dismissed EB-1C Case: Wholesale Jewelry

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-J- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 19, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a wholesale jewelry company, seeks to permanently employ the Beneficiary as president 
and general manager under the first preference immigrant classification for multinational executives 
or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(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 an executive or managerial capacity. 
The instant petition was approved; however, the Director of the Texas Service Center later revoked 
the approved petition, concluding that the record did not establish that: (1) the Petitioner had a 
qualifying relationship with the Beneficiary's former foreign employer; (2) the Beneficiary acted in a 
managerial or executive capacity in his former capacity abroad; and (3) the Beneficiary would act in 
a managerial or executive capacity in the United States. In addition, the Director determined that the 
Petitioner and Beneficiary had willfully misrepresented material facts. 1 
The Petitioner later appealed the decision and we dismissed the appeal concurring with the Director's 
grounds for revocation, but we withdrew the Director's conclusion that the Petitioner and Beneficiary 
had willfully misrepresented material facts. The matter is now before us on a motion to reopen and a 
motion to reconsider. 
On motion, the Petitioner contends that we erred in our previous dismissal and asserts that we 
misinterpreted the submitted evidence. 
Upon review, we will deny the motion to reopen and the motion to reconsider. 
1 A Form T-140 multinational executive or manager petition filed on behalfof the Beneficiary was approved by the Director 
of the Nebraska Service Center on January 13, 2017. The Director of the Texas Service Center later revoked this approved 
petition on January 23, 2018. following the issuance of a notice of intent to revoke (NOIR) on August 17, 2017. The 
Director of the Texas Service Center concluded that the petition had been approved in error and that the Beneficiary was 
not eligible for the benefit sought. 
Matter of M-J- Inc 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must (1) 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. 
§ 103.5(a)(2). A motion to reconsider must establish that our 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). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner indicated in the Form I-290B Notice of Appeal or Motion that it was filing 
a combined motion to reopen and reconsider. However, the Petitioner only discussed a motion to 
reconsider in the supporting documentation provided in support of the motion and farther stated that 
"there is no new set of facts"; therefore, we will deny the motion to reopen. 8 C.F.R. § 103.5(a)(2). 
B. Motion to Reconsider 
On motion, the Petitioner contends that we erred in our previous decision when we concluded that it 
did not establish that: ( 1) the Beneficiary would act in a managerial or executive capacity in the United 
States, (2) the Petitioner had a qualifying relationship with the Beneficiary's former foreign employer, 
and (3) the Beneficiary acted in a managerial or executive capacity in his former capacity abroad. In 
order for a motion to reconsider to be granted, the Petitioner must establish that our previous decision 
was incorrect based on the evidence ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
Therefore, the Petitioner must overcome each ground for dismissal set forth in our previous decision 
in order for the motion to reconsider to be granted. 
1. U.S Employment in a Managerial Capacity 
First, we will address whether the Petitioner has demonstrated on motion that we erred in concluding 
that the Beneficiary would not act in a managerial capacity in the United States. 2 The Petitioner did 
2 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. The Form T-140, Immigrant Petition for Alien Worker, must include a statement from an 
authorized official of the petitioning United States employer which demonstrates that the beneficiary has been employed 
abroad in a managerial or executive capacity for at least one year in the three years preceding the filing of the petition, that 
the beneficiary is coming to work in the United States for the same employer or a subsidiary or affiliate of the foreign 
employer, and that the prospective U.S. employer has been doing business for at least one year. See 8 C.F.R. § 204.5G)(3). 
Section 205 of the Act states: "The Secretary of Homeland Security may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective 
as of the date of approval of any such petition." 
