dismissed L-1A Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-USA LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a management consulting company, seeks to extend the Beneficiary's temporary 
employment as its vice president under the L-1 A 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 a managerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity 
in the United States and that its parent company continued to do business in India. We dismissed the 
Petitioner's appeal, affirming the Director's determination that the record did not establish the 
Beneficiary would be employed in an executive capacity under the extended petition. We further 
determined, after issuing a notice of intent to dismiss (NOID), that the Petitioner had willfully 
misrepresented material facts pertaining to the Beneficiary's employment with its parent company, 
leading us to conclude that he was not employed by that company for one year in the three years 
preceding the filing of the petition. 
In its motion to reopen, the Petitioner submits a brief and additional evidence, including new 
affidavits and supporting documents that address our finding of willful misrepresentation of material 
facts, as well as copies of documents that were submitted earlier in these proceedings. 
Upon review, we will deny the motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as 
submission of a properly completed Form I-290B, Notice of Appeal or Motion, with the correct fee), 
and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
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. 
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Matter of R-USA LLC 
§ 1 03.5(a)(2). We may grant a motion to reopen that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
II. ANALYSIS 
At issue in this matter is whether the newly submitted facts and evidence overcome our previous 
findings that the Petitioner (1) willfully misrepresented material facts regarding the Beneficiary's 
employment with its foreign parent company, and (2) did not 
establish that the Beneficiary would be 
employed in an executive capacity in the United States under the extended petition. 
For the reasons discussed below, we will deny the motion to reopen as the Petitioner has not 
overcome the grounds for dismissal of the appeal. 
A. Willful Representation of Material Facts 
In dismissing the appeal, we determined that the Petitioner had willfully misrepresented material 
facts in claiming that the Beneficiary was employed as vice president of 
its Indian parent company, from June 2005 until December 2007. Prior to issuing this 
finding, we obtained copies of the Beneficiary's nonimmigrant visa application
1 
submitted to the 
U.S." Consulate in in October 2007. In the NOID, we advised the Petitioner that the 
Beneficiary did not identify as a current or former employer where asked for details about 
his current employment and work history on the visa application forms, which he had signed, 
thereby certifying that the information provided was "true and correct to the best of [his] knowledge 
and belief." This information directly contradicted the Petitioner's claims regarding his foreign 
employment. 
In response, the Petitioner submitted a copy of the Beneficiary's 2007 Form DS-157, explaining that 
this form did not require information about his current employment. We emphasized that the 
Petitioner did not provide copies of the Beneficiary's Forms DS-156 or DS-15 8, both of which 
clearly required the Beneficiary to identify his current employer. We determined that it had not 
overcome this major discrepancy. Further, we discussed other evidence which raised doubts about 
the Beneficiary's claimed employment, including· the fact that he was enrolled as a master's degree 
student at an Indian university during the claimed period of foreign employment and the Petitioner 
had not supported its claim that this was a part-time program that did not require his attendance 
during typical weekday business hours. Therefore, 
we concluded that the Petitioner willfully 
submitted a number of false documents, including letters and payroll documents, intended to 
establish that the Beneficiary had worked for 
On motion, the Petitioner attributes the employment information provided on the Beneficiary's 2007 
nonimmigrant visa application to "unintended errors" made by the travel and visa agent he allegedly 
1 
We reviewed Form DS-156, Nonimmigrant Visa Application; Form DS-157, Supplemental Nonimmigrant Visa 
Application; and Form DS-158, Contact Information and Work History for Nonimmigrant Visa Applicant, all of which 
were submitted as part of the Beneficiary's application for an F-1 nonimmigrant (student) visa. 
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MatterofR-USA LLC 
f.! 
used to assist him with his F-1 visa application. The Petitioner submits an affidavit from the 
Beneficiary and two letters from in support of this claim. 
The Beneficiary declares, as he has done previously, that he worked full-time for from 
8:00 a.m. to 4:30 p.m. on weekdays from June 2005 until December 2007, while completing his 
master's degree in a part-time program that required class attendance between 6:00 and I 0:00p.m. , 
three to four days per week. He further reiterates that he worked for the two employers listed on his 
visa applications to fulfill industrial training requirements for his degree program, and that the 
assignments were project based and required office attendance on weekends only. 
