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U.S. Citizenship and Immigration Services

MATTER OF DJPG-&C-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY26,2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

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

The Petitioner, an internet sales company, seeks to temporarily employ the Beneficiary as the executive director of its new office under the L-1 A nonimmigrant classification. See Immigration and Nationality Act (the Act) § l 01(a)(l5)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A 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 April 15, 2013. The Director concluded that the evidence of record did not establish that: (I) the Beneficiary would be employed in the United States in a qualifying managerial or executive capacity within one year of the approval of the petition; (2) the Beneficiary had been employed in a qualifying managerial or executive capacity for the qualifying foreign organization; and (3) the Petitioner had secured sufficient physical premises for its new office. The Petitioner filed a motion on the Director's decision and the Director reopened the matter for review. The Director affirmed the initial decision and denied the petition on February 17,2015.

' We dismissed the Petitioner's subsequent appeal. Upon our de novo review, we concluded that the evidence of record did not establish that the Beneficiary would be employed in the United States in a managerial or executive capacity within one year of approval of the new office petition. Although we dismissed the appeal, we withdrew the two remaining grounds for denial.

The matter is now before us on a combined motion to reopen and reconsider. In its motion, the Petitioner submits additional evidence and asserts that it provided sufficient evidence to establish that it was ready to commence business and expand during the initial employment period requested, September 2012 to September 2013, and that we erred when determining that the Petitioner had not established that the Beneficiary will be employed in a managerial or executive capacity within one year of the approval of the new office petition. The Petitioner submits additional documentation in support of the motion.

Upon review, we will deny the combined motion.

Matter of DJGP-&C-, Inc.

I. MOTION REQUIREMENTS

A. Overarching Requirement for Motions by a Petitioner

The provision at 8 C.F.R. § 103.5(a)(l)(i) includes the following statement limiting a 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."

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-2908 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 [(!)] 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. § 1 03.5(a)(3) and 8 C.F.R. § 1 03.5(a)(2).

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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 petition was denied and 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 has not demonstrated that the petition warrants approval. Accordingly, we will not disturb our previous decision and the combined motion will be denied.

II. LEGAL FRAMEWORK

To establish eligibility for the L- I 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 IOI(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.

An individual pehtton filed on Form I-129, Petition for a Nonimmigrant Worker, shall be accompanied by the evidence set forth at 8 C.F.R. § 214.2(1)(3). The regulation at 8 C.F.R. § 214.2(1)(3)(v) further provides that if the petition indicates that the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office in the United States, the petitioner shall submit evidence that:

(A) Sufficient physical premises to house the new office have been secured;

(B) The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive or managerial authority over the new operation; and

(C) The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position as defined in paragraphs (1)(1 )(ii)(B) or (C) of this section, supported by information regarding:

(1) The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;

(2) The size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and

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(b)(6)


(3) The organizational structure of the foreign entity.

III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY WITHIN ONE YEAR

The 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 within one year.

A. Evidence and Procedural History

The Petitioner, a Florida corporation established in filed this Form 1-129 on September 21, 2012, and requested that the Beneficiary be granted one year in L-1 A status commencing on this date to serve as the executive director of its new office.

At the time of filing, the Petitioner stated that it would initially provide various consulting services for organizations operating in the automobile parts and accessories sector in the United States, including services related to marketing strategies and policies, sales promotion, advertising, sales campaigns, sales strategies and customer relationship management. The Petitioner provided a list of the duties the Beneficiary would perform as executive director, and stated that the company would "grow in one year and will be self-supported" with five department managers reporting to the Beneficiary, including an administrative assistant/office manager, a sales/marketing manager, a shipping/receiving manager, an import/export manager, and a store/retail manager. The Petitioner projected that these five managers would be hired by the spring of 2013 and provided their proposed job duties and salaries.

