dismissed EB-1C Case: Retail Business

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-F-, LP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 3, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner claims to operate a retail business and seeks to permanently employ the Beneficiary 
as its vice president of finance 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, Texas Service Center, revoked the approval of the petition with a finding of fraud. 
The Director concluded that the Petitioner did not establish that: ( 1) the Beneficiary was employed 
abroad in a managerial or executive capacity; (2) the Beneficiary would be employed in the United 
States in a managerial or executive capacity; and (3) it has the ability' to pay the Beneficiary's 
proffered wage. The Petitioner subsequently filed an appeal, which we dismissed citing the first 
ground for revocation as the sole basis for our decision. We found that since the Director did not 
discuss the second and third grounds in the notice of intent to revoke, the approval of the petition 
was improperly revoked on those two grounds. We also withdrew the Director's finding of fraud. 
The matter is now before us on a motion to reopen and motion to reconsider. In its motion, the 
Petitioner offers a legal brief, asserting that our decision was legally unsound. The Petitioner also 
submits affidavits, a rental agreement, sales tax invoices, and other business documents as evidence 
to support its claim that the Beneficiary was employed abroad in a managerial capacity for at least 1 
year during the 3-year period that preceded his admission to the United States on an L-1 
nonimmigrant visa. 
Upon review, we will deny the c.ombined motion. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F.R. § 103.5(a)(1)(i) includes the following statement limiting a U.S. 
Citizenship and Immigration Services (USCIS) officer's authority to reopen the proceeding or 
reconsider the decision to instances where "proper cause" has been shown for such action: 
Matter of V-F-, LP 
[T]he official having jurisdiction may, for proper cause shown, reopen the proceeding 
or reconsider the prior decision. 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal 
requirements for filing (such as, for instance, submission of a Form I-2908, Notice of Appeal or 
Motion, that is properly completed and signed, and accompanied by the correct fee), but the 
petitioner must also show proper cause for granting the motion. As stated in the provision at 
8 C.F.R. § 103.5(a)(4), "Processing motions in proceedings before the Service," "[a] motion that 
does not meet applicable requirements shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 1 03.5(a)(2), "Requirements for motion to reopen," states: 
A motion to reopen must state :the new facts to be provided in the reopened 
proceeding and be supported by affidavits or other documentary evidence .... 
This provision is supplemented by the related instruction at Part 3 ofthe Form I-2908, which states:' 
Motion to Reopen: The motion must state new facts and must be supported by 
affidavits and/or documentary evidence. 
Further, the new facts must possess such significance that, "if proceedings ... were reopened, with 
all the attendant delays, the new evidence offered would likely change the result in the case." Matter 
o.fCoelho, 20 I&N Dec. 464, 473 (81A 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-
40 (lOth Cir. 2013). 
C. Requirements for Motions to Reconsider 
The regulation at 8 C.F.R. § 1 03.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must state the reasons for reconsideration and be supported by 
any pertinent precedent decisions to establish· that the decision was based on an 
incorrect application of law or Service policy. A motion to reconsider a decision on 
an application or petition must, when filed, also establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 
1 The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part: 
Every benefit request or other document submitted to DHS must be executed and filed in accordance 
with the form instructions, notwithstanding any provision of 8 CFR chapter I to the contrary, such 
instructions are incorporated into the regulations requiring its submission., 
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These provisions are augmented by the related instruction at Part 3 of the Form I-290B, which states: 
Motion to Reconsider: The motion must be supported by citatio)ls to appropriate 
statutes, regulations, or precedent decisions. 
A motion to reconsider contests the correctness of the prior decision based on the previous factual 
record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 
8 C.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2). 
II. MOTION TO REOPEN 
In support of the motion to reopen, the Petitioner submitted the foreign entity's rental agreement and 
sales tax invoices (all containing the Beneficiary's signature during the period 2000 to 2002), as well 
as declarations and affidavit's from former and current foreign entity employees in support of its 
claim that the Beneficiary was employed abroad in a managerial capacity during for at least 1 year in 
the 3 years preceding his admission to the United States. Upon review, we find that even if the 
matter were reopened, this evidence would not change the result in this matter. Accordingly, for the 
reasons discussed below, the motion to reopen will be denied. 
In dismissing the Petitioner's appeal, we determined that there were unresolved and material 
discrepancies between two different foreign entity organizational charts in the record. As a result, 
we found a lack of reliable evidence regarding the Beneficiary's placement in the foreign entity's 
hierarchy and the number and types of subordinates he supervised. We determined that the evidence 
of record was insufficient to enable us to draw any conclusions about the nature ofthe Beneficiary's 
employment with the foreign entity, or whether such employment was in a managerial or executive 
capacity as defined at section 1 01 (a)( 44) of the Act. Thus, any new facts and supporting evidence 
should directly address and resolve the inconsistency surrounding the foreign entity's organizational 
charts. 
