dismissed L-1A Case: Clinical Laboratory Testing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-L-I-INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 24, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a DNA and clinical lab testing services business , seeks to continue the Beneficiary's 
temporary employment as its president and CEO under the L- lA nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 
8 U.S.C. § 1101(a)(15)(L). The L-lA 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 California 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 
under an extended petition . We dismissed the Petitioner 's subsequent appeal and the matter is now before 
us on a combined motion to reopen and motion to reconsider. 
On motion, the Petitioner submits additional evidence regarding its 2018 and 2019 staffing levels and 
the Beneficiary's proposed job duties. It asserts that we made improper inferences regarding the 
company's staffing and cited to irrelevant case law in dismissing the appeal. The Petitioner further 
asserts that our previous decision erroneously relied on the definition of "managerial capacity " rather 
than "executive capacity." 
Upon review, we will deny the motion to reopen and the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must state the reasons for reconsideration and be supported by 
any pertinent precedent decisions to establish that the decision was based on an incorrect application 
oflaw or Service policy. A motion to reconsider , when filed , must also establish that the prior decision 
was incorrect based on the evidence ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
The regulation at 8 C.F.R. § 103.S(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action . Thus, to merit reopening or 
reconsideration , a petitioner must not only meet the formal filing requirements (such as submission of 
Matter of B-L-1- Inc. 
a properly completed Form I-290B, Notice of Appeal or Motion, with the correct fee), but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See 8 C.F.R. § 103.5(a)(4). 
II. ANALYSIS 
The issue in this matter is whether the Petitioner has submitted new facts that overcome our prior 
decision, or offered legal arguments establishing that our decision to dismiss the appeal was based on 
an incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) policy with 
respect to the facts of this case. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing (in this case, May 2018) and 
continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
While the Petitioner has provided new evidence and a legal brief citing to case law in support of its 
motion, it has not demonstrated that we incorrectly applied the law and policy to the facts presented. 
Accordingly, the Petitioner has not shown proper cause for reopening or reconsideration. 
A. Previous AAO Decision 
In dismissing the appeal, we first addressed the issue of the Beneficiary's job duties, noting that the 
Petitioner did not provide sufficient position descriptions or supporting evidence to show that the 
Beneficiary would primarily allocate his time to managerial- or executive-level tasks within the 
context of the Petitioner's franchised clinical laboratory testing business. For example, we noted that 
the initial description indicated that Beneficiary would engage in negotiations with customers, but the 
Petitioner provides lab testing services to individual clients and it was unclear what these 
"negotiations" would entail. The Petitioner also stated that the Beneficiary would oversee "sales, 
purchasing and financial operations" but did not claim to have sales or purchasing staff: and the 
financial "department" appeared to be limited to an external accounting firm to which it makes 
minimal payments. The Petitioner submitted a different, but still broad, breakdown of the 
Beneficiary's duties in response to a request for evidence (RFE) issued by the Director. We 
determined that it generally lacked detail, and observed that the Petitioner did farther address the 
Beneficiary's job duties on appeal. 
We also addressed the nature of the business and the company's staffing, noting that the information 
provided in the Petitioner's organizational chart at the time of filing in May 2018 was not supported 
by the accompanying payroll evidence, and that the lab director (the Beneficiary's direct subordinate) 
was no longer on the company's payroll as of June 2018. We acknowledged that the Petitioner 
submitted an updated organizational chart in response to the RFE, but observed that it included 
individuals who were not named in the submitted payroll records and individuals who appeared to 
have left the company earlier in the year. Finally, we acknowledged the Petitioner's claim that it had 
submitted "voluminous" payroll evidence in support of the petition, but found that the record did not 
contain an adequate explanation for the discrepancies between that payroll evidence and the submitted 
organizational charts. 
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Matter of B-L-1- Inc. 
Next, we considered whether the evidence supported a finding that the Beneficiary would be employed 
as a personnel manager based on his supervision of managerial, supervisory, or professional 
employees. See section 10l(a)(44)(A) of the Act. 1 We also considered whether the Petitioner 
adequately supported its alternate claim that the Beneficiary would be employed in an executive 
capacity as defined at section 101(a)(44)(B) of the Act. We determined that the submitted duty 
descriptions were too vague to establish that the Beneficiary would be primarily focused on the 
company's broad policies and goals, and that the evidence as a whole did not establish how the 
Petitioner's staff would relieve him from significant involvement in the day-to-day operations of the 
business. Specifically, we acknowledged the Petitioner's claim that it "has consistently and 
continuously hired between eight (8) to eleven (11) medical assistants and phlebotomists per quarter 
through the three years to date," and that they work at variable schedules in different locations 
according to patient demand. However, we found that these claimed staffing levels were not supported 
by the record, and that the Petitioner actually employed three phlebotomists (two of whom worked 
part-time) and no medical assistants at the time of filing. 
