside the United States working full-time for the petitioner or a 
qualifying organization. A petitioner cannot use any time that the beneficiary spent in 
the United States to meet the 1-year foreign employment requirement, even if the 
qualifying foreign entity paid the beneficiary and continued to employ [them] while 
[they were] in the United States. 
2 USC IS Policy Manual L.( 6)(G)( l) (in the context of L-1 nonimmigrant visa petitions, explaining the 
one-year foreign employment requirement). 1 
The Petitioner asserts its compliance with the one-year foreign employment requirement. The 
company contends that the Beneficiary worked for its affiliate in Canada for at least one year, from 
the affiliate's incorporation inl I2018 until his U.S. entry in nonimmigrant E2 visa status in 
1 Petitioners for both L-1 nonimmigrants and multinational executives/managers must demonstrate that beneficiaries spent 
at least one year working abroad during prior three-year periods. Compare 8 C.F.R. § 204.5(j)(3)(i)(B) with 8 C.F.R. 
§ 214.2(1)( l )(ii)(A). 
2 
October 2019. See section 101(a)(15)(E), 8 U.S.C. § 1101(a)(15)(E) (allowing nationals of certain 
countries, through treaties, to carry on trade in the United States or to develop and direct U.S. 
enterprises in which they have invested). The company states that, at the time of his U.S. entry in 
October 2019, the Beneficiary and his family moved to the United States, and he began work as the 
company's president. 
The Petitioner concedes, however, that the Beneficiary previously entered the United States in E2 
status on June 20, 2019 and remained in the country until October 16, 2019. Ten days later, as the 
company states, he re-entered the United States in E2 status with his family. The company states that 
he entered the U.S. in June 2019 "to oversee the business." 
The purpose of the regulation at 8 C.F.R. § 204.5(i)(3)(i)(B) is to allow nonimmigrant managers or 
executives who are already working for qualifying organizations in the United States to qualify for 
immigrant visa classification as multinational managers or executives. Matter ofS-P-, Inc., Adopted 
Decision 2018-01, *3 (AAO Mar. 19, 2018). Under the regulation, the Petitioner must demonstrate 
the Beneficiary's work abroad for one year "in the three years preceding entry as a nonimmigrant." 
See 8 C.F.R. § 204.5(j)(3)(i)(B). The record shows that the Beneficiary entered the United States as 
a nonimmigrant to work for the Petitioner on June 20, 2019 and October 26, 2019. But we need not 
determine which date marks the end of the relevant three-year period, as the Beneficiary would not 
qualify using either date. 
Using the date of the Beneficiary's first E-2 entry, the Canadian entity would have employed him 
abroad from I 2018 to June 2019. This period falls short of one year and thus would not meet 
the requirements of 8 C.F.R. § 204.5G)(3)(i)(B). 
Using the date of Beneficiary's second E2 entry, the Petitioner contends that he would have worked 
in Canada froml 12018 to October 2019. That period exceeds one year. But, as previously 
indicated, USCIS records and copies of the Beneficiary's travel documents show that, during thatLJ 
month period, he remained in the United States in E2 status for almost four months, from June 20, 
2019 until October 16, 2019. "A petitioner cannot use any time that the beneficiary spent in the United 
States to meet the I-year foreign employment requirement, even if the qualifying foreign entity paid 
the beneficiary and continued to employ [them] while [they were] in the United States." 2 USCIS 
Policy Manual L.(6)(G)(l). Thus, because the Beneficiary spent less than one year in Canada in the 
period from I 2018 and October 2019, he did not work at least one year abroad. 2 
Also, the Petitioner has not demonstrated the claimed executive nature of the Beneficiary's work in 
Canada. The term "executive capacity" means work "primarily" involving: 
• Directing the management of an organization or a major component or function of it; 
• Establishing goals and policies; 
• Exercising wide latitude in discretionary decision-making; and 
• Receiving only general supervision or direction from higher-level executives, a board of 
directors, or stockholders. 
2 USCIS records also show that, between March 2019 and June 2019, the Beneficiary remained in the United States as a 
visitor for about 45 days. This visiting time in the United States also does not constitute employment abroad. 
3 
Section 101(a)(44)(B) of the Act. 
As the Director found, a letter from the affiliate's director/secretary does not establish the 
Beneficiary's work in the claimed executive capacity. To meet the definition of the term "executive 
capacity," the Petitioner must, in part, demonstrate the Beneficiary's direction of the affiliate's 
management. See section 101 (a)( 44)(B)(i) of the Act. The phrase "direct the management" in that 
provision requires an executive to exercise control over a subordinate level of managerial staff. VHV 
Jewelers, LLC v. Wolf, 17 F.4th 109, 114-15 (11th Cir. 2021). Neither the letter nor a 2018 
organizational chart establishes the Beneficiary's direction of the affiliate's management. The 
materials do not describe his subordinates - a bookkeeper and an administrative assistant - as 
managers, as their job duties do not include managing personnel or company functions. See Brazil 
Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1070 (9th Cir. 2008) (in the context of an L-1 A 
nonimmigrant visa petition, holding that an employer had not reached the level of organizational 
sophistication in which a beneficiary could devote his primary attention to managerial/executive 
duties). 
