dismissed L-1A Case: E-Commerce

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-B- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 15, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an e-commerce business that frames artworks and documents, seeks to temporarily 
employ the Beneficiary as its chief financial officer under the L-lA nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 11 0l(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 Vermont Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity. 
We dismissed the Petitioner's appeal from the Director's decision. The matter is now before us on a 
motion to reconsider. 
On motion, the Petitioner disputes the Director's findings, claiming that the Beneficiary will be 
employed in an executive capacity. The Petitioner also submits new documentation. 
Upon review, we will deny the motion to reconsider. 
I. MOTION TO RECONSIDER REQUIREMENTS 
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). We do not consider new facts or evidence in a motion 
to reconsider. 
II. DISCUSSION 
The Petitioner does not identify any error of law or policy in our October 2018 dismissal decision. 
Instead, the Petitioner restates assertions relating to the Beneficiary's job duties and the structure of 
the petitioning company. 
In our dismissal notice, we identified several key deficiencies and discrepancies: 
Matter of F-B- Inc 
• The Beneficiary's initial job description included undefined terms and duties that did not 
appear to relate to the Petitioner's field of business, such as "regulatory action," "legislative 
sessions," and "policy-making committees." The Petitioner subsequently submitted other job 
descriptions, which conflicted with one another. We concluded that the Beneficiary's job 
descriptions lacked both consistency and details. 
• The record was inconsistent as to the employees who would be subordinate to the Beneficiary. 
For example, the Petitioner indicated that the Beneficiary would evaluate the "performance of 
executives," but did not show that any executives would be subordinate to the Beneficiary. 
The Petitioner also referred to an audit committee, controller, tax manager, human resources 
manager, and investor relations officer, although none of those titles appeared on the 
company's organizational chart. 
• When the Director requested evidence of the company's staffing, the Petitioner responded by 
submitting three payroll statements and four contracts for employees hired in November 2017, 
after the petition's filing date in September 2017. Therefore, this evidence did not show how 
many employees, if any, the Petitioner employed when it filed the petition. We noted that the 
Petitioner must meet all eligibility requirements at the time of filing the petition. See 8 C.F.R. 
§ 103.2(b)(l). We stated: "Without evidence showing that at the time of filing the Petitioner's 
staff included a tier of managers, it is unclear how the Beneficiary would be able to 'direct the 
management' of the organization." 
On motion, the Petitioner does not explain how any of these conclusions were in error, given the record 
at the time of our decision. 1 
The Petitioner states that the Petitioner "has hired a third-party financial consulting company" in lieu 
of "a full in-house team of financial experts." The Petitioner does not explain why it previously 
submitted a job description indicating that the Beneficiary would supervise a "Controller, Tax 
Manager, Human Resources Manager, [and] Investor Relations Officer" if the company had no such 
employees. The Petitioner states that it contracted the third-party firm in March 2017, but the 
Petitioner's certificate of incorporation is dated August 10, 2017. (We will discuss the Petitioner's 
incorporation date further below.) 
With respect to the absence of payroll records from the time of filing, the Petitioner stated that "was 
initially in contract with [a payroll service] to handle all payroll related tasks and payroll for all 13 of 
its employees, as described in the initial filing," but ended its contract with that company, and fired 
five employees, in September 2017 (the month it filed the petition). The Petitioner did not explain 
why this information explains the absence of payroll documents prior to November 2017. 
With respect to the Petitioner's assertion that it had 13 employees in 2017, a financial plan submitted 
with the initial filing indicated that the Petitioner projected paying $19,800 in salaries in 2017, rising 
to $36,000 in 2020. This figure is substantially lower than the Beneficiary's claimed base salary of 
1 The Petitioner also defines terms such as "legislative sessions" and "policy-making committees" on motion. but those 
definitions were not in the record when we issued our decision. 
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Matter of F-B- Inc 
$50,000, without taking any other salaries into account. The same document stated: "We expect to 
hire 3 full time equivalent hires in 2016 and by 2018 we expect to reach our full potential of 7 full 
time equivalent employees." 
