dismissed EB-1C Case: Retail

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-1-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 28, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, 1 which has operated various convenience stores in Texas, 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. § ll53(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 approved the petition but later revoked that approval. The 
Director concluded that the Petitioner did not establish, as required: (1) a qualifying relationship 
between the Petitioner and the Beneficiary's foreign employer; (2) that the Beneficiary will be 
employed in the United States in a managerial or executive capacity; (3) that the Beneficiary had been 
employed abroad in a managerial or executive capacity; or (4) the continued existence of a valid job 
offer. The Director also entered a finding of willful misrepresentation of a material fact.2 We agreed 
with all the Director's reasons for revocation of the approval and dismissed the Petitioner's appeal. The 
Petitioner subsequently filed a combined motion to reopen and reconsider, which we denied. 
The matter is now before us again on a combined motion to reopen and reconsider. On motion, the 
Petitioner submits a brief and a letter from its claimed foreign parent company. The Petitioner 
disputes "the adverse assertions in the revocation of the [Form I-140, Immigrant Petition for Alien 
Worker] and 
the denial of our appeal on that denial.'' 
1 
The Petitioner name on the Form l-290B , Notice of Appeal or Motion is" 
filed the Fonn 1-140 petition. A new entity, 
was incorporated in Texas several years later. Both corporations use the same address, and the Beneficiary is an otllcer of 
both companies. The documents submitted on motion state that is doing business under the name of 
and is now the petitioner in this proceeding. Public records confirm that and exist as 
separate business entities in the State of Texas. Further, there is no provision tor substitution of a petitioner in an already­
pending proceeding. Therefore. we do not recognize the claim that is now the petitioner. This finding does not affect 
the validity of the motion filing, because the Beneficiary remains as the president of and he signed the Form I-290B, 
Notice of Appeal or Motion . We will therefore consider the motion to be properly filed by the original petitioner . 
2 The Director also noted that the Petitioner did not establish its ability to pay the proffered wage lor 2003 , 2006 . 2007. 
20 II, 2012 , and 2013. However, as the Petitioner was not given an opportunity to respond to this allegation because it 
came to light after the second notice of intent to revoke was sent , it was not included as a reason tor the revocation of the 
approval ofthe petition. 
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Matter (?fS-1-, Inc . 
Upon review, we will deny the combined motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, for instance, submission of a properly completed Form I-2908 , Notice of Appeal or Motion , with 
the correct tee), and show proper cause for granting the motion. 8 C.F.R. § I 03.5(a)( I). 
A motion to reopen is based on factual grounds and must (I) 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. 
§ 1 03.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application of Jaw 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 a motion that 
satisfies these requirements and demonstrates eligibility for the requested immigration benefit. 
While the current combined motion includes a newly submitted letter from the Beneficiary's foreign 
employer and the Petitioner briefly addresses some issues raised in our prior decisions, the Petitioner 
does not attempt to overcome all grounds for revocation. For the reasons discussed below, we find 
the Petitioner has not shown proper cause tor reopening or reconsideration. 
II. ISSUES RAISED ON MOTION 
Our 20-page appellate decision, issued September 27, 2016, provided details about the procedural 
history of the case, the multiple grounds for revocation, and the grounds tor our dismissal of the 
appeal. This decision is not a de novo rehearing on the merits of the underlying petition and we will 
not repeat those details here unless such details are relevant to this proceeding. We will limit our 
consideration to new arguments and newly submitted evidence submitted with this second motion, 
which consists of a brief and a new letter from the Petitioner's claimed foreign parent company. 
A. Status of the Petitioner's Business and Validity of.Job Offer 
The Director found , and we agreed, that the Petitioner appears to have stopped doing business. 
defined as the regular, systematic, and continuous provision of goods and/or services , and not the 
mere presence of an agent or office. 8 C.F.R. § 204.5(j)(2). For instance, the Petitioner's 2012 and 
2013 income tax returns showed no income and no expenses. The Director concluded that there is 
no longer a valid job offer from the U.S. employer that tiled the petition, as required by 8 C.F.R. 
§ 204.5(j)(5). 
