dismissed EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-I-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 28, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The 'Petitioner, 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. § 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 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 evidence of record did not establish, as required: (I) 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 has 
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. We agreed 
with all the Director's findings and dismissed the Petitioner's appeal from that decision. 
In a motion to reopen and a motion to reconsider, the Petitioner submits additional evidence and 
asserts that we erred by not considering circumstances such as business conditions, reorganization, 
and a delay in adjudicating the Beneficiary's Form J-485, Application to Register Permanent 
Residence or Adjust Status. 
Upon review, we will deny the combined motion. 
I. LEGAL FRAMEWORK 
Section 203(b)(l)(C) of the Act makes an immigrant visa 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. 
A United States employer may file Fom1 I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. This 
classification does not require a labor certification. 
.
.----- ---- - ---- - ·--·--·-·--·-·-·- .. · · 
Mauer ofS-1-. Inc. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 1 03.5(a)(2). A motion to reconsider must establish that we based our decision 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. A petitioner must support its motion to reconsider with a 
pertinent precedent or adopted decision, statutory or regulatory provision , or statement of U.S. 
Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. 
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. 
II. IDENTlTY OF THE PETITIONER 
The Petitioner name on the Fonn I-2908, Notice of Appeal or Motion is· 
tiled the Fonn 1-140 petition. Several years 
later, a new entity, tiled a11icles of incorporation. Both 
corporations use the same address , and the Beneficiary is an officer of both companies. The documents 
submitted on motion state that is doing business under the name of 
and is now the petitioner. As we noted in our last decision , still exists. There is no provision for 
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 tiling, because 
the Beneficiary remains as the president of the true petitioning entity, and he signed the Form l-290R 
Notice of Appeal or Motion. We will therefore consider the motion to be properly filed by the true 
petitioner. 
III. ISSUES RAISED ON MOTION 
Our 20-page decision , issued September 27 , 2016, provided details about the procedural history of 
the case, the grounds for revocation, and the grounds tor our dismissal of the appeal. We will not 
repeat those details here except as necessary to give context to the Petitioner's assertions on 1i1otion. 
This decision is not a de novo rehearing on the merits of the underlying petitioi1. 
The Petitioner has directly copied significant portions of its appellate brief for its new brief on 
motion. Because we already addressed that brief in our appellate decision, and the Petitioner does 
not claim that we overlooked those portions of the briet: we need not revisit the same arguments 
here. Cf, Matter of 0-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 ... decision. The moving party must specif)r 
the factual and legal issues raised on appeal that were decided in error or overlooked in our initial 
decision."). We will limit consideration to new arguments and newly submitted evidence. 
A. Status ofthe Petitioner ' s Business and Validity of Job Offer 
The Director tound, and we agreed , that the Petitioner appears to have stopped doing business. 
defined as the regular , systematic, and continuous provision of goods or services , and not the mere 
2 
.
Mauer qfS-1- , Inc. 
presence of an agent or office. 8 C.F.R. § 204.50)(2). For instance, the Petitioner's 2012 and 2013 
income tax returns show 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. § 204.50)(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 corporation has not demonstrated ongoing business activity or 
a continued bonafide intent to employ the Beneficiary. We noted that the Petitioner still exist s 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. 
On motion, the Petitioner maintains that is its successor-in-interest , and that "the Petitioner is 
still 'doing business' - under an umbrella company - while still maintaining its integrity as a 
corporation." The Petitioner also cites Matler of 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 submits new documents showing continued 
business activity by 
Leacheng holds that a company can be "doing business" \Vithin a multinational organization, even if 
that company has no outside clients and is strictly providing services to a related entity within that 
organization. That fact pattern does not resemble the present case. The Petitioner has not shown 
that is still doing business (providing goods and services) at all, even within the internal framcvmrk 
of an organization that includes use of the Petitioner ' s name does not mean that 
the Petitioner is doing business vicariously through 
The Petitioner cites several definitions of the term "successor-in-interest," all having to do with the 
transfer of assets from one entity to m:other. The Petitioner does not shcnv that this is what happened 
in the present case. The formation of a ne\V entity, vvhich then used the Petitioner's name, is not a 
transfer of assets. 
