dismissed EB-1C Case: Logistics And International Trade

U.S. Citizenship 
and Immigration 
Services 
In Re: 07930473 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: MAY 26, 2020 
Form I-140, Immigrant Petition for a Multinational Executive or Manager 
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. § 1153(b)(l)(C). This employment-based "EB-1" immigrant 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. 
1. PREVIOUS PROCEEDINGS 
The Director of the Texas Service Center denied the petition on the grounds that the Petitioner did not 
establish that it (1) will employ the Beneficiary in the United States in a managerial or executive 
capacity; and (2) had been doing business as defined in the regulations for at least one year at the time 
this petition was filed. The Petitioner filed two subsequent motions, both of which were dismissed by 
the Director, before filing an appeal. 
On appeal the Petitioner asserted that the Beneficiary will be employed in an executive capacity, 1 and 
made no claim of managerial capacity. We issued a notice of intent to dismiss and request for evidence 
(NOID/RFE) and, after receiving the Petitioner's response, dismissed the appeal. We withdrew the 
finding that the Petitioner had not been doing business for at least one year, but concluded that the 
Petitioner did not overcome the ground for denial based on its failure to establish that the Beneficiary 
would be employed in an executive capacity. In particular, we concluded that the record did not 
support the Petitioner's claim that the Beneficiary primarily performs higher level executive functions 
like developing the company's goals and policies, making discretionary decisions for the company, 
and directing the management of the entity as a whole. Based on the evidence ofrecord we concluded 
that the Petitioner did not have a sufficient staff of subordinates overseeing and performing the day-
1 "Executive capacity" is defined at section 10l((a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B) , which reads as follows: 
"The term 'executive capacity ' means an assignment within an organization in which the employee primarily - (1) directs 
the management of the organization or a major component or function of the organization; (ii) establishes the goals and 
policies of the organization , component, or function; (iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, the board of directors , or stockholders of 
the organization ." 
to-day administrative and operational functions of the company to allow the Beneficiary to focus 
primarily on executive duties. 
The Petitioner filed a motion to reopen and a motion to reconsider the AAO's appeal dismissal, 
accompanied by some new evidence in support of its claim that the Beneficiary performs primarily 
executive-level job duties within an organizational structure that is adequately staffed and supports the 
Beneficiary in an executive position. We dismissed both motions. We concluded that the Petitioner 
did not show proper cause for reopening since the factual allegations and evidence submitted on 
motion did not overcome the grounds for our dismissal of the appeal. 2 We also dismissed the motion 
to reconsider since the Petitioner did not claim that our appellate decision was incorrect as a matter of 
law or USCIS policy. 
II. CURRENT MOTION 
The case is now before us on another motion to reopen. As provided in the regulation at 8 C.F.R. 
§ 103.5(a)(2): "A motion to reopen must state the new facts to be provided in the reopened proceeding 
and be supported by affidavits or other documentary evidence." In its brief the Petitioner refers to 
specific conclusions in our previous motion decision and offers its interpretation of the facts. 
