dismissed L-1A Case: Musical Instrument Retail

MATTER OF A-B- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 30, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which seeks to open a musical instrument store, seeks to temporarily employ the 
Beneficiary as president of its new office I under the L-1 A nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 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 Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the new office would be able to employ the Beneficiary in the United 
States in a managerial or executive capacity within one year; and (2) the Beneficiary has been 
employed abroad in a managerial or executive capacity. 
We summarily dismissed the Beneficiary's appeal from the Director's decision. The matter is now 
before us on a motion to reconsider. On motion, the Petitioner asserts that we erred by disregarding 
a timely supplement to the appeal. 
We will deny the motion. 
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). A motion to reconsider must be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. We 
must deny a motion that does not meet applicable requirements. 8 C.F.R. § 103.5(a)(4). 
The regulations require summary dismissal of an appeal when the appellant does not identify 
specifically any erroneous conclusion of law or statement of fact for the appeal. See 8 C.F.R. 
1 The tenn "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(1)(1 )(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Matter of A-B- LLC 
§ 103.3(a)(l)(v). The party filing the appeal may, however, request additional time to submit a brief. 
See 8 C.F.R. § 103.3(a)(2)(vii). In such a case, the regulations require the Petitioner to submit the 
brief directly to the Administrative Appeals Office (AAO). See 8 C.F.R. § 103.3(a)(2)(viii). 
The Director denied the petition on December 19, 2017. The Petitioner filed its appeal on January 
22, 2018. The appeal included a very brief notation, asserting that the Petitioner had adequately 
addressed the issues raised in a request for evidence (RFE): "We believe that the evidence submitted 
in our RFE was either not reviewed, or misplaced. We provided all documentatio[n] requested in the 
RFE." This assertion is not sufficient for a substantive appeal, but the Petitioner also checked a box 
on Form I-290B, Notice of Appeal or Motion: "My brief and/or additional evidence will be 
submitted to the AAO within 30 calendar days of filing the appeal." 
We summarily dismissed the appeal on June 15, 2018, stating: "we have not received anything 
further from the Petitioner." On motion, the Petitioner disputes this finding, and submits a 
supplementary statement, along with evidence of timely mailing on February 19, 2018. 
The Petitioner has established that it submitted a supplement to the appeal, but not that we erred by 
summarily dismissing the appeal. 
As cited above, 8 C.F.R. § 103.3(a)(2)(viii) requires submission of appellate briefs directly to the 
AAO. The instructions to Form I-290B stated, on page 6: "Any brief and/or additional evidence 
submitted after the initial filing of Form I-290B must be submitted directly to the AAO." The 
instructions then provided directions on where to find the AAO's current mailing address. Every 
document submitted to the Department of Homeland Security (which includes the AAO) must be 
submitted in accordance with the form instructions. See 8 C.F.R. § 103.2(a)(l). 
In this instance, the Petitioner did not file the supplement in accordance with the form instructions. 
Instead of submitting the supplement directly to the AAO, as instructed, the Petitioner sent the 
material to a USCIS processing facility in Phoenix, Arizona. Tracking stamps show that the 
statement arrived at the National Benefits Center on February 28th, and at the Vermont Service 
Center on March 21st. While the original letter has since made its way into the file pertaining to this 
petition, the Petitioner sent the appeal statement to the wrong address which delayed its 
incorporation into the record. Therefore, there was no error in summarily dismissing the appeal. 
Even if we were to grant this motion, we note that the Petitioner's statement would not have resulted 
in approval of the petition. Below, we will address the substantive assertions in the Petitioner's 
appellate statement. 
The Petitioner states that the denial was in error because the Petitioner had established that it rented 
adequate office space, and that the foreign parent company had employed the Beneficiary for at least 
a year. The Director, however, made no finding to the contrary. The denial rested on other factors. 
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Matter of A-B- LLC 
The Petitioner states that the Director erred "by assuming ... that the company had already been in 
business for ... 1 year, and not applying the correct standard that this was a new office setup." 
Review of the decision shows that the Director quoted the pertinent regulations for a new office 
petition, and consistently referred to the new office standards in the decision. 
The Petitioner contends: 
[T]he new office set up standard normally permits wide authority to the LIA 
Executive to operate during the new 1 year period . . . . The Beneficiary was never 
granted the opportunity to develop the company under the 1 year start up period, but 
held to have to prove the number of staff and responsibilities of each staff member 
prior to even hiring the staff. Petitioner submitted a detailed business plan, but the 
reviewing officer did not accept the findings in the business plan, but held the 
Petitioner to having to make and implement plans without the opportunity to 
experience the needs and possibl[y] revise the plans based upon the 1 year start up 
experience that is normally afforded all new LlA's under these provisions. 
An L-lA new office petition must include evidence to show that the intended United States 
operation will support an executive or managerial position within one year of the approval of the 
petition. This evidence must establish the proposed nature of the office, describing the scope of the 
entity, its organizational structure, and its financial goals. 8 C.F.R. § 214.2(1)(3)(v)(C)(l). 
The new office regulations do not require the company to be fully operational at the time of filing, 
but the Petitioner should know what the company will be doing, and how it will be staffed, at the 
time of filing. The Petitioner must meet eligibility requirements at the time of filing. See 8 C.F .R. 
§ 103.2(b)(l). A new office petition is not simply a placeholder that grants a year of immigration 
benefits while a petitioner decides how to structure, operate, and staff the business; the regulations 
presume that the petitioner has already made those decisions. 
The Director denied the petition based, in part, on a finding that the Petitioner had provided 
inconsistent information about the company's proposed organizational structure and financial 
outlook. Comparing the business plans in the initial filing and the RFE response, the Director 
identified three significant discrepancies in the first-year projections: 
Employees 
Payroll 
Cash Sales 
Operating Expenses 
Initial Filing 
8 
$144,150 
$514,778 
$252,770 
RFE 
7 
$60,720 
$192,000 
$83,720 
The Petitioner has not explained these significant inconsistencies. It is understood that a new office 
will grow and develop, but the petition must rest on a foundation of reliable and consistent 
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Matter of A-B- LLC 
information. A petitioner cannot simply cite arbitrary figures and then change that information 
without limit or explanation. 
The Petitioner protests the requirement to establish "the number of staff and responsibilities of each 
staff member prior to even hiring the staff," but the Petitioner does not explain why it is 
unreasonable or unusual for a company to set a personnel budget (which requires an expectation of 
staff size) and make hiring decisions based on filling specified positions that perform defined roles. 
Furthermore, the appeal statement does not address a stated ground for denial. The Director found 
that the Petitioner had not provided enough information and evidence to show that the Beneficiary 
had worked in a managerial or executive capacity with the foreign parent company. This finding, by 
itself, warranted denial of the petition, and the Petitioner has not contested it on appeal. 
For the above reasons, the Petitioner would not have prevailed on motion. 
The Petitioner did not follow the required procedures to supplement its appeal, and the supplemental 
submission would not have overcome the denial of the petition, even if properly submitted. 
ORDER: The motion to reconsider is denied. 
Cite as Matter of A-B- LLC, ID# 1887086 (AAO Nov. 30, 2018) 
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