dismissed L-1A Case: Marketing Research

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-C-G-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. I I. 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a consulting company for marketing research firms. seeks to temporarily employ the 
Beneficiary as its chief executive officer under the L-1 A nonimmigrant classification tor 
intracompany transferees. See Immigration and Nationality Act (the Act) section IOI(a)(I5)(L). 
8 U.S.C. § 110l(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 denied the petition. The Petitioner appealed the denial 
which we dismissed finding that the Petitioner had not established that the Beneficiary would be 
employed in an executive capacity for the Petitioner. 1 We also determined that the Petitioner had 
not provided evidence that the intended employment would be temporary as required by 8 C.F.R. 
§ 214.2(1)(3)(vii). The matter is before us on a motion to reopen. The Petitioner on motion has 
demonstrated that the Beneficiary's intended employment would be temporary. so we withdraw our 
determination on the temporary employment issue. In its motion, the Petitioner submits additional 
evidence and asserts that it will employ the Beneficiary in an executive capacity. We will deny the 
motion to reopen. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, for instance, submission of a properly completed Form l-290B. Notice of Appeal or Motion. with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § I 03.5(a)(l ). 
A motion to reopen is based on factual grounds and must (I) 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. 
§ I 03.5(a)(2). A motion to reconsider 2 is based on legal grounds and must (I) state the reasons for 
1 
The Petitioner did not claim that the Beneficiary would be employed in a managerial capacity. We, therefore, restricted 
our analysis to the Beneficiary's claimed executive capacity. 
2 The Petitioner has not tiled a motion to reconsider and does not offer legal argument suppmted by pertinent precedent 
decisions to establish that our decision on the issue of the Beneficiary's U.S. executive capacity was based on an 
incorrect application of Jaw or policy. 
Matter of A-C-G-, Inc. 
reconsideration; (2) be supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application of law or policy; and (3) 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). 
II. ANALYSIS 
On motion, the Petitioner submits copies of several additional agreements negotiated and executed 
by the Beneficiary prior to and after tiling the petition. The Petitioner states that these agreements 
relate to its evaluation and execution of merger and acquisition opportunities with several marketing 
research businesses in the United States. The Petitioner also claims that these agreements show that 
the Petitioner plans to acquire existing U.S. consulting businesses, increase its staffing, and establish 
strategic partnerships. 3 The Petitioner contends that the Beneficiary has been acting in an executive 
capacity by entering into these agreements and that another employee would not have the authority 
to enter into these agreements on its behalf The Petitioner avers that the Beneficiary is directing a 
major function of the organization by negotiating and executing these agreements. 
We have reviewed the agreements submitted on motion and note that the Beneficiary's execution of 
these agreements demonstrate that he has exercised his discretionary authority to enter into these 
agreements as the Petitioner's co-founder. We reiterate. however, that the Petitioner has not 
provided evidence of existing in-house or outsourced workers who would carry out the non-executive 
day-to-day activities associated with any of the Petitioner's specific operations. Perfonning the 
necessary tasks to develop relationships, increase staffing, and establish strategic partnerships is not 
directing a function but are the actual activities necessary to establish and run the Petitioner's business. 
Performing the necessary functions of the company is not directing the fimction. The Petitioner has 
not satisfied all four elements of the statutory definition of executive capacity. 4 The record on 
motion is insufficient to establish that the Beneficiary will perform primarily in an executive 
capacity. 
We also noted in our denial decision that the record included "Leadership Profiles" for several 
otlicials of the organization. The Beneficiary's profile states that "[h]e consults for our clients in 
both practice areas of organic and inorganic business development." We found that this profile of 
the Beneficiary's role in the organization showed his active involvement in providing client 
consultation, not providing oversight of subordinate consultants. On motion. the Petitioner takes 
issue with our interpretation of the Beneficiary's U.S. role. The Petitioner asserts that the 
Beneficiary's U.S. position, as set out in its descriptions for the proposed position, focuses on 
' The Petitioner also submits a revised organizational chart reflecting the U.S. structure after acquisition. However. the 
organizational chart does not establish the company's personnel as of the petition's tiling date. Thus. the revised 
organizational chart is not relevant to this proceeding. 
4 
The Act defines the term "executive capacity" as an assignment within an organization in which the employee 
primarily directs the management of the organization or a major component or function thereof: establishes the goals and 
policies of the organization, component, or function: exercises wide latitude in discretionary decision-making: and 
receives only general supervision or direction from higher-level executives. the board of directors. or stockholders~ of the 
organization. Section IOI(a)(44)(B) ofthe Act. 
2 
Matter of A-C-G-, Inc. 
building the U.S. business and negotJatmg and entering into strategic agreements which is 
demonstrated by the agreements submitted on motion. The Petitioner, however, does not explain or 
provide evidence of who will perform the Petitioner's day-to-day operational tasks necessary to 
build the U.S. business or provide client consultation, other than the Beneficiary. Although the 
Petitioner emphasizes the Beneficiary's discretionary decision-making authority, at the time of 
tiling, the Petitioner did not establish that the Beneficiary directs the management of the 
organization or directs a major function of the organization. 
The record on motion is insut1icient to warrant reopening our decision on this issue. The motion to 
reopen does not present any new facts supported by atlidavits or other documentary evidence that 
establishes the Beneficiary will perform primarily in an executive capacity. 
Ill. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening the matter. The 
Petitioner has not established eligibility for the benefit sought. 
ORDER: The motion to reopen is denied. 
Cite as Matter ofA-C-G-. Inc., ID# 923226 (AAO Jan. II, 2018) 
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