dismissed L-1A Case: Real Estate / Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-W- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : SEPT. 16, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate development and export business , seeks to temporarily employ the 
Beneficiary as the chief executive officer (CEO) of its new office I under the L-lA 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 Directo r of the Vermont Service Center denied the petition on multiple grounds and, after 
reviewing the Petitioner's motions to reopen and reconsider, affirmed all of the grounds for denial. 
On appeal we withdrew two of the Director ' s findings , but found that the Petitioner did not 
overcome two other grounds for denial , specifically , that the Petitioner did not establish (1) that the 
Beneficiary will be employed in the United States in a managerial or executive capacity within one 
year of the petition's approval, and (2) that the Beneficiary had at least one year of employment 
abroad in a managerial or executive capacity in the three years preceding the filing of the petition. 
We also indicated that the Director's decision regarding the Petitioner's request for a change of 
status and extension of stay for the Beneficiary was not appealable. The Petitioner filed a motion to 
reopen and a motion to reconsider, which we denied after analyzing the factual and legal arguments 
presented and concluding that they did not show proper cause for reopening the proceedings or 
reconsidering our prior decision. 
The matter is now before us on a second combined motion to reopen and reconsider. The Petitioner 
submits a brief and some additional documentation and requests that the petition be approved. Upon 
review , we will deny the combined motion . 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R . 
§ 103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
1 The term "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(l)(l)(ii)(F). The regulation at 8 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of the petition 's approval to support an executive or managerial position . 
Matter of K-W- LLC 
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. 
II. ANALYSIS 
In our previous decision we determined that the Petitioner had presented no new facts to establish 
eligibility or identified any incorrect application of law or policy demonstrating that our appellate 
decision was incorrect on the issues of (1) whether the Beneficiary would be employed in a 
managerial or executive capacity in the United States within one year of the petition's approval and 
(2) whether the Beneficiary had been employed abroad in a managerial or executive capacity for one 
of the previous three years. With respect to the Beneficiary's prospective employment in the United 
States, we noted that the totality of the evidence must be reviewed - including such factors as the 
Beneficiary's job description, the U.S. company's organizational structure and the nature of its 
business, the duties of the Beneficiary's subordinate employees and the extent to which they relieve 
the Beneficiary from performing operational duties - in determining whether it was plausible the 
Beneficiary would be employed in a primarily managerial or executive capacity within one year of 
the petition's approval. We indicated that the Director properly considered the above factors in 
denying the petition, that we had done so as well in dismissing the appeal, and that the Petitioner had 
not submitted any probative and credible evidence in its initial motions to reopen and reconsider to 
overturn our previous decision. With respect to the Beneficiary's employment abroad, in our 
previous decision we noted the Petitioner's acknowledgement that the Beneficiary was physically 
present in the United States for more than two of the three years preceding the filing of the instant 
petition and its argument that the Beneficiary nevertheless fulfilled the one year of employment 
abroad requirement because he was employed by the foreign entity, regardless of his physical 
location, for more than the requisite year. We rejected the Petitioner's argument, quoting the 
regulation at 8 C.F.R. § 214.2(l)(l)(ii)(A) which states that time spent in the United States while 
employed by the foreign entity does not count toward fulfilling the requirement that for one of the 
previous three years the Beneficiary must have been employed abroad. 
A. Employment in the United States in a Managerial or Executive Capacity 
In its current combined motion the Petitioner reiterates the Beneficiary's job duties in the United 
States as previously described in the petition, and claims that we erred in finding them overly broad 
and imprecise because the duties of a chief executive officer can only be described in general terms. 
The Petitioner submits some online advertisements for CEO positions as evidence that CEOs have 
broad and general duties rather than specific daily tasks, and that the job duties of the Beneficiary's 
position are therefore accurately described. According to the Petitioner, U.S. Citizenship and 
Immigration Services (USCIS) had no authority to "second-guess" its business plan to conduct 
warehouse business when the Petitioner decided not to purchase a warehouse, but instead utilize 
existing commercial property for its export business, or to "second-guess" the business plan's 
staffing and revenue projections and declare them unrealistic without sound analysis. The Petitioner 
asserts that all of our foregoing findings were arbitrary and capricious. 