However, the Petitioner has not introduced new facts that address this inconsistency. The newly 
submitted invoices and rental agreement corroborate the Petitioner's claim that the Beneficiary was 
employed abroad during the relevant 3-year period; however, this fact was not in contention in our 
prior decision. While the Petitioner submits statements and affidavits from 3 individuals who state 
that they worked with the Beneficiary between 2000 and 2002 and that he held the position of 
finance manager, the affidavits do not offer any further information regarding the actual structure 
and staffing levels of the company during that period and therefore provide no further support 
regarding the reliability of either of the submitted organizational charts in the record. 
In fact, the Petitioner has introduced a new inconsistency by providing an affidavit from 
who states that he served as business development manager during the Beneficiary's tenure 
abroad. name and position title appeared on only one of the two submitted 
organizational charts, specifically, the one submitted in support of a previous Form I-140 filed in 
2007. The Petitioner later stated that the chart submitted in 2007 was prepared improperly and did 
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Matter of V-F-, LP 
not accurately reflect the foreign entity's structure. The latter chart submitted in support of the 
instant petition, which the Petitioner maintained on appeal is the correct chart, did not identify 
as an employee of the foreign entity, or include any individual in the position of "business 
development manager." The Petitioner has not resolved these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). We acknowledge that affidavit includes a lengthy list of duties for the 
Beneficiary. However, his statements have limited probative value as he does not attempt to clarify 
the foreign entity's staffing or structure, and in light of the Petitioner's conflicting claims as to 
whether the foreign entity actually employed in his stated position. 
In light of the above, the Petitioner did not state new facts demonstrating eligibility at the time the 
petition was filed. Therefore, the Petitioner has not shown proper cause to reopen the proceeding 
and the motion to reopen will be denied. 
III. MOTION TO RECONSIDER 
Next, we will address the merits of the Petitioner's motion to reconsider, which is based on the 
Petitioner's contention that our decision to dismiss the Petitioner's appeal and uphold the revocation 
of the approved immigrant visa petition was legally unsound. 
The Petitioner contends that we "committed legal error in stating that review of job duties should be 
conducted within the context of an employer's organizational chart." However, the Petitioner does 
not cite to anY regulation or case law precedent to support this contention. An organizational chart, 
or comparable evidence of an employer's staffing and structure, is probative evidence that illustrates 
where a beneficiary's position falls within a given organizational hierarchy. Such evidence assists 
users in determining whether the employer in question had the necessary staff to support the 
beneficiary's position in a managerial or executive capacity and to relieve that beneficiary from 
having to allocate his time primarily to operational and/or administrative tasks. There is no law or 
precedent decision that precluded the Director from requesting an organizational chart in support of 
the petition. 
Second, the Petitioner cites to Lu-Ann Bakery Shop,lfnc. v. Nelson, 705 F. Supp. 7 (D.D.C. 1988) to 
support its objection to the Director's request for the foreign entity's organizational chart. The 
Petitioner asserts that the Beneficiary's prior nonimmigrant petition approvals along with the foreign 
entity's letter of employment and the. Beneficiary's foreign job description were sufficient to meet 
the regulatory criteria and that requesting additional evidence is contrary to the ruling in the cited 
case, where the Court held that a request for contemporaneous documents "placed an additional, 
significant, and legally unwarranted burden on the petitioner." Lu-Ann Bakery Shop. Inc., 705 F. 
Supp. at 11. 
We find, however, that the facts in the present matter are not analogous to those in the referenced 
case. Namely, the court in the cited case did not issue its ruling for the purpose of compelling 
USCIS, formerly INS, to "accept as true or accurate the affidavits presented by the petitioner"; 
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rather, the purpose of the ruling was to ensure that that whatever evidence a petitioner submits, 
whether contemporaneous or not, is considered prior to USCIS making a determination as to the 
sufficiency of such evidence. /d. at 12. In the cited case, the Court determined that the INS erred 
when it chose to revoke the approval of a petition without first considering and making a 
determination as to the sufficiency of the evidence that the petitioner provided to support its claims. 
!d. The same is not true in the matter at hand, where, after having given due consideration to the 
Petitioner's supporting evidence, we determined that the Petitioner submitted different 
organizational charts that inconsistently depicted the foreign entity's organizational hierarchy, 
thereby precluding us from being able to conduct a comprehensive assessment of the Beneficiary's 
job description within the context of an accurate staffing composition. Only after determining that 
the organizational charts that the Petitioner generated were inconsistent, and therefore unreliable, did 
we conclude that the Petitioner would have to provide independent, objective evidence pointing to 
where the truth lies in order to resolve the inconsistencies. See Matter of Ho, 19 I&N Dec. at 591-92 
(BIA 1988). Thus, contrary to the Petitioner's contentions, our findings were in line with the cited 
case law. 
