dismissed L-1A Case: Hotel Operations

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-L- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a hotel operator, seeks to extend the Beneficiary's temporary employment as its 
managing member under the L-1A nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The 
L-1A 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 an executive or 
managerial capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that it has a qualifying relationship with the Beneficiary's foreign 
employer. The Petitioner subsequently filed an appeal, which we dismissed. We determined that the 
evidence of record was insufficient to establish a qualifying relationship between the Petitioner and 
the foreign entity, and further found that the evidence did not establish that the Beneficiary would be 
employed in a qualifying managerial or executive capacity. 
The Petitioner subsequently filed a combined motion to reopen and reconsider. The Petitioner 
submitted additional evidence and a brief contesting the findings we made in our appellate decision 
with regard to the qualifying ·relationship issue and stating that we erred in concluding that the 
Beneficiary would not act in a qualifying managerial or executive capacity. We granted the motion 
in part for the purpose of withdrawing our finding that the Beneficiary would not be employed in a 
qualifying managerial or executive capacity. However, we denied the remainder of the motion and 
affirmed our decision to dismiss the appeal based on the finding that the Petitioner did not overcome 
the finding that it does not have a qualifying relationship with the foreign entity. 
The matter is now before us on a motion to reopen. On motion, the Petitioner submits a statement 
asking us to consider additional evidence with regard to the qualifying relationship issue. 
Upon review, we will deny the motion to reopen. 
Matter of E-L- LLC 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F.R. § 103.5(a)(l)(i) includes the following statement limiting a United States 
Citizenship and Immigration Services (USCIS) officer's authority to reopen the proceeding or 
reconsider the decision to instances where "proper cause" has been shown for such action: "[T]he 
official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the 
prior decision." 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal 
requirements for filing (such as, for instance, submission of a Form I-290B, Notice of Appeal or 
Motion that is properly completed and signed, and accompanied by the correct fee), but the 
Petitioner must also show proper cause for granting the motion. As stated in the provision at 8 
C.F.R. § 103.5(a)(4), "Processing motions in proceedings before the Service," "[a] motion that does 
not meet applicable requirements shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 1 03.5(a)(2), "Requirements for motion to reopen," states: "A motion to 
reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be 
supported by affidavits or other documentary evidence .... " 
This provision is supplemented by the related instruction at Part 3 of the Form I-290B, which states: 
"Motion to Reopen: The motion must state new facts and must be supported by affidavits and/or 
documentary evidence.'' 1 
Further, the new facts must possess such significance that, "if proceedings ... were reopened, with 
all the attendant delays, the new evidence offered would likely change the result in the case." Matter 
of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-
40 (lOth Cir. 2013). 
Here, the Petitioner provided facts supported by evidence that could be considered "new" in support 
of its motion to reopen. As will be discussed below, the "new" evidence does not overcome our 
finding that the Petitioner does not have a qualifying relationship with the foreign entity. Therefore, 
we will deny the motion and affirm our prior decisions. 
1 The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part: 
Every benefit request or other document submitted to DHS must be executed and filed in accordance 
with the form instructions, notwithstanding any provision of 8 CFR chapter 1 to the contrary, such 
instructions are incorporated into the regulations requiring its submission. 
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Matter of E-L- LLC 
II. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the 
criteria outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must 
have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. 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, executive, or specialized knowledge capacity: 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) states that a petitioner seeking an extension of a petition 
that involved a "new office" must submit the following: 
(A) Evidence that the United States and 'foreign entities are still qualifying 
organizations as defined in paragraph (1)( 1 )(ii)( G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (1)(1)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) Evidence ofthe financial status ofthe United States operation. 
III. QUALIFYING RELATIONSHIP 
The sole issue to be addressed is whether the Petitioner has established that it has a qualifying 
relationship with the Beneficiary's foreign employer. 
The pertinent regulations at 8 C.F.R. § 214.2(l)(l)(ii) define the term "qualifying organization" and 
related terms as follows: 
(G) Qualifying organization means a United States or foreign firm, corporation, or 
other legal entity which: 
(1) Meets exactly one of the q~alifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (1)(1 )(ii) of this section; " 
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Matter of E-L- LLC 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent 
owns, directly or indirectly, more than half of the entity and controls the 
entity; or owns, directly or indirectly, half of the entity and controls the entity; 
or owns, directly ·or indirectly, 50 percent of a 50-50 joint venture and has 
equal control and veto power over the entity; or owns, directly or indirectly, 
less than half of the entity, but in fact controls the entity. 
