dismissed L-1A Case: Heavy Equipment Supply

U.S. Citizenship 
and Immigration 
Services 
In Re: 16026958 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 15, 2021 
Form 1-129, Nonimmigrant Petition for an Intracompany Transferee 
The Petitioner describes itself as a heavy equipment supply company specializing in scaffolding 
rentals, heavy equipment training, and lifting equipment inspection and certification It seeks to 
temporarily employ the Beneficiary as chief executive director in its "new office" 1 under the L-lA 
nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section 101(a)(15)(L), 8 U.S.C . § 1101(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 California Service Center denied the petition on multiple grounds. The Director 
determined that the Petitioner did not establish ( 1) that it had a qualifying relationship with the 
Beneficiary's foreign employer at the time the petition was filed; (2) that the Beneficiary was 
employed abroad for at least one year during the three years preceding the filing of the petition; (3) 
that the Beneficiary's foreign employment was in a managerial or executive capacity; and (4) that the 
new office in the United States would support the Beneficiary in a managerial or executive position 
within one year of the petition's approval. 
We dismissed the Petitioner's appeal on the ground that the Petitioner did not establish that it would 
support the Beneficiary in a managerial or executive capacity within one year of the petition's 
approval. Since this determination by itself was dispositive of the appeal, we reserved the Petitioner's 
arguments with regard to the other three grounds for denial, citing INS v. Bagamashad, 429 U.S. 24, 
25 (197 6) ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516,526 n. 7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible) . 
The matter is now before us on a motion to reopen and a motion to reconsider. A motion to reopen 
must state new facts and be supported by affidavits or other documentary evidence. See 8 C.F .R. 
§ 103.5(a)(2). A motion to reconsider must establish that the previous decision was based on an 
incorrect application of law or USCIS policy . See 8 C.F.R. § 103.5(a)(3). We may grant a motion 
that satisfies these requirements and demonstrates eligibility for the requested immigration benefit. 
Upon review, however, we will dismiss the motions. 
1 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. § 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 managerial position. 
I. ANALYSIS 
In our previous decision dismissing the appeal we reviewed the statutory definitions of "managerial 
capacity" and "executive capacity" in section 10l(a)(44)(A) and (B) of the Act 2 as well as the 
regulatory requirements for a new office set forth at 8 C.F.R. § 214(1)(3)(v)(C), which provides that: 
If the ... beneficiary is coming to the United States as a manager or executive to open 
or to be employed in a new office ... the petitioner shall submit evidence that ... [t]he 
intended United States operation within one year of the approval of the petition, will 
support an executive or managerial position ... supported by information regarding: 
( J) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in the United 
States; and 
(3) The organizational structure of the foreign entity. 
In our decision we discussed the initial evidence submitted by the Petitioner which included a 
statement regarding its plan for the U.S. business, a formal business plan containing a projected 
organizational chart, projected hires over a five-year period, and prospective equipment purchases 
with a wide range of estimated costs over a five-year period. In response to the Director's request for 
evidence (RFE) the Petitioner submitted an updated business plan with the same organizational chart 
but new hiring projections that conflicted with the hiring projections in the original business plan. 
Despite being requested to do so in the RFE, the Petitioner did not furnish job duty descriptions of the 
prospective employees, nor a time line for their hiring, nor any additional information about the costs 
of its prospective equipment purchases. These evidentiary gaps, we pointed out, precluded the 
2 As defined in section 10l(a)(44)(A) of the Act, the term "managerial capacity" means an assignment within an 
organization in which the employee primarily - (i) manages the organization, or a department, subdivision. function. or 
component of the organization; (ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those 
as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (iv) 
exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A 
first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. All four elements must be met for the assignment to qualify as 
"managerial capacity" employment. 
As defined in section 101(a)(44)(B) of the Act, the term "executive capacity" means an assignment within an organization 
in which the employee primarily - (i) directs the management of the organization or a major component or function of the 
organization; (ii) establishes the goals and policies of the organization, component or function; (iii) exercises wide latitude 
in discretionary decision-making; and (iv) receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. All four elements must be met for the assignment to qualify as 
"executive capacity" employment. 
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Director from determining what sort of staffing the Petitioner would have in place after a year of 
operation and whether the Beneficiary would be relieved of performing primarily non-managerial or 
non-executive duties. On appeal the Petitioner asserted that its staffing levels are not constant because 
its business is "service-oriented" and operates "on a call-out basis," and that its business plan "serves 
as a guide and not an actual transaction of business." 