The Petitioner submits new evidence relating to issues such as the company's recent change of payroll 
contractor. The proper forum for submitting new evidence is a motion to reopen, rather than a motion 
to reconsider. See 8 C.F.R. § 103.5(a)(2). New evidence cannot establish that our prior decision was 
incorrect based on the record at the time of that decision, because that evidence was not yet in the 
record for us to consider. Even then, the newly submitted evidence raises more questions than it 
answers. 
The Petitioner submits copies of 15 IRS Forms W-2, Wage and Tax Statements, indicating that the 
Petitioner paid a total of $44,346.58 in salaries and wages in 2017, an average of $2956.44 per 
employee. Only six of the employees' names on the forms correspond to names on the organizational 
chart submitted initially. 
A newly submitted week-by-week payroll summary indicates that the Petitioner paid $44,346.58 in 
wages and salaries between November 5 and December 28, 2017, which accounts for all the payments 
listed on the IRS Forms W-2. The Petitioner has not documented any salaries paid before November 
2017. The new evidence, like the payroll documents submitted previously, is consistent with the 
conclusion that the Petitioner did not have any employees when it filed the petition in September 201 7. 
A September 2017 bank statement, submitted with the petition, indicated that the Petitioner had no 
bank balance before August 16, 2017. (The end-of-month balance was equal to the month's deposits 
and credits minus the month's withdrawals and debits, indicating a starting balance of $0.) 
It bears noting that the Petitioner's certificate of incorporation is dated I I 2017, six weeks 
before it filed the petition. But the Petitioner claims to have begun its operations prior to that date. 
For example, the Petitioner submitted a profit and loss statement purporting to show its income and 
expenses in 2016 and the first six months of 2017. This discrepancy raises very serious questions 
regarding the true nature and extent of the Petitioner's business activity at the time of filing, and casts 
doubt on every document and every statement that purports to indicate that the Petitioner was doing 
business beforel 12017. 
On motion, the Petitioner submits a copy of a letter from the Internal Revenue Service (IRS), showing 
the date "09-17-2011," assigning an Employer Identification Number (EIN) to the Petitioner. But this 
letter predates the Petitioner's incorporation by nearly six years. Previously, the Petitioner had 
submitted a copy of an IRS letter, assigning the Petitioner the same EIN, effective I I 201 7 
(the date on the Petitioner's certificate of incorporation). It does not appear likely that both letters are 
authentic. The letter dated 2011 includes the following passage: 
Based on the information received from you or your representative, you must file the 
following form(s) by the date(s) shown. 
Form 1120 03/15/2018 
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Matter of F-B- Inc 
IRS Form 1120 is a U.S. Corporation Income Tax Return. There is no apparent reason why the IRS 
would advise the Petitioner to wait more than six years before filing its annual tax return. In contrast, 
the previously submitted IRS letter from I 12017 indicated that the Petitioner should file its Form 
1120 return on •c=J;2018," eight months after the date of the letter. 
Furthermore, the Petitioner had previously submitted a purchase agreement( dated I 12017, 
indicating that the Petitioner was purchasing the assets of I _ "a full service business 
offering framed artwork and custom framing ... whose principal place of business was located at 
I I Virginia." Among the purchased assets was "[t]he 
VAi ~" ~----~ 
The 2011 IRS letter, however, was addressed to the Petitioner at.__ ________ ____., six years 
before the Petitioner agreed to purchase that property. The motion includes a change of address notice 
datedl ] 2019 (sic), referring to "the new addres .__ ____________ __. 
Given these discrepancies, and the lack of reliable evidence that the Petitioner existed in 2011, we do 
not consider this newly submitted IRS letter to be either credible or authentic. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reconsideration and has not 
overcome the grounds for dismissal of its appeal. The 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 is denied. 
Cite as Matter of F-B-Inc, ID# 3358614 (AAO May 15, 2019) 
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