dismissed L-1A Case: Automated Payment Solutions

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-S-USA, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 13,2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an operator of automated payment solutions, seeks to temporarily employ the 
Beneficiary as president and CEO of its new office 1 under theL-IA nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality 'Act (the Act) section I 01 (a)(IS)(L), 
8 U.S.C. § 110l(a)(l5)(L). The L-IA 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 a managerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that it would employ the Beneficiary in a managerial or executive capacity 
within one year of approval of the petition? The Petitioner subsequently filed an appeal, which we 
dismissed. 
The matter is now before us on a motion to reconsider. On motion, the Petitioner submits a brief and 
asserts that "[i]nstead of properly considering and analyzing the submitted evidence, the AAO 
ignored the legal and. factual substance of the argument." The Petitioner maintains that "it is clear 
that [the Beneficiary] would be acting as a manager or executive in addition to managing an essential 
function of the business." 
Upon review, we will deny the motion to reconsider. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § I03.5(a)(l). 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(1)(1 )(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office' operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
2 The Director initially denied the petition based on a finding that the Petitioner did not establish that it had secured 
sufficient physical premises to house its new office. After reviewing the Petitioner's appeal, we withdrew the Director's 
decision and remanded the matter to the service center for further review and issuance of a new decision. 
Matter 'if E-S- USA, Inc. 
A motion to reconsider must establish that we based our decision on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceeding at the 
time of the decision. A petitioner must support its motion to reconsider with a pertinent precedent or 
adopted decision, statutory or regulatory provision, or statement of U.S. Citizenship and Immigration 
Services (USC IS) or Department of Homeland Security policy. 8 C.F.R. § I 03.5(a)(3). We may 
grant a motion that satisfies these requirements and demonstrates eligibility for the requested 
immigration benefit. 
IL ANALYSIS 
For the reasons discussed below, we will deny the motion to reconsider. While the current motion 
includes citations to relevant statute, regulations and case law, the Petitioner has not established how 
we incorrectly applied USCIS law or policy to the facts presented or shown proper cause for 
reconsideration. In fact, much of the brief submitted on motion is identical to the brief submitted in 
support of the Petitioner's appeal of the Director's decision, and we addressed these arguments 
previously. 
A. Previous AAO Decision 
In dismissing the Petitioner's appeal, we. determined that the Petitioner did not. sufficiently or 
consistently describe the Beneficiary's proposed managerial or executive duties. In doing so, we 
analyzed three different job descriptions, as well as duties attributed to the Beneficiary in the 
Petitioners' business plan, and determined that a new job description provided on appeal did not 
assist in clarifying the ambiguities in the record regarding the nature of the Beneficiary's duties. We 
acknowledged that the Beneficiary would be the senior employee in the company, but found 
. insuflicient evidence that he would perfonn primarily managerial or executive duties within one 
vear. 
We also found that the Petitioner did not support its claim that the Beneficiary would delegate most 
of the company's operational duties to subordinate managerial or professional employees and 
contractors within one year. We emphasized that a number of critical operational tasks (such as 
sales, marketing and logistics) appeared to fall within the Beneficiary's area of responsibility rather 
than being assigned to the proposed staf[ Although the Petitioner indicated that it would hire three 
subordinate employees during its first year of operations, it did not establish that any of these 
employees would have their own subordinates, nor did it provide evidence that the subordinates 
would hold professional positions. Finally, we acknowledged the Petitioner's claim that the 
Beneficiary would oversee independent contractors responsible for legal and accounting matters, but 
found that the company's business plan did not corroborate its claim that the Beneficiary would 
supervise and work with these contractors on a day-to-day basis. 
B. Motion to Reconsider 
In support of its motion to reconsider, the Petitioner repeats one of several previously-submitted 
versions of the Beneficiary's job description and cites to the regulatory and statutory requirements 
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Matter of E-S-USA. Inc. 
for this nonimmigrant classification in support of its claim that the Beneficiary would act in a 
managerial or executive capacity within one year. However, the Petitioner does not state specifically 
how we misapplied the regulatory or statutory provisions to the facts of this case in our appellate 
decision, nor does it attempt to clarify factual and evidentiary inconsistencies and deficiencies that 
we addressed at length in our decision and which led us to dismiss the appeal. Rather, the Petitioner 
generally asserts that we "ignored the legal and factual substance of the argument," did not properly 
consider and analyze the submitted evidence, and failed "to articulate clear reasons for [the] 
decision." The Petitioner's general allegation of error in the application of the statutory definitions 
of managerial and executive capacity is insufficient to show proper cause for reconsideration. 
