dismissed EB-1C Case: Logistics And International Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-1-L- CO. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : JULY 30, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a logistics and international trade company, seeks to permanently employ the 
Beneficiary as its chief executive officer (CEO) 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 an executive or 
managerial capacity. 
The Director of the Texas Service Center 1 denied the petition concluding that the Petitioner did not 
establish, as required , that: (1) it will employ the Beneficiary in the United States in a managerial or 
executive capacity; (2) the Petitioner and the Beneficiary's foreign employer have a qualifying 
relationship; and (3) the Petitioner had been doing business as defined in the regulations for at least 
one year at the time of filing . The Director dismissed the Petitioner's two subsequently filed motions . 
In the course of reviewing the record on appeal, we issued a notice of intent to deny and request for 
evidence (NOID /RFE) and then dismissed the appeal concluding that the Petitioner did not overcome 
the basis for the denial regarding the Beneficiary 's proposed employment in a managerial or executive 
capacity. 
The matter is now before us on a motion to reopen and reconsider. The Petitioner offers new and 
resubmitted evidence to support its claim that the Beneficiary performs primarily executive-level job 
duties within an organizational structure that is adequately staffed and can support the Beneficiary in 
an executive position . 
Upon review, we will deny the combined motion to reopen and reconsider. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the petition, 
has been employed outside the United States for at least one year in a managerial or executive capacity, 
1 The Petitioner indicated on the Form I-290B , Notice of Appeal or Motion~I ______ I, which accompanied the 
appeal, that it was appealing a decision from the "Nebraska Service Center (LIN)." 
Matter ofY-1-L- Co. 
and seeks to enter the United States in order to continue to render managerial or executive services to the 
same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same employer 
or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
I. MOTION REQUIREMENTS 
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 oflaw or U.S. Citizenship and Immigration Services (USCIS) 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 requested immigration benefit. 
II. BACKGROUND 
In our decision dismissing the appeal, we concluded that the Petitioner did not reconcile the 
Beneficiary's own job description, which indicates that he supervises store managers and rotates 
between stores to assist with operations, and the Petitioner's claim that the general manager, logistics 
manager, and e-commerce manager oversee the company's day-to-day activities so that the 
Beneficiary can focus on executive job duties. 2 We also concluded that the Petitioner did not resolve 
inconsistencies between employee job duties and information provided in a submitted flow chart, 
which listed activities that were not assigned to any specific employee. The unresolved inconsistencies 
caused us to doubt the credibility of the employee job descriptions that contained references to sales 
teams and sales territories, which were not part of the Petitioner's landscape at the time of filing. 
We discussed the Beneficiary's job duties finding that the Petitioner offered a vague description of the 
Beneficiary's job responsibilities, which indicated that the Beneficiary holds a senior position with the 
organization and has discretionary authority. However, the Petitioner did not explain or provide 
evidence of the policies, strategies, and objectives the Beneficiary has implemented or is expected to 
implement, issues he has resolved, or information regarding the types of discretionary decisions he is 
required to make. 
We also addressed the Petitioner's staffing and organizational structure. We acknowledged that the 
Petitioner submitted organizational charts depicting its staffing hierarchy at the time of and subsequent 
to the date of filing this petition; however, we pointed to regulations that require the Petitioner to 
establish that all eligibility criteria had been satisfied as of the date this petition was filed. See 8 C.F.R. 
2 Prior to dismissing the appeal, we issued a NOIDIRFE, instructing the Petitioner to address specific deficiencies in the 
record. 
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Matter ofY-1-L- Co. 
§ 103.2(b)(l). We also acknowledged the brief job duty summaries of the employees listed in the 
Petitioner's original organizational chart, but found that these descriptions were not credible based on 
the nature of the business it conducts. We questioned the Petitioner's ability to operate four store 
branches with only one employee at each branch and we pointed to an anomaly in the job description 
of the employee at the fourth branch store, noting that this employee's job description was different 
from the job descriptions of the employees at the other three branch stores. Next, we discussed 
information in the Petitioner's 2015 and 2016 tax returns, questioning whether the Petitioner's 
contracted accountant actually provided the full scope of services claimed at the time of filing, given 
that the Petitioner spent only $4268 and $3211 on accounting services in 2015 and 2016, respectively. 
We also found that the Petitioner provided vague job descriptions for other employees within its 
organization and we questioned who actually performs the tasks that were listed in the previously 
mentioned flow chart. 
Lastly, we pointed to evidence of a high turnover rate among the Petitioner's staff: noting that the 
record was unclear as to which employees were actually working on a full-time basis at the time of 
filing. In sum, we found that the Petitioner did not adequately and credibly describe the Beneficiary's 
duties or those of his support staff and concluded that the record did not support the claim that the 
Beneficiary would be able to focus primarily on executive duties while his subordinates oversee and 
perform the day-to-day administrative and operational functions of the multifaceted business. 