(L) Affiliate means 
(1) One oftwo subsidiaries both of which are owned and controlled by 
the same parent or individual, or 
(2) One of two legal entities owned and controlled by the same group 
of individuals, each individual owning and controlling 
approximately the same share or proportion of each entity. 
A. Evidence of Record 
The Petitioner is a Texas limited liability company doing business as a 
Form I-129, the Petitioner stated that it is an affiliate of 
in India, based on common ownership by the Beneficiary (3,300 shares), 
(3,300 shares), and (3,400 shares). 
hotel. On the 
located 
As evidence of the foreign entity's ownership, the Petitioner provided a copy of its certificate of 
incorporation filed in India on August 18, 2011, as well as a Memorandum and Articles of 
Association corroborating the ownership of the foreign entity as stated in the Form 1-129. The 
memorandum includes a chart depicting shares subscribed by the individuals, as listed above. The 
Petitioner submitted a number of documents relating to the foreign entity, including bank records 
from 2013 and 2014, a tax return for 2013, and an unaudited balance sheet dated March 31, 2013, 
with a footnote referencing the aforementioned shareholders: 
The Petitioner also submitted a copy of its own certificate of formation filed with the State of Texas 
on January 24, 2013, identifying the foreign entity as its managing member. Further, the Petitioner 
submitted a copy of the Beneficiary's 2013 IRS Form 1040, U.S. Individual Income Tax Return, 
including Schedule C, Profit or Loss from Business, naming the Beneficiary as the proprietor/sole 
member of the petitioning company. 
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(b)(6)
Matter of E-L- LLC 
The Director issued an RFE on July 29, 2014, advising the Petitioner to provide all evidence relating 
to any franchise agreements necessary for the Petitioner's operation of its hotel. In 
addition, the Director requested the following additional evidence relating to the qualifying 
relationship: 1) meeting minutes; 2) stock purchase agreements; 3) stock certificates; 4) a stock 
ledger; 5) proof of stock purchase or capital contribution in exchange for ownership such as wire 
transfer receipts, bank statements, or canceled checks; 6) documents outlining the details of 
investment in the company; 7) articles of incorporation or bylaws with names of members and their 
respective percentages of membership interests; 8) partnership agreement and registration documents 
with the names of partners and limits of their liability; and 9) the franchise purchase agreement. 
In response to the RFE, the Petitioner submitted additional documents including a copy of its 
franchise agreement with The agreement provides the Petitioner 
with the authority to direct and control the franchise. 
In a separate letter the Petitioner explained that the foreign entity is its managing member and 
identified the foreign entity's members as the Beneficiary, and 
The Petitioner further explained that these three members gave authority to the Beneficiary 
to act on behalf of the foreign entity with regard to the Petitioner. 
Further, the Petitioner submitted an undated operating agreement signed by the Beneficiary, 
and The agreement identified the Beneficiary as the initial company 
manager and defined "member" as any person executing the operating agreement as of the date of 
the agreement. Section 4.01 "Initial Contribution" indicated that each member would make a capital 
contribution "contemporaneously" with the execution of the agreement as set forth in Exhibit A. 
Exhibit A reflected that the asserted members would make the following monetary contributions, 
which would correspond with each member's indicated participation: 
N arne and Address 
Each Member 
[Beneficiary] 
Initial Capital Units of 
Commitment 
$330.00 
$340.00 
$330.00 
Participation 
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The Petitioner also submitted a letter from its accountant acknowledging thh.t he prepared the 
Petitioner's 2013 tax return as a sole member LLC. The accountant explained that "it was 
identified" later that the Petitioner "has three members and based on that, the tax return should be 
prepared as a partnership." The accountant stated that he corrected this error and sent the corrected 
forms to the Petitioner. 
The Petitioner provided a copy of its 2013 Form 1065, which was filed with the IRS on October 20, 
2014. The Form 1065 indicates at Schedule B, Other Information, line 16, that the Petitioner has a 
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Matter of E-L- LLC 
single partner and the accompanying Schedule K-1 once again states that the foreign entity is the 
Petitioner's sole owner. 
In addition, the Petitioner submitted a letter explaining that.the Beneficiary, and 
each executed the foreign entity's memorandum and articles of association as 
company members and that they also executed the Petitioner's operating agreement as members. 
The Director denied the petition, finding that the Petitioner had not established that it had a 
qualifying relationship with the foreign entity. The Director also relied on the Petitioner's franchise 
agreement with in concluding that the Petitioner did not have 
ownership and control over the company, but rather that exercises control over the 
Petitioner. The Petitioner later filed an appeal contesting the Director grounds for denial. 