The Petitioner stated that it anticipated start-up costs of $40,000 which would be paid by its parent company, but did not provide any information regarding its projected income, expenses ahd financial objectives for the first year of operations to show how it would support the claimed staffing structure. Specifically, the Petitioner did not provide a business plan or other supporting evidence related to the anticipated scope of the entity, its organizational structure, and its financial goals. See 8 C.F.R. § 214.2(1)(3)(v)(C)(l).

In response to the Director's request for evidence (RFE), the Petitioner noted that it did not plan to start the hiring process until this petition had been approved and could not provide any additional information regarding employees who will be managed by the Beneficiary. The Petitioner indicated its plans to move out of its 150 square foot office into a larger space ·and to acquire a warehouse and retail store location within the first year of operations.

Following the denial of the petition on April 15, 2013, the Petitioner filed a motion to reconsider. In support of the motion, the Petitioner submitted a business plan that had been prepared in May 2013. In the business plan, the Petitioner stated that it "will purchase, export and distribute targeted consumer products for the Brazilian market,· at this time focusing on baby products, jewelry and high end watches." The Petitioner provided a revised description of the Beneficiary's duties, noting that

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(b)(6)


the Beneficiary "will be in charge of the financials, budgets, accounts receivables, accounts payables, warehouse management, logistics and human resource functions" and that he "will attend industry events and perform all marketing activities."

The business plan included the Petitioner's projected gross revenues for the first three years in operation, noting that it expected sales of $150,000 in its initial year, $200,000 in its second year, and $275,000 in its third year. The Petitioner also submitted a proposed organizational chart for its first two years of operation. The organizational chart included eight proposed subordinate positions: a business/marketing manager, a logistics supervisor, a customer service/e-commerce supervisor, two inventory/shipping clerk positions, and two customer service sales representative positions.

In affirming the denial of the petition, the Director acknowledged the new position description, but determined that the duties were described in vague terms and did not provide sufficient detail regarding the Beneficiary's actual proposed duties. The Director further found that the organizational chart reflected that all of the. Beneficiary's subordinates would have managerial job titles and that it did not include any proposed employees to carry out the day-to-day operations of the office. Finally, the Director found that the Petitioner had not clearly described the nature of the services to be provided by the company.

On appeal, the Petitioner asserted that the Director overlooked the organizational chart submitted on motion, noting that it included both subordinate managers and lower-level employees to perform the non-managerial functions of the company. The Petitioner explained that the initial chart "was prepared by the Petitioner pro se" and "it did not list all of the employment positions it was contemplating, but only the ones that would be reporting directly to the Beneficiary within the first 5 years of operation." The Petitioner asserted that the "full organizational chart" submitted on motion showed that it would hire a sufficient number of entry-level employees to support a managerial or executive position.

The Petitioner also objected to the Director's finding that the Beneficiary's job description lacked specificity, but nevertheless submitted an expanded description in support of the appeal. The Petitioner emphasized that its primary focus will be "export of consumer goods from the United States to Brazil'' focused on luxury watches and baby items. The Petitioner further stated that its "niche in this market is also provided a personalized shopping and travel experience for the visiting Brazilian tourists," noting that clients are guided through shopping by the Petitioner's customer service employees, and have the option to have the Petitioner store their purchases for later shipment to Brazil. The Petitioner submitted printouts from its website " which stated that the company's services included personal shopping services, travel advice, local transportation, storage, shipping and receiving of products purchased in the United States, and photography services.

In support of the appeal, the Petitioner submitted its IRS Form 1120, U.S. Corporation Income Tax Return, for 2013 and 2014 showing $110,355 and $137,844 in gross sales, respectively; requests for the Petitioner's services received through the website; invoices and receipts for

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(b)(6)


the Petitioner's purchases for export to individual Brazilian customers; shipping statements for the Petitioner's export and personalized shipping services; bank statements; the Petitioner's new lease with photographs and other supporting evidence; and evidence that it had hired two employees, a full-time business marketing manager and a part-time inventory/shipping clerk, in the first quarter of January 2015. Almost all of the evidence ofbusiness activities was dated after September 2013.

