dismissed L-1A Case: Furniture Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 20882690 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN . 10, 2022 
The Petitioner, the U.S. office of a company that manufactures cabinets and related furniture in Brazil, 
seeks to continue the Beneficiary's temporary employment as its chief executive officer (COO) under the 
L-lA 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 California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner would employ the Beneficiary in a primarily executive 
capacity. We dismissed the Petitioner's subsequent appeal of that decision and the matter is now 
before us again on combined motion to reopen and motion to reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofChawathe, 25 I&N 
Dec . 369, 375 (AAO 2010). Upon review, we will dismiss both motions . 
I. LAW 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involved specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
1 The Petitioner previously filed a "new office " petition on the Beneficiary ' s behalf which was approved for the period 
from July 2, 2019 , until July 1, 2020 . 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(l)(l)(ii)(F). The regulation at 
8 C.F.R . § 214 .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 manag erial position . 
A petitioner must meet the formal filing requirements of a motion and show proper cause for granting 
the motion. 8 C.F.R. § 103.5(a)(l). 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 establish that our prior 
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). 
Further, we note that our decision here is not a new adjudication of the underlying petition, based on 
review of the complete record. Rather, our review is limited to specific errors that the Petitioner 
identifies on motion with respect to the preceding decision issued on October 4, 2021. 
II. ANALYSIS 
The issues in this matter are: (1) whether the Petitioner has established that our decision to dismiss its 
appeal was based on an incorrect application of law or USCIS policy based on the evidence in the 
record at the time of our decision, and (2) whether the Petitioner has submitted new facts that warrant 
reopening the appeal. 
A. Background and Prior AAO Decision 
As noted, the Director denied the L- lA extension petition, concluding that the Petitioner had not met 
its burden to establish that it would employ the Beneficiary in an executive capacity as defined at 
section 10l(a)(44)(B) of the Act. We dismissed the Petitioner's appeal after reaching the same 
conclusion. 
In dismissing the appeal, we considered the Petitioner's statements and evidence regarding the 
Beneficiary's job duties, the staffing and organizational structure of the petitioning entity, the nature 
of the business, and the Beneficiary's claimed role within the larger international organization, which 
includes the Petitioner's Brazilian parent company. This included evidence submitted both in support 
of the petition and in response to a request for evidence (RFE), as well as evidence submitted on 
appeal. 
With respect to the Beneficiary's job duties and position within the company, we acknowledged the 
Petitioner's claim that the Beneficiary serves as its top executive and head of its senior management 
team, and noted that such a claim necessarily implies that there are no executives higher than the 
Beneficiary, and that there is a subordinate "senior management team" under his direction. Although 
we determined that the Petitioner demonstrated that the Beneficiary exercised discretionary authority 
within the company, we concluded that the Petitioner did not show that the Beneficiary primarily 
directs the management of the organization. 
Specifically, with regard to the company's staffing and organizational structure, we acknowledged the 
Petitioner's claim that the Beneficiary directs a managerial team including a sales and regional 
manager (SRM) and two product designers ("PDs") whom the Petitioner refers to as "[a ]rchitects ... 
with essential managerial duties." Upon review of the stated duties of the subordinates, we determined 
that these job descriptions did not persuasively establish the actual duties of the subordinate staff 
because the duties were generic and, in several instances, apparently inapplicable. Specifically, we 
noted that the job descriptions included several elements that appeared to derive from generic lists of 
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tasks, rather than the actual duties specific to the job. For example, the description of the SRM's 
position indicated that he would "[d]irect and coordinate activities involving sales of manufactured 
products, services, commodities, real estate or other subjects of sale," a phrase implying that Petitioner 
would be engaged in the sale of "services, commodities, [ and] real estate," which did not appear to 
readily apply to the operations of a furniture company. Moreover, we noted that the assertion that the 
PDs create designs which are then sent to Brazil for construction does not mean that the PDs "manage" 
the factory workers in Brazil who follow the plans, as the Petitioner asserted. We concurred with the 
Director's determination that the Petitioner had not established the existence of a layer of management 
subordinate to the Beneficiary, and concluded that the Petitioner did not establish that the Beneficiary 
would be primarily performing executive duties under the extended petition. 
