dismissed L-1A Case: Construction And Import/Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF O-M-&S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 14, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner describes itself as a construction company that also imports and exports vehicle parts. It 
seeks to continue the Beneficiary's temporary employment as its chief executive officer (CEO) and 
manager under the L-1 A nonimmigrant classification for intracompany transferees. 1 Immigration and 
Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § l 10l(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 record did not 
establish, as required, that: (I) the related foreign entity continues doing business; (2) the Petitioner will 
employ the Beneficiary in the United States in an executive capacity; and (3) the Petitioner is 
sufficiently staffed to support an executive position following the one-year "new office" period. The 
Petitioner appealed the Director's decision. We withdrew the first ground for denial but dismissed the 
appeal based on the remaining grounds. We also entered an additional finding that the Petitioner had 
not shown that it had been doing business for the previous year. 
The matter is now before us on a combined motion to reopen and reconsider. On motion, the Petitioner 
submits receipts and bank statements as evidence of its business activity, and asserts that we erred in our 
interpretation of the job descriptions that the Petitioner submitted at various stages in the proceeding. 
Upon review, we will deny both the motion to reopen and the motion to reconsider. 
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 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for a one year 
period from February 17, 2016, to February 16, 2017. A "new office" is an organization that has been doing business in 
the United States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(1)( 1 )(ii)(F). 
The regulation at 8 C.F.R. § 2 I 4.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. 
Matter ~f O-M-&S-, Inc. 
motion below. We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
The regulation 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 
1-290B, 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 REOPEN 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). Although the 
Petitioner has submitted some evidence that is new to the record, for the reasons explained below, 
we find that the Petitioner has not shown good cause to reopen the proceeding or approve the 
petition. 
A new office extension petition must include evidence that the petitioner has been doing business for 
the previous year. 8 C.F.R. § 214.2(1)(14)(ii)(B). "Doing business" means the regular, systematic, 
and continuous provision of goods and/or services by a qualifying organization and does not include 
the mere presence of an agent or office of the qualifying organization in the United States and 
abroad. 8 C.F.R. § 214.2(l)(l)(ii)(H). In our appellate decision, we found that the Petitioner did not 
meet this requirement, for the following reasons: 
• The Petitioner had not fully documented its claimed income. 
• The Petitioner claimed to facilitate international trade, but had not documented activity 
performing that function. 
• The Petitioner claimed to have earned some of its income as a construction company, but did 
not submit establish that it is a licensed building contractor. 
• The figures on a balance sheet did not match payroll figures, which cast doubt on the 
credibility of the financial documents relating to the Petitioner's business activity in 2016. 
On motion, the Petitioner submits copies of the following documents: 
• Bank statements dated between February 2016 and February 2017 
• Invoices sequentially numbered 370 through 457, for vanous construction contracting 
services 
• Local business tax receipts referring to the Petitioner as a business office, residential 
contractor, and import/export company 
On motion, the Petitioner acknowledges, but does not attempt to resolve, the discrepancies we 
described in our appellate decision. The Petitioner states: "The AAO decision indicated that the 
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Matter of O-M-&S-, Inc. 
discrepancies between the profit and loss statement and the tax and payroll documentation cast doubt 
on the reliability of the profit and loss statement. However, we believe the invoices and [bank 
documents] show that [the Petitioner] has regularly, systematically and continuously provided 
services. " 
The new submission on motion, however , includes still more discrepancies. 
The Petitioner previously submitted copies of four invoices. In our dismissal notice, we noted that 
the invoice numbers were not in a chronological sequence. Three of the same invoice numbers 
appear in the Petitioner's submission on motion, but the invoices do not match: 
Number Discrepancy Submitted With Initial Filing Submitted on Motion 
401 Date 06/01 /2016 05/14/2016 
Delivery address for Yes (in a different font than No 
"Labor and materials" the rest of the document) 
Spelling and wording furniture furnitures 
( errors are reproduced water valves liquid valves 
without correction) deliver it to I delivery Home 
Home 
electric plugs plugs electric 
garage door at I doors garage I 
electric spots point energy 
door lock key box 
Repair and paint wall, install Repair wall and paint, install 
new mirror in bathroom, new mirror bathroom , install 
install shelves and organize shelving and organization 
repair and paint wall, repair repair wall and paint, repair 
toilet and delivery garage toilet and delivery garage 
door at 
TOT AL MATERIAL TOTAL MATERIAIS 
409 Date 04/22/2016 06/01/2016 
Service description Change tile all floor Change Roofing and repairs 
Price Total labor $19,100 .00 Total labor $19,110.00 
Down payment $8950.00 Total $19,110.00 
Total $10,150.00 
419 Customer's address All capital letters Same address, but with 
standard capitalization 
Service Description Change roof New Pavers and screen 
"Total Labor" line item No Yes 
The Petitioner does not explain, or even acknowledge, the differences between the identically­
numbered invoices. 