Our prior decision analyzed the Petitioner's evidence at length and explained why that evidence was 
insufficient to meet the eligibility requirements: While the Petitioner maintains on motion that it 
submitted a "meticulously detailed description of the Beneficiary's daily duties," and states that we 
erred in determining that the duties were not specific enough, we actually addressed several ditTerent 
descriptions of the Beneficiary's duties in our decision and explained why the descriptions were 
internally inconsistent and not supported by the totality of the evidence. We noted, for example, that 
the Petitioner's business plan attributed a number of non-managerial and non-executive duties to the 
Beneficiary. However, the Petitioner did not include these non-qualifying duties in any of its 
enumerated lists of his proposed duties, therefore introducing doubt regarding the nature of the 
Beneficiary's proposed tasks and the amount of time he would allocate to managerial or executive 
duties. 
The Petitioner's primary legal argument on motion is that we over-emphasized the new office's 
projected staffing levels in determining that the Petitioner did not meet its burden to show that the 
Beneficiary would be performing primarily managerial or executive duties within one year. The 
Petitioner notes that "[r]egardless of the proposed staffing levels, the managerial capacity of a person 
does not depend on the number of employees the manager supervises, but instead the function that 
he/she performs for the corporation." 
In support of its claim, the Petitioner refers to several non-precedent decisions concerning beneficiaries 
who we found to be employed as managers and executives. These decisions were not published as 
precedents and therefore do not bind USClS ot1icers in future adjudications. See 8 C.F.R. § l03.3(c). 
Non-precedent decisions apply existing law and policy to the specific facts of the individual case, and 
may be distinguishable based on the evidence in !he record of proceedings, the issues considered, and 
applicable law and policy. 
The Petitioner also cites Mars Jewelers. Inc. v. INS, 702 F. Supp. 1570, 1574 (N.D. Ga. 1988), in 
support of its claim that the small size of a petitioner will not, by itself, undermine a finding that a 
beneficiary will act primarily in a managerial or executive capacity. In Mars Jewelers, the court 
emphasized that the former Immigration and Naturalization Service (INS) should not place undue 
emphasis on the size of a petitioner's business operations when reviewing managerial or executive 
capacity. This finding is consistent with the statute at 10l(a)(44)(C) of the Act, which we interpret 
to prohibit discrimination against small or medium-size businesses. However, consistent with both 
the statute and the holding of Mars Jnvelers, the Petitioner is required to establish that the 
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Mauer cif E-S-U<JA. Inc. 
Beneficiary's position will consist of primarily managerial or executive duties and that it will have 
sufticient personnel to relieve the Beneficiary from performing operational and/or administrative 
tasks. 
Our adverse finding in this case is based on the conclusion that the Beneficiary would not be 
primarily performing managerial or executive duties within one year and was based on the totality of 
the evidence submitted, including his proposed job duties, the nature of the business, the Petitioner's 
business plan, the nature of the duties assigned to proposed subordinates, and the absence of 
proposed staff to perform operational duties that the Petitioner claims are under the Beneficiary's 
responsibility. Contrary to the Petitioner's claim on motion, our decision did not rest on the 
company's projected size or staffing levels. We did not object to the Petitioner's projected staffing 
levels. Rather, we noted that the job duties assigned to the proposed subordinates did not include 
certain tasks necessary to the day-to-day operation of the company, that the Petitioner did not 
consistently describe its intended structure, and that the Petitioner's business plan did not 
corroborate the Petitioner's claim that it would make extensive and daily use of independent 
contractors to perform the company's legal and accounting functions. 
The Petitioner has not overcome our finding that it did not provide sufficient evidence to show that it 
would support a managerial or executive position within one year of an approval of the new office 
petition. 
Ill. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reconsideration or 
established eligibility for the immigrant benefit sought. 
ORDER: The motion to reconsider is denied. 
Cite as Matter of'E-S-USA, Inc., ID# 1129210 (AAO Mar. 13, 2018) 
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