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MATTER OF G'-I-C- S.P.R.D-R.L.D-C.V.

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 14,2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a fiber export business located in Mexico, seeks to extend the Beneficiary's employment a~ the general manager of its claimed U.S. subsidiary under the L-1A nonimmigrant classification. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C.

• § 1101 ( a)(15)(L ). The L-1 A classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work temporarily in an executive or managerial capacity.

The Director, Vermont Service Center, denied the petition on April1, 2015. The Director concluded that the evidence of record did not establish that: (1) the Beneficiary will be employed in a managerial or executive capacity under the extended petition; and (2) the Petitioner has a qualifying relationship with the U.S. entity. The Petitioner filed an appeal on the Director's decision. We affirmed the Director's decision and dismissed the appeal on February 12, 2016.

The matter is now before us on a combined motion to reopen and reconsider. In its motion, the Petitioner submits additional evidence and , contends that the petition should be approved. The Petitioner asserts that the Beneficiary has specialized knowledge in commercial strategy and that it is capable of supporting a managerial. or executive position in the United States. With respect to the issue of its qualifying relationship with the Beneficiary's U.S. employer, the Petitioner asserts that the U.S. entity, is the Petitioner's property.

Upon review, we will deny the combined motion.

I. MOTION· REQUIREMENTS

A. Overarching Requirement for Motions by a Petitioner

The provision at 8 C.F.R. § 103.5(a)(1)(i) includes the following statement limiting a U.S. Citizenship and Immigration Services (USCIS) officer's authority to reopen the proceeding or reconsider the decision to instances where "proper cause" has been shown for such action: "[T]he official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision."

Matter ofG-1-C- S.P.R.D-RL.D-C. V.

Thus, to merit reopening or reconsideration, the submission must not only meet the formal requirements for filing (such as, for instance, submission of a Form I-290B that is properly completed and signed, and accompanied by the correct fee), but the Petitioner must also show proper cause for granting the motion. As stated in the provision at 8 C.F.R. § 103.5(a)(4), "Processing motions in proceedings before the Service," "[a] motion that does not meet applicable requirements shall be dismissed."

B. Requirements for Motions to Reopen

The regulation at 8 C.F.R. § 103.5(a)(2), "Requirements for motion to reopen," states:

A motion to reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be supported by affidavits or other documentary evidence.

Further, the new facts must possess such significance that, "if proceedings ... were reopened, with all the attendant delays, the new evidence offered would likely change the result in the case." Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 (lOth Cir. 2013).

C. Requirements for Motions to Reconsider

The regulation at 8 C.F.R. § 103.5(a)(3), "Requirements for motion to reconsider," states:

A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must [(3)], [(a)] when filed, also [(b)] establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

A motion to reconsider contests the correctness of the prior decision based on the previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 8 C.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2).

Here, the Petitioner has submitted some facts that could be considered "new" in support of its motion to reopen, and has stated specific reasons for reconsideration in support of its assertion that the appeal was dismissed in error. While we will address the Petitioner's evidence and arguments below, the Petitioner has not established that our previous decision was incorrect based on the evidence of record at the time of the initial decision and it has not demonstrated that the petition warrants approval. Accordingly, we will not disturb our previous decision and will deny the combined motion.

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Matter ofG-1-C- S.P.R.D-R.L.D-C. V.

II. LEGAL FRAMEWORK

To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year within three years preceding the Beneficiary's application for admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary must seek to enter the United States temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity. !d.

The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, Petition for a Nonimmigrant Worker, shall be accompanied by:

(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined m paragraph (1)(1)(ii)(G) ofthis section.

(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.

(iii) Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition.

(iv) Evidence that the alien's prior year of employment abroad was in a position that was managerial, executive or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.

The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a new office, may be extended by filing a new Form I-129, accompanied by the following:

(A) Evidence that the United States and foreign entitles are still qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section;

(B) Evidence that the United States entity has been doing business as defined in paragraph (1)(1 )(ii)(H) of this section for the previous year;

(C) A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;

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(D) A statement describing the staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a management or executive capacity; and

(E) Evidenceofthe financial status ofthe United States operation.