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Matter of M-J- Inc 
not claim that the Beneficiary would be employed in an executive capacity. Therefore, we restrict our 
analysis to whether the Beneficiary would be employed in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
In our previous dismissal decision we stated that the Petitioner had submitted two conflicting U.S. 
duty descriptions for the Beneficiary and noted that the first duty description included several non­
qualifying operational duties. We also determined that the Petitioner provided substantial evidence 
reflecting the Beneficiary's involvement in non-qualifying operational level duties and concluded that 
it did not provide sufficient detail and documentation to substantiate his primary performance of 
qualifying managerial duties. In addition, we determined that the Petitioner did not submit sufficient 
evidence to demonstrate that the Beneficiary supervised managerial or professional subordinates as 
necessary to qualify him as an asserted personnel manager. Specifically, we pointed to the lack of 
supporting documentation to substantiate that the Beneficiary delegated duties to a subordinate 
sales/marketing manager overseeing the Petitioner's operational level employees. 
On motion, the Petitioner submits several additional assertions specifics of the Petitioner's operations 
and the duties of the Beneficiary. First, the Petitioner contends on motion that the company's 
secretary/bookkeeper handles invoicing and travel arrangements, not the Beneficiary. In addition, the 
Petitioner states that the Beneficiary did not create the company's website himself: but indicates that 
he engaged an independent contractor to build and maintain the website. The Petitioner also points to 
supporting documentation and asserts that this substantiates that the company's secretary/bookkeeper 
handles the company's invoicing and other administrative matters. We acknowledge that the evidence 
emphasized by the Petitioner indicates that the secretary/bookkeeper it employs likely performs 
various administrative duties for the company, such as issuing and paying invoices. Likewise, the 
evidence mentioned by the Petitioner also appears to reflect that the Beneficiary engaged a contractor 
to build its website. 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of Immigration 
Appeals has stated: 
In Matter of Estime . ... this Board stated that a notice of intention to revoke a visa petition is properly 
issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if 
unexplained and unrebutted. would warrant a denial of the visa petition based upon the petitioner's 
failure to meet his burden of proof The decision to revoke will be sustained where the evidence of 
record at the time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter o/Ho. 19 T&N Dec. 582, 590 (BIA 1988) ( quoting Matter of Estimc, 19 T&N Dec. 450 (BIA 1987)).2 
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Matter of M-J- Inc 
However, these assertions do not address the heart of the matter; specifically that the Petitioner 
submitted two conflicting duty descriptions for the Beneficiary, the first one submitted in support of 
the petition setting forth various non-qualifying operational duties, such as helping with day-to-day 
customer interaction, ensuring availability of gemstones, designing jewelry, guiding and directing 
employees on the design and production of jewelry, examining designs, providing opinions on 
alterations, guiding employees on safe shaping and mounting, and attending trade shows. Meanwhile, 
the Petitioner also provided shipping documentation through several years of its operations up until 
the date the petition was filed including the Beneficiary's name. It also submitted emails in response 
to the NOIR indicating the Beneficiary's communication of orders and designs to foreign parent 
employees, some dated in late 2015. 3 In addition, in our previous decision, we did not conclude that 
the Beneficiary himself built and maintained the company's website, as discussed by the Petitioner on 
motion, but noted that he coordinated this operational activity. 
In sum, the Petitioner has not overcome the fundamental conclusions in our previous decision; namely, 
that the Beneficiary's first duty description and other supported evidence on the record indicated that 
he was likely primarily engaged in non-qualifying operational duties as of the date the petition was 
filed. Even if we were to accept that the Petitioner's secretary/bookkeeper was involved in the 
company's invoicing and other administrative matters, this does not address the Beneficiary's 
conflicting duty descriptions, the operational duties set forth in his initial duty description provided 
with the petition, or the numerous other instances of supporting evidence on the record reflecting his 
involvement in non-qualifying operational tasks. In fact, on motion, the Petitioner refers to evidence 
that further reflects the Beneficiary's involvement in non-qualifying operational level duties, including 
an email from 2013 reflecting his coordination of a shipment, travel documents showing his attendance 
at trade shows, a 2016 email showing his involvement with a past due invoice, and a 2016 invoice 
listing the Beneficiary as a salesperson. In sum, the preponderance of the evidence indicates that the 
Beneficiary was primarily engaged in non-qualifying operational tasks as of the date the petition was 
filed and the Petitioner has not sufficiently established that our previous conclusion was in error. 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary was performing certain high-level responsibilities. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational activities 
alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 
2006); Champion World, 940 F.2d 1533. The evidence submitted by the Petitioner indicates that it is 
more likely than not that the Beneficiary was primary engaged in ordinary operational activities 
alongside the Petitioner's other employees. 
