dismissed L-1A Case: Business Management

MATTER OF M-USA CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 21,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a management, operations, development, and consulting business, 1 seeks to extend the 
Beneficiary's temporary employment as its vice president under the L-1A nonimmigrant visa 
classification for nonimmigrant intracompany transferees. See Immigration and Nationality Act (the 
Act) section 101(a)(15)(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, California Service Center, denied the petition. The Petitioner subsequently filed a motion 
to reopen, which the Director granted, resulting in a new decision in which the Director determined that 
the Petitioner did not establish that the Beneficiary would be employed in a managerial or executive 
capacity under the extended petition. The Petitioner filed two subsequent motions, which the Director 
denied. The Petitioner then filed an appeal with this office, which we dismissed. 
The matter is now before us again on a combined motion to reopen and reconsider. On motion, the 
Petitioner asserts that "no adjudicator has ever given any deference to the initial L-1A Approval issued 
to the Beneficiary valid for a one-year period." The Petitioner, citing Matter qf Z-A-, Inc., Adopted 
Decision 2016-02 (AAO Apr. 14, 2016), further asserts that U.S. Citizenship and Immigration 
Services (USCIS) has not fully considered all relevant factors in adjudicating this petition. 
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)(l)(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 
1 The petitioner operates a gas station and convenience store. 
Matter of M-USA Corp. 
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-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.P.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.P.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 proceeding,s ... 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.P.R. § 1 03.5(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.P.R.§ 103.5(a)(3) and 8 C.P.R.§ 103.5(a)(2). 
Here, the Petitioner provides no new facts or additional evidence on motion and therefore does not 
meet the requirements of a motion to reopen. The Petitioner asserts that USCIS has abused its 
discretion by disregarding the previous approval of an L-1 A petition filed on the Beneficiary's 
behalf and by not considering the totality of the evidence on the record. While we will address the 
Petitioner's evidence and assertions below, the Petitioner has not established that our previous 
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Matter of M- USA Corp. 
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 deny the combined motion. 
II. THE BASIS OF OUR PREVIOUS DECISION 
On appeal, we addressed the merits of the Petitioner's previously filed motion to reconsider and 
whether the Petitioner had complied with the regulatory requirements for the proper filing of a 
motion at 8 C.P.R. § 1 03.5(a)(3). Specifically, the issue before us was whether the Director's prior 
decision to dismiss the Petitioner's motion to reconsider on July 29, 2015, was correct. Here, the 
scope of our review is limited by the subject matter of our prior decision. 
In support of this motion, the Petitioner does not submit pertinent citations to law or additional 
evidence directly addressing the basis of our previous decision dated March 24, 2016, which is the 
subject of this motion to reopen and reconsider. Rather, the Petitioner generally suggests that all 
prior decisions in this matter were made in error. Therefore, in this respect, -the Petitioner has not 
met the requirements of motion to reconsider or a motion to reopen. On this basis, the combined 
motion is denied. 
'--
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Regardless, despite our denial of the combined motion on the basis specified above, we will address 
the Petitioner's primary contentions on motion. The Petitioner asserts that USCIS abused its 
discretion by not giving proper deference to the approval of the Beneficiary's initial L-lA visa? 
Further, the Petitioner contends that the Director did not consider all relevant factors when 
determining that the Beneficiary would not be employed in a managerial or executive capacity under 
the extended petition. 
In her decision dated November 6, 2014, the Director concluded that the Beneficiary's stated duties 
were not sufficiently detailed and were indicative of an employee ~ho would primarily perform non­
qualifying operational tasks. Further, in reaching a determination, the Director considered the 
Petitioner's claimed organizational structure, staffing levels, and the submitted duty descriptions for 
the Beneficiary's claimed subordinates, and pointed to unresolved discrepancies between the 
Petitioner's quarterly state wage tax returns and its claimed staffing levels and structure a,s of the 
date of the petition. 
On motion, the Petitioner addresses none of the Director's grounds for denial set forth above. 
Instead, as noted, the Petitioner contend USCIS, in adjudicating this request for an extension, did not 
give proper deference to the Director's approval of a "new office" petition filed on the Beneficiary's 
behalf in August 2011. The Petitioner cites a 2004 USCIS policy memorandum in support of this 
claim, and contends that "absent a material change of facts or other factors such as failure to 
2 USC IS records reflect that the Beneficiary's initial L-1 A petition was approved for a one year period, from August-31, 
2011, to August 30, 2012. 
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Matter of M- USA Corp. 
maintain status, the Service is guided to consider previous [a ]pprovals in extending a stay in the 
U.S." See Memorandum from William R. Yates, Associate Director for Operations, USCIS, 
HQOPRD 72111.3, The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the 
Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity (Apr. 
23, 2004). 
However, the cited Yates Memorandum contains the following footnote at page 2 which specifically 
explains an exception that applies to the instant petition, which was filed as a request for an 
extension of a petition involving a "new office": ' 
This memorandum does not cover petitions, or extensions of petition validity, or any 
other non-immigrant cases, where the initial approval is granted to allow the 
petitioner and/or beneficiary to effectuate a tentative or prospective business plan or 
otherwise prospectively satisfy the requirements for the nonimmigrant classification. 
Nonimmigrant cases of this type include ., .. the L-1 "new office" extension petitions. 