We also determined that the Petitioner's claim that these staff work variable schedules at different 
locations "based on client appointments" was not corroborated by other evidence in the record, which 
indicates that all four of the company's lab testing locations were open six days per week and accepted 
walk-in customers during their operating hours. Finally, we acknowledged the Petitioner's claim that 
the Beneficiary was previously granted L-lA status and its assertion that it had maintained the staffing 
levels and structure described in the business plan submitted in support of that earlier petition. 
However, we found that the evidence did not reflect that the company had, in fact, maintained those 
staffing levels, and emphasized that USCIS policy does not require us to give deference to a prior 
approval for the same classification. 
B. Motion to Reopen 
In support of its motion to reopen, the Petitioner submits: copies of its organizational charts from two 
different months in 2018; its monthly payroll journals for the period January 2018 through May 2019; 
employee lists for 2018 and 2019 which identify the months in which each employee worked; and a 
"weekly itinerary" for the Beneficiary, which purports to describe his duties as president and CEO 
during a typical week. 
The Petitioner states that our previous decision "improperly inferred incorrect facts" when we 
determined that the company is not equipped to accommodate walk-in patients, and that this "baseless 
presumption is not substantiated by evidence." The Petitioner states that it provided probative and 
credible evidence of its staffing levels, and that "contrary to what the AAO infers, each lab is open to 
business and at least has 2 employees during its operating hours in all four locations." 
1 On motion, the Petitioner asseits that we erred by applying the definition of"managerial capacity," to the Beneficiary's 
position so we will not further address our specific findings with respect to that definition. We note however, that in its 
appellate brief, the Petitioner expressly stated that facts and evidence presented "meet the standard of proof of the 
preponderance of evidence for the 'Managerial' or 'Executive' requirement under the regulation," and the Petitioner used 
the terms "managerial" and "executive" interchangeably throughout the brief. 
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Matter of B-L-1- Inc. 
We note that we did not question the credibility of the payroll evidence the Petitioner submitted. We 
questioned how the number of staff documented by that payroll evidence was sufficient to perform 
the duties associated with the operation of four locations that were open for business six days per 
week. We further found that the number of employees documented by the payroll evidence did not 
consistently support the Petitioner's own claims regarding its staffing levels. 
On motion, the Petitioner attempts to address the inconsistencies we noted, stating that a discrepancy 
in the number of employees per month "may be attributed to Personal Leave of employees or 
termination and rehire." The Petitioner argues that a temporary fluctuation in staffing should not lead 
to a conclusion that the company cannot support an executive position. 
As noted, the Petitioner claimed to have eight to eleven phlebotomists and medical assistants on staff 
to operate its four lab locations and claims that it has two staff working at each location at all times. 
The Petitioner's organizational chart, submitted as initial evidence, identified the following staff 
working in its labs at the time of filing in May 2018, while the actual dates of employment noted below 
are confirmed through payroll evidence: 
Medical Assistants 
D 
Vacancy 
□ Technicians 
Dates of Employment in 2018 
January, February and March 
January, February, April 
January and February 
Dates of Employment 
January through December 
April through December 
February through June 
Therefore, we determined that the Petitioner had no medical assistants working at the time of filing, 
that one of the phlebotomy technicians left soon after the petition was filed, and that two of the 
phlebotomy technicians were part-time workers. 2 The Petitioner has not explained how our 
determination, which is further supported by the evidence submitted in support of this motion, was 
erroneous. Nor has it explained how it was able to staff four laboratory testing facilities with two 
employees each when it had only the equivalent of two full-time phlebotomy technicians to provide 
testing services as of the date of filing. 