We dismissed the Petitioner's appeal on October 26, 2015, concluding that the evidence of record did not establish that its new office would support a managerial or executive position within the requested one-year timefrarne, from September 21, 2012 to September 20, 2013. In dismissing the appeal, we found that the most recent explanation of the Beneficiary's job duties indicated that he would perform non-qualifying marketing and promotion tasks, as well as the task of locating Brazilian distributors necessary to its proposed export business, and that the Petitioner did not state that staff had been or would be hired to assist him with these activities. Further, we agreed with the Director's determination that several of the Beneficiary's proposed duties were described in broad and general terms and did not provide insight into the nature of his proposed daily tasks.

We also looked to the Petitioner's business and hiring plans, noting that, while the Petitioner did not initially submit a business plan, it did indicate in September 2012 its intent to hire five subordinates by the spring of 2013. We noted that it had not hired any staff within one ye~tr of filing, nor had it submitted evidence related to its business activities conducted within that initial year beyond a few customs statements for small shipments to individuals in Brazil. Accordingly, we found that the evidence of record was insufficient to show that the Petitioner, as of the date of filing, would support the Beneficiary in a qualifying managerial or executive position within one year.

On motion, the Petitioner states ~hat it "does have the capacity to employ the Beneficiary in a managerial/executive capacity within one year of the approval of the new office." Further, the Petitioner asserts that the company was prepared, as of the date of filing, to rapidly expand as it had found a profitable, niche market for its services. The Petitioner asserts that it has been forced to rely on third party providers and independent contractors in the absence of the Beneficiary's executive leadership, as one of his proposed duties was to recruit and hire managerial employees.

The Petitioner now submits the following evidence for the period September 2012 through September 2013: shipping invoices for packages mailed to individuals in Brazil; a sample of requests for services submitted by e-mail through the website; purchase invoices; PayPal purchase and sales receipts; and the Beneficiary's credit card statements. All of this evidence names the Beneficiary or his spouse as the person purchasing goods, receiving funds, completing customs declarations, andshipping goods to Brazil through the U.S. Postal Service.

In addition, the Petitioner submits revised proposed position descriptions for the Beneficiary, one which describes the duties he would perform during his first year as executive director, and one describing the duties he would perform thereafter. The Petitioner asserts that duties such as negotiating and signing contracts are typical executive duties and asserts various published articles about executives in support of its claim.

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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.

When a new business is established and commences operations, the regulations recognize that a designated manager or executive responsible for setting up operations will be engaged in a variety of activities not normally performed by employees at the executive or managerial level and that often the full range of managerial responsibility cannot be perforrried. In order to qualify for L-1 nonimmigrant classification during the first year of operations, the regulations require the petitioner to disclose the business plans and the size of ihe United States investment, and thereby establish that the proposed enterprise will support an executive or managerial position within one year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, where there would be an actual need for a manager or executive who will primarily perform qualifying duties.

Here, the relevant evidence submitted prior to the denial of the petition included: a list of 14 duties to be performed by the Beneficiary; a proposed organizational chart showing that the Beneficiary would oversee five subordinate managers; a statement of the proposed duties, salaries and hiring dates for the proposed subordinates; evidence of funds transferred from the foreign entity to support

. the stated $40,000 start-up costs; and a lease agreement for a 150 square foot office. The Petitioner stated that it was "being started up to provide services for organizations operating in the automobile parts and accessories sector in the United States," and that it would engage in import and export services before the end of the first year. The Petitioner did not provide information regarding its financial objectives or its anticipated sales and expense figures for the first year of operations and thus did not support its claim that it would actually be able to hire the projected staff, who, according to the Petitioner's statements, would earn a total of $152,600, plus commissions, on an annual basis.

