dismissed L-1A Case: Jewelry Trading

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a diamond and jewelry trading company, seeks to extend the Beneficiary's temporary 
employment as its president under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) § 101(a)(l5)(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 a managerial or executive capacity. 
The Director, Vermont Service Center, denied the petition concluding that the evidence of record did 
not establish that the Beneficiary would be employed in a managerial or executive capacity. 
Subsequently, the Petitioner filed a combined motion to reopen and reconsider, and the Director 
affirmed the denial of the petition stating that the evidence of record did not establish that the 
Beneficiary would be employed in a managerial or executive capacity, or that the Petitioner has 
submitted sufficient evidence that it has a qualifying relationship with the Beneficiary's foreign 
employer. The Petitioner then submitted an appeal of the Director's decision to our office, which we 
dismissed. 
The matter is again before us on a combined motion to reopen and motion to reconsider. Upon 
review, we will deny the combined motion. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The regulations state that "the official having jurisdiction may, for proper cause shown, reopen the 
proceeding." 8 C.F.R. § 103.5(a)(l)(i). This provision limits our authority to reopen the proceeding 
to instances where "proper cause" has been shown for such action. Thus, to merit reopening, the 
submission must not only meet the formal requirements for filing, but the petitioner must also show 
proper cause for granting the motion. 
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Matter of V- Inc. 
B. Requirements for Motions to Reopen 
A motion to reopen must state the new facts to be provided in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 1 03.5(a)(2). Also, 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, 738F.3d 1230, 1239-40 (lOth Cir. 2013). 
C. Requirements for Motions to Reconsider 
A motion to reconsider must state 
the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
Service policy. A motion to reconsider a decision on an application or petition must, when filed, 
also establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider contests the correctness of the prior 
decision based on the previous factual record, as opposed to a motion to reopen which seeks a new 
hearing based on new facts. Compare 8 C.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2). 
II. DISCUSSION AND ANALYSIS 
A. Qualifying Relationship 
In denying the 
petition, the Director found that the Petitioner is not a subsidiary of the Beneficiary's 
foreign employer because the foreign entity owns only a 25% interest in the Petitioner and there is 
no evidence that it controls the Petitioner. The Director further found that the two entities are not 
affiliates because they do not have the same parent company and they are not owned and controlled 
by the same individual or group of individuals. 
In dismissing the Petitioner's appeal, we noted that the record contains inconsistencies regarding the 
foreign entity's actual ownership of a 25% interest in the Petitioner, and found that, even if the 
evidence demonstrated that the foreign entity acquired 25% ownership interest in the Petitioner as 
claimed, the Petitioner did not establish that the foreign entity controls the Petitioner or that the two 
entities have a qualifying parent/subsidiary relationship. We further affirmed the Director's finding 
that the two entities are not affiliates as the Petitioner and foreign entity do not share a single owner 
in common and are not owned and controlled by the same group of individuals. 
The Petitioner filed this CQmbined motion to reopen and motion to reconsider on August 5, 2016. 
The submission constituting the combined motion, as it relates to this issue, consists of the Form 
I-290B, a brief, and affidavits from 
and the owners of the foreign entity. All four of the 
affidavits include similar language and state that each of the four individuals invested in the foreign 
entity but are "sleeping partners in the organization and do not have any authority in management of 
the' organization as [they are] not im;olved in the gemstone and jewelry business." Each affiant 
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(b)(6)
Matter of V- Inc. 
further states that "the entire management of the organization is done by 
Three ofthe affidavits are dated February 8, 2016, two years and two months after 
the filing of the instant petition, and one of the affidavits is dated July 26, 2016, two years and seven 
months after the filing of the instant petition. 
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The Petitioner contends that these affidavits demonstrate that controls the 
foreign entity as the majority stakeholder of a 30% interest and that he controls the minority share of 
the Petitioner through the foreign entity's 25% ownership interest in the Petitioner. The Petitioner 
further contends that the regulations do not require identical ownership, but only that the ownership 
and control be the same individual or the same group of individuals in approximately the same 
shares. The Petitioner emphasizes that the foreign entity owns 25% of the Petitioner's shares and 
owns 30% ofthe foreign entity's shares. 
B. U.S. Employment in a Managerial or Executive Capacity 
In denying the petition, the Director found that the Petitioner had not demonstrated that it has the 
complexity required to support the Beneficiary in a qualifying managerial or executive position. The 
Director also found that the Petitioner did not establish that the U.S. business has an organizational 
structure sufficient to support the Beneficiary in a supervisory position that is higher than a first-line 
supervisor of non-professional employees, and that it did not sufficiently explain how the 
Beneficiary will primarily perform managerial tasks on a day-to-day basis. 
In dismissing the Petitioner's appeal, we found that it had not provided sufficient information 
detailing the Beneficiary's duties at the U.S. company to demonstrate her employment as a manager 
or executive. We found that the Petitioner had not provided a consistent or accurate organizational 
chart or other representation of its structure. We further found that the Petitioner did not 
demonstrate that the Beneficiary's duties primarily focus on the management of the organization and 
the supervision of qualifying managerial, professional, or supervisory employees. Finally, we 
determined that the Petitioner did not establish that Beneficiary primarily manages its marketing 
function, or that the organization is sufficiently staffed to relieve the Beneficiary from performing 
the day to day marketing functions that she is purported to manage. 