Further, the Petitioner's new explanation that this was a temporary reduction or fluctuation in staffing 
is not persuasive. During the first six months of 2018, the Petitioner's total headcount varied between 
five and seven employees; it has not demonstrated that it was experiencing a temporary reduction in 
staff when it filed the petition with six employees on its payroll. The Petitioner's headcount varied 
from seven to ten employees in the second half of 2018, but in the first five months of 2019, it 
employed five to eight employees. As of the date of the motion, in which the Petitioner claims that it 
has two employees working at each of its four locations at all times, it had six employees on its payroll 
and two of them worked fewer than 25 hours per week. Therefore, while the Petitioner claims that it 
2 In May 2018, Oworked a total of 32 hours and~I --~I worked 117 hours. 
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Matter of B-L-1- Inc. 
requires eight to eleven medical staff to operate its laboratory testing locations, it has not shown that 
it ever employed this number of staff at any time between January 2018 and May 2019, with the 
exception of perhaps one month. 
With respect to its claims regarding "temporary fluctuations" in staffing, the Petitioner explains that 
I ]was terminated for cause in February 2018, but does not explain why it included her on its 
organizational chart when it filed this petition in May 2018 and on its updated organizational chart, 
submitted later in 2018, when she never returned to the company. In addition, the Petitioner explains 
on motion that medical assistant I I "has been on religious leave," but this individual has not 
appeared on the company's payroll since April 2018. The Petitioner's unsupported claim that she has 
been on religious leave for at least 13 months is not sufficient to explain her continued appearance on 
the company's organizational chart. 
The Petitioner clarifies that another employee who did not appear on the initial organizational chart, 
.__ ____ ---<~w'--'-a=s_o'--n----"s_ic'--k_le;;..-,ave at the time of filing, but the employee list submitted on motion 
indicates that~-----~was not paid during the first six months of 2018. In fact she was 
identified as a "new hire" on the updated organizational chart submitted in response to the Director's 
request for evidence. 3 Therefore, these explanations do not account for the inconsistencies between 
the Petitioner's statements regarding its staffing and its actual documented staffing levels. 
The Petitioner objects to our reliance on payroll evidence alone and states that we should also consider 
the number of positions in the company instead of the "names of employees," again pointing to the 
claimed fluctuations in staffing levels which it asserts are standard in its industry. However, the 
Petitioner has not explained who performs the duties that would otherwise be assigned to the vacant 
positions or explain how a position opening would assist in relieving the Beneficiary from having to 
engage in the company's day-to-day operations. As discussed above, at the time of filing, the 
Petitioner had, at most, only one-quarter of the medical technicians it claims it needs to operate its 
four franchised lab testing locations, and the Petitioner's staffing remained essentially the same at the 
time it filed this motion. 
We acknowledge that the Petitioner has submitted evidence on motion demonstrating that its 
laboratory director I I did not permanently leave his position shortly after the petition was filed. 
Based on the evidence provided previously, we determined that he had left the company in June 2018. 
The record now contains evidence that he returned to the payroll in August 2018 and remained with 
the company as of the date the motion was filed. However, this new information is insufficient to 
overcome all of the other issues noted with respect to the Petitioner's staffing. The fact remains that 
the company had six employees on its payroll when it filed the petition and insufficient staff to work 
in its laboratory testing locations based on its own claims regarding its reasonable staffing needs. 
The Petitioner's claim that the Beneficiary acts in an executive capacity is, in part, based on its claim 
that the company employs a management advisor, a laboratory director, and laboratory operations 
3 The Petitioner's payroll evidence from 2017 indicates that I I worked for the company at some point during 
that year (but not at year's end) and earned approximately $6500. Regardless of whether she was on sick leave or left the 
company and was re-hired, the evidence does not establish that the Petitioner counted her among its employees at the time 
of filing or that she was available to work in one or more of the company's lab testing locations. 
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Matter of B-L-I- Inc. 
manager who oversee the lower level staff and day-to-day operations of the four business locations. 
