dismissed EB-1C Case: Wholesale Diamonds

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 2, 2023 In Re : 27943517 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a wholesale diamond business, seeks to permanently employ the Beneficiary as its 
general manager under the fust preference immigrant classification for multinational executives or 
managers . See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U .S.C . 
§ l l 53(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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that: ( 1) the Beneficiary would be employed in the United States in a managerial or executive 
capacity; (2) the Petitioner has the ability to pay the proffered wage; and (3) the Petitioner has a 
qualifying relationship with the Beneficiary's last foreign employer. The Director granted the 
Petitioner's subsequent motion to reopen and reconsider and issued a new decision on the same three 
grounds after considering the Petitioner 's arguments and new evidence. The Petitioner then filed an 
appeal. Although we withdrew the Director's determination regarding the Petitioner's ability to pay, 
we dismissed the appeal, reserving any discussion of the qualifying relationship issue and basing our 
decision on the conclusion that the Petitioner did not establish that the Beneficiary would be employed 
in an executive capacity in the United States. In addition, we noted that evidence regarding the 
Beneficiary's emollment in the United States as a full-time student as well as his record of arrivals 
into and departures from the United States indicate that the Beneficiary does not meet the one year of 
foreign employment requirement for this classification. Although we noted that the Beneficiary's 
employment abroad did not serve as a basis for our dismissal of the appeal, the Petitioner would need 
to address this issue in any future proceeding in which it seeks the requested benefit. The matter is 
now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss both 
motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2) . Our review on motion is limited to reviewing our latest decision. 8 C .F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter o_f Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
The Petitioner's submissions in support of this motion to reopen include an updated organizational 
chart, Form W-2 Wage and Tax Statements and other business documents reflecting the Petitioner's 
staffing, business, and finances in 2022, and new job duty breakdowns for an operations manager, a 
sales and marketing manager, a sales manager, and a sales associate. 1 The Petitioner did not, however, 
establish how these documents are relevant to our dismissal of the appeal, which was based on the 
determination that the Petitioner did not establish eligibility at the time of filing. Although we 
acknowledged the Petitioner's claim that the Beneficiary primarily performs high-level duties 
described at section 10l(a)(44)(B) of the Act, we pointed out that the Beneficiary's job duty 
breakdown was premised on the existence of subordinate managers and other staff whom the Petitioner 
had not yet hired as of June 2021, when time this petition was filed. See 8 C.F.R. § 103 .2(b)(1 ). 
Namely, we pointed to evidence in the record which indicates that the Petitioner had only one 
employee at the time of filing and had no employees during most of the remainder of 2021. 
Although the Petitioner also offers a new job offer letter in support of the instant motion, the letter 
contains ajob duty breakdown that is inconsistent with one that was previously submitted and accounts 
for 95%, rather than 100% of the Beneficiary's time. Namely, the new job offer letter states that the 
Beneficiary will spend 50% of his time directing the management of the organization, 30% 
establishing the organization's "goals and policies," and 15% exercising wide latitude in discretionary 
decision-making. However, the job offer letter that was previously submitted in response to a request 
for evidence stated that the Beneficiary would allocate 15% of his time to establishing "goals or 
policies," 45% to directing the management or major component or function of the organization, 30% 
to exercising wide latitude in discretionary decision-making, and 10% to receiving general supervision 
from higher-level executives. The record does not contain independent, objective evidence resolving 
this inconsistency. See Matter o_fHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In sum, the Petitioner has not offered new facts that address the evidentiary deficiencies we identified 
and discussed in our prior decision. As such, the Petitioner has not met the requirements of a motion 
to reopen. 
