dismissed L-1A Case: Kitchen And Bathroom Product Import

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-K-&-B- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer of kitchen and bathroom products, seeks to temporarily employ the 
Beneficiary as its president and chief executive officer (CEO) under the L-lA nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) § 
101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(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, concluding that the record did not 
establish, as required, that the Petitioner would employ the Beneficiary in the United States in a 
managerial or executive capacity. The Petitioner subsequently filed an appeal; which we dismissed, 
also determining that the Petitioner did not demonstrate that the Beneficiary would be employed in a 
managerial or executive capacity. 
The matter is now before us again on a motion to reopen and a motion to reconsider. The Petitioner 
submits additional evidence it asserts demonstrates that the Beneficiary would act in an executive 
capacity. 
Upon review, we will deny the motion to reopen and the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our 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). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
Matter of M-K-&-B- Inc. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner submits additional evidence it contends demonstrates that the Beneficiary 
would act in an executive capacity in the United States, including an affidavit from the Beneficiary, 
an updated organizational chart current with the date of the appeal, equipment and property leases 
executed by the Beneficiary, a letter from the Beneficiary granting bonuses to his claimed 
subordinates, amongst other evidence. As such, we will address this submitted evidence. However, 
we conclude that the Petitioner has not submitted sufficient new facts supported by affidavits or other 
documentary evidence to warrant reopening this matter. 8 C.F.R. § 103.5(a)(2). 
In our previous decision, we affirmed the Director's conclusion that the Petitioner did not establish 
that the Beneficiary would act in an executive capacity in the United States. In our dismissal we 
pointed to the Beneficiary's asserted duties and concluded that they lacked sufficient detail to 
demonstrate that he would primarily perform executive-level duties. Further, we noted certain 
discrepancies on the record that were not sufficiently addressed by the Petitioner, including the stated 
number of employees in the Form 1-129 when compared to the record and the fact that some of its 
asserted managers were paid less than their claimed subordinates, amongst others. We determined 
that this conflicting evidence regarding staffing levels and salaries left question as to whether the 
Beneficiary would act primarily in an executive capacity under an extended petition. 
The record indicates that the Petitioner operates a business "that imports American-style kitchen and 
bathroom products," including cabinets, marble countertops, and stainless steel sinks. On motion, the 
Petitioner largely submits evidence that is not relevant to establishing the Beneficiary's eligibility as 
of the date the petition was filed. For instance, the Petitioner provided an affidavit from the 
Beneficiary which primarily discusses the current state of the business, indicating that it "currently" 
has 26 employees and it provides an accompanying organizational chart specific to its present 
operations. Likewise, it submits updated duty descriptions for managers acting within this current 
organizational structure including the vice president of finance and chief financial officer, a chief 
operating officer, a sales and marketing manager, and an administrative manager. Further, the 
Petitioner submits website printouts from Amazon and Wayfair reflecting internet transactions dated 
in 2019. It also provides a letter dated in December 2018 1 reflecting the Beneficiary's claimed 
approval of bonuses for 16 of the company's employees. 
However, we note that 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). Therefore, evidence of the Petitioner's current organizational structure and business 
operations, or other similar evidence dating after the date the petition is filed, is not relevant to 
demonstrating the Beneficiary's eligibility. To illustrate, the Petitioner's organizational chart as of the 
date the petition was filed listed a subordinate vice president and chief financial officer (CFO) and 
three managers subordinate to this employee, including a sales and marketing manager, an office 
manager, and a warehouse manager; as well as ten other operational employees reporting to these 
managers. In contrast, the present organizational chart on motion is fundamentally different, including 
1 The petition was filed in July 2018. 
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Matter of M-K-&-B- Inc. 
a subordinate chief operating officer (COO) with two subordinate managers overseeing operational 
employees and a CFO reporting to the Beneficiary supervising a subordinate accounting supervisor 
and accountants. As such, even if the Petitioner provided supporting documentation to substantiate 
its current organizational chart, this new evidence sheds no light on its organizational structure as of 
the date the petition was filed as it includes several different employees and managers. 