The Beneficiary states that he hired as his agent to prepare his F -1 visa 
application in June 2007 and the agent "was supported to prepare all forms and documents according 
to information [he] provided." He declares that, prior to the denial of the appeal he "had no 
reference as to what this agent had filled in forms DS-156, DS-157 & DS-158" and "did not read the 
informatiol) filled in thym until recent notice sent by AAO." The Beneficiary indicates that "all the 
missing & misleading information is not filled in by [him]" and that he "was shown and was told to 
sign this form on the day of submission to the US Visa application centre in 
India." He acknowledges that he "may have signed and submitted" the forms but they "do not 
reflect the true history of [his] employment in India." 
A letter form proprietor, confirms that the Beneficiary 
hired her agency to assist him with applications to U.S. universities and to prepare his F-1 visa 
application. states that "prepared and filled in the Forms DS-156, DS-15 7 & 
DS-158." She goes on to explain that there was an unintended error on the DS-156 and that the 
preparer should have stated the Beneficiary 's current employment as "Vice President" rather than 
"Student Completed," noting that there may have been confusion because he had recently completed 
his master's degree. further states there was an unintentional error on the Form DS-15 8 
in that the preparer failed to list the Beneficiary 's then-current employment with 
As an explanation for how the Beneficiary may have overlooked these claimed errors, 
states: 
[The Beneficiary] was to meet us at USA VFS Application Center in 
. . . and was shown these forms for the first time along with other 
documents that he had already provided. We requested him to sign forms at proper 
locations and then he submitted to the USA Visa Application Center 5 days before 
Visa Interview. This process is done with many students at USA Visa Application . 
Center and due to extreme rush at such location [the Beneficiary] may not have 
noticed the errors. 
In a separate letter, office manager provides a list of documents the Beneficiary 
submitted to the agency in connection with his F-1 visa application and asserts that copies of these 
documents are in its records. Attached to the letter are general instructions and document lists 
related to the visa application process, none of which contain any references to the Beneficiary. 
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Matter of R-USA LLC 
Upon review of this newly submitted evidence, the Petitioner has not overcome our finding that it 
willfully misrepresented material facts regarding the Beneficiary's foreign employment. The 
Beneficiary's Nonimmigrant Visa Application signed on October 26, 2007, was previously 
incorporated into the record of proceedings. Line #39 on DS-156 asks the applicant: "Was this 
Application Prepared by Another Person on Your Behalf?" The response given was "No." Item #40 
on the DS-156 requests the name, address, signature, and date of signature for ~he person who 
prepared the application and for that person's relationship to the applicant. This item was left blank. 
The Beneficiary and both claim to have a copy of the submitted DS-156, but 
neither has explained why an employee of would deny preparing the 
application if they did in fact prepare it. 
In light of this unresolved discrepancy, the evidence submitted is insufficient to establish that 
and not the Beneficiary, actually prepared the DS-156, DS-157 and DS-158. 
claims to have copies of all documents the Beneficiary submitted to them, but did not provide these 
documents for review, nor did it provide evidence of any personal correspondence, agreements or 
receipts related to the service it claims it provided to the Beneficiary. 
Further, we notified the Petitioner of the discrepancies in the nonimmigrant visa application forms 
prior to the dismissal of the appeal, and it submitted an affidavit from the Beneficiary in response to 
the NOID. The Beneficiary stated at the time that he had "conducted a diligent pursuit of [his] 
records" and "made appropriate enquiries of others to inform [himself] in order to make this 
affidavit." He makes this same statement in the newly submitted affidavit, but does not explain why 
he did not previously discover or disclose that he did not prepare his own visa application. 
In addition, the evidence submitted on motion does not address our finding that the Beneficiary's 
enrollment in a master's degree program undermined its claim that he was a full-time employee of 
during the same time period. The Beneficiary states that he was a part-time student, but 
there is no indication from the institution he attended that its master of e-Business degree was 
designed as a part-time program. Absent such evidence, it is unclear how the Beneficiary as a part­
time student, would have completed the program within the standard four semesters allotted. 
Overall, the newly submitted evidence does not establish that the Beneficiary did not prepare the 
nonimmigrant visa application forms or that he reasonably did not have knowledge of their content. 
As we have no reason to doubt the credibility of the Beneficiary's statements on his student visa 
application, we affirm our conclusion that the Petitioner misrepresented material facts and submitted 
false documents in an attempt to establish that the Beneficiary was employed by for at 
least one year in the three years preceding his initial entry to the United States in 2007. 
B. U.S. Employment in an Executive Capacity 
In dismissing the appeal, we also found that the record was insufficient to establish that the 
Petitioner would employ the Beneficiary in an executive capacity, as defined at section 10l(A)(44) 
of the Act, under the extended petition. We analyzed the Beneficiary's stated job duties in light of 
the nature, scope and structure of the business as documented in the record and determined that the 
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Matter of R-USA LLC 
Petitioner did not demonstrate that the Beneficiary would primarily perform executive duties as of 
the date offiling in January 2015. 
