dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUNE 26, 2024 In Re: 313 84111 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a convenience store, seeks to permanently employ the Beneficiary as its president 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 
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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary has been employed abroad, and will be employed in the United States, 
in a managerial or executive capacity. The matter is now before us on appeal under 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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, 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)(l)(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). 
IT. ANALYSTS 
The Director determined that the Petitioner did not establish that the Beneficiary has been employed 
abroad, and will be employed in the United States, in a managerial or executive capacity. Below, we 
will consider the evidence relating to the Beneficiary's claimed executive capacity abroad. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude in 
discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101(a)(44)(B) of the Act. 
A petition for a multinational executive or manager must be accompanied by a statement from an 
authorized official of the petitioning United States employer which demonstrates that the beneficiary 
has been employed outside the United States for at least one year in a managerial or executive capacity 
by the petitioner or a related employer. See 8 C.F.R. § 204.5(j)(3)(i). 
The Petitioner's initial submission, as reflected in the current record of proceedings, does not contain 
the required statement to describe the Beneficiary's claimed employment abroad. The Petitioner 
submitted copies of business documents from the foreign entity, a building and development company, 
that refer to the Beneficiary as a partner. These documents, however, do not explain the Beneficiary's 
duties and responsibilities with the foreign company. The title of partner does not suffice to establish 
that the Beneficiary worked primarily in a managerial or executive capacity. 
The Director issued a request for evidence (RFE) in January 2023. Among other concerns, the Director 
stated that the Petitioner had not provided required information about the Beneficiary's claimed 
employment abroad. The Director asked for a "statement from the petitioner's authorized official" to 
provided information about various factors including the Beneficiary's claimed duties abroad. The 
Petitioner submitted a statement from a company official in response to the RFE, but the statement did 
not address the Beneficiary's claimed duties abroad. 
The Director denied the petition, in part because the Petitioner had not described the Beneficiary's 
"past duties abroad." 
On appeal, the Petitioner states that it "provided evidence of the beneficiary's executive control of the 
foreign company serving as a Partner in the business." The Director did not dispute the Beneficiary's 
title as partner, but the Beneficiary's title is not sufficient to establish that his duties were primarily 
consistent with the statutory and regulatory definition of an executive capacity. An executive or 
managerial title alone is insufficient if the beneficiary does not perform duties primarily executive or 
managerial in nature. Fedin Bros. Co. v. Sava, 724 F. Supp. 1103, 1107 (E.D.N.Y. 1989), aff'd, 905 
F.2d 41 (2d Cir. 1990). The Director asked the Petitioner to describe the Beneficiary's claimed duties 
abroad, and the Petitioner's response did not include this information. 
The Petitioner states that it had previously "detailed the importance of [the Beneficiary's] role as the 
Financial Controller of the business." We do not dispute the Petitioner's assertion that "any successful 
business must prepare financial reports," but the Petitioner cites no evidence or authority to support 
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the claim that "creating and maintaining these financial reports ... [is] far beyond the duties of a 
manager or supervisor." 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). 
The Petitioner submits a copy of a letter from the foreign entity, dated October 2020, describing the 
Beneficiary's claimed duties as controller. This letter was not part of the record of proceedings prior 
to the appeal. The Petitioner states that the letter was submitted in support of a previously filed petition 
seeking to classify the Beneficiary as an L-lA nonimmigrant. That petition has its own separate record 
of proceedings, which the Director did not review while adjudicating the immigrant petition now 
before us. U.S. Citizenship and Immigration Services (USCIS) records show that the nonimmigrant 
petition was denied. 
Because the Director put the Petitioner on notice and gave it a reasonable opportunity to provide the 
required information about the Beneficiary's claimed executive capacity abroad, we will not consider 
the newly submitted letter for the first time on appeal. See 8 C.F.R. § 103.2(b)(l 1) (requiring all 
requested evidence be submitted together at one time); Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 
1988) ( declining to consider new evidence submitted on appeal because "the petitioner was put on 
notice of the required evidence and given a reasonable opportunity to provide it for the record before 
the denial"). 