We dismissed the appeal in a decision issued on July 27, 2015. In that decision, we withdrew the 
Director's analysis and comments with respect to the franchise agreement and found that the 
Director did not appropriately focus on the ownership and control of the Petitioner and the foreign 
entity. However, after reviewing the evidence, we nevertheless concluded that the Petitioner had not 
demonstrated that it has a qualifying relationship with the foreign entity. 
In dismissing the appeal, we found that the record contained conflicting evidence of the Petitioner's 
ownership. Specifically, we observed that the Petitioner and its operating agreement similarly 
indicated that the Petitioner has three members. However, the Petitioner's certificate of formation 
and its 2013 IRS Form 1065 indicated that the foreign entity was the sole member of the company, 
while the Beneficiary's 2013 IRS Form 1040 reflected that the Beneficiary was the sole member and 
owner of the company. We further noted that the Petitioner did not submit evidence establishing 
that the asserted members of the company made capital contributions pursuant to the terms of the 
operating agreement. 
On motion, the Petitioner stated that it is an affiliate of the foreign entity by virtue of both entities 
being owned by the same three individuals- the Beneficiary, and 
The Petitioner claimed that it "complied with the filing and name requirements set forth under the 
[Texas Business Organization Code (TBOC)] by registering 
with the Secretary of State" and by 
listing the foreign business entity, as its managing member. 
The Petitioner further asserted that any perceived inconsistencies between the Certificate of 
Formation and Operating Agreement were the result of our error in misinterpreting applicable Texas 
laws regarding Limited Liability Companies. Further, the Petitioner indicated that any 
inconsistencies were the fault of the attorney whose services it used to draft and file its corporate 
documentation. 
The Petitioner submitted Title 3, Chapter 1 01 of Texas Code relevant to limited liability companies 
as · evidence of these applicable laws. Section 10 1.052(2)( d) "Company Agreement" of the 
aforementioned section of Texas code states "the company agreement may contain any provisions 
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Matter of E-L- LLC 
for the regulation and management of the affairs of the limited liability company not inconsistent 
with law or the certificate of formation." 
The Petitioner also provided what it claimed to be evidence of capital contributions made by its 
members in the form of Indian bank statements for each individual named in the Petitioner's 
operating agreement. However, none of the submitted statements clearly shows a transfer of funds 
from the claimed members to the Petitioning company. The statements reflect that 
had an outgoing transfer of $75,000 on October 9, 2013; the Beneficiary had an outgoing transfer of 
$65,000 on October 7, 2013; and had an outgoing funds transfer of $75,000 on 
October 7, 2013. We note that these amounts do not correspond with those indicated in RFE 
response Exhibit A, which shows that the Beneficiary and would each contribute 
$330.00 consistent with their claimed 33% ownership and that would contribute 
$340.00 consistent with her claimed 34% ownership interest. 
Lastly, the Petitioner addressed the inconsistencies in its federal income tax returns, asserting that 
the Beneficiary's IRS Form 1040C, which identified him as the sole owner of the company, was due 
to "an error in the Petitioner's professional CPA's understanding of the Petitioner's business entity 
documentation." The Petitioner stated that its CPA subsequently filed a revised IRS Form 1065 but 
that the Internal Revenue Service rejected the filing of this document. The Petitioner's counsel 
explained that "it is unclear to the undersigned_ counsel what is required for filing a partnership tax 
return, and why the IRS rejected the filing." 
The Petitioner provided a copy of the rejection letter from the IRS which explains the reason for the 
rejection, and submitted a copy of the Beneficiary's 2014 IRS Form 1040, including Schedule C in 
which the Beneficiary again 
indicated that he owns the Petitioner as its sole member. 
On March 10, 2016, we issued a decision denying the Petitioner's motion based on the lack of 
evidence resolving the inconsistent documents submitted to establish that the Petitioner and the 
Beneficiary's employer abroad have an affiliate relationship as claimed. We pointed out that the 
Beneficiary's 2014 tax return continues to identify the Beneficiary as the Petitioner's sole owner, 
despite claiming that the CPA who prepared the Beneficiary's 2013 and 2014 tax returns actually 
learned that the Petitionerhas three members after completing the Beneficiary's 2013 tax return. 
We further questioned why the Beneficiary's tax returns were inconsistent with the Petitioner's tax 
returns with regard to the Petitioner's ownership, despite the fact that the same CPA prepared both 
sets of documents. We further found that while the Petitioner provided evidence to show that the 
IRS had rejected its 2013 tax return, it did not explain why the 
tax return identified the foreign entity 
as the Petitioner's sole owner when both the Petitioner and the CPA made prior claims elsewhere 
indicating that the Petitioner is owned by three members. 