On appeal, the Petitioner asserted that is the Petitioner's successor-in-interest. We found 
that the Petitioner had made conflicting and unsubstantiated claims, and we agreed with the 
Director's finding that the petitioning company has not demonstrated ongoing business activity or a 
continued bonafide intent to employ the Beneticiary. We noted that the Petitioner still exists as an 
active corporation , registered in the State of Texas, and that a corporation cannot have a successor­
in-interest while the original corporation still exists. 
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Matter qfS-1-. Inc. 
In its previous motion, the Petitioner maintained that is its successor-in-interest, and that '·the 
Petitioner is still 'doing business' -under an umbrella company- while maintaining its integrity as a 
corporation." The Petitioner also cited Matter (?f Leacheng International. Inc .. 26 I&N Dec. 532 
(AAO 2015), and asks us to follow "the spirit of [that] recent decision ... which sought to broaden 
the definition of 'doing business."' The Petitioner submitted documents showing that 
continued to do business at the time the motion was filed. 
We found that Leacheng was inapplicable to this matter, noting that the Petitioner has not shown that 
it was still doing business at all, even within the internal framework of an organization that includes 
We also rejected the Petitioner's reliance on several definitions of the term ''successor-in­
interest," all of which had to do with the transfer of assets from one entity to another. We 
emphasized that the Petitioner did not establish that there was a transfer of assets from to 
Rather. the record showed that was formed as a new, separate entity which then 
used the Petitioner's name while the Petitioner continued to exist. 
With the current motion, the Petitioner acknowledges that it relied on "generic" definitions of the tem1 
"successor-in-interest" previously, but now clarities that there was a merger in which ''took over 
everything" from The Petitioner submits a letter from chief executive of its 
claimed parent company, in support of its claim. states that the parent decided to merge its 
two U.S. subsidiaries together, with the newer company being the successor. He states ··we don't 
believe that the mere fact that we kept filing the necessary papers with the Texas Secretary of State 
destroys our role as 'successor-in-interest,' noting that the companies ''simply wanted to comply with 
state laws." 
statement is not persuasive. If the Petitioner had merged into it would not need 
to maintain its corporate status with state authorities in order to remain in compliance with state laws. 
Rather, the expected course of action would be to tile a certificate of merger with the Texas Secretary of 
State, with only one company surviving as a registered, active entity in the state. The Petitioner has not 
provided documentary evidence that such a merger occurred. 
The Petitioner also argues that the definition for "successor in interest" as applied to labor certification­
based 1-140 cases does not apply here. The Petitioner appears to have misconstrued our previous 
citation to a 2009 memorandum, which states: 
Successor-in-interest determinations are principally relevant to the continuing validity 
of a labor certification . . . . An employer seeking to classify the alien as an EB 1 
Multi-National Executive or Manager ... must tile a new I-140 petition and establish 
the alien's eligibility under the requested category's specific eligibility requirements. 
Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, HQ 
70/6.2. AD 09-37, Successor-in Interest Determinations in Adjudication ol Form I-140 Petitions: 
Adjudicator's Field Manual (AFM) Update to Chapter 22.2(h)(5) (AD09-37) 10 (August 6. 2009), 
http://www.uscis.gov/laws/policy-memoranda. 
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Matter ofS-1- . Inc. 
In denying the previous motion, we observed that the Petitioner cited no authority to show that a 
successor-in-interest can take the place of the original petitioner in matters involving the requested 
immigrant visa classification, and therefore there was no need for a detailed discussion of whether or 
not qualifies as the Petitioner's successor-in-interest. While it is true that a successor-in-interest 
claim is treated differently in immigrant petitions involving labor certifications. the cited memorandum 
makes it clear that USCIS will not consider successor-in-interest claims in the case of a petition for a 
multinational manager or executive. 
The Petitioner has not demonstrated in the current motion that it continues to do business and intends to 
employ the Beneficiary. 
B. Continued Eligibility After Filing Date 
Relating to the above issue, the Petitioner once again maintains that it was a viable business at the time 
of filing in August 2004, and at the time of the initial approval of the petition in June 2005. The 
Petitioner appears to be claiming that it was in compliance with 8 C.F.R. ~ 103.2(b )(I) , which requires 
that the Petitioner must be eligible at the time of filing and "must continue to be eligible through 
adjudication." 
