dismissed L-1A Case: Industrial Hardware Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-A-B, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 18, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a distributor of industrial hardware components, seeks to temporarily employ the 
Beneficiary as its vice president of operations under the L-lA nonimmigrant classification for 
intracompany transferees. See 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 Vermont Service Center revoked approval of the instant petition concluding that 
the Petitioner did not establish, as required, that the Beneficiary was employed abroad and would be 
employed in the United States in an executive capacity. The Petitioner then filed an appeal, which we 
dismissed, affirming both grounds cited in the denial. 
The matter is now before us on a motion to reconsider in support of which the Petitioner submits a 
legal brief contending that "the Service errored [sic]" by not considering the previously submitted job 
description and misapplied the statute by focusing on staffing size to the exclusion of "other factors." 
Upon review, we will deny the Petitioner's motion. 
I. LEGAL FRAMEWORK 
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 involves 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. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualify him or her 
to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Matter of D-A-B, Inc. 
II. MOTION TO RECONSIDER 
A. Motion Requirements 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or U.S. Citizenship and Immigration Services (USCIS) 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 may grant a motion that satisfies these requirements and demonstrates eligibility for the requested 
immigration benefit. 
B. Analysis 
The primary issue to be addressed in this decision is whether the Petitioner has made arguments 
establishing that our decision to dismiss the appeal was based on an incorrect application of law or 
USCIS policy with respect to the facts of this case. The Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing (in this case, 
November 2017) and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
As a preliminary matter, we note that the review of any motion is narrowly limited to the basis for the 
prior adverse decision. Here, the subject of the prior decision was our dismissal of the Petitioner's 
appeal. As such, the purpose of this decision is to consider legal arguments that pertain to our prior 
decision dismissing the appeal. 
In our appeal decision, we addressed the Beneficiary's foreign and U.S. employment. In a 
comprehensive discussion of the foreign employment issue, we restated the Beneficiary's job duty 
breakdown, summarized the Petitioner's response to the notice of intent to revoke, and explained why 
we found that the submitted evidence of the foreign job duties and the foreign entity's organizational 
structure was insufficient and did not establish that the Beneficiary was employed abroad in an 
executive capacity. Although we offer a more condensed discussion of the Beneficiary's proposed 
employment, we concluded that the Beneficiary would not be employed in a managerial or executive 
capacity based on our consideration of the Petitioner's organizational structure and the Beneficiary's 
proposed job duty breakdown, which we noted was identical to the Beneficiary's job duty breakdown 
with the foreign entity. 
To the extent that the Petitioner points to errors in the decision issued by the service center, we note 
that it did not raise these alleged errors on appeal, where the Director's revocation decision was 
squarely at issue. Thus, we will not address the claim that "the Service" misapplied the law by 
neglecting to consider the foreign entity's reasonable needs, because there is no evidence that we made 
this error in our decision. Rather, we conducted a review of the entire record and, based on the totality 
of the evidence, determined that the Petitioner did not overcome the Director's determination. 
We determined that the job duty breakdown the Petitioner offered lacked sufficient meaningful content 
as to the Beneficiary's actual job duties; we found this lack of detail to be particularly troubling in 
light of the nearly ten-year period over which the Beneficiary held the same position. We also pointed 
to several non-executive job duties assigned to the Beneficiary and questioned whether the foreign 
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Matter of D-A-B, Inc. 
entity was adequately staffed to support an executive position based on our observation of the low 
amounts paid in employee wages and salaries through July 2016. The Petitioner's complaint that "the 
AAO makes no correlation between the amount of payroll and the ability of employees to alleviate the 
executive of day-to-day operational tasks" is unclear, as employee salaries help determine who was 
employed and the foll- or part-time status of the employees who supported the Beneficiary in her 
foreign position. The Petitioner's claim that we did not mention subordinate employees' job duties 
in our prior analysis does not establish that we committed legal error, as the issue of staffing was 
clearly considered and valid questions arose as to whom the foreign entity actually employed and how 
the Beneficiary was relieved from having to primarily perform non-executive job duties during the 
relevant time period. 
Further, despite the Petitioner's contention, we did not discuss the foreign entity's staffing composition 
to the exclusion of other relevant factors. As indicated earlier, we also discussed the Beneficiary's job 
duties within the context of the foreign entity's organizational makeup. 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 denying a visa petition for classification as an intracompany 
manager or executive. See section 101(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-managerial or 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). Moreover, the employing entity's reasonable needs will not supersede the requirement that the 
Beneficiary must be "primarily" employed in an executive capacity, rather than spending the majority 
of the time on non-qualifying duties. See section 10l(a)(44)(B) of the Act. The record does not 
support the Petitioner's contention that we failed to consider the foreign employer's reasonable needs. 
We acknowledge that the Petitioner disagrees with our decision dismissing the appeal; however, it has 
not provided evidence establishing that our findings were based on an incorrect application of law or 
USCIS 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). Therefore, the Petitioner has not shown cause for 
reconsideration. 
III. CONCLUSION 
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. Because the Petitioner has not shown proper 
cause for reconsideration, it has not met that burden. 
ORDER: The motion to reconsider is denied. 
Cite as Matter of D-A-B, Inc., ID# 4354333 (AAO July 18, 2019) 
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