III. ANALYSIS 
The primary issue to be addressed in this decision is whether the Petitioner has offered new relevant 
facts supported by credible evidence or made arguments establishing that our decision to dismiss the 
appeal was based on an incorrect application of law or USCIS policy with respect to the facts of this 
case. The Petitioner must establish that all eligibility requirements for the immigration benefit have 
been satisfied from the time of the filing (in this case, October 2015) and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). 
As a preliminary matter, we note that the review of any motion is narrowly limited to the basis for the 
prior adverse decision. Here, the subject of the prior decision was our dismissal of the Petitioner's 
appeal. As such, the purpose of this decision is to examine any new facts and supporting evidence 
that pertain to our prior decision dismissing the appeal and to consider arguments regarding that 
decision. 
A. Motion to Reopen 
On motion, the Petitioner looks to provide new information about the Beneficiary's duties and role 
with respect to other employees within the company, claiming that the Beneficiary has three 
managerial subordinates reporting to him, despite the depiction in the organizational chart, which 
indicates that the logistics and e-commerce managers both report to the general manager, who is 
depicted as the Beneficiary's only direct subordinate. Although the Petitioner offers written "work 
reports" of these managers to support its claims, the reports only serve as evidence of the managers' 
respective ideas and feedback, but do not provide insight as to the Petitioner's reporting structure to 
corroborate its current claims on motion. Likewise, the Petitioner offers no evidence to support the 
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Matter ofY-1-L- Co. 
claim that the Beneficiary relies on a "management team to frequently engage in the hiring process" 
to address the frequent employee turnovers it has experienced. It is unclear how the "management 
team" can be instrumental in the hiring process when members of that very team, with the exception 
of the general manager, contributed to the Petitioner's high turnover rate. Despite the Petitioner's 
claims, the company's circumstances and ongoing changes in staffing would likely call for the 
Beneficiary's direct involvement in the operational tasks associated with hiring new personnel. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Further, the Petitioner does not provide evidence to support its current claim that the logistics manager, 
rather than the Beneficiary himself, rotates among its multiple store locations to supervise and assist 
each store's staff Although the Petitioner asserts that the original job description "did not make this 
clear," this assertion is inaccurate and belies a claim that was expressly made in that job description, 
where the Petitioner stated that the Beneficiary would"[ r ]otate from stores to stores [sic] and supervise 
and monitor staffs and assist in task completions." The Petitioner must resolve this incongruity in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
The Petitioner also offers an explanation for its reference to sales teams and sales territories, which 
we previously deemed to be inconsistent with the stage and nature of the business. Namely, the 
Petitioner contends that these references represented job duties that employees would perform in the 
future, after the Petitioner hires sales representatives who would comprise its projected sales teams. 
We note, however, that the employee job descriptions contained no indication that the assigned job 
duties are prospective or that they are contingent upon the hiring of sales representatives, which were 
not mentioned at any time in the job descriptions in question. Although the Petitioner offers "revised" 
employee job descriptions to support this new claim, this new information is inconsistent with the 
prior job descriptions where the Petitioner used the present tense to list the job duties that the 
employees "are" currently performing. A petitioner may not make material changes to a petition in 
an effort to make a deficient petition conform to USCIS requirements. See Matter of Izwnmi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
Lastly, the Petitioner states that it is submitting its accountant's Forms W-9 and 1099 along with its 
own 2017 tax return to demonstrate its increased volume of business. We note, however, that the 
Form W-9, regardless of the year it was filed, contains no information that would be relevant to the 
Petitioner's claim as to its volume of business at the time of filing. We also note that the Petitioner's 
resubmission of a Form 1099, which was issued to its contracted accountant in 2015, is neither new 
nor relevant to the Petitioner's eligibility at the time of filing. Although the Petitioner did provide new 
evidence in the form of a 201 7 tax return, the probative value of this document is limited as it reflects 
the Petitioner's finances after the petition was filed and therefore does not help to establish the 
Petitioner's eligibility at the time of filing. 
In light of the above analysis, the Petitioner has not shown proper cause for reopening. 
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Matter ofY-1-L- Co. 
B. Motion to Reconsider 
Although the Petitioner disagrees with our decision dismissing the appeal, it has not argued that the 
findings in our prior decision were based on an incorrect application of law or USCIS 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). Therefore, the Petitioner has not shown cause for reconsideration. 
IV. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
the prior decision. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of Y-1-L- Co., ID# 4840799 (AAO July 30, 2019) 
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