B. Motion to Reconsider 
On motion, the Petitioner asserts that we did not consider the totality of the evidence and that we failed 
to apply the preponderance of the evidence standard to the facts presented. For the reasons discussed 
below, the Petitioner has not established that we incorrectly applied the law or USCIS policy in our 
decision dismissing the appeal. 
The record demonstrates that the Beneficiary had two direct subordinate employees at the time of 
filing, one of which supervised an additional employee. On motion, the Petitioner asserts that we erred 
in relying on staffing levels when determining that the Beneficiary would not be employed in a 
primarily executive capacity. 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 an executive ( or managerial) 
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-executive operations of the company or a company that does 
not conduct business in a regular and continuous manner. 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 cites to Nat'l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989) and 
Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570, 1574 (N.D. Ga. 1988) to stand for the proposition that 
the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act primarily 
in a managerial or executive capacity. Specifically, the Petitioner asserts on motion that the size of its 
staff is not a determining factor in establishing whether the Beneficiary would be employed in a 
qualifying executive capacity. The Petitioner, however, fails on motion to properly address our 
concerns with regard to the deficient job descriptions and the unresolved questions pertaining to the 
Beneficiary's subordinate staff, and the potential that the Beneficiary's management of such staff is 
further indication that the Beneficiary would be engaged in non-qualifying tasks. Furthermore, the 
Petitioner's focus on the Beneficiary's direction of the company's management and his discretionary 
authority regarding business decisions is not sufficient to establish that that Beneficiary would allocate 
his time primarily to the performance of tasks within a qualifying executive capacity. The burden is 
on the Petitioner to provide a detailed job description, including the proposed list of the Beneficiary's 
job duties and those of his subordinates, in order to establish that the primary portion of the 
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Beneficiary's time would be spent perfonning tasks of a qualifying nature. Due to the inconsistent 
position descriptions and conflicting information as to the subordinate employees' actual duties noted 
in our prior decision, it remains unclear how the Beneficiary's subordinates will relieve him from 
performing other nonqualifying administrative and operational duties. 
On motion, the Petitioner also argues that we erred by not determining that the Beneficiary was 
supervising "professional" subordinate employees as defined by section 101(a)(32) of the Act, 
8 U.S.C. § 110l(a)(32). The statutory definition of"managerial capacity" under section 10l(a)(44)(A) 
of the Act provides that personnel managers are required to primarily supervise and control the work 
of other supervisory, professional, or managerial employees. Here, however, the Petitioner has 
consistently claimed that the Beneficiary will be employed exclusively in an executive capacity, and 
our analysis on appeal was restricted to determining whether the Petitioner satisfied the required 
elements of executive capacity as outlined under section 101(a)(44)(B) of the Act. While the 
Petitioner's assertion on motion regarding the claimed professional positions of the Beneficiary's 
subordinates is noted, a petitioner claiming that the beneficiary's position will consist of a mixture of 
managerial and executive duties will not meet its burden of proof unless it has demonstrated that the 
beneficiary will primarily engage in either managerial or executive capacity duties. See section 
101(a)(44)(A)-(B) of the Act.. The Petitioner has not done so in this case. 
Nevertheless, while supervision of employees is not an express component of the statutory criteria for 
executive capacity, it is inherent to the definition that the organization must have a subordinate level 
of managerial employees for the Beneficiary to direct, as noted in our prior decision, and the 
Beneficiary must primarily focus on the broad goals and policies of the organization rather than the 
day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as the owner 
or sole managerial employee. While the definition of "executive capacity" does not require the 
Petitioner to establish that the Beneficiary supervises a subordinate staff comprised of managers, 
supervisors and professionals, it is the Petitioner's burden to establish that someone other than the 
Beneficiary carries out the day-to-day, non-executive functions of the organization. In our prior 
decision, we determined that the job descriptions submitted for the Beneficiary's direct and indirect 
subordinates in the United States were not consistent and lacked detail regarding the specific functions 
they perform. On motion, the Petitioner does not sufficiently address this determination and does not 
articulate how our prior decision was based on an incorrect application of the cited statute or caselaw. 