For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's employment abroad 
for at least one year in the claimed executive capacity. We will therefore affirm the Director's finding. 
2. The Proposed U.S. Employment 
The Petitioner also claims that it would employ the Beneficiary in the United States in an executive 
capacity. The company contends that, in determining the nature of the proposed U.S. employment, 
the Director disregarded relevant factors. The company asserts that the Director did not consider: its 
organizational structure; the existence of other employees to relieve the Beneficiary from having to 
perform operational duties; or the nature of its business. See 6 USCIS Policy Manual F.(4)(C)(4). 3 
The record, however, does not support the Petitioner's contention. The Director's original petition 
denial considered the company's organizational structure by noting an inconsistency between the 
offered job's duties and the company's organizational chart. The job duties state the Beneficiary's 
review and analysis of "orders prepared by the Store Manager." But the organizational chart does not 
list a store manager as a company employee at the time of the petition's filing in May 2020. See 
8 C.F .R. § I 03.2(b )(1) (requiring a petitioner to establish eligibility "at the time of filing the benefit 
request"). 
The organizational chart also indicates the Petitioner's employment of four people, including the 
Beneficiary. But the company's initial filing indicated its employment of three people. Also, in a 
later petition for the Beneficiary, copies of the company's federal payroll tax returns for each of the 
first three quarters of 2020 and its payroll record for March 2020 list one employee. See Matter of 
3 For relevant factors in determining a job's executive nature, the Petitioner cites Matter ofZ-A-. Inc., Adopted Decision 
2016-02 (AAO Apr. 14, 2016). Z-A-, however, does not directly support the relevant factors cited by the company. In the 
context of an L-IA nonimmigrant visa petition, Z-A- discusses relevant factors for determining whether a beneficiary 
would be a "function manager." See section 10l(a)(44)(A)(ii) of the Act (stating that the term "managerial capacity" can 
include management of an "essential function"). 
4 
Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies with 
independent, objective evidence pointing to where the truth lies). 
The evidentiary discrepancies cast doubt on the Petitioner's organizational structure, number of 
employees, and the existence of employees to relieve the Beneficiary from having to primarily perform 
operational duties. See also Spencer Enters., Inc. v. United States, 345 F.3d 683, 694 (9th Cir. 2003) 
(stating that "[n ]umerous errors and discrepancies" in a visa petition can raise "serious concerns" about 
a party's credibility). Although the Director's decision on the Petitioner's most recent combined 
motions does not specifically repeat these findings, the Director need not have responded to the 
company's previously addressed arguments. See, e.g., Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 
2006) ("[A] motion to reconsider is not a process by which a party may submit, in essence, the same 
brief [as previously] presented ... and seek reconsideration by generally alleging error in the prior .. 
. decision"). 
Also, the Director's initial denial decision considers the Petitioner's staffing level. The decision states: 
When a company has a limited number of employees it becomes questionable as to 
whether the beneficiary will be acting primarily in an executive capacity. USCIS may 
reasonabl[y] conclude in such a case that a wide range of daily functions associated 
with running a business will be performed by the beneficiary and that these duties are 
unrelated to the definition of ... executive [capacity]. 4 
The remainder of the Petitioner's appellate brief cites one of our decisions that USCIS has adopted as 
Agency policy: Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). G-, however, 
does not directly relate to the Petitioner's case. Unlike this case, which involves a petition for a 
multinational executive, our adopted decision focuses on determining whether a beneficiary worked, 
or would work, as a "function manager" under the definition of "managerial capacity." See section 
10l(a)(44)(A)(ii) of the Act. The Petitioner contends that it would employ the Beneficiary in an 
executive capacity, not in a managerial capacity as a function manager. 
The Petitioner has not demonstrated that it would employ the Beneficiary in the United States in an 
executive capacity. For this additional reason, we will affirm the Director's decision. 
III. CONCLUSION 
The Petitioner's latest motion to reopen did not meet applicable requirements. Its latest motion to 
reconsider demonstrated neither eligibility for the requested benefit nor the Director's misapplication 
of law or policy. 
4 When determining whether beneficiaries would work in managerial or executive capacities, USCIS cannot rely solely on 
their petitioners' number of employees. Section 101 (a)(44)(C) of the Act. Here, the Director considered the Petitioner's 
number of employees when determining the nature of the offered U.S. job. But the Director also considered other relevant 
factors, including: the company's organizational structure; and the job duties of its other employees. The Director 
therefore did not violate section 101(a)(44)(C). See Brazil Quality Stones, 531 F.3d at 1070 ("[A]n organization's small 
size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity, but size is 
nevertheless a relevant factor in assessing whether [ an organization's] operations are substantial enough to supp011 a 
manager.") 
5 
ORDER: The appeal is dismissed. 
6