We agree with the Director that, at the time of the denial, the record did not contain a description of 
the Beneficiary's claimed employment abroad. Because the statute and regulations require the 
Petitioner to establish that the Beneficiary served abroad in an executive or managerial capacity, this 
omission is, by itself, sufficient grounds for denial of the petition and dismissal of the appeal. 
Apart from the lack of a description of the Beneficiary's duties, the Director also raised concerns about 
the timing of the Beneficiary's employment abroad and his presence in the United States. This 
information is material to the outcome of the petition because a beneficiary's qualifying employment 
abroad must have occurred during a specified three-year period. The timing of that period depends on 
the beneficiary's location at the time of filing. If the beneficiary is outside the United States at the 
time of filing, then the three-year period immediately precedes the filing of the petition. See 8 C.F.R. 
§ 204.5(j)(3)(i)(A). But if the beneficiary is already in the United States working for a qualifying 
employer at the time of filing, then USCIS considers the three years preceding the beneficiary's entry 
as a nonimmigrant. See 8 C.F.R. § 204.5(j)(3)(i)(B). 
The above regulations do not account for situations in which a beneficiary is in the United States, but 
not working for the Petitioner at the time of filing. In an adopted decision, we stated the general 
principle that "a break in qualifying employment longer than two years will interrupt a beneficiary's 
continuity of employment with the petitioner's multinational organization." Matter of S-P-, Inc., 
Adopted Decision 2018-01, at 4 (AAO Mar. 19, 2018). 
On Form I-140, the Petitioner stated that the Beneficiary last entered the United States in May 2020. 
The Petitioner indicated that the Beneficiary is a citizen of the United Arab Emirates but that he entered 
the United States with an Indian passport. The Form I-140 asked the Petitioner to specify the "Form 
I-94 Arrival-Departure Record Number," the "Expiration Date of Authorized Stay Shown on Form 
I-94," and the immigration "Status on Form I-94." The Petitioner left all those lines blank. 
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The Petitioner did not specify the Beneficiary's nonimmigrant status at the time of filing, and, although 
the Beneficiary was in the United States on the filing date, the Petitioner did not claim that the 
Beneficiary was already working for the Petitioner or that he was authorized to do so. The 
Beneficiary's name does not appear in the Petitioner's submitted payroll documents from 2021. 
Correspondence in the record identifies other individuals as the Petitioner's president, indicating that 
the Beneficiary did not yet occupy that position. 
In the RFE, the Director stated that the Petitioner had submitted an incomplete Form I-140 petition. The 
Director specifically requested evidence showing "the specific date and nonimmigrant classification of 
the beneficiary's admission." The Director explained: "This evidence is needed so that USCIS can 
determine the relevant three year period to examine when determining whether the beneficiary has the 
requisite one year of managerial or executive experience with a qualifying foreign entity." 
In response, the Petitioner stated: "The beneficiary entered the U.S. as a B2 visitor on May 25, 2020 
and he entered at the U.S./Canadian border. The beneficiary did not arrive by sea or by air. Therefore 
there was no electronic I-94 produced nor did the officer stamp the beneficiary's passport." As of 
May 2020, the U.S. Customs and Border Patrol (CBP) website stated: "CBP will still issue a paper 
form I-94 at land border ports of entry." 1 The Petitioner did not submit a copy a Form I-94 from the 
Beneficiary's claimed May 2020 entry, and the Petitioner did not cite any authority to establish that 
citizens of the United Arab Emirates, or individuals traveling with Indian passports, were exempt from 
the I-94 requirement in May 2020, or that CBP officers did not stamp Indian passports at land border 
crossings at that time. The Petitioner also did not submit other documentary evidence that would be 
consistent with its claims, such as evidence showing that the Beneficiary traveled from India, the site 
of his claimed employment, to Canada. 
In the denial decision, the Director acknowledged the Petitioner's assertions about the Beneficiary's 
claimed entry in May 2020, but the Director concluded that the Petitioner had not submitted evidence 
"to demonstrate that he has the requisite one year of managerial or executive experience overseas." 
