dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 19, 2024 In Re: 35249474 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a cell phone retailer, seeks to permanently employ the Beneficiary as its chief operating 
officer (COO) 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 a managerial or executive capacity. 
The Director of the Nebraska Service Center approved the petitioner but then revoked that approval 
on notice, concluding that the Petitioner had not established that the Beneficiary had worked abroad, 
and would work in the United States, in a qualifying managerial or executive capacity. The Director 
also concluded that the Petitioner did not establish its ability to pay the Beneficiary's proffered salary 
from the time of filing onward. We dismissed a subsequent appeal based on the qualifying capacity 
issues, reserving the issue of ability to pay and noting additional discrepancies in the record. The 
matter is now before us on a motion to reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or 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 motions that satisfy these 
requirements and demonstrate eligibility for the requested benefit. 
On motion, the Petitioner contests the correctness of our prior decision. The Petitioner also disputes 
various grounds that the Director cited in the revocation notice. Our review on motion is limited to 
reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). The revocation is not the latest decision in 
this proceeding; the only decision properly before us on motion is our July 2024 dismissal of the 
Petitioner's appeal. The Petitioner must therefore identify incorrect applications of law or policy in 
our July 2024 decision that would warrant reconsideration , and establish that our July 2024 decision 
was incorrect based on the record at the time of that decision. 
This proceeding has a lengthy history. The Petitioner filed the Form I-140 petition in October 2016. 
The Director denied the petition in February 2018, stating that the Petitioner had not established that 
the company has sufficient organizational complexity to warrant a qualifying managerial or executive 
position for the Beneficiary. 
The Director granted the Petitioner's motion to reopen the proceeding, and denied the petition for a 
second time in April 2018. The Director stated that the Beneficiary's supervision of low-level staff 
does not qualify as an executive capacity. 
The Petitioner appealed that decision, and we remanded the petition for a new decision in April 2019. 
In our remand order, we concluded that the Director "did not adequately explain the deficiencies in 
the evidence" and that the Director had erroneously applied the requirements for a managerial capacity 
to a position that the Petitioner had identified as executive. 
We also noted several issues of concern. We stated that the Petitioner had not provided enough 
information and evidence to meet its burden of proof. We also determined that the Petitioner had 
submitted "conflicting evidence regarding the Petitioner's ownership and control." 
Although we had identified deficiencies in the record, the Director approved the petition in April 2019. 
Later, a July 2019 site visit by an immigration officer (IO) revealed further information of concern. 
Based in part on this information, the Director issued a notice of intent to revoke (NOIR) the approval 
in April 2023. The Petitioner did not submit a timely notice to the NOIR, but later submitted a response 
in October 2023 after requesting a copy of the NOIR. The Petitioner claimed not to have received the 
NOIR when it was first issued. 
The Director revoked the approval of the petition in December 2023. In the revocation notice, the 
Director acknowledged the Petitioner's October 2023 submission but declined to consider it because 
it was not timely. 
The Petitioner appealed the revocation, and we dismissed the appeal in July 2024. The Petitioner filed 
a motion to reconsider, which is now before us. 
In our July 2024 dismissal notice, incorporated here by reference, we concluded that, even if the 
Petitioner's response to the April 2023 NOIR had been timely, the evidence and information that the 
Petitioner submitted in that response did not resolve discrepancies underlying the revocation. We 
concluded that the Petitioner had not adequately resolved discrepancies regarding the Beneficiary's 
prior employment abroad; her employment in the United States; the title and duties of the Beneficiary's 
spouse; and the ownership of the petitioning company. Because these conclusions were sufficient to 
determine the outcome of the appeal, we reserved the additional issue of the Petitioner's continuing 
ability to pay the Beneficiary's proffered salary. We also noted that the Petitioner had submitted 
inconsistent information regarding the ownership of its claimed foreign affiliate. 
On motion, the Petitioner asserts that our decision was in error because we failed to recognize that the 
Petitioner had met all applicable eligibility requirements. We disagree, as explained below. 