The Petitioner also asserts on motion that the COVID-19 pandemic presented challenges and 
complicated the company's early stages of development, and requests reconsideration given the 
extraordinary circumstances resulting from the global pandemic that impacted its fust year of U.S. 
operations. The Petitioner, however, previously stated that the Beneficiary superseded his business 
plan hiring practices by onboarding three subordinate employees within the first six months of 
operations, and further stated that "[b ]y January 2020, at the height of the COVID-19 pandemic,2 
which caused numerous business closures, [he] fully met the business plan hiring projections that led 
to his initial L-1 A approval." (Emphasis in original). It appears, therefore, that the Petitioner's 
hardship claims surfaced in response to our decision dismissing the appeal. While we acknowledge 
that a portion of its first year of operations was impacted by the pandemic, the Petitioner must 
2 We note that COVID-19 was not declared a pandemic until March 2020. 
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nevertheless establish that all eligibility requirements for the immigration benefit have been satisfied 
from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
The Petitioner cites Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), for the 
proposition that we "weigh all relevant factors including ... evidence of the beneficiary's role within 
the wider qualifying international organization," and asserts that the same reasoning applies here 
because it is part of a multinational organization and the parent company's hundreds of employees and 
contractors support the U.S. entity. The Petitioner cited this same caselaw in support of its appeal and 
we addressed its claim, noting that it mischaracterized the foreign entity's relationship to the 
petitioning U.S. employer because the Petitioner exists for the benefit of the parent company, and not 
vice versa. 3 The Petitioner does not articulate on motion how our prior decision was based on an 
incorrect application of the cited caselaw. 
The Petitioner also restates its previous claims regarding recent revisions to the USCIS Policy Manual, 
requiring deference to prior approvals when adjudicating extension petitions. See 2 USCIS Policy 
Manual A.4(B)(l), https://www.uscis.gov/policymanual; see also USCIS Policy Alert, PA-2021-05, 
Deference to Prior Determinations of Eligibility in Requests for Extensions of Petition Validity (Apr. 
27, 2021 ), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210427-
Deference.pdf However, we do not defer to prior approvals where there has been a material change 
in circumstances or eligibility requirements. 2 USCIS Policy Manual, supra, at A.4(B)(l ). This 
includes situations in which the regulations require criteria to be met after approval, such as L-lA 
extension petitions for new offices detailed at 8 C.F.R. § 214.2(1)(3)(v)(C) (a new office has one year 
from the date of the initial approval to support an executive or managerial position). See 8 C.F.R. 
§ 214.2(1)(14)(ii) (a petitioner seeking to extend an L-1 petition that involved a new office must submit 
a statement of the beneficiary's duties during the previous year and under the extended petition; a 
statement describing the staffing of the new operation and evidence of the numbers and types of 
positions held; evidence of its financial status; evidence that it has been doing business for the previous 
year; and evidence that it maintains a qualifying relationship with the beneficiary's foreign employer). 
While the Petitioner's reliance on the recent revisions to the USCIS Policy Manual is noted, it 
Petitioner has not shown on motion that our determination that it did not establish that it would employ 
the Beneficiary in an executive capacity under the extended petition was erroneous. As noted in our 
prior decision, new office petitions are subject to different conditions than other L-1 petitions 
(including extension petitions), and the approval of a new office petition does not imply a presumption 
of eligibility at the extension stage. 
Finally, in our previous decision, we addressed the Petitioner's claim that it must only establish 
eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. at 375-76. 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). On motion, the 
Petitioner simply maintains that it submitted more than sufficient evidence to meet this standard. 
3 If a petitioner claims that it has a reasonable need for foreign staff to perform some of the operational tasks associated 
with its U.S. business, it has the burden of documenting those foreign employees and the duties they perform for the U.S. 
entity. Id. 
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However, it does not adequately address the fact that we articulated a reasonable basis for questioning 
the probative value of certain critical evidence, including the Petitioner's descriptions of the duties 
performed by the Beneficiary and his subordinates. 