The regulati~n at 8 CFR 214.2(1)(3)(v)(C) allows an L-1 "new office" one year from 
the date of the initial approval to support an executive or managerial position. There 
is no provision in CIS regulations that allows for an extension of this one-year period. 
If the petitioner's business is not sufficiently operational after one year, the petitioner 
is ineligible for regulation for an extension of the visa's validity. 
For this reason, we cannot find that USCIS has erred by not giving deference to the prior approval of 
a new office petition involving the same petitioner and beneficiary. 
The Petitioner's remaining assertion on motion is that USCIS has "never fully considered all 
relevant factors, such as the scope and nature of the business, its organizational structure and staffing 
needs, the Beneficiary's position and authority within the hierarchy, and the responsibilities of other 
employees." 
However, the Director's decision dated November 6, 2014, reflects that she considered all of these 
relevant factors in concluding. that the Petitioner did not establish that the Beneficiary would be 
employed in a managerial or executive capacity under the extended petition. 
We concur with the Director's finding that the Beneficiary's position description was vague and did 
not adequately convey the actual qualifying tasks he would perform under the extended petition, or 
that he would primarily perform managerial or executive tasks as of the date the petition was filed. 
When examining the executive or managerial capacity of the beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definitions of executive 
and managerial capacity have two parts. First, the Petitioner must show that the beneficiary will 
perform certain high-level responsibilities. Champion World, Inc: v. INS, 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). Second, the Petitioner must prove that the beneficiary will be 
primarily engaged in managerial or executive duties, as opposed to ordinary operational activities 
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Matter of M-USA Corp. 
alongside the Petitioner's other employees. See, e.g., Family Inc. v. USCJS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner submitted a duty description setting forth general duties that could apply to any 
manager or executive working in any industry or for any company, despite the Beneficiary's claimed 
employment as the vice president of a company operating a gas station and convenience store. For 
instance, the Petitioner stated that the Beneficiary would be responsible for "management and 
supervision," "hiring employees," "developing and mentoring staff," "prepar[ing] operational and 
financial reports," "daily account[s]," exchang[ing] ideas and suggest[ing] changes to improve 
operation," and "manag[ing] marketing and advertising and sales and retail and food department." 
Further, in response to the Director's request for a more detailed duty description, the Petitioner 
indicated that the Beneficiary would be responsible for representing the company on "all tax and 
legal matters," procuring and investing corporate funds, "analyz[ing] th~ market for gasoline and 
commodities costs," managing inventory, setting sales and profit goals, authorizing expenditures, 
negotiating and executing contracts and purchases, overseeing subordinate staff, and planning and 
directing marketing, promotional and public relations activities. 
However, the Petitioner did not articulate or document the specifics of his management and 
supervision, employees he had hired or would hire, staff he would mentor or develop, operational or 
financial reports he would review, tax and legal matters he would handle, corporate funds he would 
invest, sales or profit goals he set, contracts he would negotiate, or marketing and advertising he 
would implement. Further, the Beneficiary's duty description stated that he would only spend 5 
hours per week overseeing subordinate staff, leaving question as to whether he would act primarily 
in a supervisory capacity as asserted. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. Conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 
F.2d 41 (2d. Cir. 1990). 
To the extent that the Petitioner provided specific tasks that appeared to be relevant to its gas and 
convenience store business, these duties were more reflective of the Beneficiary's performance of 
non-qualifying operational tasks such as monitoring gas prices and managing inventory. Therefore, 
we concur with the Director's previous conclusion that the Petitioner did not sufficiently articulate or 
document the Beneficiary's duties as necessary to establish that he would primarily devote his time 
to qualifying tasks as of the date of the petition. 
Further, in analyzing the evidence of record, the Director noted that the Petitioner's organizational 
structure did not support a finding that the Beneficiary would be employed in a managerial or 
executive capacity. The Petitioner stated that the Beneficiary would report to the company president 
and would supervise a manager/secretary, an assistant manager, an "assistant manager in restaurant," 
a cashier/cook, and a clerk/cashier. The Petitioner provided a state quarterly wage report for the 
third quarter of 2012 reflecting that it had paid wages as follows: the Beneficiary ($9000), the 
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Matter of M- USA Corp. 
secretary/manager ($7500), the assistant manager ($3416.47), the assistant manager in restaurant 
($1890.96), the clerk/cashier ($651.52), and the cashier/cook ($996.32). 
First, the evidence does not support a conclusion that the Beneficiary would oversee three 
subordinate managers. State tax reports reflect that the company's two cashiers received minimal 
salaries during the third quarter of 2012, indicating that the Beneficiary's asserted managerial 
subordinates were more likely than not engaged in performing the routine, day-to-day duties of 
operating the company's gas station and convenience store. As such, as noted by the Director, the 
Petitioner did not provide evidence of an organizational structure sufficient to support the 
Beneficiary in a position that is higher than a first-line supervisor of non-professional employees. A 
managerial or executive employee must have authority over day-to-day operations beyond the level 
normally vested in a first-line supervisor, unless the supervised employees are professionals. Matter 
ofChurch Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). 
Lastly, based on our reasoning above, we concur with the Director's conclusions given the evidence 
presented and do not find that these conclusions reflected a failure to appropriately review the 
submitted evidence. Therefore, the Petitioner has not established that the decision was incorrect 
based on the evidence of record at the time of the initial decision. For this reason, the combined 
motion will be denied. 
IV. 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 
I(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 of M-USA Corp., ID# 8334 (AAO Sept. 21, 2016) 
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