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A. Timeliness ofNOIR Response 
The Petitioner contends that the Director erred by revoking the approval of the petition in December 
2023, because the Director "should have excused the Petitioner's untimely response to the [NOIR]." 
As we stated in our July 2024 appellate decision, we took the Petitioner's October 2023 submission 
into account in that decision and concluded that it did not overcome the grounds for revocation. 
Because we have already considered the materials in the Petitioner's untimely NOIR response, further 
discussion of the timeliness issue would serve no practical purpose here. 
B. Discrepancies in Claimed Employment Abroad 
The Petitioner acknowledged that the Director, in the revocation notice, identified several 
discrepancies regarding the Beneficiary's 
claimed employment abroad. We cited these discrepancies 
in our July 2024 dismissal decision. But the Petitioner maintains, on motion, that is has "resolved the 
inconsistencies.'' 
The dates of the Beneficiary's claimed employment abroad are material because qualifying 
employment must have occurred within a three-year window of time prior to the filing of the petition. 
In our July 2024 decision, we observed that the Petitioner had, at various times, provided three 
different dates for the ending of the Beneficiary's claimed employment abroad: September 2014, May 
2015, and June 2015. Only one of these dates is plausible, because the Beneficiary has been in the 
United States since September 14, 2014. We concluded that the inconsistent claims undermined the 
Petitioner's credibility. 
On motion, the Petitioner does not explain why it claimed different dates for the ending of the 
Beneficiary's claimed employment abroad. The Petitioner states that it has submitted "bona fide 
documents" from August 2010, March 2012, and May 2012, purporting to show that the Beneficiary 
worked for the Petitioner's claimed foreign affiliate for "at least two years before corning to the U.S." 
The Beneficiary's employment with the Petitioner in the United States began no earlier than June 16, 
2015, with the approval of a petition granting the Beneficiary L-1 A nonirnmigrant status. Therefore, 
the Petitioner must establish that a qualifying employer employed the Beneficiary outside the United 
States for at least one year during the three years immediately preceding June 16, 2015. See 8 C.F.R. 
§ 204.5(j)(3)(i)(B). 1 Accordingly, the Petitioner must establish at least one year of qualifying 
experience abroad between June 16, 2012 and her latest entry into the United States on September 13, 
2014, after which she could not have accumulated additional experience abroad. Documents dated 
before June 2012, such as the previously submitted documents cited on motion, fall outside the 
relevant period for qualifying employment abroad. 
In our July 2024 decision, we acknowledged that the Petitioner had submitted copies of the 
Beneficiary's purported pay receipts dated September 2013 through August 2014. But we also noted 
that these receipts show amounts that do not match the salary stated in a promotion letter purportedly 
1 Government records indicate that the Beneficiary was in the United States from December 5, 2013 to January 21, 2014, 
and from April 9, 2014 to May 25, 2014. Altogether, the Beneficiary was in the United States without working for the 
Petitioner for approximately 13 months between June 2012 and June 2015. 
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from August 2010. 2 We concluded that this difference was one of several discrepancies that raise 
doubts about the Beneficiary's claimed employment abroad. 
On motion, the Petitioner asserts without corroboration that "the Beneficiary's salary increased" 
"between August 2010 and September 2013." Statements in a brief, motion, or Notice of Appeal are 
not evidence and thus are not entitled to any evidentiary weight. Matter ofS-M-, 22 I&N Dec. 49, 51 
(BIA 1998). In our July 2024 decision, we acknowledged the Petitioner's claim that "most records are 
not kept for significant periods of time" by the foreign entity, but the claimed unavailability of records 
does not diminish the Petitioner's burden of proof to establish eligibility. 