Finally, we found that the bank statements the Petitioner provided to establish that its three members 
made capital contributions to the company were insufficient given that neither the fund transfer 
documents nor the Petitioner's bank statements for October 2013 show that the wired funds were 
(b)(6)
Matter of E-L- LLC 
transferred to the Petitioner's account. Furthermore, we found that any fund transfers that the 
Petitioner claims had taken place in October 2013 would not have been contemporaneous with the 
January 2013 filing of the Petitioner's certificate of formation and thus would have been contrary to 
the terms of the operating agreement, even if the Petitioner were shown as the recipient of the 
transferred funds. 
In support of the current motion, the Petitioner provides its Texas Franchise Tax Report for 2016 as 
well as its completed tax returns for 2013 and 2014, both signed and dated April 22, 2016, 
identifying the Beneficiary, and as the Petitioner's three owners. 
The Petitioner also provides its tax return for 2015 without either a date or a signature. In a separate 
cover letter the Petitioner requests that we grant this motion based on the additional supporting 
evidence. 
B. Analysis 
Upon review of the evidence submitted on motion, we find that the Petitioner has not provided 
sufficient evidence to overcome the discrepancies and deficiencies we noted in our two previous 
decisions. We will not disturb our previous finding as the evidence does not establish that the 
Petitioner has a qualifying relationship with the foreign entity. 
The Petitioner asserts that it is owned by the same three individuals who own the foreign entity. 
However, as we noted in our previous decisions, the Petitioner's certificate of formation indicates 
that the foreign entity is the sole managing member of the company, while the Beneficiary's IRS 
Form 1040 identify the Beneficiary as the Petitioner's sole owner. The Petitioner's most recent 
submissions consist of a current franchise tax report, whose relevance the Petitioner did not 
expressly state, and three tax returns, which are not accompanied by any evidence of having been 
filed with the IRS. While the dates indicated on the Petitioner's 2013 and 2014 tax returns indicate 
that the Petitioner may have recently completed these documents in an attempt to correct or make 
changes to prior tax returns with regard to the Petitioner's ownership, the lack of evidence to show 
that the tax returns were actually filed significantly diminishes the probative value of these 
documents, which, even if filed with the IRS, would not be sufficient to resolve the previously 
catalogued inconsistencies regarding the Petitioner's ownership. Further, with regard to the 
Petitioner's submission of its 2015 tax return, this document, even if filed, would be irrelevant for 
the purpose of establishing the Petitioner's eligibility at the time of filing, as the filing of a 2015 tax 
return 
would have taken place after the filing of the instant petition. Despite the Petitioner's burden 
to maintain its eligibility for the benefit sought through adjudication, the Petitioner must first 
establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.F .R. § I 03 .2(b )( 1 ). A 
visa petition may not be approved at a future date after the Petitioner or Beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 
1978). 
Furthermore, the submitted tax returns do not address the lack of evidence pertaining to the capital 
contributions that the Petitioner's members are required to make pursuant to the terms of the 
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(b)(6)
Matter of E-L- LLC 
Petitioner's operating agreement. As previously noted, the Petitioner's prior submission of Indian 
bank statements for each individual named in the Petitioner's operating agreement to show that 
and each made a capital contribution of $75,000 and the Beneficiary 
made a capital contribution of $65,000 gave rise to further doubt the veracity of the Petitioner's 
claims regarding its ownership, as these amounts do not correspond with those indicated in RFE 
response Exhibit A, which shows that the Beneficiary and would each contribute 
$330.00 consistent with each individual's claimed 33% ownership and that would 
contribute $340.00 consistent with her 
claimed 34% ownership interest. It is unclear why the 
and would have contributed $10,000 more than the Beneficiary if the 
Beneficiary's claimed ownership interest is equivalent to that of nor is there any 
explanation as to why any one member would have contributed $10,000 more than the other two 
members if that member had only a 1% greater ownership interest. 
Despite being advised of the need to resolve inconsistencies by submitting independent, objective 
evidence pointing to where the truth lies, the record continues to contain numerous deficiencies and 
inconsistencies that detract from the credibility of the Petitioner's claim regarding its ownership. 
See, Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
In sum, the Petitioner has not shown that the new evidence submitted is sufficient to overcome our 
previous decision. For these reasons, we will affirm our previous decision denying the motion and 
affirming the underlying decision to dismiss the appeal based on the lack of evidence that a 
qualifying relationship existed between the Petitioner and the Beneficiary's employer abroad as of 
the date this petition was filed. 
IV. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Accordingly, the motion to reopen will be denied, and our previous decision will not be 
disturbed. 
ORDER: The motion to reopen is denied. 
Cite as Matter ofE-L- LLC, ID# 18393 (AAO Sept. 12, 2016) 
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