In our prior decision, we did not question that the Beneficiary occupies a senior role in the business 
and participates in discretionary decision-making. These factors are necessary, but not sufficient, to 
support a conclusion that a position is in an executive capacity as defined at section 101(a)(44)(B) of 
the Act; the Petitioner must also establish that the actual duties of the position are primarily executive 
in nature. Ultimately, we concluded that the Petitioner had not met its burden to provide a sufficiently 
probative description of the Beneficiary's actual duties, as well as a probative description of his 
subordinate employees at the time of filing, because the descriptions it submitted were inconsistent, 
vague, and did not describe the specific tasks he would perform within the context of its business. The 
Petitioner has not established that we failed to apply the preponderance of the evidence standard when 
evaluating whether the Beneficiary would perform primarily executive duties. 
Although the Petitioner disagrees with our determination that it did not meet its burden to establish, 
by a preponderance of the evidence, that it would employ the Beneficiary in an executive capacity 
under the extended petition, for the reasons discussed above, it has not demonstrated that we 
incorrectly applied the law or USCIS policy in reaching that determination. Accordingly, the motion 
to reconsider will be dismissed. 
C. Motion to Reopen 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Although we review new evidence submitted in support of a motion to reopen, the 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
The new evidence submitted in support of the motion to reopen does not overcome our reasons for 
dismissing the Petitioner's appeal. The Petitioner resubmits much of the documentary evidence 
previously provided in support of the assertion that it has established eligibility in this matter. 
However, we do not consider such evidence, which has already been reviewed and evaluated, to 
constitute new facts supported by documentary evidence. 
The Petitioner's new evidence on motion includes, in part, documentation related to the academic 
credentials and experience of the Beneficiary's subordinate employees, many of whom were hired 
after the filing of the extended petition, as well as documentation pertaining to business activities of 
the Petitioner that originated after the filing of the extended petition. 
The evidence of business transactions and activities occurring after the filing of the underlying petition 
in June 2020 may not be considered in determining whether the Petitioner has established that the 
Beneficiary will be employed in a primarily executive capacity in the United States. The petitioner 
must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not 
be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michel in Tire Corp., I 7 I&N Dec. 248 (Reg. Comm. 
1978). In this matter, the Petitioner claimed in the extended petition that the Beneficiary had executed 
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contractual agreements and oversaw three subordinate employees at the time the extended petition was 
filed. Accordingly, only those duties pe1iaining to the staff and the status of the enterprise at the time 
of filing may be considered. Duties ascribed to the Beneficiary and his subordinates in the future due 
to transactions and activities occurring after the filing of the petition, including the purported 
supervision of professional employers, newly hired subordinates, and independent contractors, may 
not be considered. On motion or on appeal, a petitioner cannot offer a new position to the beneficiary, 
or materially change a position's title, its level of authority within the organizational hierarchy, or the 
associated job responsibilities . 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. 1998). Accordingly , we find that that the evidence submitted on motion is not 
relevant for the purpose of overcoming our previous adverse decision dismissing the appeal. 
Regarding the Petitioner's submission of experiential and educational documentation in support of the 
assertion that the Beneficiary supervised professional employees, and its assertion that we erroneously 
disregarded this fact, we again note that the Petitioner has continuously maintained that the Beneficiary 
would be employed in a primarily executive capacity. The Petitioner's attempt to present new facts 
to demonstrate that that the Beneficiary may qualify as a personnel manager under the statutory 
provisions of managerial capacity, for the first time on motion, is not proper cause for reopening the 
proceedings . Again, a petitioner must establish that the position offered to a beneficiary, when the 
petition was filed, merits classification as a managerial or executive position . See Matter of Michelin 
Tire Corp., 17 I&N Dec. at 249. 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. at 
176. 
Therefore, since the Petitioner has not stated new facts supported by documentary evidence necessary 
to support a motion to reopen, the motion must be dismissed . See 8 C.F.R. § 103.5(a)(2). 
III. CONCLUSION 
The Petitioner has not established that our decision to dismiss its appeal was based on an incorrect 
application of law or USCIS policy, nor has it submitted new evidence that would warrant the 
reopening of its appeal. Accordingly, the motions will be dismissed. 
ORDER: The motion to reopen is dismissed . 
FURTHER ORDER: The motion to reconsider is dismissed. 
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