In addition, the Petitioner objects to our reliance on the foreign entity's organizational chart in 
conducting an analysis of the Beneficiary's employment capacity with the foreign entity. We 
acknowledge that no regulation or case law precedent expressly requires the submission of an 
organizational chart in support of an immigrant petition for a multinational manager or executive. 
However, the regulation at 8 C.F.R. § 204.5(j)(3)(ii) expressly states that the Director may request 
additional evidence when deemed appropriate. We cannot find that the Director's request for an 
organizational chart was inappropriate or that the Director was legally prohibited from making sw;;h 
a request, which was issued for the purpose of gaining further insight as to the managerial or 
executive nature of the Beneficiary's position with the foreign entity. Therefore, the Petitioner's 
objection to the Director's request for the foreign entity's organizational chart is without merit. 
Once a petitioner submits an organizational chart, it is reasonable for USCIS to consider that 
evidence in reviewing the totality of the record. Specifically, we looked to the foreign entity's 
organizational chart to gain a meaningful understanding of the Beneficiary's placement with respect 
to other company employees in the foreign entity's hierarchy, and to determine the number and types 
of employees who were available to perform the foreign entity's operational and administrative 
tasks. Here, because the record contained two very different organizational charts intended to depict 
the staffing and structure' of the same entity during the same time period, it was reasonable for us to 
question the reliability of this evidence. 
Furthermore, even if we had considered the Beneficiary's job duties outside the context of the 
submitted organizational charts, the job duties alone would not have been sufficient to establish that 
the Beneficiary was employed abroad in a l!lanagerial or executive capacity, as the job description 
lacked sufficient detailed information about the Beneficiary's actual day-to-day tasks. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
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Matter of V-F-, LP 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1)03, 1108 (E.D.N.Y. 1989), aff'd, 905 
F .2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the employment. !d. 
For example, while the Petitioner provided a general description of the Beneficiary's duties, it did 
not explain what specific tasks were involved in directing and coordinating "overall financial 
activities" or explain why the Beneficiary would have had to determine the foreign entity's assets, 
liabilities, insurance coverage, tax status, and financial objectives on a regular daily or even weekly 
basis. The Petitioner also did not explain how the Beneficiary's latter set of duties differed from 
analyzing the foreign entity's financial status and developing financial plans, duties which were 
listed separately. In addition, the Petitioner did not specify what actual tasks were involved in 
developing and implementing financial plans, or establish that either job duty is something that the 
Beneficiary did on a daily or weekly basis. Although the Petitioner claimed that the Beneficiary 
"[p ]repared and submitted documents to implement plans selected by management," no information 
was provided as to the types of documents the Beneficiary prepared and submitied or what types of 
plans the "management" selected. Further, the claim that the Beneficiary "[d]irected activities ofthe 
managers and employees" communicated with "management and employees" regarding company 
achievements and project changes requires further information as to which managers and employees 
were involved in the Beneficiary's responsibility for financial management. 
In light of the above deficiencies, the Beneficiary's job description alone would not have been 
sufficient to support the finding that the Beneficiary was employed in a managerial or executive 
capacity. Rather, an organizational chart was necessary in order to fully evaluate whom the 
Beneficiary managed and whether the Beneficiary's subordinates were supervisory, professional, or 
managerial employees. See section 101(a)(44)(A)(ii) of the Act. Given the previously described 
inconsistencies in the two organizational charts the Petitioner submitted, we were, and still remain, 
unable to gain adequate clarification of the Beneficiary's job duties or evaluate the Beneficiary's job 
description within the context of the foreign entity's organizational structure and staffing levels. 
Lastly, as explained in our original decision, the Petitioner's previously approved nonimmigrant 
petitions filed on behalf of the same Beneficiary do not serve to preclude the Director from revoking 
the approval of an immigrant petition. Each nonimmigrant and immigrant petition is a separate 
record. In making a determination of statutory eligibility, USCIS is limited to the information 
contained in that individual record of proceeding. See 8 C.F .R. § 103 .2(b )( 16)(ii). That said, if the 
previous nonimmigrant petitions were approved based on the same unsupported and contradictory 
assertions that are contained in the current record, the approvals would constitute material error on 
the part of the Director. We are not required to approve applications or petitions where eligibility 
has not been demonstrated, merely because of prior approvals that may have been erroneous. See 
Matter o.fChurch Scientology lnt'l, 19 I&N Dec. 593, 597 (Comm'r 1988). Service errors will not 
be treated as binding precedent. Sussex Eng 'g. Ltd. v. Montgomery, 825 F .2d 1084, I 090 (6th Cir. 
1987). 
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In sum, the Petitioner has not established that our previous decision was based on an incorrect 
application of law or USCIS policy. Therefore, the Petitioner has not met the requirements for a 
motion to reconsider. 
IV. CONCLUSION 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter o.fV-F-, LP, ID# 164782 (AAO Feb. 3, 2017)