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Matter of O-M-&S-, Inc. 
Furthermore, the year on the newly submitted invoices shifts back and forth between 2015 and 2016, 
although the invoice numbers are consecutive. The lowest-numbered invoice submitted on motion is 
number 370, dated February 3, 2016; previously, the Petitioner submitted an invoice with a lower 
number, 354, but dated later (February 14, 2016). 
The discrepancies described above cast serious doubt on the authenticity of the invoices described. 
Given the discrepancies on the invoices, it is significant that deposits shown on the bank statements 
do not always correlate to the newly submitted invoices. The Petitioner has not provided reliable, 
credible evidence to show that the bank deposits are the result of regular, systematic, and continuous 
business activity by the Petitioner as described on the invoices. The local business tax receipts show 
authorization to conduct business but do not show the extent of business activity. 
The inconsistencies between the two sets of invoices cast doubt on their authenticity, and therefore 
their credibility. Unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner's submission of new invoices that do not 
match the previous versions do not resolve or diminish the prior credibility issues, and do not 
establish good cause to reopen the proceeding or issue a new decision favorable to the Petitioner. 
III. 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. § I 03.5(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 or Department of Homeland Security policy. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) of the Act. 
As discussed in our appellate decision, the Petitioner submitted three job descriptions for the 
Beneficiary, first with the initial filing of the petition, then in response to a request for evidence, and 
finally on appeal. We found that these job descriptions lacked detail, and also conflicted with one 
another. 
On motion, the Petitioner asserts: 
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Matter of O-M-&S-, Inc. 
The job description in response to the request for evidence is not substantially 
different than the initial description, but rather it breaks down with more specificity . 
. . . Since [the Petitioner] has provided the how, when, where, and with whom of [the 
Beneficiary's] duties, it is unclear what the AAO thinks is vague or simply copies the 
regulations. 
The record does not support the Petitioner's assertion that the second version of the job description 
"breaks down [the first version] with more specificity." For example, the second version stated that 
the Beneficiary spends 30% of his time representing the petitioning company "before the managers, 
employees, contractors, clients, potential clients, prospects, suppliers, partners, authorities, 
community leaders, civic groups, students, and the community in general." The Petitioner identifies 
nothing from the first job description that corresponds to this assertion. The Petitioner also has not 
shown that the Beneficiary has any significant contact with "community leaders, civic groups, 
students, and the community in general." 
Furthermore, the motion does not address key elements of the appellate decision. Job descriptions 
for the Beneficiary and others referred to nonexistent departments, subordinate positions, and in one 
case a retail store. The Petitioner indicated that subcontractors performed much of the construction 
work, but the Petitioner documented service agreements with only three subcontractors. 
The Petitioner asserts that the Beneficiary "spends a majority (51 %) of his time reporting to the 
Board of Directors [ which consists of the Beneficiary himself and one other person] and making 
decisions relating to the direction of [ the company]." The "51 %" figure derives from previously 
submitted job descriptions. The Petitioner has not overcome or addressed the specific deficiencies 
we identified in those job descriptions, so the Petitioner cannot establish eligibility by citing those 
same descriptions. 
The Petitioner maintains that the Beneficiary's "duties are in line with an executive position in other 
similar sized businesses." Rather than elaborate, the Petitioner cites an episode of the Freakonomics 
podcast, available online with a transcript at http://freakonomics.com/podcast/c-e-o-actually/. The 
podcast did not discuss immigration issues such as L-1 A status. The podcast cited an unsourced 
statistic that most companies have three or fewer employees, but it did not detail the duties of 
running a company of that size. Eligibility for the classification sought ultimately rests on 
conformity with the statutory definition of "executive capacity," and not everyone who runs a small 
business meets that definition. A motion to reconsider should be supported by statute, regulation, or 
case law; it cannot suffice to state that supporting information lies at an unspecified point in a one­
hour podcast. 
Because the Petitioner has identified no error of law or fact in our appellate decision, we will deny 
the motion to reconsider. 
Matter of O-M-&S-, Inc. 
IV. CONCLUSION 
The Petitioner did not establish good cause to reopen the proceeding or meet the requirements of a 
motion to reconsider. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of O-M-&S-, Inc., ID# 1762959 (AAO Nov. 14, 2018) 
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