Furthermore, a 2009 memorandum 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 I 
Multi-National Executive or Manager ... must file 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 Interesl Determinations in Adjudication of Forni 1-140 Petitions : 
Adjudicator's Field lvfanual (AFM) Update to Chapter 22.2(b)(5) (AD09-37) 10 (August 6, 2009), 
http://ww w.uscis.gov /laws/policy-memoranda. 
.
Matter ofS-1-. Inc. 
The Petitioner has cited no authority to show that a successor-in-interest can take the place of the 
original petitioner after the petition has been tiled, and therefore there is no need for a detailed 
discussion of whether or not qualities as the Petitioner's successor-in-interest. 
The Petitioner has not demonstrated that it continues to do business and intends to employ the 
Beneficiary. The existence of a separate entity that uses the Petitioner's name cannot overcome this 
conclusion. 
B. Continued Eligibility After Filing Date 
Relating to the above issue, the Petitioner maintains that it was a viable business at the time of filing. 
The Petitioner had previously cited regulations and case law requiring the Petitioner to establish 
eligibility as of the date of filing the petition, and asserted: "If favorable evidence that arises after the 
tiling of the petition cannot be considered, then unfavorable evidence, likev,rise, cannot be considered as 
well. USCIS cannot have it both ways." 
We addressed the Petitioner's argument in our appellate decision and will not repeat that discussion in 
detail here. We revisit the issue only because the Petitioner states, on motion, that \Ve erred by making 
the same finding as the Director. The Petitioner, hO\vever, does not address or acknowledge a key 
finding from our appellate decision. We cited the regulation at 8 C.F.R. § 103.2(b)(l), which requires 
that the Petitioner must be eligible at the time of filing and "must continue to be. eligible through 
adjudication." We also noted 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." The Petitioner does not answer these specitic 
findings or indicate how the Director misapplied the cited statute and regulation. The repetition of 
arguments from an appeal we already dismissed does not demonstrate error in our appellate decision, 
and does not establish grounds for reconsideration. 
C. Delay in Adjudication 
The Petitioner expands upon its earlier assertion that USCIS improperly, and without explanation, 
delayed the adjudication of the Beneficiary's Form 1-485 adjustment application. The implication is 
that USCIS should have promptly adjudicated the Beneficiary's adjustment application before the 
disqualifying information surfaced. We have no appellate authority over that application, and the 
passage of time since the petition's initial approval in 2005 does not inherently entitle the Petitioner 
or the Beneficiary to favorable consideration in this proceeding. Also, 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. Afatter of Ho, 19 r&N Dec. 582, 589 (Bli-\ 1988). Theref(xe, there is no 
presumption that a more expeditious review of the adjustment application \vould !)ave resulted in 
approval ofthat application. 
4 
Matter o.fS-1-. Inc. 
D. Altered Tax Documents 
As detailed further in our appellate decision, \Ve upheld the Director's finding of willful 
misrepresentation of a material fact arising from the Petitioner's submission of tvm conflicting sets 
of tax documents. We noted that the Petitioner's appellate brief did not directly address the issue at 
all. ln an accompanying affidavit the Beneficiary denied any wrongdoing but offered no 
explanation for the existence of conflicting tax returns bearing his signature and other tax documents 
\Vith visibly altered dates. 
On motion, the Petitioner acknowledges "there were questions concerning the changing of dates on 
some IRS forms." The Petitioner submits a letter from the Petitioner's accountant, stating 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.'' The Petitioner submits no evidence that it 
actually tiled amended returns for those years, and the accountant's letter does not account for 
numerous other discrepancies in the Petitioner's tax documentation discussed in detail in our prior 
decision. 
The Petitioner, on motion, has not directly contested the finding of \villful misrepresentation of a 
material fact, and the new evidence submitted on motion does not resolve the issues underlying that 
finding. Therefore, the prior finding stands. 
IV. CONCLUSION 
The Petitioner provided new facts and new evidence, but the submitted materials do not establish 
eligibility for the benefit sought. The Petitioner has not shown that we based our 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 ofthat decision. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter o{S-1-. Inc., 10# 292684 (AAO Mar. 28, 2017) 
5