On appeal, the Petitioner does not address the issue of when the Beneficiary entered the United States. 
We have reviewed the evidence in the record, and we conclude that it does not support the Petitioner's 
claim that the Beneficiary last entered the United States in May 2020. 
Documentation that the Petitioner submitted with the petition includes an entry stamp showing that 
the Beneficiary entered the United States as a B-2 nonimmigrant visitor on October 16, 2015. The 
submitted materials did not show any subsequent departures from, or re-entries into, the United States, 
and the Petitioner did not specify when the Beneficiary purportedly left the United States after his 
documented entry in October 2015. 
The Petitioner's unsupported claim that the Beneficiary crossed the Canadian border by land has no 
weight as evidence. See Matter ofS-M-, 22 I&N Dec. at 51. Furthermore, the claim that CBP created 
1 See archived copies of "Anival/Departure Forms: 1-94 and I-94W" at https://web.archive.org/web/20200521015727/ 
https://www.cbp.gov/travel/intemational-visitors/i-94 (May 21, 2020) and https://web.archive.org/web/2020052809093 7 / 
https://www.cbp.gov/travel/intemational-visitors/i-94 (May 28, 2020) (printouts added to record). 
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no record of the Beneficiary's claimed 2020 entry does not account for the lack of other evidence that 
would reliably and verifiably place the Beneficiary outside the United States after his documented 
entry in October 2015. 
Materials submitted by the Petitioner affirmatively show the Beneficiary's presence in the United 
States between 2015 and 2020. A photocopy of the Beneficiary's driver's license, issued by the State 
of Washington in January 2018, shows a residential address in Washington. The 
Petitioner's articles of incorporation, filed with the State of Arkansas in 2020, identify the 
Beneficiary as an officer of the company and indicate he resided in Arkansas at the time. 
These materials are government-issued documents, prepared and issued during the time between 
October 2015 and May 2020. The Petitioner has not submitted any contemporaneous, documentary 
evidence, or other evidence of comparable weight, to show that the Beneficiary ever left the United 
States after he arrived in October 2015. 
The Petitioner has not established that it employed the Beneficiary in the United States before the 
filing of the present petition in November 2021. As noted above, its nonimmigrant petition on the 
Beneficiary's behalf was not approved, and therefore that petition never authorized the Beneficiary to 
work for the Petitioner. Therefore, the Petitioner did not document any past U.S. employment that 
would move the dates of the three-year qualifying period. 
Also, the articles of incorporation in the record show that the petitioning organization did not exist 
beforel 2020. The Petitioner has not shown that any qualifying related entity existed in the 
United States, and employed the Beneficiary, before that date. More than four years elapsed between 
the Beneficiary's arrival in October 2015 and the establishment of the petitioning U.S. employer in 
I 2020. If the Beneficiary was in the United States throughout that time, as appears to be the 
case from the available evidence, and he was not working for the Petitioner or a related entity during 
that time, then this interruption in the Beneficiary's employment abroad is disqualifying on its face. 
As such, the Beneficiary cannot qualify for classification as a multinational manager or executive until 
after he leaves the United States and accrues at least another year of qualifying experience abroad as 
a manager or executive. See Matter ofS-P-, Inc., Adopted Decision 2018-01, at 4. 
The above conclusions are sufficient to determine the outcome of the appeal. Therefore, we decline 
to reach, and hereby reserve, the Petitioner's arguments on appeal regarding the remaining issue of the 
Beneficiary's intended employment in the United States. See INS v. Bagamasbad, 429 U.S. 24, 25-
26 (1976) (stating that, like courts, federal agencies are not generally required to make findings and 
decisions unnecessary to the results they reach); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 
(BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
We will dismiss the appeal because the Petitioner has not met its burden of proof to establish that the 
Beneficiary was employed abroad in a managerial or executive capacity for at least one year during 
the applicable three-year period. 
ORDER: The appeal is dismissed. 
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