However, we can discern no new facts in the current motion about the nature of the Beneficiary's 
position and the duties he performs in relation to other employees and the company as a whole which 
demonstrate that his job is primarily executive in nature. Nor has any new documentary evidence been 
submitted. Of the four exhibits accompanying the motion, three had already been submitted in earlier 
proceedings and the fourth, the narrative of the flow chart, simply reformulates the tasks of employees 
whose job duties had already been described in earlier proceedings. The footnote below addresses the 
Petitioner's motion in detail. 3 
2 While the Petitioner asserted that the Beneficiary, as CEO, had three managerial subordinates reporting to him - the 
general manager, the logistics manager, and the e-commerce manager - the Director noted that the previously submitted 
organizational chart depicted the e-commerce and logistics managers as reporting to the general manager and only the 
general manager as reporting directly to the CEO, and found that the reporting structure claimed by the Petitioner on 
motion was not corroborated by any materials submitted with the motion. While the Petitioner claimed that the Beneficiary 
relied on a management team to spearhead the hiring process for new personnel, the Director noted that no evidence thereof 
had been submitted and in view of the high turnover of management employees it appeared likely that the Beneficiary is 
directly involved in the operational tasks associated with hiring new personnel, and therefore not acting in an executive 
capacity. Citing Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988), the Director indicated that the Petitioner had 
submitted no evidence to resolve the inconsistency between its current claim that the logistics manager rotated among its 
store locations to supervise and assist staff employees and the original job description which identified the Beneficiary as 
performing that task. The Director noted that some newly-described job duties to be performed by the Petitioner's 
employees - in particular, sales teams with sales territories -- did not accord with the jobs that were being performed at the 
time the petition was filed, and stated that the petition could not be amended to make it conform to USCIS requirements, 
citing Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Finally, the Director stated that the newly 
submitted copy of the Petitioner's 2017 federal income tax return had limited probative value as evidence of the Petitioner's 
increased volume of business, its need for an accountant, and the claim that this evidence showed the Beneficiary was 
performing primarily executive functions, because the 2017 tax return did not reflect the Petitioner's finances at the time 
the petition was filed in early 2016. 
3 While acknowledging that its organizational chart shows the logistics and e-commerce managers as subordinate to the 
general manager and only the general manager as being directly subordinate to the CEO, the Petitioner asserts that some 
communications from the logistics and e-commerce managers go directly to the CEO, though in daily operational matters 
2 
In sum, no new facts and supporting documentary evidence have been submitted to overcome our 
previous conclusions that the Beneficiary is not employed in an "executive capacity" as defined in 
section 10l(a)(44)(B) of the Act. 
III. CONCLUSION 
The Petitioner has not shown proper cause for us to reopen the proceeding in accordance with the 
provisions of 8 C.F.R. § 103.5(a)(2). 
ORDER: The motion to reopen is dismissed. 
they report directly to the general manager. The fact alleged is not new, and neither is the supporting documentation. The 
Petitioner resubmits a flow chart, already in the record, showing which employees perform which duties, adds a narrative 
of the flow chart which provides descriptions of specific tasks performed by individual employees, and also resubmits job 
descriptions for each of its employees at the time the petition was filed in February 2016. 
The Petitioner references an excerpt from our earlier decision dismissing the appeal in which we questioned the Petitioner's 
ability to operate four store branches with only one employee at each branch, and states that this was possible because 
walk-in business was still relatively light. No new evidence is submitted with respect to this claim. Nor does the Petitioner 
explain how this issue relates to its claim that the Beneficiary is performing executive-level duties. 
Referring to the previously submitted organizational chart, the Petitioner reiterates its assertion that the CEO is not involved 
in hiring decisions, despite the high turnover of management as well as operational personnel, except when they involve 
directly subordinate managers. No new evidence is submitted in support of this claim. As for management oversight of 
the multiple store locations, the Petitioner now states that the Beneficiary wants department managers to rotate from store 
to store, which conflicts with its recent claim that the logistics manager would perform this task and its original assertion 
that the Beneficiary would perform this task. Once again, the Petitioner does not explain how this issue relates to its claim 
that the Beneficiary is performing executive-level duties. 
The Petitioner concedes that sales teams and sales territories had not yet been established at the time the petition was filed, 
so any executive duties the Beneficiary may exercise with respect thereto were prospective in nature and not existent at 
the time of filing in early 2016. A petition may not be approved, however, if the Beneficiary does not meet the 
qualifications for the requested visa classification at the time the petition was filed. See Matter of Katigbak, 14 I&N Dec. 
45, 49 (Comm'r 1971). 
The Petitioner resubmits a copy of its 2015 federal income tax return, which was already in the record, asserting that it 
shows its business was booming at the time of filing. Finally, the Petitioner references the statement from our earlier 
decision dismissing the appeal that the Petitioner did not provide detailed information or evidence regarding the types of 
discretionary decisions the Beneficiary has to make, and resubmits a list of actions the Beneficiary has taken that was 
originally submitted with the Petitioner's previous motion. Neither of these items involves new facts or new evidence. 
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