Furthermore, as we discussed in our previous decision, the Petitioner did not provide sufficient 
documentation to substantiate the Beneficiary's primary performance of qualifying managerial level 
tasks. We concluded that the Beneficiary's stated qualifying duties were too generic, that they could 
apply to any manager acting in any business or industry, and that they did provide insight into the 
actual nature of his role. We indicated that the Petitioner had provided insufficient examples and little 
supporting documentation to demonstrate the Beneficiary's performance of qualifying duties, such as 
3 The petition was filed on February 22, 2016. 
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Matter of M-J- Inc 
overall marketing policies he would formulate, systems he would ensure are followed, sales goals he 
would set for each employee, or changes he would make to sales goals in response to performance. 
Furthermore, we noted that the Petitioner made reference to regular reports provided by the 
Beneficiary's sales/marketing manager and secretary/bookkeeper, including sales figures and 
forecasts, marketing analysis reports, and monthly accounting reports; but, we noted that few of these 
documents were provided on the record. 
In addition, we stated that the Petitioner did not provide sufficient detail regarding customer credit 
policies the Beneficiary would put in place, vendor and employee payment policies he would create, 
reporting systems he would put in place, or "directives" or "policy frameworks" he would implement. 
On motion, the Petitioner points to evidence it states reflects the Beneficiary's performance of 
qualifying managerial tasks related to policy. However, this submitted documentation includes only 
one email communicating the company's policy on returns in November 2015 and an employee 
handbook the Petitioner does not explain. For instance, it is not clear who wrote the employee 
handbook, and even if we are to accept that the Beneficiary did, this single document does not 
sufficiently substantiate that the Beneficiary was primarily devoted to qualifying managerial tasks as 
of the date the petition was filed. In fact, the lack of detail and substantiating documentation as to the 
Beneficiary's qualifying duties is noteworthy, particularly since he is asserted to have worked in his 
asserted managerial role since 2005. Again, specifics are clearly an important indication of whether a 
beneficiary's duties are primarily managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner also asserts that the Beneficiary qualifies as a personnel manager overseeing a 
subordinate sales/marketing manager supervising the company's five sales/marketing representatives 
and the secretary/bookkeeper. The statutory definition of "managerial capacity" allows for both 
"personnel managers" and "function managers." See section 101(a)(44)(A) of the Act. Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, 
or managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that a "first line supervisor is not considered to be acting in a managerial capacity merely 
by virtue of the supervisor's supervisory duties unless the employees supervised are professional." Id. 
If a beneficiary directly supervises other employees, the beneficiary must also have the authority to 
hire and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F .R. 
§ 214.2(1)(1)(ii)(B)(3). 
We concluded in our previous decision that the Petitioner had submitted little supporting 
documentation to corroborate that the Beneficiary was primarily delegating non-qualifying operational 
matters to his subordinates, including the asserted subordinate sales/marketing manager. On motion, 
the Petitioner emphasizes documentary evidence it claims are reports submitted by the Beneficiary's 
subordinate sales/marketing manager. The Petitioner further asserts that it submitted sufficient 
evidence to demonstrate that the claimed sales/marketing manager supervises five marketing/sales 
agents and the secretary/bookkeeper. The Petitioner also provides an updated duty description for the 
sales/marketing manager on motion. For instance, the Petitioner states on motion that the 
sales/marketing is tasked with some of the following tasks: 
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Matter of M-J- Inc 
• meeting the sales targets of the company, 
• making sales reports periodically, 
• coordinating with the Beneficiary on changes to sales targets, 
• setting targets for the sales executives, 
• getting reports to the marketing/sales representatives, 
• mapping potential customers and generating leads, 
• scanning the potential customer list, 
• making decisions on sales with customers, 
• checking customer financial backgrounds, 
• orienting and coordinating sales/marketing representatives, and 
• developing lucrative incentive schemes and monetary benefits for his sales subordinates. 
