Date of Decision: August 13, 2024
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives or Managers)
Field of Expertise: Cell Phone Retail
Beneficiary Information
Profession: Controller
Field: Cell Phone Retail
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Motion Outcome: Motion to Reopen and Motion to Reconsider Dismissed
Case Overview
The petitioner, a cell phone retailer, sought to employ the beneficiary as a controller under the EB-1C classification for multinational executives or managers.
The Texas Service Center denied the petition, determining that the petitioner failed to establish that the beneficiary would work in an executive capacity in the United States, that the beneficiary had worked abroad for at least one year during the three-year period before the petition’s filing, and that the petitioner and the foreign employer were affiliated companies. The Administrative Appeals Office dismissed the appeal and an earlier motion to reconsider.
The matter returned to the Administrative Appeals Office on a combined motion to reopen and motion to reconsider. The petitioner submitted a revised 2021 federal income tax return, arguing that a prior copy mistakenly omitted the beneficiary’s foreign employer as the petitioner’s primary shareholder. Upon review, the Administrative Appeals Office determined that the petitioner failed to address the grounds for the earlier dismissal and did not establish a qualifying relationship between the petitioner and the beneficiary’s foreign employer. Both motions were dismissed.
Key Issues
The primary issue in this appeal was whether the petitioner demonstrated a qualifying relationship between the U.S. and foreign entities and whether the beneficiary’s foreign and U.S. employment met the requirements for EB-1C classification.
The petitioner’s motions focused only on the qualifying relationship and did not address the other dismissal grounds. The Administrative Appeals Office determined that failing to brief these issues constituted a waiver. Additionally, the revised 2021 tax return contained internal inconsistencies and did not reliably establish ownership.
Further inconsistencies were noted between different versions of the petitioner’s 2021 tax returns. Copies submitted with the initial filing and later in response to a request for evidence showed different amounts of net income, net current assets, and officer compensation. The petitioner did not clarify which version was filed with the IRS, making the documents unreliable.
USCIS Findings
The Administrative Appeals Office upheld the director’s decision, concluding that the petitioner failed to provide consistent and verifiable evidence of a qualifying relationship. The tax records contained contradictions regarding ownership distribution, and the petitioner did not submit independent, objective evidence to resolve these inconsistencies.
Additionally, the petitioner’s prior claim that two individuals owned both the U.S. and foreign entities contradicted its later assertion that the foreign entity itself owned the U.S. petitioner. The petitioner did not provide legible transactional documentation, stock certificates, or other ownership records to clarify these discrepancies.
Since the petitioner failed to address all the grounds for dismissal and did not submit sufficient evidence to establish a qualifying relationship, both motions were dismissed.
Supporting Evidence
- Revised 2021 federal income tax return listing the foreign employer as a majority shareholder
- Prior versions of 2021 tax returns with conflicting net income, assets, and officer compensation
- Ownership records and partnership agreements with inconsistent ownership claims
- Lack of stock certificates, stock ledgers, or comparable ownership documentation
Additional Notes
The Administrative Appeals Office emphasized that motions to reconsider must demonstrate that a prior decision misapplied law or policy, while motions to reopen must introduce new facts supported by credible documentary evidence. The petitioner failed to meet either requirement, as it did not address the prior dismissal grounds and submitted unreliable tax records.
Additionally, the failure to provide clear and verifiable ownership documentation made it impossible to establish a qualifying relationship. The decision reinforced that petitioners must submit consistent and objective evidence of ownership and control.
Conclusion
Final Determination: Motion to Reopen and Motion to Reconsider Dismissed.
Reasoning: The petitioner failed to address all the grounds for dismissal and did not provide verifiable evidence establishing a qualifying relationship. The tax documents submitted were inconsistent and unreliable, leading to the denial of both motions.