III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

The first issue before us on motion is whether the Petitioner established that the Beneficiary would be employed in the United States in a managerial or executive capacity under the extended petition.

A. Evidence of Record

The Petitioner, a Mexican company, previously filed a "new office" petition to allow the Beneficiary to establish a business in the United States. The new office, was established in Texas to engage in the import and distribution of specialty fibers. The approved new office petition granted the Beneficiary one year in L-1 A status.

The Petitioner asserted that the Beneficiary had been employed as a commercial strategist. In a revised business plan submitted with the petition, the Petitioner noted that the U.S. business did not grow as planned because of material shortages. The revised plan also showed that during the initial year, the Beneficiary had been employed as a "Manager and Business Strategist," and that a second individual had been employed as "Assistant Secretary."

In responses to the Director's request for evidence (RFE), dated January 24, 2015, the Petitioner noted that the Beneficiary's core activities included managing the U.S. subsidiary, coordinating transactions between the Mexican and U.S. company, coordinating the collection of waste plastics, developing sales plans, attending trade shows and conferences, advertising, and responsibility for contracts with suppliers and buyers as well as the financial health of the subsidiary. The Petitioner asserted that in the coming year, the Beneficiary would serve as the director of the U.S. head office and would direct publicity, visit brush manufacturers, and consolidate the enterprise to reach raw material brush market consumers. The Petitioner added that the Beneficiary would coordinate transactions operations between the Mexican company and the U.S. company, effect tax payments, pay expenses, collect bills, develop sales plans, and coordinate synthetic waste material for reuse. The Petitioner also noted that the Beneficiary would hire an assistant to help with the office and coordinate with the parent company to deliver to customers in the United States.

The record included evidence that wages had been paid to the Beneficiary and the individual in the assistant position for several months in 2014. The Petitioner also noted that the individual in the assistant position was no longer employed but that it planned to hire a replacement as well as an additional assistant/supervisor. The Petitioner included descriptions of three positions but did not claim that the positions were filled.

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· The Director denied the petition, determining that the evidence was insufficient to establish that the Beneficiary would be employed in a managerial or executive capacity.

On appeal, the Petitioner asserted that there is no legal requirement for the subordinate employees to be on the Petitioner's payroll and no legal requirement that it provide a breakdown of how the Beneficiary would allocate her time. The Petitioner also referenced the job description provided for the initial new office petition and maintained that the description is still valid. The Petitioner further claimed that the Director had overlooked evidence that the Beneficiary is an international manager and sole administrator of both the U.S. and Mexican entities, and not simply a manager of the U.S. entity.

Upon review of the record, including the Petitioner's assertions on appeal, we determined that the evidence of record indicated that the Beneficiary would perform the non-qualifying duties of sales, advertising, billing, and office administration, rather than assigning these duties to someone else. We noted the Petitioner's claim on appeal that the Beneficiary is an international manager managing people in both Mexico and the United States but found that this claim constituted a material change to the previously described position. We also found that the Petitioner had not supported this claim by including evidence of the Mexican operations and the Beneficiary's role in the corporate structure, descriptions of the positions in Mexico subordinate to the Beneficiary, and evidence of the employment of these subordinates. We dismissed the Petitioner's appeal on February 12, 2016, concluding that the Petitioner had not established that the Beneficiary would be employed in an executive or managerial capacity under the extended petition.

On motion, the Petitioner asserts that the Beneficiary's position falls within the parameters of managerial capacity because the Beneficiary alone controls the U.S. entity, controls the production department by setting delivery dates, and oversees the assistant who controls the office and deliveries on the border. The Petitioner also asserts that the Beneficiary manages the material quality function and the export and import procedures. The Petitioner notes that the Beneficiary also has authority to hire and fire the assistant who deals with the workers who maintain the U.S. entity's facilities and the workers who load and unload materials. The Petitioner notes further that the Beneficiary hires outside companies for customs brokerage and transportation and handles the budget.