The Petitioner has not claimed that the petition was approvable based on the limited evidence in the record at the time of the initial decision. Rather, it has offered multiple new versions of the Beneficiary's proposed duties and claimed that some of the initial evidence was inadequate because the Petitioner prepared the filing without the assistance of an attorney. Specifically, it has stated that the organizational chart submitted at the time of filing was actually intended to show the Beneficiary's direct reports after five years and then offered a new chart showing eight employees, with different job titles, to be hired within the first two years. It subsequently provided financial projections indicating that it anticipated sales of $150,000 and $200,000, respectively, in its first two years of operations, which would be insufficient to support the staff it stated it intended to hire at the time of filing. Finally, it has abandoned its initial claim that it plans to provide services for companies in the U.S. automobile parts and accessories sector and to open a retail store and a warehouse for import/export operations during a one-year timeframe.

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(b)(6)


In sum, the Petitioner made substantial changes to nearly every aspect of the petition after it was denied. The Petitioner must establish that the position offered to the Beneficiary, when the petition was filed, would merit classification as a qualifying managerial or executive position. See Maller of Michelin Tire_ Corp., 17 I&N Dec. 248, 249 (Reg. Comm'r 1978). In this case, thePetitioner 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 within one year. 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.

We acknowledge that the evidence submitted on motion does in fact demonstrate that the Petitioner ·was already doing business as a personal shopping and travel services provider for Brazilian individuals at the time it filed the new office petition. The record now shows that the Petitioner's

website was operational in September 2012 and that it was already fulfilling requests for shopping and travel requests for individual Brazilian customers. The Petitioner has not explained why it claimed that it would be engaged in a completely different type of business activity in the letter offered in support of the petition or why it made no mention of the services it was· already offering through its website. The Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to where the truth lies. See Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988).

The Petitioner states that the Beneficiary could not hire staff until the petition is approved and he is formally hired in his position as executive director, but he did eventually hire staff in 2015. The Petitioner also claims that the company has instead relied on third parties to carry out its business to date until staff can be hired. However, the evidence of record shows no payments to third parties. Rather, the record shows that the Beneficiary and his spouse were providing the services of the company between 2012 and 2014, as they are named on every receipt, invoice, and mailing label and appear to have been operating the business, at times, from their home in prior to the company's acquisition of new office space in March 2015.

The fact that the Petitioner has now provided evidence that it was doing business throughout the requested new office period is not sufficient to establish that the company, as of the date of filing, could have supported the Beneficiary in a managerial or executive position within one year. The Petitioner has not submitted evidence to show that the personal shopping and travel services business it first acknowledged in May 2013 would have been able to support a managerial or executive position within one year. The business plan prepared at that time included a proposed chart showing the anticipated staffing of the company after two years (as of May 20 15), but did not show how the company would grow within one year. The Petitionerdid not submit a detailed plan showing how this business would have supported the Beneficiary in a managerial or executive capacity by September 2013 (one year from the date of filing), or even within one year from the date the business plan was created, as the business plan did not include a hiring plan, projected salary expenses or any other financial figures beyond gross annual sales projections for the first three years. Going on record without supporting documentary evidence is not sufficient for purposes of meeting

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the burden of proof in these proceedings. Matter of Soffici, 22 l&N Dec. 158, 165 (Comm'r 1998) (quoting Matter of Treasure Craft of Cal., 14 l&N Dec. 190 (Reg'! Comm'r 1972)).

The Petitioner asserts that we required a greater level of evidence than that required in the regulations. Specifically, the Petitioner claims that we implied an improper standard by examining the Petitioner's current staffing levels on appeal. The Petitioner emphasizes that the new office regulations are forward looking, so that examining the current stage of the Petitioner's operations is tantamount to requiring the Petitioner to establish eligibility for a new office without ever giving the Petitioner the one year opportunity to expand and develop into a business that would support a managerial or executive position.

While a "new office" petition requires us to consider whether it is more likely than not that a new office will support a managerial or executive position "within one year of the approval of the petition," the Petitioner must still establish eligibility at the time of filing the petition. See 8 C.F.R. § 1 03.2(a)(7)(iii). Therefore, while the Petitioner does not need to show at the time of tiling that it is already staffed, that it is doing business, or that the Beneficiary would immediately perform primarily managerial or executive duties, the Petitioner has the burden to establish that, at the time it filed the petition, the U.S. company had sufficient investment, business plans, and financial projections and objectives in place such that it would realistically develop to the point where it would require the beneficiary to perform duties that are primarily managerial or executive in nature within the one year period requested on the petition.