We acknowledged the Beneficiary's authority over staff and business matters, but explained that, 
based on the overall absence of a documented managerial staff and administrative and sales 
personnel to perform non-executive functions,, the record did not show the Beneficiary's actual 
duties would be primarily executive in nature. For example, the Petitioner stated the Beneficiary 
would spend more than one-third of his time supervising subordinate department managers, but we 
found this claim implausible as the company had only three employees, including the Beneficiary 
and his supervisor, the company president, at the time of filing. Many positions were vacant and the 
Petitioner did not explain how responsibilities attributed to these positions were distributed among 
the three employees it had at the time of filing. We also acknowledged that the Petitioner claimed 
for the first time on appeal that the Beneficiary would be supervising an 18-person team of 
"managers and associates" employed by the foreign parent company but found that the Petitioner 
had not adequately documented or explained what roles they assumed or explained why it had not 
mentioned the foreign staff prior to the denial of the petition. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 1 03.5(a)(2). We interpret "new facts" to mean facts that are relevant to the issue(s) raised on 
motion and that have not been previously submitted in the proceeding, which includes the original. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
' 
Here, the majority of evidence submitted on motion was previously submitted at the time of filing, in 
response to the Director's request for evidence, or in support of the appeal. This evidence includes 
copies of project management consulting contracts and related documents, as well as position 
descriptions for subordinate employees and contractors, none of which were shown to work for the 
company at the time of filing. The Petitioner does not explain why this evidence is being re­
submitted in support of its motion to reopen and does not claim that we overlooked it previously. In 
addition, significant portions of the brief submitted on motion were taken verbatim from the brief 
submitted in support of the appeal. Statements and evidence that were previously submitted are not 
"new facts" and we will not discuss them further here. 
The Petitioner does submit for the first time a copy of its New Jersey Form NJ-927, Employer's 
Quarterly Report, for the first quarter of 2015, a document which provides further insight into the 
staffing of the company at the time of filing. During that quarter, the Petitioner paid $20,000 in 
wages to three employees, including $15,000 to the Beneficiary, $2,500 to the company president 
and $2,500 to whose position title has not been provided. This evidence further 
undermines the Petitioner's claim that the Beneficiary would be spending more than one-third of his 
time overseeing multiple department managers and their managerial and professional staff. Rather it 
shows that the company employed, at most, one employee subordinate to the Beneficiary who did 
not work on a full-time basis, and casts further doubt on the Beneficiary's stated duties. 
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Matter of R-USA LLC 
The Petitioner's brief also includes an expanded position description in which the Petitioner focuses 
on how the Beneficiary's role meets the statutory definition of "executive capacity." The 
description, while lengthy, does not provide new information about his position as of the date of 
filing or provide additional insight into the nature of his day-to-day tasks at that time. Rather, the 
description focuses on his authority to make decisions and establish policies and objectives, and his 
authority over employees who did not work for the company when' the petition was filed. 
As noted in our prior decision, the Beneficiary level of authority is not in question. However, to 
establish that the Beneficiary will be employed in an executive capacity, the Petitioner must show 
that the Beneficiary will perform certain high-level responsibilities stated in the statutory definition. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Second, the Petitioner must prove that the Beneficiary will be primarily engaged in executive 
duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See, 
e.g., Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
Here, the Petitioner did not establish how the Beneficiary would be relieved from performing 
operational activities. 
The Petitioner is engaged in providing management consulting services and at the time of filing 
employed a president, a vice president, and a part-time employee whose position and job duties have 
not been disclosed. The Petitioner claims it uses consultants to·manage its hotel development project 
management consulting contracts, but did not adequately document the services they provided at the 
time of filing. The evidence indicates that the Petitioner also provides management consultant 
services to clients outside the hospitality industry and has not identified any employee or contractor 
who provides these services. It submitted an organizational chart with eight or more vacancies at the 
time of filing and did not explain how it was operating with so many key operational and 
administrative positions left unfilled. For these reasons, the newly submitted explanation of the 
Beneficiary's position, when considered in the context of the totality of the evidence, does not 
overcome the basis for dismissal of the appeal. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause to reopen the proceeding or 
established eligibility for the immigrant benefit sought. 
ORDER: The motion to reopen is denied. 
Cite as Matter of R-USA LLC, ID# 321203 (AAO Apr. 25, 2017)