dismissed L-1A Case: Clothing Distribution

MATTER OF A-A- INC. 
Non-Precedent Decision of the 
Administrative Appeals Offi~e 
DATE: AUG. 30, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a clothing distributor, seeks to temporarily employ the Beneficiary as president of its 
new office1 under the L-lA nonimmigrant classification for intracompany transferees. Immigration and 
Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § l 101(a)(l5)(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 Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Beneficiary has at least one year of continuous full-time 
employment with a qualifying entity abroad in the three years preceding the filing of the petition; (2) 
the new office would support a managerial or executive position within one year of approval of the 
petition; and (3) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer. 
The Petitioner appealed the denial of the petition. We withdrew the third ground for denial but 
dismissed the appeal based on the first two grounds. 
The matter is now before us on a combined motion to reopen and reconsider. On motion, the 
Petitioner submits additional evidence and asserts that we erred by misreading the Beneficiary's 
Indian income tax returns, and by not taking the Beneficiary's vacation time into consideration when 
calculating his employment abroad. 
We will deny both motions. 
I. MOTION REQUIREMENTS 
' 
A motion to reopen is based on documentary evidence' of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. We will discuss the requirements of each type of 
motion below. We may grant a motion that satisfies th~se requirements and demonstrates eligibility 
for the requested immigration benefit. 
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1 The tenn "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)(l)(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. 
Mauer of A-A- Inc. 
The regula.tion at 8 C.F.R. § 103.S(a)(l)(i) limits our authority to reopen the proceeding to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reopening, a petitioner 
must not only meet the formal filing requirements (such as submission of a properly completed Form 
l-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. MOTION TO RECONSIDER 
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). A motion to reconsider must be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and Immigration Services (USCIS) or Department <?f Homeland Security policy. 
In our dismissal notice, we agreed with the Director's finding that the Petitioner did not establish 
that the Beneficiary had at least one year of continuous full-time employment with a qualifying 
entity abroad in the three years preceding the filing of the petition, as required by 8 C.F.R. 
§ 214.2(1)(3)(iii). We found that the Beneficiary's employment abroad ended before the Beneficiary 
entered the United States on January 22, 2015, more than two years before the petition's filing date 
of January 31, 2017. On motion, the Petitioner submits no new facts or evidence relating to that 
employment. The Petitioner only seeks reconsideration, not reopening, relating to this issue. 
The petition was filed more than two years after the Beneficiary stopped working abroad. An 
interruption in employment lasting more than two years, whether that interruption occurred in the 
United States or abroad, is inherently disqualifying. Cf Matter of S-P-, Inc., Adopted Decision 
2018-01 4 (AAO Mar. 19, 2018).2 
On motion, the Petitioner does not contest our findings regarding the chronology of the 
Beneficiary's employment abroad. Instead, the Petitioner acknowledges that the Beneficiary's 
employment "was short ... 6 working days," but asserts: "the beneficiary can be excused for the 6 
working days, as vacation. period was not considered in the one year period." 
The Beneficiary was employed abroad for less than one continuous year during the three years 
preceding the filing of the petition. The Beneficiary then entered the United States. Regardless of 
the reason for entry, time spent in the United States cannot count toward the one year of continuous 
employment. At most, it stops the employment clock without counting as an interruption; if the 
2 Matter of S-P- concerns an immigrant petition for a multinational manager or executive, but the reasoning is the same 
because the immigrant classification, like the nonimmigrant classification, requires one year of qualifying employment 
abroad in the three years preceding either the filing of the petition or the beneficiary's relevant entry into the United 
States. See section 203(b )( I )(C) of the Act. 
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Mauer of A-A- Inc. 
entry was to work in lawful status for a qualifying U.S. employer or a brief trip for business or 
pleasure. 8 C.F.R. § 214.2(l)(ii)(A). The Beneficiary did not enter the United States for any of these 
reasons. Rather, he entered as an F-1 nonimmigrant student. This entry was inherently interruptive 
of the Beneficiary's continuous employment abroad, regardless of whether he had unused vacation 
time (which the Petitioner claims but does not establish).3 
Furthermore, we found a discrepancy in the documentation of the Beneficiary's compensation. The 
Petitioner had supmitted purported monthly salary statements from the Beneficiary's foreign 
employer, indicating that the Beneficiary received Rs16,500 per month for IO months during India's 
2014-2015 tax year. But the Beneficiary did not report any salary income on his 2014-2015 income 
tax return. Instead, the Beneficiary reported Rs33,053 in interest income, Rs169,689 in profit, and 
Rs 15,647 in commissions. 
On motion, the Pe_titioner states: "The Computation of Total Income (for the year 2014-2015), 
clearly mentions the. income [the Beneficiary] had gained from Bank Interest, which is only 
33053.00 Indian Rupees. The rest of the income he gained from his employment." The Petitioner 
does not address the relevant point, which is· that the monthly payroll documents do not agree with 
the tax return covering the same period of time. 
The Petitioner acknowledges that the Beneficiary was employed abroad for less than one year during 
the three-year qualifying period, and the Petitioner has not addressed or explained discrepancies in 
the documentation relating to the Beneficiary's compensation from that employment. Therefore, the 
Petitioner has not established that we erred when we determined that the Petitioner had not met its 
1?urden of proof to establish the required year of continuous employment abroad. 
The Petitioner's assertions on motion do not establish proper cause for reconsideration. 
III. MOTION TO REOPEN . 
A motion to reopen must state the new fa<;:ts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). The Petitioner has 
submitted some evidence that is new to the record. For the reasons explained below, however, we 
find that this evidence does not warrant reopening of the proceeding or approval of the petition. 