However, the advisor received payments of only $5200 as a contracted worker in 2017 and was not a 
payroll employee of the Petitioner until August 2018. Further, the additional payroll evidence 
submitted on motion indicates that the advisor and the laboratory director often earn less than the 
phlebotomy technicians in any given month. Regardless, given the lack of sufficient staff at the lowest 
level of the organizational chart, we cannot determine who is actually performing the day-to-day 
operations of the Petitioner's lab testing facilities. The evidence must substantiate that the duties of a 
beneficiary and his or her subordinates correspond to their placement in an organization's structural 
hierarchy; organizational charts showing tiers of employees and subordinate employees' job titles 
alone are not probative and will not establish that an organization is able to support an executive 
position 
The other new evidence submitted on motion is a "weekly itinerary" for the Beneficiary. While we 
acknowledge that the Petitioner is attempting to address the deficiencies in the previously submitted 
position descriptions, this new description is similarly lacking in detail. For example, the listed tasks 
include "monitoring and assessing work flow in corporate office and having scheduled meeting with 
Department Directors to assess and direct implantation [sic] of financial productivity and corporate 
planning"; "meet with scheduled appointments either inside or outside corporate offices to meet with 
third-party vendors or third-party representatives with the purposes of reducing costs while 
maintaining profitability" and "formulating strategic alliances to increase market awareness." The 
Petitioner further indicates that he Beneficiary, on most days, must "oversee and assure daily tasks 
scheduled or assigned" are implemented, review QuickBooks, and respond to email and phone calls 
"regarding business operations." Overall, this weekly breakdown does not provide any farther insight 
into the nature of the Beneficiary's day-to-day tasks and the Petitioner has not met its burden to clearly 
describe the duties to be performed. Reciting a 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. 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), ajf'd, 905 F.2d 
41 (2d. Cir. 1990). Here, the Petitioner has not provided the necessary detail or an adequate 
explanation of the Beneficiary's activities in the course of his daily routine. 
For the foregoing reasons, the Petitioner has not shown proper cause for reopening and the motion to 
reopen will be denied. 
C. Motion to Reconsider 
As noted, a motion to reconsider must establish that our decision was based on an incorrect application 
of law or policy, and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
On motion, the Petitioner cites to Matter of Z-A-, Inc., Adopted Decision 2016-02 (Apr. 14, 2016), in 
which we concluded that the petitioner had established "the need for a senior-level employee to 
manage the essential function of developing its brands and presence in the United States" despite its 
small staff size. The Petitioner implies that in this matter, we erroneously focused on the size of the 
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Matter of B-L-1-Inc. 
company without considering other factors and the reasonable needs of the organization as a whole, 
contrary to Matter of Z-A-. 
The Petitioner, as noted, claims that it has consistently employed between eight and eleven 
phlebotomists and medical assistants, and states that this number is sufficient "to accommodate and 
respond to the reasonable need of such industry to operate its day-to-day duties of the laboratory, under 
the supervision of laboratory managers, and the physicians, all under the executive authority of the 
CEO." However, as already discussed above, the Petitioner in this matter, unlike the petitioner in 
Matter of Z-A-, did not provide a sufficient description of the Beneficiary's job duties, and did not 
show how its actual staffing levels are adequate to relieve the Beneficiary from significant involvement 
in the day-to-day operations of the company. A review of our decision reflects that we considered the 
evidence in its totality as required by Matter of Z-A-. 
Again, the Petitioner claims that it has sufficient staff such that each of its four laboratory testing 
facilities, which are open for six days per week, have two staff present at all times. It maintains that 
it has a reasonable need for eight to eleven medical assistant staff (plus additional, higher-level staff) 
in order to operate its business. The Petitioner had a total of three phlebotomists and no medical 
assistants when it filed this petition. The Petitioner cannot credibly state that it has a reasonable need 
for eight to eleven technicians and simultaneously claim that a staff of three is sufficient to undertake 
the same workload. When a petitioner does not have sufficient staff to perform the day-to-day 
operational tasks of the business, it is reasonable to question who is actually performing those duties. 
We cannot accept an overly broad description of the Beneficiary's duties and the Petitioner's 
unsupported assertions regarding its staffing levels. 
The Petitioner also claims that we abused our discretion by citing to and relying on Systronics Corp. 
v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001), in our prior decision. 
We cited to Systronics in the following context: 
The Petitioner correctly observes that we must take into account the reasonable needs 
of the organization and that a company's size alone may not be the only factor in 
determining whether the Beneficiary is or would be employed in a managerial or 
executive capacity. See section 10l(a)(44)(C) of the Act. 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. 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 size of a company may be especially relevant when USCIS notes 
discrepancies in the record. See Systronics, 153 F. Supp. 2d at 15. 