The Petitioner also asserts that the Beneficiary's position is an executive position because she represents the company, signs contracts on behalf of the company, and coordinates with the Petitioner's production staff. The Petitioner adds that the Beneficiary exercises wide latitude in discretionary decision-making and that she coordinates at a managerial level with the Petitioner's production chief and chief executive officer in determining the quantity of material that will be available for the U.S. market.

The Petitioner asserts further that the Beneficiary was selected for the proffered position because she has special skills and is a professional with a degree in commercial strategy. The Petitioner notes on motion that the prior decisions did not consider that the Beneficiary's work abroad and during the first year of operations at the U.S. entity involved work in a specialized knowledge capacity.

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The Petitioner claims that the prior decisions also did not consider the reasonable needs of the petitioning organization and explains that the Beneficiary did not have subordinate employees when the extension petition was filed because of the short amount of time allotted to the Petitioner to set up the new office in the United States. The Petitioner indicates that the Beneficiary continued working at the U.S. entity "during 2014 until customer find out that the office was close[ d) and now they are gone again back to the regular providers they have before the Beneficiary work[ed] in US soil." The Petitioner emphasizes that the Beneficiary is the best person for this position because of her administrative training and sales experience, knowledge of the Petitioner's production capacity and manufacturing procedures, and because of her ability to promote the company's products in a new market. The Petitioner attaches a copy of the Beneficiary's diploma and the materials submitted in support of its initial new office petition and re-submits documents submitted in support of the appeal.

B. Analysis

Upon review of the evidence submitted on motion, we conclude that the Petitioner has not overcome the basis for the denial of this petition.

The Petitioner correctly observes that a company's size alone, without taking into account the reasonable needs of the organization, may not be the determining factor in denying a visa petition for classification as an L-lA intracompany transferee. See section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant factors, such as the absence of employees who would perform the non-managerial or non-executive operations of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).

The nonimmigrant intracompany transferee visa is not an entrepreneurial visa classification allowing a beneficiary a prolonged stay in the United States in a non-managerial or non-executive capacity to start up a new business. As the present matter involves a request for an extension of a "new office" petition, the regulations require USCIS to examine the organizational structure and staffing levels of the petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" operation one year within the date of approval of the petition to commence doing business and develop to a point that it will support the beneficiary in an executive or managerial position. There is no provision in USCIS regulations that allows for an extension of this one-year period. If a "new office" does not have the necessary staffing after one year to relieve the beneficiary from performing operational and administrative tasks, then it is ineligible by regulation for an extension.

Here, the Petitioner has provided no evidence that the U.S. entity employed any individuals to relieve the Beneficiary from performing,the non-qualifying duties associated with promoting and selling its product and administering the U.S. entity's office when the extension petition was filed. While the Petitioner references the Beneficiary's duties at the U.S. entity and asserts that she controls an assistant, a production department, the material quality function, and export/import


procedures, the Petitioner includes no evidence that it or the U.S. entity employed individuals who performed these duties at the time of filing. Similarly, the Petitioner does not submit evidence supporting its claim that it or the U.S. entity employs outside companies to perform the routine import/export operations of the business. Absent evidence of employees or outside contractors who perform the non-qualifying duties associated with the U.S. entity's operations, we cannot conclude that the Petitioner would have a reasonable need for the Beneficiary to perform primarily managerial or executive duties, rather than being involved in the day-to-day operational and administrative functions of the business.

We have also reviewed the Petitioner's reference to the Beneficiary's specialized knowledge. However, the Petitioner initially petitioned for the Beneficiary to open a "new office" and to extend her employment to serve in a managerial or executive capacity, not in a specialized knowledge capacity. 1 Thus, the Petitioner must establish that the position offered to the Beneficiary, when the extension petition was filed, would merit classification as a qualifying managerial or executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm'r 1978). In this case, the Petitioner must show that the evidence submitted prior to the denial of the Petition established that the Beneficiary's position would be in a managerial or executive capacity under the extended petition. If significant changes are made to the initial request for approval, the Petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in the record.