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Matter of K-W- LLC 
The online CEO job announcements submitted with the current motion, though new evidence, do not 
state new facts since the record already included documentary evidence, including an online article 
about CEOs, about the types of duties that CEOs perform. Regardless of how a CEO' s duties may 
best be described, it is the Petitioner's burden in this proceeding to establish that the Beneficiary's 
duties will be primarily managerial or executive in nature, as set forth in section 10l(a)(44)(A) and 
(B) of the Act, within a year of the petition's approval. In our prior decision we reviewed all 
relevant evidence about the Beneficiary's prospective duties in the United States, the nature of the 
business, and the minimal business activities the U.S. company had conducted at the time the 
petition was filed, and concluded that the Petitioner did not establish by a preponderance of the 
evidence that the Beneficiary would be performing primarily managerial or executive duties within a 
year. While the Petitioner contests the findings in our previous decision as "second-guessing" of its 
business plan, we correctly pointed out that the Petitioner's business actions had diverged from the 
business plan with respect to the warehouse, that the staffing and revenue projections for the first 
year of operation were speculative, and that the totality of the evidence did not demonstrate that the 
U.S. business would develop enough during its first year after the petition's approval to elevate the 
Beneficiary's job duties to primarily managerial or executive in nature. The Petitioner has not 
remedied these evidentiary shortcomings in the current motion to reopen. 
In short, the Petitioner submits no new fact(s) in the current motion to alter our previous finding that 
the record does not establish that the Beneficiary will be employed in a managerial or executive 
capacity in the United States within one year of the petition's approval. Nor has the Petitioner 
shown that our previous findings were arbitrary and capricious or that they in any other way 
represent an incorrect application of law or policy. Accordingly, we will deny the combined motion 
to reopen and reconsider our finding that the record does not establish that the Beneficiary will be 
employed in a managerial or executive capacity in the United States within one year of the petition's 
approval. 
B. Employment Abroad in a Managerial or Executive Capacity 
In its current combined motion the Petitioner asserts that USCIS did not apply the law correctly in 
determining whether the Beneficiary had one year of continuous employment with its parent 
company in China during the three years prior to the filing of the petition, as required in 8 C.F.R. 
§ 214.2(1)(1 )(ii)(A). Specifically, the Petitioner alleges that there is no legal ground for linking the 
requirement of employment abroad to physical presence in the foreign country. The subject 
regulation, defining "intracompany transferee," provides as follows: 
Intracompany transferee means an alien who, within three years preceding the time 
of his or her application for admission into the United States, has been employed 
abroad continuously for one year by a firm or corporation or other legal entity or 
parent, branch, affiliate, or subsidiary thereof: and who seeks to enter the United 
States temporarily in order to render his or her services to a branch of the same 
employer or a parent, affiliate, or subsidiary thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. Periods spent in the United States in 
lawful status for a branch of the same employer or a parent, affiliate, or subsidiary 
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Matter of K-W- LLC 
thereof and brief trips to the United States for business or pleasure shall not be 
interruptive of the one year of continuous employment abroad but such periods shall 
not be counted toward fulfillment of that requirement. 
8 C.F.R. § 214.2(l)(l)(ii)(A). According to the Petitioner, the last sentence of this regulation 
restricts the time periods that will not count toward fulfillment of the one year of employment abroad 
requirement to "brief trips to the United States for business or pleasure," and that we misapplied the 
regulation by subtracting the 732 days the Beneficiary was physically present in the United States in 
B status from the period of his employment abroad because those days did not represent "brief trips" 
to the United States. We do not agree. 
The Petitioner misinterprets the last sentence of the regulation by not reading it as a whole. The 
Petitioner ignores the first part of the sentence which makes clear that time spent working in the 
United States in lawful status for an operation related to the foreign entity does not count as 
employment abroad. The sentence goes on to read: "and brief trips to the United States for business 
or pleasure" do not count as employment abroad [ emphasis added]. Thus, all 732 days the 
Beneficiary was physically present in the United States during the three years prior to the filing of 
the instant petition do not count as employment abroad for purposes of meeting the requirement in 
8 C.F.R. § 214.2(l)(l)(ii)(A). That means, as stated in our previous decision, that the Beneficiary did 
not have one full year of continuous employment abroad during the three years prior to the filing of 
the petition. 
Thus, the Beneficiary has not shown that we incorrectly applied the regulation at 8 C.F.R. 
§ 214.2(l)(l)(ii)(A) in our previous decision. Accordingly, we will deny the motion to reconsider 
our decision that the Beneficiary was not employed abroad for one full year within the three years 
immediately preceding the filing of the petition. As the petitioner has submitted no new evidence to 
demonstrate eligibility, the motion to reopen in regard to employment abroad must also be denied. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not shown proper cause for reopening or 
reconsideration. In visa proceedings it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met 
that burden. 
ORDER: The motion to reopen is denied. 
FURTHER MOTION: The motion to reconsider is denied. 
Cite as Matter of K-W- LLC, ID# 5761610 (AAO Sept. 16, 2019) 
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