Beyond this, the evidence submitted by the Petitioner on motion does little to overcome the reasons 
for our previous dismissal of its appeal. Based on the statutory definition of executive capacity, the 
Petitioner must first show that the Beneficiary will perform certain high-level responsibilities. 
Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). The 
Petitioner must also prove that the Beneficiary will be primarily engaged in executive duties, as 
opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. 
v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
We discussed at length in our previous decision the generic nature of the Beneficiary's duties and how 
they did not provide credible details to substantiate that he would devote a majority of his time to 
qualifying executive-level tasks. On motion, the Petitioner only resubmits the Beneficiary's 
previously provided duty description; and again, submits few additional details related to his specific 
executive tasks. For instance, as noted in our previous decision, the Petitioner does not detail or 
document procedures that the Beneficiary implemented, standards he set, how he publicly represented 
the organization, contracts and partnerships he finalized, marketing plans or operations he oversaw, 
objectives and plans he revised, or how he would receive guidance from a board of directors consisting 
of only him and the company's vice president. This lack of detail and documentation is particularly 
notable considering that the Petitioner asserts that the Beneficiary acted in his role as far back as July 
2015 and up until approximately June 2018. 
The Petitioner has not submitted a sufficiently detailed duty description describing the Beneficiary's 
day-to-day executive-level duties. The Beneficiary's duty description includes several generic duties 
that could apply to any executive acting in any business or industry and they do not provide insight 
into the actual nature of his role. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive in nature, otherwise meeting the definitions would simply 
be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner provided little evidence on motion to overcome this fundamental basis of our dismissal. 
For instance, the Petitioner submits an equipment lease agreement signed by the Beneficiary in 
February 2018. However, this evidence is not probative in substantiating the Beneficiary's primary 
performance of qualifying executive-level tasks. In fact, the Beneficiary's involvement in the lease of 
lift for its warehouse would indicate his involvement in non-qualifying operational level tasks. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is 
not considered to be "primarily" employed in an executive capacity. See, e.g., sections 10l(a)(44)(B) 
of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); 
Matter of Church Scientology Int'l, 19 I&N Dec. 593,604 (Comm'r 1988). 
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Matter of M-K-&-B- Inc. 
Again, the Petitioner provides mostly evidence relevant to after the date the petition was filed, such as 
online transaction reports from 2019, a "current organizational chart," and a bonus letter from 
December 2018. As noted, this evidence is not relevant to demonstrating the Beneficiary's eligibility 
as of the date the petition was filed. The only other evidence provided on motion specific to 
corroborating the Beneficiary's executive level actions prior to the date of the petition are warehouse 
leases he signed in October 2016 and February 2018. Although we acknowledge that this may confirm 
that the Beneficiary's holds signatory authority for the Petitioner, these leases do not sufficiently 
demonstrate that the Beneficiary was likely to devote a majority of his daily time to executive level 
duties as of the date the petition was filed. 
Further, as noted, we also dismissed the previous appeal noting certain discrepancies specific to the 
Petitioner's claimed organizational structure. For instance, we pointed out that the Form I-129 stated 
that the Petitioner had nine employees as of the date the petition was filed, while its organizational 
chart showed 15 employees. We also noted that the Form I-129 reflected that the Beneficiary would 
earn only $50,000, or less than his asserted subordinate managers, including the vice president and 
CFO ($82,800), sales and marketing manager ($63,600), and office manager ($56,400). Likewise, we 
pointed out that California State quarterly wage tax reports dating near to the date of the petition 
reflected that the claimed vice president and CFO earned more than the Beneficiary. We also stated 
that the Petitioner's 2016 IRS Form 1120, U.S. Corporation Income Tax Return reflected that the 
Beneficiary had earned $110,000, while his 2016 IRS Form W-2 Wage & Tax Statement showed he 
made approximately $50,000 that year. Lastly, we pointed out that the Director had noted a 
discrepancy in the claimed vice president and CFO' s duties, indicating that he would evaluate financial 
staff, while the organizational chart reflected that these staff did not report to him. 