In sum, the evidence in the record does not meet the Petitioner's burden to establish that the company would be able to support a qualifying managerial or executive position when the petition was filed. The fundamental deficiencies in this record of proceeding rest with the lack of probative evidence establishing that the Beneficiary will perform duties primarily in a managerial or executive capacity under the extended petition.

For these reasons, the evidence submitted in support of the motion to reopen and motion to reconsider is insufficient to overcome the grounds for denial of the petition on this issue. The Petitioner's motion does not establish that the decision was incorrect based on the evidence of record at the time of the initial decision, nor has it presented new facts that would have changed the outcome of that decision.

1 While the Beneficiary may have been employed in one of the three years prior to entering the United States in a managerial, executive, or specialized knowledge capacity, the issue at hand is not her employment abroad but her proposed employment in the United States. If a qualified beneficiary will be serving the United States employer in a managerial or executive capacity, the beneficiary may be classified as an L-1 A nonimmigrant alien. If a qualified beneficiary will be rendering services in a capacity that involves "specialized knowledge," the beneficiary may be classified as an L-IB nonimmigrant alien. Section 1 01 (a)( 15)(L) of the Act.

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IV. QUALIFYING RELATIONSHIP

As we found in our dismissal of the appeal, the Petitioner submitted sufficient evidence to establish that and the Beneficiary owned it equally. However, we found that the record did not include sufficient, probative evidence to establish ownership of the U.S. entity and thus, we could not determine the qualifying relationship between the Petitioner and the U.S. entity. We found specifically, that the Petitioner had not explained or submitted evidence explaining its inconsistent statements regarding the U.S. entity's ownership.2

On motion, the Petitioner asserts that since the Petitioner's members make the decisions on behalf of the U.S. entity and that those decisions have been carried out as ordered by the Beneficiary, it has established that the Petitioner controls the U.S. entity. The Petitioner submits previously provided documents to establish its authority. However, the Petitioner has not offered any cogent reasons for its inconsistent statements and has not offered probative evidence such as stock certificates or other documentation confirming the U.S. entity's ownership.

In addition, the Petitioner has not established that it is a qualifying organization as specified in the regulations. The regulations define a qualifying organization as one doing business as an employer in the United States and in at least one other country. See 8 C.F.R. § 214.2(l)(l)(ii)(G)(2). "Doing business," is defined as the regular, systematic, and continuous provision of goods or services. See 8 C.F.R. § 214.2(1)(14)(ii)((H). However, through the Petitioner's own admission, it is not doing business. On motion, the Petitioner states that the U.S. entity's office is closed? Since the U.S. entity is no longer considered a U.S employer, the Petitioner does not satisfy the definition of a qualifying organization, as it is not doing business as an employer in the United States and in at least one other country in accordance with the regulations.

For these reasons, the evidence submitted in support of the motion to reopen and motion to reconsider is insufficient to overcome the grounds for denial of the petition on the issue of qualifying relationship. The Petitioner's motion does not establish that the decision was incorrect based on the evidence of record at the time of the initial decision, nor has it presented new facts that would have changed the outcome ofthat decision. Accordingly, the combined motion will be denied.

V. CONCLUSION

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

2 The Petitioner stated on the Form 1-129 that and the Beneficiary each owned 50 percent of the U.S. entity and stated on the IRS Form 1120, filed in 2014, that the Petitioner owned 100 percent of the U.S. entity. 3 While the Petitioner does not include a specific date, upon review of the Texas state corporate records, the U.S. entity became inactive on January 29,2016, and has forfeited its existence.

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ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter ofG-1-C- S.P.R.D-R.L.D-C. V, ID# 8712 (AAO Sept. 14, 2016)

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