We concluded that the record did not demonstrate that the Petitioner, within one year of the petition's 
approval, would have a support staff in place to relieve the Beneficiary from performing primarily 
non-qualifying duties such as marketing, selling, and brokering deals with clients. Highlighting the 
evidentiary shortcomings, we reiterated that the Petitioner's organizational chart was inconsistent with 
the proposed list of hires, that no employee job descriptions had been submitted, and that no hiring 
timeline had been presented for filling specific positions. Finally, we reviewed the Beneficiary's 
proposed job duties during the start-up year of the U.S. office, but noted that no separate description 
of his job duties following the start-up year had been submitted, even after a specific request in the 
Director's RFE. While acknowledging that the Beneficiary would be the Petitioner's primary 
employee with authority to make financial decisions and set the overall direction of the business, and 
that he would likely continue to exercise discretion over business operations and retain decision­
making authority beyond the initial one-year start-up phase, we stated that the Petitioner had not 
submitted sufficient information to establish that the Beneficiary's duties would be primarily 
managerial or primarily executive in nature, as defined in section 101(a)(44)(A) or (B) of the Act, 
within one year of the petition's approval. 
A. Motion to Reopen 
In its motion the Petitioner refers to a previously submitted letter describing the "basic duties of the 
[B]eneficiary," but states that it does not have any further evidence to submit. The Petitioner asserts 
that the job duties described in previous documentation - including the opening of bank accounts, 
securing company offices, payments of company invoices, and deciding to establish a warehouse in 
Corpus Christi - are evidence enough that the Beneficiary was "already working as a manager or/and 
executive" during the U.S. office's first year of operation. According to the Petitioner the Beneficiary 
hired a "Project Estimator ... to help in bidding with GCs and Subcontractors across Texas as well as 
Online via various Plan Rooms/Bidding Platforms and Apps ... helping the [B]eneficiary to carry out 
business development, Online Plan rooms, [and] meeting with clients." The Petitioner also asserts 
that the Beneficiary "approved the recruitment of a new 'Administrator Assistant' to help with follow 
up/receiving client calls, payrolls, administrative works etc." Despite these claims of new hires, the 
Petitioner submits no documentary evidence thereof with its motion, such as job offer letters or pay 
statements, as required by 8 C.F.R. § 103.5(a)(2). 
Thus, the Petitioner does not meet the basic regulatory requirement of documentary evidence to 
support the new facts it alleges in the motion to reopen. Even if evidence were submitted that a 
"project estimator" and an "administrator assistant" had been hired, it does not appear that either of 
those positions is managerial, supervisory, or professional in nature. Therefore, the Beneficiary would 
not be supervising and controlling the work of other supervisory, professional, or managerial 
employees, as required to meet the second definitional requirement of"managerial capacity" at section 
10l(a)(44)(A)(ii) of the Act, and in the absence of any subordinate management personnel would not 
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be directing the management of the organization, as required to meet the first definitional requirement 
of "executive capacity" at section 10l(a)(44)(B)(i) of the Act. The Petitioner has not shown that the 
alleged employment of a "project estimator" and an "administrator assistant" would elevate the 
Beneficiary's position to one of managerial or executive capacity, as defined in the Act. 
For the reasons discussed above, the motion to reopen does not meet the requirements of 8 C.F.R. 
§ 103.5(a)(2). 
B. Motion to Reconsider 
In its motion the Petitioner asserts that we have acknowledged the Beneficiary's authority to make 
decisions and that he "will manage and direct company work," which is enough to meet the definitional 
requirements of an "intracompany transferee" at 8 C.F.R. § 214.2(1)(1 )(ii). That is not correct. While 
the record indicates that the Beneficiary at the close of the one-year start-up period will have broad 
decision-making authority over business operations and personnel, the Petitioner has not submitted 
sufficient information to establish that the Petitioner will have a support staff in place to relieve the 
Beneficiary of performing non-qualifying duties such as routine administrative tasks and the day-to­
day business operations of selling products and providing services. Furthermore, the Petitioner has 
not established that it will have any managerial, supervisory, or professional employees aside from the 
Beneficiary at the end of one year. Thus, the Beneficiary could not meet the definitional requirement 
of "managerial capacity" at section 10l(a)(44)(A)(ii) of the Act because he will not supervise and 
control the work of other supervisory, professional, or managerial employees, and he could not meet 
the definitional requirement of "executive capacity" at section 101(a)(44)(B)(i) of the Act because in 
the absence of any subordinate managerial employees he will not "direct the management" of the 
business. 
The Petitioner does not specify on motion whether it is claiming "managerial capacity" or "executive 
capacity" for the Beneficiary, but suggests that the Beneficiary is managing, or directing the 
management of, an "essential function" of the business, within the meaning of section 
10l(a)(44)(A)(ii) or B(i) of the Act. The Petitioner has not defined what the "essential function" is, 
however, without which we have no basis to consider this claim. 
Thus, the Petitioner has not established that our previous decision was based on any incorrect 
application of law or USCTS policy, as required for a motion to reconsider under 8 C.F.R. 
§ 103.5(a)(3). 
II. CONCLUSION 
The Petitioner has not shown proper cause for reopening or reconsideration of our prior decision. 
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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