However, we also noted in both of our prior decisions that section 205 of the Act. 8 U.S.C. ~ 1155. 
permits the revocation of the approval of an immigrant visa petition "at any time."' Once the notice of 
intent to revoke was issued, the petition was once again being adjudicated and the Petitioner was 
required to show that it continued to meet all eligibility requirements ''through adjudication. '' i.e., until 
the Director issued a decision in the revocation proceeding. The Petitioner does not answer these 
specific findings or indicate how the Director misapplied the cited statute and regulation. The 
Petitioner's repetition of arguments from its appeal and prior motion does not demonstrate enor in our 
decision to deny the motion, and does not establish grounds for reconsideration . 
C. Delay in Adjudication of Form 1-485 
The Petitioner once again suggests that the revocation proceeding should never have occurred 
because USCIS should have approved the Beneficiary's Form 1-485. Application to Register 
Permanent Residence or Adjust Status , shortly after the initial approval of this petition in 2005. The 
implication is that USCIS should have promptly adjudicated the Beneficiary's adjustment 
application before the disqualifying infom1ation that led to the revocation of this petition's approval 
surfaced. We have no appellate authority over that application, and the passage of time since the 
petition's initial approval in 2005 does not entitle the Petitioner or the Beneficiary to favorable 
consideration in this proceeding. 
Also, as noted in our previous decision, the approval of a visa petitiOn vests no rights in the 
beneficiary of the petition , as approval of a visa petition is but a preliminary step in the visa 
application process . The beneficiary is not, by mere approval of the petition, entitled to an 
immigrant visa. Matter qf Ho, 19 I&N Dec. 582, 589 (BIA 1988). Again, there is no presumption 
that a more expeditious review of the adjustment application would have resulted in approval of that 
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Matter ofS-1-, Inc. 
application . The Petitioner has not raised any new legal arguments or submitted new evidence in 
regard to this issue. 
D. Altered Tax Documents 
As detailed further in our appellate decision, we upheld the Director ' s finding of willful 
misrepresentation of a material fact arising from the Petitioner's submission of two conflicting sets 
of tax documents. In the previous motion , the Petitioner acknowledged "there were questions 
concerning the changing of dates on some IRS forms '' and submitted a letter from the Petitioner's 
accountant, who stated that he filed corrected IRS Forms 940, Employer ' s Annual Federal 
Unemployment Tax Returns, for 2004, 2005, 2007, and 2008, "due to unavailability of Forms:· We 
found that the Petitioner did not submit evidence to corroborate the accountant's statement , that the 
accountant's statement did explain numerous other discrepancies in the Petitioner"s tax 
documentation discussed in detail in our appellate decision, and that the Petitioner did not directly 
contest our finding of willful misrepresentation of a material fact. 
In the new letter submitted in support of this motion, states that the Petitioner's claimed 
foreign parent company "directed all of the tax filing[ s ]" and that "there were some mix-ups in later 
years with drafts versus what was submitted to IRS and what was submitted to the Service."' He 
emphasizes that the Beneficiary "knows nothing about bookkeeping and taxes and merely signed 
what was put before him." general statements and vague references to '·mix-ups" are 
not sufficient to overcome the Director ' s finding that the Petitioner had submitted tax returns 
containing false statements. The specific anomalies in the submitted tax returns were discussed in 
detail in the prior decisions and 
the Petitioner has not specifically addressed those findings nor 
specifically rebutted the finding of willful misrepresentation of a material fact in the current motion. 
III. CONCLUSION 
The statement and materials submitted in support of the instant combined motion to reopen and 
reconsider do not establish eligibility for the benefit sought, nor do they address all of the grounds 
for revocation that we originally upheld in dismissing the Petitioner's appeal. The Petitioner has not 
shown that we based our most recent prior decision on an incorrect 
application of law or policy , or 
that the decision was incorrect based on the evidence in the record of proceeding at the time of that 
decision. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofS-1-. Inc., ID# 645165 (AAO Sept. 28, 20 17) 
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