Date of Decision: July 12, 2024
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives or Managers)
Field of Expertise: Cell Phone and Accessories Retail
Beneficiary Information
Profession: General Manager
Field: Cell Phone and Accessories 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 and accessories retailer, sought to employ the beneficiary as its general manager under the EB-1C classification for multinational executives or managers.
The Nebraska Service Center denied the petition, concluding that the petitioner failed to establish a qualifying relationship with the beneficiary’s foreign employer and did not demonstrate that the beneficiary would be employed in a managerial or executive capacity in the United States. The petitioner appealed the decision, and the appeal was dismissed.
Following the appeal dismissal, the petitioner filed a motion to reopen and a motion to reconsider, claiming that new tax documentation resolved inconsistencies in ownership records. However, the Administrative Appeals Office determined that the newly submitted documents did not constitute reliable or probative evidence and that the petitioner failed to establish an incorrect application of law or policy in the prior decision. Consequently, both motions were dismissed.
Key Issues
The primary issue in this appeal was whether the petitioner demonstrated a qualifying relationship with the beneficiary’s foreign employer. The director found discrepancies in the petitioner’s ownership structure, with conflicting documents showing different ownership distributions across various tax filings, partnership agreements, and corporate records.
The petitioner submitted an amended 2022 tax return in an attempt to correct these discrepancies but did not provide evidence that the amended return had been filed with the IRS. Additionally, the amended return itself contained conflicting information regarding ownership percentages, failing to resolve the inconsistencies noted in the prior decisions.
The motion to reconsider was also dismissed because the petitioner did not argue that the original decision was based on an incorrect application of law or policy. Instead, the petitioner stated that the decision brought an accounting error to its attention, leading to the preparation of an amended tax return. Since this did not demonstrate an error in the application of law or policy, the motion to reconsider did not meet the necessary requirements for approval.
USCIS Findings
The Administrative Appeals Office upheld the director’s decision, concluding that the petitioner failed to provide consistent and verifiable evidence to establish a qualifying relationship between the U.S. entity and the beneficiary’s foreign employer.
The office also determined that the amended tax return submitted on motion was not reliable evidence of ownership and control, as it lacked supporting documentation such as stock certificates, a stock ledger, corporate bylaws, and evidence of ownership consideration. Additionally, conflicting statements regarding ownership remained unresolved.
The motion to reconsider was dismissed because the petitioner did not identify a legal or policy error in the previous decision, and simply introducing an amended tax return did not constitute grounds for reconsideration.
Supporting Evidence
- 2022 Form 1120-S, marked as an amended return
- Amended Schedules K-1 listing conflicting ownership percentages
- Articles of incorporation showing authorization to issue shares but not ownership details
- Prior IRS Forms 1120-S from 2021 listing inconsistent ownership structures
- 2021 partnership agreement contradicting corporate filings
- Stock-related documents, which did not establish a clear ownership structure
Additional Notes
The Administrative Appeals Office emphasized the importance of providing clear, consistent, and verifiable documentation to demonstrate a qualifying relationship between U.S. and foreign entities. The petitioner’s failure to resolve contradictions in ownership structure and financial records resulted in the dismissal of both the motion to reopen and the motion to reconsider.
Additionally, the decision highlighted that a motion to reconsider requires an argument based on a legal or policy misapplication, rather than simply presenting new evidence. The petitioner’s failure to meet this requirement was a key factor in the dismissal.
Conclusion
Final Determination: Motion to Reopen and Motion to Reconsider Dismissed.
Reasoning: The petitioner failed to establish a qualifying relationship between the U.S. and foreign entities due to unresolved discrepancies in ownership structure. The amended tax return was not sufficient to reopen the case, and the motion to reconsider did not demonstrate an error in the application of law or policy.