On motion, the Petitioner provides little new probative evidence to address these discrepancies. For 
example, the Petitioner submits only one document relevant to the noted discrepancies; namely, a 
letter from its accountant indicating that its 2016 IRS Form 1120 reflected a different salary for the 
Beneficiary when compared to his 2016 IRS W-2 due to a bonus reflected in a different portion of the 
IRS Form 1120. Even if we accept this reasoning, this document and the other evidence does not 
discuss or address the other discrepancies on the record we noted above. Further, it is also noteworthy 
that the Petitioner contends that the Beneficiary had been acting in an executive capacity since 2015 
and that he oversaw a vice president and CFO overseeing a group of subordinate managers; yet, the 
record to date reflects no evidence of him delegating tasks to these subordinates. In sum, the 
Petitioner's asserted organizational chart is not credible in light of the submitted evidence. 
In conclusion, the Petitioner has not established that the Beneficiary would act in an executive capacity 
under an approved petition. The Beneficiary's duty description is overly vague and the Petitioner 
provides few details and little supporting evidence to substantiate that he was primarily devoted to 
qualifying executive level duties as of the date the petition was filed. Further, the Petitioner submits 
little new evidence to address the discrepancies we noted in our previous decision that left question as 
to its claimed organizational structure and whether the Beneficiary acted within a complex 
organizational hierarchy as of the date the petition was filed. Therefore, the Petitioner has not 
submitted sufficient new facts supported by documentary evidence to overcome our previous 
conclusion that the Beneficiary would not be employed in an executive capacity in the United States. 
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Matter of M-K-&-B- Inc. 
B. Motion to Reconsider 
The Petitioner provides a brief on motion contending that the Director's denial of the petition and our 
previous dismissal of its appeal were erroneous consistent with the regulations. In order for a motion 
to reconsider to be granted, the Petitioner must establish that our previous decision was incorrect based 
on the evidence ofrecord at the time of that decision. 8 C.F.R. § 103.5(a)(3). 
However, for reasons similar to those set forth in the previous section, the Petitioner has not 
demonstrated that our previous decision was incorrect based on the evidence of record at the time of 
that decision. As we have discussed, the Beneficiary's duty description is generic and the Petitioner 
provides few details and little supporting evidence to substantiate that he was primarily devoted to 
qualifying executive-level duties as of the date the petition was filed. Further, the Petitioner submits 
little new evidence to address the discrepancies we noted in our previous decision leaving question as 
to its claimed organizational structure and whether the Beneficiary acted within a complex 
organizational hierarchy as of the date the petition was filed. In addition, despite asserting that the 
Beneficiary has been acting in an executive capacity since 2015 through the date of the petition in July 
2018, it has provided few details of his executive-level tasks and decisions prior to the date the petition 
was filed or submitted supporting evidence to substantiate them. Despite indicating that the 
Beneficiary supervised a subordinate vice president and CFO overseeing three other managers as of 
the date the petition was filed, there is no supporting evidence to corroborate him delegating duties to 
these subordinate managers or the other asserted members of its organizational structure. 
In addition, on motion, the Petitioner refers to the Department of Labor's Occupational Outlook 
Handbook (OOH) and O*Net Online and the description of an executive position provided by these 
resources. However, it is not clear how these generic descriptions of an executive working for a 
company in any industry establish that the Beneficiary acted in an executive capacity as of the date 
the petition was filed. In fact, these generic descriptions only farther highlight the vague nature of the 
Beneficiary's duty description. Outside of this, the Petitioner sets forth no reasons why our previous 
dismissal was in error, only reiterating the regulations and previously submitted evidence. 
Therefore, the Petitioner has not established that our previous decision was incorrect based on the 
evidence ofrecord at the time of that decision. 8 C.F.R. § 103.5(a)(3). 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
our prior decision. The motion to reopen and motion to reconsider will be denied for the above stated 
reasons. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of M-K-&-B-Inc., ID# 6045714 (AAO Sept. 19, 2019) 
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