remanded EB-1C Case: Automotive Sales

', 
U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
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MATTER OF F-S-T-&S-, INC. DATE: JAN. 25, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FORALIEN WORKER 
The Petitioner, a used truck dealership, seeks to permanently employ the Beneficiary as its director of 
business development under the first preference immigrant classification for multinationatexecutives 
or managers. Immigration. and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ l 153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United State~ to work in an executive or managerial capacity. . . 
The Acting Director of the Nebraska Service Center denied the petition _in February 2018, 
concluding that the record did pot establish, · as required, that the Petitioner will employ the 
Beneficiary in the United States in a managerial or executive capacity. The Petitioner filed a 
combined motion to rec~nsider and reopen in March 2018. In April 2018, the Director denied the 
motion to reconsider, granted the motion to reopen, and reaffinned the. denial of the petition. The 
Petitioner then filed a motion to reconsid~r in May 2018, which the Director denied in June 2018. The 
matter is now before us on appeal. 
We will withdraw th~ Director's decision and remand the matter •for the entry of a new decision 
consistent with the ~ollowing analysis. 
We note that the procedural history of this case reflects a certain degree of confusion regarding the 
motion process. In the April 2018 decision, the Director stated: "It is ordered that the application be 
denied.'' Because of this wording, the Petitioner argues that the Director "did not dismiss the 
motion, but denied [the Form] I-140 Application." Form 1-140, Immigrant Petition for Alien 
Worker, is a petition, not an application; the two terms are distinct and not interchangeable. When 
read as a whole, the Director's April 2018 decision clearly concerned the Petitioner's March 2018 
~ . . 
combined motion rather than the underlying petition. The erroneous reference to an "application" 
does not supersede the regulations pertaining to motions. We are under no obligation to treat 
acknowledged errors as binding precedent. See Sussex Eng'g,. Ltd v. Montgomery, 825 F.2d 1084, 
1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
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). A motion_ to recori_sider must be supported_ by a 
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Matter of F-S-T-&S-, Inc. 
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. 
On appeal, the Petitioner contests all three adverse decisions in this proceeding. The Petitioner, 
however, did not appeal the initial denial of the petition. · Rather, the Petitioner appealed the 
Director's most recent finding, in June 2018, that the May 2018 motion did not meet the 
requirements of a motion to reconsider. Therefore, the merits of the February and April 2018 
. decisions, and of the underlying petition, are not before us. The only decision before us is the June 
2018 decision, and the only issue before us is whether the Director properly found that the motion 
did not meet applicable requirements. 
In the June 2018 decision, the Director cited different grounds for denying the motion. The Director 
stated that the motion "does not provide precedent decisions to consider; nor does it establish that the 
decision was incorrect based upon the evidence of record at the time." But the Director also stated 
that a petitioner "cannot file a motion to reconsider [after] receiving a decision dismissing" a 
previous motion. This last ground is incorrect. The regulations currently in effect do not prohibit 
the filing of a second motion. We note that, in the April 2018 decision, the Director correctly stated 
that the Petitioner had the right to file either an appeal or a motion. 
Regarding the Director's finding that the Petitioner did not cite precedent decisions in its May 2018 
motion, a motion to reconsider must establish an incorrect application of law or USCIS policy. The 
Petitioner did not cite precedent decisions, but law and USCIS policy do not derive solely from 
precedent decisions. There are other sources of authority, such as adopted decisions, regulations, 
and the underlying statute itself. In this instance, the Petitioner cited an adopted decision that USCIS 
has designated for binding policy guidance. Therefore, the Petitioner did not simply make 
unsupported allegations of error. Also, the Petitioner argued that this error of policy materially 
affected the outcome of the decision. Initial review of this argument resides with /he Director, not 
with the Administrative Appeals Office. 
Also in its May 2018 motion, the Petitioner alleged several material errors of fact, which would 
address the requirement that a motion toreconsider must show that the decision was incorrect based 
on the evidence of record at the time of that decision. The Director summarily concluded, without) 
further explanation, that the motion did not "establish that the decision was incorrect based upon the 
evidence ofrecord at the time." 
Because the Director has not yet addressed the merits of the May 2018 motion to reconsider , the 
proceeding is not ripe for us to consider the Petitioner ' s arguments in that motion. The Director 
must at least address the Petitioner's claims and explain why they are deficient. 
Beyond the issues discussed above, another issue appears to require attention. A search of public 
records shows that the operating manager of the petitioning entity is also the agent and president for 
another corporation with a very similar name, , incorporated in 
Illin!ois on July 7, 2016. Any future submission from the Petitioner must indude clarifyin•g evidence. 
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Matter of F-S-T-&S-, Inc. 
to confirm that the owner and operator of the truck dealership is the petitioning entity and not the 
newer, similarly-named entity. The newer entity has the same name as the truck dealership, which 
gives rise to several questions: (1) is the entity involved with the dealership?; (2) if so, how and to 
what extent?; and (3) if not, what unrelated purpose does the newer entity serve that would justify its 
incorporation and its continued active status? The newer entity is not a party to this proceeding, and 
was not doing business for at least a year prior to the petition's September 2016 filing date, as 
required by 8 C.F.R. § 204.5(j)(3)(i)(D). · 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter·o.f F-S-T-&S-. Inc., ID# 1972938 (AAO Jan. 25, 2019) 
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