To clarify, in reviewing the Petitioner's appeal, we reviewed the totality of the evidence in the record, which included a business plan prepared after the petition was denied, evidence that the

. Petitioner was doing business, a new organizational chart, new position descriptions and evidence of employees hired more than two years following the denial of the petition. This review was not meant to establish certain benchmarks that we expected the Petitioner to meet, but rather was a review of the totality of the evidence submitted to determine whether the Petitioner has a realistic expectation that it would support a managerial or executive position within the required one-year timeframe. As discussed, the Petitioner changed many of its initial claims regarding the nature, scope, and intended structure of the company. In an effort to determine if the lack of consistent, probative information could be remedied by examining the Petitioner's operations, including the Beneficiary's duties and any individuals actually hired, we reviewed the Petitioner's progress since the time it had tiled the petition since that evidence was part of the record and offered for our review. However, the record on appeal did not include sufficient consistent, probative evidence to establish that the Petitioner would be able to support a managerial or executive within the requested employment period or one year of approval of the petition.

' The Petitioner filed this new office petition on September 21, 2012, and requested that the Beneficiary's one-year of employment begin on September 21, 2012, and end on September 20, 2013. It is during this time period that the Petitioner must establish that it would be able to generate sufficient revenue, hire a sufficient number of employees, and commence operations sufficient to support a managerial or executive position as defined in the Act. Overall, however, the record lacks

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probative, consistent information regarding the anticipated organizational structure and financial status of the company within that timeframe. The Petitioner seeks to continually extend this one-year time frame and continues to revise its plans, hiring schemes, proposed staffing and organizational structures, and add financing, all in an effort to make its initial new office petition and the requested employment period remain pending until it submits sufficient evidence to obtain an approval.

The petition was properly denied based on the evidence submitted at the time of filing and in support of its motion to the service center. The Petitioner cannot change the nature and scope of the new office, far beyond the requested employment period and far beyond the initial filing date of the petition. The new office regulations do not allow the continuous extension of the requested employment period, so that a petitioner may change its plans, obtain new or different funding, or amend the nature and scope of its business, in order to make a deficient new office petition approvable.

In this case, the Director determined that the evidence did not establish eligibility and denied the petition. The Petitioner does not claim that the Petition was approvable based on the evidence submitted to the Director. However, it claims that it remains entitled to a one year new office period, even if that period would now begin in 2016, rather than in 2012, when the Petitioner initially claimed eligibility as a new office. The Petitioner has been doing business since 2012 and cannot establish that it is a new office as defined at 8 C.F.R. § 214.2(l)(l)(ii)(F). Accordingly, the proper course is to file a new petition.

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 within a twelve-month period. The regulations require that the Petitioner present a credible picture of where the company will stand in one year, and to provide sufficient evidence in support of its claim that the company will grow to a point where it can support a managerial or executive position within that time. Here that evidence was not forthcoming. The fundamental deficiencies in this record of proceeding rests with the lack of a consistent description of the nature of the Petitioner's business, the scope of the entity, its organizational structure, and its financial goals. Moreover, the record does not include probative evidence that any iteration of the Petitioner's proposed or actual business will be able to support the Beneficiary in a qualifying managerial or executive capacity by the end of the first year of operations. The Petitioner has not cited to any statutes, regulations, and/or precedent decisions to support the proposition that we must consider its revised plans years subsequent to the filing of its new office petition once that petition has been denied.

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. 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. Accordingly, the combined motion will be denied.

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IV. CONCLUSION

The Petitioner should note that, unless USC IS directs otherwise, the filing of a motion to reopen or reconsider does not stay the execution of any decision in a case or extend a previously set departure date. 8 C.F.R. § I 03.5(a)(l)(iv). ·

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; Matter ofOtiende, 26 l&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter ofDJGP-&C-, Inc., ID# 16589 (AAO May 26, 2016)

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