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). Our review on motion is limited to reviewing our 
latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
On motion, the Petitioner contests the correctness of our prior decision and points to its current 
submission of new evidence, which includes employee salaries, an updated organizational chart, and 
new employee job descriptions. However, offering new evidence that was not part of the record when 
the disputed decision was issued does not adequately address the requirements of a motion to 
1 The remainder of the Petitioner's submissions included a least agreement executed in July 2022 and financial documents 
from 2021 and 2022. However, because these documents had been previously submitted in response to the Director's 
request for evidence (RFE), they do not offer new facts and therefore do not meet the requires of a motion to reconsider. 
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reconsider. As indicated above, to meet the requirements of a motion to reconsider, the Petitioner 
must establish that we incorrectly applied the law or USCIS policy given the evidence that was in the 
record at the we issued our decision. The new evidence submitted in this matter has been duly 
addressed in our discussion pertaining to the Petitioner's motion to reopen. As such, the Petitioner's 
reference to a "three-tier organizational structure" and a "middle layer of management," neither of 
which accurately characterizes the Petitioner's staffing structure at the time of filing, are not relevant 
to this motion to reconsider. Likewise, the Petitioner's reliance on any new evidence, such as new 
invoices for the outsourced services of an accountant and a newly executed lease, both pertaining to 
events that occurred after this petition was filed, are also not relevant to this motion to reconsider, nor 
do they support the Petitioner's contention that our decision dismissing the appeal was incorrect. 
To establish that reconsideration of our decision is warranted, the Petitioner must make a cogent 
argument explaining how we misapplied the law or USCIS policy in our prior decision dismissing the 
appeal based on evidence that was before us at the time we made our decision. Here, the Petitioner 
does not make such an argument and incorrectly relies on new evidence as a means of supporting the 
motion to reconsider. 
Lastly, the Petitioner addresses our additional discussion of facts pertaining to the Beneficiary's period 
of employment abroad. In our prior decision we stated that the basis for determining whether the 
Beneficiary met the foreign employment requirement would be the three-year period that immediately 
preceded his initial entry as an L-1 nonimmigrant for the purpose of working for the Petitioner. See 
8 C.F.R. § 204.5(j)(3)(i)(B). 2 Because the Beneficiary's entry as an L-1 nonimmigrant occurred on 
March 10, 2021, we counted back three years and determined that the relevant timeframe during which 
his year of employment abroad must have occurred was the three-year period between March 10, 2018, 
and March 10, 2021. We then noted that given the Beneficiary's enrollment as a full-time 
undergraduate student atOUniversity and his time spent in the United States (as documented in 
his arrival and departure records), the Beneficiary was only outside of the United States for 162 during 
the relevant three-year period, thus falling considerably shy of meeting the requirement of having been 
employed abroad for at least one year. 
The Petitioner does not dispute our calculations of the Beneficiary's time in the United States, but 
rather argues that his foreign employment need not have taken place outside of the United States in 
order for him to satisfy the foreign employment requirement. However, the Petitioner's argument is 
inconsistent with current USCIS policy requiring the Petitioner "to demonstrate that the beneficiary 
was employed abroad ... for 1 out of the 3 previous years." 6 USCIS Policy Manual F.4(A), 
https://www.uscis.gov/policy-manual; see also 8 C.F.R. § 204.5(j)(3)(i)(B). 
2 In promulgating the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B), the former Immigration and Naturalization Service stated: 
The Service does not feel that Congress intended that nonimmigrant managers or executives who have 
already been transferred to the United States should be excluded from this classification. Therefore, the 
regulation provides that an alien who has been a manager or executive for one year overseas, during the 
three years preceding admission as a nonimmigrant manager or executive for a qualifying entity, would 
qualify. 
56 Fed. Reg. 30703, 30705 (July 5, 1991). 
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In sum, although the Petitioner has submitted additional evidence in support of the motion to reopen, 
it has not established eligibility at the time of filing. On motion to reconsider, the Petitioner has not 
established that our previous decision was based on an incorrect application of law or policy at the 
time we issued our decision. Therefore, the combined motion will be dismissed. 8 C.F.R. 
§ 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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