The Petitioner states that the petitioner in Systronics was "a fraudulent 'shell company' with no lease 
and no employees," and therefore the court's finding in that case is irrelevant to the facts presented 
here. We disagree. In upholding the decision of the former Immigration and Naturalization Service 
(INS), the court found that "INS did not exclusively rely on Systronics' s size as its determining factor," 
noting that while size was a factor, the INS also noted the irregularities in the evidence and questioned 
7 
Matter of B-L-1-Inc. 
what the beneficiary's duties would be in light of the company's small personnel size. Systronics 153 
F. Supp. 2d at 15. Here, there were some unexplained inconsistencies in the evidence submitted to 
document the Petitioner's staffing levels. Moreover, the Petitioner has consistently claimed that it 
requires and employs at least eight lower-level employees to perform the non-managerial and non­
executive operations of the business but has not substantiated this claim with evidence that it ever 
employed this number of phlebotomists and medical assistants. Therefore, the lack of staff to perform 
the day-to-day laboratory functions was a relevant factor in our decision, and both Systronics and 
Family, Inc. were applicable to this matter. We also considered other factors, such as the Beneficiary's 
job duties, the Petitioner's use of contractors, the nature of the business, the scope of the business, and 
the company's original business plan, and therefore did not rely solely on the size of the company. 
The Petitioner also refers to Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), but it 
has not articulated an argument as to how that decision applies to the facts presented here. The 
Petitioner summarizes our findings in Matter of G- and states: 
In this case, AAO erroneously relies in its decision on managerial duties rather than 
executive duties. [The Beneficiary] has been working for the same Petitioner as an L­
lA nonimmigrant in a position with the same title and the same duties as the proffered 
position per [the California Service Center's] prior L-lA approval since 2015. 
The Petitioner has not made a connection between these claims and our findings in Matter of G-, in 
which we sought to clarify the term "essential function" and to clarify how a petitioner may 
demonstrate that a given beneficiary is employed in a managerial capacity as a function manager. 
In dismissing the Petitioner's appeal, we did not evaluate the Beneficiary's position solely under the 
definition of"managerial capacity." We determined that the Petitioner had made a claim that he would 
be employed in a managerial capacity based on his supervision of subordinate personnel, and also 
made a claim that he would be employed in an executive capacity. As a result, we folly addressed 
both claims in our decision dismissing the appeal. 
Further, we folly acknowledged that the Beneficiary had been granted L-lA status previously for the 
same position and cited to relevant case law and USCIS policy explaining why we were not bound by 
the prior decision of a service center or required to give deference to that decision. We also noted that 
the Petitioner did not support its claim that it had maintained the staffing levels and structure described 
in its 2015 business plan, which had been submitted in support of the prior petition and was 
resubmitted with this filing. Specifically, the organizational chart that was included in the business 
plan identified four medical assistants and four phlebotomy technicians by name, while the Petitioner, 
as of the date of filing this petition, had zero medical assistants and three phlebotomy technicians on 
its payroll. 
Moreover, the staff projections provided in the business plan indicated that the company anticipated 
having 18 employees by 2018, including a marketing manager and an administrative assistant, two 
positions that were never filled. The Petitioner had six employees on its payroll when it filed this 
petition in 2018 and therefore did not show that it had maintained the staffing levels it claimed at the 
time it filed the prior petition. Each nonimmigrant petition filing is a separate proceeding with a 
separate record and a separate burden of proof In making a determination of statutory eligibility, 
8 
Matter of B-L-1-Inc. 
USCIS is limited to the information contained in that individual record of proceeding. 8 C.F.R. § 
103.2(b )(l 6)(ii). 
Finally, the Petitioner suggests that we failed to apply the preponderance of the evidence standard to 
the facts presented. In dismissing the appeal, however, we acknowledged that the Petitioner submitted 
over 4500 pages of documentation in support of this petition and observed that the Petitioner must 
prove eligibility for the requested immigration benefit by a preponderance of the evidence. Matter of 
Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). To determine whether a petitioner has met its 
burden under the preponderance standard, we consider not only the quantity, but also the quality 
(including relevance, probative value, and credibility) of the evidence. Id. at 376; Matter of E-M-, 20 
I&N Dec. 77, 79-80 (Comm'r 1989). Here, the Petitioner's 4500 pages of documentation did not 
include the necessary clear description of the Beneficiary's actual day-to-day job duties. Further, the 
record still contains unexplained inconsistencies with respect to the company's staffing levels, as the 
Petitioner persists in claiming that it both requires and has consistently employed at least eight and as 
many as eleven phlebotomists and medical assistants when the evidence demonstrates that it typically 
employs only three to four mostly part-time staff in these roles. 
For the reasons discussed, the Petitioner has not shown that previous decision involved any incorrect 
application of law or policy and therefore has not shown proper cause for reconsideration. 
III. CONCLUSION 
The motion to reopen and motion to reconsider will be denied for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of B-L-I-, Inc., ID# 6353509 (AAO Sept. 24, 2019) 
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