dismissed L-1A Case: Organic Agriculture

U.S. Citizenship 
and Immigration 
Services 
f'0ATTER OF S-T-A-C-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 29, 2019 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company that intends to provide consulting services iri the organic agriculture 
industry, seeks to temporarily employ the Beneficiary as chief operations manager/director of its 
new office I under the L-1 A nonimmigrant classification for intracompany transferees. Immigration 
and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § l 101(a)(l5)(L). The L-IA 
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: ( l) the Petitioner had secured sufficient physical premises to house the 
new office; (2) the Beneficiary had been employed abroad in a managerial or executive cap1city; and 
(3) the Petitioner would employ the Beneficiary in a managerial or executive capacity within one 
year of approval of the petition. 
The :petitioner filed a combined motion to reopen and motion to reconsider. The Director denied 
both motions without disturbing the initial grounds for denial, after determining that the filing did. 
not meet the requirements of either type of motion. The matter is now before us on appeal. Upon 
. review, we will dismiss the appeal. 
. Although the Petitioner's brief addresses the Director's initial.denial decision, we emphasize that the 
Petitioner did not appeal the denial order itselt~ but rather the Director's subsequent finding that the 
motion did not meet the requirements of a motion to reopen, a motion to reconsider, or both. 
Therefore, the merits of the denial decision, and of the underlying pe'tition, are not before us. The 
only issue before us is whether the Director properly found that the motion did not meet applicable 
requirements. A motion that does not meet applicable requirement~ must be denied. 8 C.F.R. 
§ 103.5(a)(4). 
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. § 2 l 4.2(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 S-T-A-C-, Inc. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ I 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 
petition. Reasserting previously stated facts or resubmitting previously provided evidence does not 
constitute "new facts." 
Here, while the evidence in. support of the Petitioner's motion included newly prepared affidavits 
from the Beneficiary and from one of the Petitioner's clients, the affidavits did not present new facts 
regarding the Beneficiary's current foreign or proposed U.S. job duties that were not already 
submitted and considered by the Director. Other evidence submitted in support of the motion, while 
technically "new," was not relevant to the Petitioner's eligibility at the time of filing. For example, 
·the Petitioner filed the petition in September 2016 and must show that it had secured sufficient 
physical premises to house the new office as of the date of filing in order to satisfy the requirement 
at 8 C.F.R. § 214.2(1)(3)(v)(A). The evidence submitted on motion related to the physical premises 
that the Petitioner secured after the date of filing, in November 2016, and therefore lacked relevance. 
Similarly, the Petitioner submitted copies of e-mails between the Beneficiary and a subordinate that 
post-dated the filing of the petition by more than one year and which were not accompanied by any 
explanation of how this new evidence would overcome the grounds of ineligibility cited by the 
Director. 
For these reasons, we agree w,ith the Director's determination that the Petitioner did n'ot submit new 
evidence sufficient to warrant the re-opening of the matter. The Director properly found that the 
motion did not meet the requirements of a motion to reopen. 
A motion to reconsider must establish that the underlying decision was based· on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the _record 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. 
The Petitioner's brief in support of the mo,tion included broad allegations that the Director's decision 
was "incorrect," but did not contain legal arguments establishing that the denial decision was based 
upon an incorrect application of law or policy. For example, the Petitioner stated that the 
Beneficiary's former and proposed job duties are comparable to those of a "Farm Manager" 
according to the U.S. Department of Labor's (DOL's) O*Net Online resource or to a "General 
Manager, Farm" according to the DO L's Dictionary <~l Occupational Titles. The Petitioner argued 
that thes·e occupations require "significant vocational preparation" and therefore the DOL 
publications support a finding that the duties involved are executive in nature .. 
However, the Petitioner did not cite to any law or policy that requires USCIS to consider information 
found in DOL publications in determining whether a given beneficiary would be employed in a 
managerial or executive capacity as defined unde·r section 101(a)(44) of the Act. A review of the 
initial denial decisfonretlects that the Director properly considered a number ofrelevant factors such 
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Matter of S-T-A-C-, Inc. 
as the Beneficiary's actual job duties with the foreign and U.S. entities, the nature of the respective 
businesses,· their respective staffing levels, and ,the Petitioner's business plan, in reaching a 
conclusion regarding the Beneficiary's current and proposed employment in a managerial or 
executive capacity. 
The Petitioner's brief· on motion also included a new legal argument, specifically, that the 
Beneficiary has been employed abrnad, and would be employed in the United States, in a managerial 
capacity, specifically as a function manager, as defined at section 101(a)(44)(A) of the Act. In 
support of its claim, the Petitioner cited to an adopted decision, Matter <?f G- Inc., Adopted Decision 
2017-05 (AAO Nov. 8, 2017). . . 
In denying the Petitioner's motion, the Director acknowledged the motion included a function 
manager claim, but found that the Petitioner did not state a clear reason for reconsideration on this 
basis or establish that the denial decision was based on an incorrect application of law or policy. We 
agree with this assessment of the function manager claim. The Petitioner's claim was made for the 
first time on motion; the Petitioner did riot contend that the Director misapplied the law pertaining to 
function managers when adjudicating the petition. 
Further, we agree with the Director that the new function manager claim was not supported by 
sufficient evidence to establish that the Beneficiary had been or would be employed in a qualifying 
capacity as a function manager. The requirements of a inotion to reconsider are only met when the 
Petitioner is able to show that the decision was incorrect based on the evidence in the record at the 
time of the decision. The Petitioner's motion to reconsider· did not meet these requirements. 
For the above reasons, we find that the Director properly concluded that the Petitioner's filing did 
not meet the requirements of a motion to reopen or a motion to ·reconsider. Because the Petitioner 
has established no error in the denial of the motions, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fS~T-A-C-. Inc., ID# 1561622 (AAO Jan. 29, 2019) 
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