The submission constituting this combined motion to reopen and motion to reconsider, as it relates to 
this issue, consists of the Form I-290B, a brief, and IRS Forms W-2, Wage and Tax Statement, 
issued by the Petitioner in the years 2013, 2014, and 2015. The Petitioner provides a list of 15 
employees who have worked for the company since February 2013, of which only five were 
employed at the time of filing and only one remains employed to date. The Petitioner also provides 
a more detailed description of the marketing/sales manager position duties, which the Petitioner 
claims demonstrates that the marketing/sales manager performs in a managerial capacity subordinate 
to the Beneficiary. The Petitioner also states that it has now hired an accountant and has a CPA to 
finalize balance sheets and audit final tax returns. 
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Matter of V- Inc. 
C. Denial ofthe Motion to Reopen 
Upon review, we find that the Petitioner did not provide any new facts to change the result in the 
case. 
Here, although the Petitioner presents new facts related to the control of the foreign entity, the 
evidence was created after the date of filing the petition and at least one year and two months after 
· the original denial of the instant petition. Because the evidence had not yet been created at the time 
of filing the petition, it is unknown whether the same agreements were in place at the time of filing 
to establish control by one individual owning 30% interests of the foreign entity. Further, this new 
evidence, even if it established control of the foreign entity as of the date of filing, does not establish 
that the Petitioner and the foreign entity have any qualifying relationship, i.e. as a subsidiary, 
affiliate, or branch office. Regardless of who controls the foreign entity, .the Petitioner has not 
established that the foreign entity, or any of its owners, exercises control over the petitioning 
company based on its claimed minority (25%) ownership interest. The Petitioner has not addressed 
this fundamental deficiency in its motion. 
The Petitioner also provides a list of five individuals employed at the time of filing the petition and 
eight Forms W-2 for 2013, including the Beneficiary's. The Petitioner provides a more detailed 
position description for the Beneficiary's subordinate, the marketing/sales manager and states that it 
has now hired an accountant. However, this new evidence does not address many of the deficiencies 
in the record that were discussed at length in our previous decision and is not sufficient to establish 
that the Beneficiary will be employed in a primarily managerial or executive capacity under the 
extended petition. 
As such, the Petitioner has not established tliat the evidence submitted on motion would change the 
outcome of this case if the proceeding were reopened. Therefore, the Petitioner has not met the 
requirements of a motion to reopen. 
"There is a strong public interest in bringing [a case] to a close as promptly as is consistent with the 
interest in giving the [parties] a fair opportunity to develop and present their respective cases." INS 
v. Abudu, 485 U.S. 94, 107 (1988). Motions for the reopening of immigration proceedings are 
disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of 
newly~discovered evidence. INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 
U.S. 94). A party seeking to reopen a proceeding bears a "heavy burden" of proof. INS v. Abudu, 
485 U.S. at 110. With the current motion, the Petitioner has not met that burden. 
D. Denial of the Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and be supported by citations to 
pertinent statutes, regulations, and/or precedent decisions to establish that the decision was based on 
an incorrect application of law or USCIS policy. A motion to reconsider a decision on an 
application or petition must, when filed, also establish that the decision was incorrect based on the 
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Matter of V- Inc. 
evidence of record at the time of the initial decision. See 8 C.F.R. § 103.5(a)(3) (detailing the 
requirements for a motion to reconsider). 
Upon review, we find that the Petitioner did not properly state the reasons for reconsideration. The 
Petitioner briefly states that it meets the requirements for a qualifying relationship but its assertions 
. on this issue were discussed at length in our appellate decision and will not be discussed again on 
motion. The Petitioner also briefly states that the Beneficiary is relieved from performing the non­
qualifying duties associated with her responsibilities for overseeing the commercial and technical 
aspects of the marketing/sales operation and office work, but this is insufficient to overcome the 
reasons for dismissal, which were also discussed at length in our appellate decision and will not be 
discussed again on motion. 
Based on the Petitioner's statements in support of this motion, it appears that the Petitioner seeks to 
address matters that were already addressed on appeal. 
We conclude that the _documents constituting this motion do not articulate how our decision on 
appeal misapplied any pertinent statutes, regulations, or precedent decisions to the evidence of 
record when the decision to dismiss the appeal was rendered. The Petitioner has therefore not 
submitted any document that would meet the requirements of a motion to reconsider. Accordingly, 
the motion to reconsider must be denied. 
III. CONCLUSION 
The Petitioner should note that, unless USCIS directs otherwise, the filing of a motion to reopen or 
reconsider does not stay the execution of any decision in a case' or extend a previously set departure 
date. 8 C.F.R. § 103.5(a)(l)(iv). 
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). Here, that burden has not been met. Accordingly, the combined motion will be denied, 
the proceedings will not be reopened or reconsidered, and our previous decision will not be 
disturbed. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofV- Inc., ID# 113560 (AAO Nov. 23, 2016) 
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