However, the additional duties provided for the sales/marketing manager are not sufficient to 
demonstrate that the Beneficiary supervised a subordinate supervisor through whom he delegated a 
majority of the operational duties of the business as of the date the petition was filed. For instance, 
the Petitioner provided substantial documentation, such as emails and invoices, reflecting the other 
subordinates of the company performing operational tasks, including the Beneficiary. However, it 
submits little documentation to substantiate the sales/marketing manager performing his stated 
supervisory duties as of the date the petition was filed, including managing subordinate 
sales/marketing representatives, making sales targets, reporting sales matters to the Beneficiary, or 
performing other supervisory level tasks. For instance, the Petitioner points to documentation on 
motion it states are weekly sales reports provided by the sales/marketing manager to the Beneficiary, 
but these only appear to be a lists of transactions near the date of the petition and they provide little 
indication that the sales/marketing manager acted in a supervisory role subordinate to the Beneficiary 
as of the date the petition was filed. 
The Petitioner also contends on motion that the Beneficiary's lone asserted subordinate, the 
sales/marketing manager, qualifies as a professional. The Petitioner calls attention to the Department 
of Labor's Occupational Outlook Handbook (OOH) and its duty description for sales managers and 
asserts that this position qualifies as a "specialty occupation." As we noted in our previous decision, 
to determine whether a beneficiary manages professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a U.S. 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation"). Section 101 ( a)(32) of the Act, states that "[t ]he term profession shall include but not be 
limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." 
The Petitioner did not provide sufficient evidence to demonstrate that the subordinate sales/marketing 
manager position is a professional position. First, as discussed, the Petitioner did not submit evidence 
to substantiate the sales/marketing manager's asserted role. Further, regardless of the OOH 
description of sales managers, the Petitioner does not adequately explain how the sales/marketing 
manager position in its company qualifies as a professional position. It also does not substantiate that 
this employee has a bachelor' degree or submit other evidence to establish that this position required 
a bachelor's degree for entry. As such, the Petitioner did not establish that the Beneficiary qualifies 
as a personnel manager based on his supervision of subordinate professionals. 
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Matter of M-J- Inc 
In conclusion, the Petitioner did not establish that the Beneficiary would act in a managerial capacity 
under an approved petition. The Petitioner submitted two conflicting duty descriptions, the former 
including primarily non-qualifying operational duties. On motion, it still provides no explanation of 
this material discrepancy. Likewise, as discussed, the record included substantial evidence indicating 
the Beneficiary's involvement with non-qualifying operational tasks. Although the Petitioner submits 
some evidence reflecting the performance of invoicing and certain other administrative tasks by its 
secretary/bookkeeper and the company's sales representatives, this evidence does not overcome the 
evidence indicating that the Beneficiary was engaged in non-qualifying tasks alongside of his 
subordinates as of the date the petition was filed. In fact, the Petitioner provides additional 
documentation on motion reaffirming the Beneficiary's involvement in these non-qualifying duties 
alongside his subordinates. In contrast, it has provided few examples and little documentation to 
demonstrate the Beneficiary's performance of qualifying managerial duties. Lastly, the Petitioner did 
not properly substantiate that the Beneficiary oversees subordinate managers or professionals as 
necessary to qualify him as a personnel manager as asserted. 
In order for the motion to reconsider to be granted, the Petitioner must overcome all the stated grounds 
for dismissal set forth in our previous decision and demonstrate the Beneficiary's eligibility. As the 
Petitioner has not overcome our previous conclusion that it did not establish that the Beneficiary would 
act managerial capacity in the United States, we will not address the other issues discussed in our 
previous dismissal. 
Therefore, the Petitioner has not stated sufficient reasons supported by applicable law to establish that 
our previous decision was incorrect. Accordingly, we find that the Petitioner does not meet the 
requirements of a motion to reconsider. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
our prior decision. The motion to reopen and motion to reconsider will be denied for the above stated 
reasons. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that 
burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of M-J-Inc, ID# 3332894 (AAO June 19, 2019) 
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