A petitioner seeking to employ a beneficiary as a manager or executive of a new office must 
establisJ-i that the new office will support an executive or managerial position within one year of 
approval of the petition. 8 C.F.R. § 214.2{1)(3)(v)(C). The Director determined that the Petitioner 
did not meet this requirement. The Director found that the Petitioner provided a vague description 
of the Beneficiary's proposed duties, did not show that it would have sufficient staffing to relieve the 
3 Were we to open the door to allowing vacation time in the United States in lieu of actual employment abroad, we 
would face the very significant question of how much vacation time to allow. The Petitioner cites no authority for where 
to draw the line, other than at an actual 365-day year. 
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Matter of A-A- Inc. 
Beneficiary from having to perform non-qualifying duties within one year, and did not provide 
adequate support for the financial projections stated in its business plan. 
At the time of filing, the Petitioner's only employee was a part-time office assistant. The business 
plan submitted with the petition indicated that, within a year of approval of the petition, the company 
would hire the Beneficiary as president, plus a marketing manager and a sales and marketing 
representative. The business "plan included a "Head Count," showing no increase in personnel 
through 2021. 
The business plan referred to the Petitioner as "a designing and manufacturing company," but the 
Petitioner did not set forth any plan to employ designers or manufacturing staff, and the company's 
leased office did not include workspace for designers or clothing manufacturers. 
After a request for evidence, the Petitioner revised its plans, stating that it would employ a marketing 
manager who would supervise six marketing and sales agents and an unspecified number of 
independent contractors. As stated in our dismissal notic~, the Petitioner did not provide a revised 
business plan or financial figures to show that it would be able to maintain this larger workforce. 
We did not accept the Petitioner's revised plan, because (1) the Petitioner had not substantiated its 
ability to support the positions, and (2) the Petitioner had to establish eligibility, including a viable 
business plan, at the time of filing. Fundamental revisions to the company's personnel plans in 
response to a request for evidence cannot establish eligibility at the time of filing. We also found 
that the Petitioner had not established that the position of sales and marketing manager would be 
primarily managerial. We concluded: 
The Petitioner has not shown how a staff of two sales and marketing employees and a 
part-time office assistant would be sufficient to relieve the Beneficiary from 
significant involvement in the day-to-day operations of its clothing distribution 
business. The Petitioner estimates that it would have over $1.2 million in sales in its 
first year. Even if we found that two subordinate sales employees would be sufficient 
to handle that volume of sales, the Petitioner has not indicated who would be 
responsible for sourcing or purchasing the company's goods, placing orders, 
receiving inventory, making deliveries, arranging shipments, or performing routine 
financial tasks. The Petitioner also describes itself as a "manufacturing and design" 
company at times, but does not claim it will have employees engaged in design. or 
manufacturing. For these reasons, the Petitioner did not establish that it would 
employ sufficient subordinate staff to perform the actual day-to-day, non-managerial · 
operations of the company, and has not shown that it will have a reasonable need for 
the Beneficiary to perform primarily managerial or executive duties within one year.· 
(Footnote omitted.) On motion, the Petitioner submits tax documentation to show that the Petitioner 
"intends to achieve the turnover as mentioned in the business plan." The documents show that the 
Petitioner paid three employees and three contractors during 2017. Of these six individuals, only the 
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Matter of A-A- Inc. · 
, Beneficiary received an amount consistent with a year's full-time employment. Apart from the 
Beneficiary, the second employee. is the part-time office assistant. The Petitioner did not provide 
further information about the third employee, who earned $5769 in 2017, and the Petitioner did not 
explain the tasks performed by the three contractors, each of whom earned l~ss than $8500 in 2017. 
The Petitioner does not address the specific issues we raised in our dismissal notice. The Petitioner 
asserts that its revised personnel plan shows enough "other employees to relieve the beneficiary from 
performing operational duties," but this is not the plan the Petitioner cited at the time of filing. As 
we noted in our earlier decision, a petitioner may not make material changes to a petition in an effort 
to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 
169, 176 (Assoc. Comm'r 1998). A petitioner must establish eligibility at the time of filing. 
8 C.F.R. § 103.2(b)(l). The Petitioner has not shown that the new tax documents establish proper 
cause to reopen the proceeding. 
We also agreed with the Director's finding that the Petitioner had not submitted "a detailed, credible 
account of the duties the Beneficiary would perform on a day-to-day basis by the end of the first year 
of operations." We raised several specific points, stating, for instance, that the list of duties included 
planning activities that appear to have been completed (and therefore do not represent ongoing· 
demands on the Beneficiary's time). We also noted that several of the listed duties constitute non­
qualifying activities, and that the Petitioner had not accounted for the time spent on other non­
qualifying functions, mentioned by the Petitioner elsewhere but excluded from the job description. 
On motion, the Petitioner submits a new job description for the Beneficiary. The Petitioner removed 
the reference to planning the company's organizational structure, but otherwise the new description 
largely repeats, rearranges, and paraphrases portions of the previous description, while changing the 
amount of time allocated to some tasks. The new description does not add significant new details or 
address other concerns we raised in the dismissal notice. As such, the revised job description does 
not provide proper cause to reopen the proceeding. 
IV. CONCLUSION 
The Petitioner did not establish that we erred in our prior decision, or submit new evidence to show 
that the petition was approvable at the time of filing. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of A-A- Inc., ID# 1602813 (AAO Aug. 30, 2018) 
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