dismissed EB-1C Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 12, 2024 In Re: 31036370 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a grocery/convenience store, seeks to permanently employ the Beneficiary as its 
controller under the first preference immigrant classification for multinational executives or managers. 
See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S.C. § 1153(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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that (1) it has a qualifying relationship with the Beneficiary's foreign employer; (2) it has the 
ability to pay the Beneficiary's proffered wage; (3) it employed the Beneficiary abroad in a managerial 
or executive capacity; and (4) it will employ the Beneficiary in the United States in a managerial or 
executive capacity. The Director dismissed a subsequently filed motion to reopen and reconsider. The 
matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&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. 
Any petition filed by or for an employment-based immigrant which requires an offer of employment 
must be accompanied by evidence that the prospective United States employer has the ability to pay 
the proffered wage. In determining a petitioner's ability to pay the proffered wage, U.S. Citizenship 
and Immigration Services (USCIS) first examines whether the beneficiary was employed and paid by 
the petitioner during the period following the priority date. A petitioner's submission of documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage for 
the time period in question, when accompanied by a form of evidence required in the regulation at 
8 C.F.R. § 204.5(g)(2), may establish the petitioner's ability to pay the proffered wage. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). 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). 
A. Procedural History 
The Petitioner operates a grocery/convenience store and seeks to employ the Beneficiary as its 
controller. In denying the petition, the Director determined that the Petitioner did not establish that 
(1) it has a qualifying relationship with the Beneficiary's foreign employer; (2) it has the ability to pay 
the Beneficiary's proffered wage; (3) it employed the Beneficiary abroad in a managerial or executive 
capacity; and (4) it will employ the Beneficiary in the United States in a managerial or executive 
capacity. 
The Petitioner filed a combined motion to reopen and motion to reconsider. The Director dismissed 
the motions, determining that the Petitioner's submissions did not meet the motion requirements. The 
matter is now before us on appeal. 
Where, as here, an appeal is filed in response to a director's unfavorable action on a motion, the scope 
of the appeal is limited to the director's decision on that motion. The regulatory provision at 8 C.F.R. 
§ 103.3(a)(2)(i) states: "The affected party must submit the complete appeal including any supporting 
brief as indicated in the applicable form instructions within 30 days after service of the decision." 
(Emphasis added). Thus, if the Petitioner wished to appeal the Director's decision to deny the appeal, it 
should have elected to file that appeal within 30 days of the Director's denial decision. Here, though, the 
Petitioner elected to file a combined motion instead, thus limiting the scope of the appeal to the merits of 
the Director's decision to dismiss the motions. 
B. Analysis 
The only issue correctly before us on appeal is whether the immediate prior decision - that is, the 
Director's decision to dismiss the motion to reopen and motion to reconsider - was correctly decided. 
Our review and analysis in this matter, therefore, will focus on that determination. Upon review, we 
concur with the Director's decision dismissing the motions. 
The Director dismissed the Petitioner's motion to reopen, determining that the Petitioner did not 
submit new facts that were supported by affidavits and/or documentary evidence demonstrating 
eligibility at the time of filing of the underlying petition. 
On motion, the Petitioner submitted the following evidence: 
1. A Deed of Partnership between pertaining to 
ownership of the foreign entity; 
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2. A Deed of Partnership between and pertaining 
to ownership of the U.S. entity; 
3. The Petitioner's Corporate Tax Return for 2021; 
4. The U.S. entity's corporate bank account statement; 
5. Excerpts from the U.S. Department of Labor's Occupational Outlook Handbook 
(OOH); 
6. The Beneficiary's resume; 
7. The foreign entity's organizational chart; 
8. An employment verification letter for the Beneficiary; 
9. The Petitioner's Articles oflncorporation; 
10. The Petitioner's Corporate Lease Agreement; 
11. Copies of the U.S. entity's licenses and permits; 
12. Copies of purchase invoices for the U.S. entity; and 
13. Copies of utility bills for the U.S. entity; 
After review of the statements submitted on motion and the accompanying documentation, we concur 
with the Director's determination. Specifically, we note that almost all of the evidence submitted on 
motion was previously submitted in support of the petition or in response to the Director's request for 
evidence. A review of the evidence submitted on motion before the Director reveals no fact that could 
be considered new under 8 C.F.R. 103.5(a)(2). 
Moreover, as noted by the Director, the Petitioner's resubmission of and reliance on its 2021 tax return 
as evidence of its ability to pay the proffered wage was not probative because the Petitioner was required 
to demonstrate its ability to pay from the priority date onward, which in this case was December 14, 2018. 
On appeal, we note the Petitioner's submission of its 2020 tax return for consideration of its ability to 
pay, but for the same reasons noted by the Director, we find this documentation insufficient. The record 
does not contain evidence ofthe Petitioner's ability to pay at the time the petition was filed and continuing 
onward through adjudication. 
Additionally, as noted in the prior decision, the Petitioner's submissions on motion did not address or 
resolve inconsistencies noted with regard to the dates of the Beneficiary's claimed foreign employment, 
nor did they address the deficiencies in the evidence previously submitted, such as the lack of signatures 
on the foreign partnership document that undermined its credibility. Rather than stating new facts 
supported by documentary evidence, the Petitioner maintained that its previously submitted evidence was 
sufficient to overcome the Director's adverse findings. 
The Director dismissed the motion to reconsider on the basis that it did not provide reasons for 
reconsideration that were supported by citations to appropriate statutes, regulations, or precedent 
decisions, and it did not show that the decision was incorrect based on the evidence of record at the 
time of the decision. Upon review of the Petitioner's submissions on motion, we agree that the motion 
did not satisfy the requirements of a motion to reconsider. The Petitioner did not specifically and 
sufficiently articulate why the Director's decision denying the petition was based on an incorrect 
application of law or U.S. Citizenship and Immigration Services policy, nor did the Petitioner cite to 
any relevant statute, regulation or relevant precedent decision that would support a contention that the 
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Director's decision to deny the petition was based upon a misapplication of statute, regulation, or 
policy to the evidence of record before the Director at the time of the decision to deny the petition. 
On appeal, in addition to submitting its 2020 tax return, it also resubmits documentation pertaining to 
the foreign entity's partnership structure, which was previously submitted prior to the Director's denial 
and again on motion as evidence of its qualifying relationship with the Beneficiary's claimed foreign 
employer and was previously deemed insufficient. The Petitioner makes no assertion of error with 
regard to the Director's September 27, 2023 decision dismissing the combined motion, and simply 
reasserts facts already considered by the Director. We therefore find that the Director's decision 
dismissing the Petitioner's motions was correctly decided. 
II. CONCLUSION 
The Director properly determined that the Petitioner's combined motions do not meet the requirements 
under 8 C.F.R. § 103.5(a)(2) and (3). 
ORDER: The appeal is dismissed. 
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