dismissed EB-1C Case: Real Estate Asset Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 9635265 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 19, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a real estate asset management operation, seeks to permanently employ the Beneficiary 
as its "Chief Asset Manager" 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 l 53(b )(1 )(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 Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner has a qualifying relationship with the Beneficiary 's foreign 
employer. We dismissed the appeal and added a second ground for ineligibility , concluding that the 
Petitioner also had not shown that the Beneficiary's U.S. employment would be in an executive 
capacity. The Petitioner subsequently filed a motion to reopen and reconsider, which we dismissed as 
untimely filed . 1 The matter is now before us on a motion to reconsider in which the Petitioner contends 
that the lateness of its prior untimely motion to reopen and reconsider was reasonable and beyond its 
control. 
Upon review , we conclude that the Petitioner has established that its delayed filing of the motion to 
reopen was reasonable and beyond its control. 2 Notwithstanding this determination, for the reasons 
discussed below, the motion currently before us will be dismissed and the petition will remain denied . 
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 policy, and that the decision was incorrect based on the evidence in the record of 
1 The record contains a copy of Form I-797C, Notice of Action, notifying the Petitioner that its motion was being rejected 
because it was incomplete in that it was not identified as either an appeal or a motion. Although the Petitioner cured the 
defective filing by completing the Form I-290B , the motion was not received within the allowed 33-day filing period, thus 
causing the motion to be filed untimely . 
2 The regulations pennit the review of an untimely filed motion to reopen where the untimeliness is shown to have been 
reasonable and beyond a petitioner 's control. However , there is no comparabl e provision with respect to a motion to 
reconsider. 8 C.F.R. § 103.S(a). As such, we cannot excuse the untimely filing of a motion to reconsider. 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements. 
II. ANALYSIS 
The issue we will discuss is whether the Petitioner submitted new facts or evidence in support of the 
previously filed motion to reopen demonstrating that: (1) a qualifying relationship was formed 
between the Petitioner and the Beneficiary's foreign employer; and (2) the Petitioner would employ 
the Beneficiary in an executive capacity. 3 
In our appellate decision, we determined that the Petitioner did not adequately establish the foreign 
entity's chain of ownershi from the original majority owner of the foreign 
entity, to.__ ________ __. who was claimed to have transferred majority ownership of the 
foreign entity to the Beneficiary. In support of the previously filed motion to reopen, the Petitioner 
offered additional evidence in re form of a share transfer document showing the share transfer from 
I I tol _ This new evidence established th~ I was the legal owner 
of the majority of the foreign entity's shares and had the legal right to transfer those shares to the 
Beneficiary, as he did; therefore, we conclude that the Petitioner and the foreign entity had at the time 
of filing, and continue to have, an affiliate relationship in which the Beneficiary is the majority owner 
of both entities. See 8 C.F .R. § 204.5(j)(2) ( for definition of affiliate). In light of the new evidence 
submitted in support of the prior motion to reopen, we conclude that a qualifying relationship existed 
between the Petitioner and the Beneficiary's employer abroad. 
Notwithstanding our favorable determination on the qualifying relationship issue, we find that the 
Petitioner did not offer new facts or evidence with regard to the second issue discussed in our March 
20, 2019 decision. In that decision, we concluded that the Petitioner did not establish that the 
Beneficiary's proposed U.S. position would be in an executive capacity. Although the Petitioner 
discussed the Beneficiary's role with.__ __________ __. the Petitioner's U.S. subsidiary, 
it did not provide sufficient evidence regarding the Beneficiary's role and job duties with the Petitioner 
itself It is the Beneficiary's executive role with the Petitioner, not its subsidiary, that is critical to the 
overall issue of the Petitioner's eligibility. Because the Petitioner has not adequately addressed our 
determination on the Beneficiary's proposed position with the Petitioner, the petition will remain 
denied, and our March 20, 2019 decision will be affirmed. 
ORDER: The motion to reconsider is dismissed. 
3 These were the two grounds cited in our appeal decision. 
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