The Petitioner repeats earlier assertions that the July 2019 site visit was "unreasonable and arbitrary," 
and that the interviewing IO had refused the Beneficiary's offer to provide more details about her 
employment abroad. We considered these assertions in our July 2024 decision, and repeating them 
on motion does not establish error in our prior decision. See e.g., Matter of O-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 presented on appeal and seek reconsideration by generally alleging error in the prior 
[appellate] decision"). We concluded then, and maintain now, that the Petitioner's uncorroborated 
assertions about the site visit interview do not suffice to explain the deficiencies in the information the 
Beneficiary provided during the interview, or the numerous discrepancies in the Petitioner's claims 
about the Beneficiary's prior employment abroad. 
In the revocation notice, the Director observed that, in a March 2011 nonimmigrant visa (NIV) 
application, the Beneficiary claimed employment abroad with a different company, with the initials 
B-I-. The Director concluded that this discrepancy cast further doubt on the Petitioner's assertions 
about the Beneficiary's claimed qualifying employment abroad. 
On appeal, the Petitioner asserted that the Beneficiary worked for B-I- as a "hobby, not her career." 
The Petitioner contended that the Beneficiary "did contribute to [B-I-], but she was" "not an employee 
of the company, nor was she paid as such." The Petitioner did not explain why, when asked to name 
her current employer on the NIV application, the Beneficiary listed her claimed "hobby" rather than 
the managerial position at a company that had purportedly employed her for nearly a decade. 
In our July 2024 decision dismissing that appeal, we concluded that the Petitioner provided "no 
reasonable explanation as to why the Beneficiary claimed as her employer a company which, 
according to the Petitioner, did not employ or pay her," instead of listing "a company that had 
purportedly employed the Beneficiary for approximately nine years as of the date she filed her NIV 
application." 
On motion, the Petitioner maintains that it "provided a reasonable explanation as to why the 
Beneficiary claimed [B-I-] as her employer abroad." The Petitioner repeats the assertion that the 
Beneficiary "was not considered a paid employee." The Petitioner asserts that, nevertheless, the 
Beneficiary "considered [B-I- to be] her primary employer," but does not corroborate this assertion or 
2 We note, now, that the Petitioner submitted two different pay receipts, both dated August 2014, showing different 
amounts. One of the August 2014 pay receipts shows "Basic Salary" of <21,753 in "Basic Salary" and <44,028 in "Net 
Pay." The other receipt with the same date shows <39,145 in "Basic Salary" and <66,763 in "Net Pay." 
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explain why she considered her unpaid hobby to take precedence over a claimed paid role as the COO 
of the Petitioner's claimed foreign affiliate. 
The Petitioner's repetition of its prior unsupported claims does not establish error in our July 2024 
appellate decision. 
We note that an NTV application includes a specific question about the visa applicant's monthly salary. 
The Petitioner has not established that the salary information on the Beneficiary's 2011 NIV 
application is consistent with the Petitioner's claim that the Beneficiary worked for B-T- without pay. 
The Petitioner has not established that we erred in our July 2024 decision regarding the Beneficiary's 
claimed employment abroad. 
C. U.S. Position 
The Director concluded that the Petitioner had not established that the Beneficiary's position in the 
United States qualifies as an executive capacity as defined by the regulation at 8 C.F.R. § 204.5(j)(2). 
The Director cited information from the July 2019 site visit, after which the IO reported that the 
Beneficiary was unable to describe her day-to-day duties, and that the Beneficiary's spouse "was 
performing many of the beneficiary's described duties." 
The Petitioner argued on appeal that "after the site visit, [the Beneficiary] immediately emailed a 
detailed description of her daily job duties ... to the Immigration Officer." When we dismissed the 
appeal, we stated that the submission of the written job description "is not sufficient to address issues 
that materialized during the 2019 site visit." 
On motion, the Petitioner maintained that it had previously "submitted numerous documents to rectify 
the inconsistencies," including two job descriptions. It remains that the IO was not present during the 
preparation of the written job description and therefore the exact circumstances of that preparation are 
unknown. When given the opportunity to describe her duties in her own words, directly to the IO, the 
Beneficiary did not do so. The Petitioner has asserted that the circumstances surrounding the site visit 
prevented the Beneficiary from providing more information, and even that the IO declined the 
Beneficiary's offer to go into more detail, but these statements are uncorroborated and have no weight. 
Our July 2024 decision also included a paragraph discussing the various written descriptions the 
Petitioner has provided for the Beneficiary's position, but these issues were not grounds for the 
underlying revocation. As we observed in our appellate decision, "the root of the Director's concern 
... was the Beneficiary's inability to adequately describe her proposed duties at the time of the 2019 
site visit." 
In the revocation notice, the Director noted that, while the Petitioner had previously reported that the 
Beneficiary's spouse held the title of "Retail Head," subordinate to the Beneficiary, that individual 
had signed various documents as the company's "President." In our July 2024 decision, we agreed 
with the Director that the Petitioner had not overcome the credibility issues that arose during the 2019 
site visit. 
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The Petitioner had contended on appeal that the Beneficiary's spouse sometimes calls himself 
"president" because "[a]s majority owner of the U.S. company, [the spouse] is authorized to sign 
documents on behalf of the company. The [documents] list him as President because he is majority 
owner of the company." 
In our dismissal notice, we acknowledged this claim, but noted that some of the Petitioner's documents 
identify the spouse's father, not the spouse, as the majority shareholder. We also cited a January 2015 
document in the record, indicating that the Beneficiary herself had been elected president of the 
petitioning company. Quarterly tax returns identify the Beneficiary, not her spouse or her father-in­
law, as the company's president. We concluded: "These additional inconsistencies further complicate 
a determination as to the true nature of the Beneficiary's position and job duties." 
On motion, the Petitioner asserts that the Beneficiary's spouse's father owned the majority of shares 
when the Petitioner filed the petition in 2016, but later sold his shares to his son. The Petitioner does 
not say when this sale took place or cite to any documentation in the record to corroborate the claim. 3 
Because the Petitioner's response rests on claims about share ownership, we repeat here our earlier 
concerns about the Petitioner's inconsistent claims regarding its ownership. 
In our appellate decision, we noted that the Petitioner had not submitted "a stock ledger documenting 
all share transactions" or otherwise accounted for changes in share ownership. We further noted that 
the Petitioner had submitted copies of share certificates numbered 1, 2, 3, and 7, but not 4, 5, and 6. 
We also noted that the Petitioner's income tax returns contain inconsistent claims regarding the 
company's ownership. In several instances, the same tax return shows different ownership figures on 
different pages: 
Schedule G Form 1125-E 
The Beneficiary's spouse 10% 49% 
The Beneficiary 39% 49% 
The Beneficiary's spouse's father 51% 
As we observed in our July 2024 decision, it is the Petitioner's responsibility to resolve these 
discrepancies in the record with independent, objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead 
us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Id. 
The Petitioner asserts on motion that it did not submit "a stock ledger because it had already submitted 
copies of the actual share certificates." The Petitioner does not account for the absence of at least 
three share certificates, and does not explain why its tax returns include conflicting information about 
share ownership. The Petitioner's uncorroborated assertion that the Beneficiary's father-in-law sold 
3 The Petitioner maintains that the claimed "change [ of ownership] did not affect the relationship between the companies 
[that employed the Beneficiary] as they were still related as affiliates." Affiliation, however, is determined by ownership 
and control. See 8 C.F.R. § 204.5(j)(2). The Petitioner does not explain how the claimed change of ownership would 
nevertheless have preserved the affiliate relationship between the Petitioner and the foreign entity identified as the 
Beneficiary's former employer. 
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his shares to the Beneficiary's spouse at some unspecified time after the filing date does not account 
for the discrepancies described in our July 2024 decision and summarized above. 
The Petitioner, on motion, has not overcome the above discrepancies; has not shown that we erred in 
making these observations in our July 2024 decision; and has not resolved the questions of credibility 
that result from these discrepancies. 
On motion to reconsider, the Petitioner has not established that our previous decision was based on an 
incorrect application of law or policy at the time we issued our decision. Therefore, we will dismiss 
the motion. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
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