dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-G- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 29,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a one-employee restaurant business, seeks to extend the temporary employment of 
the Beneficiary as its 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)(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 California Service Center denied the petition. The Petitioner appealed the denial 
which we dismissed finding that the Petitioner had not established, as required, that: (1) it was doing 
business in the United States for the previous year; and (2) the Beneficiary will be employed in an 
executive capacity for the U.S. entity. 
The matter is before us on a combined motion to reopen and motion to reconsider. In its combined 
motion, the Petitioner asserts that the regulations governing the extension petition for a "new office" 
are ambiguous, thus allowing U.S. Citizenship and Immigration Services to exercise favorable 
discretion when considering the "doing business" requirement. The Petitioner also claims that it will 
shortly have evidence that it is doing business and suggests that we issue a request for evidence 
(RFE) on this issue. The Petitioner asserts that its reasons for not doing business also demonstrate 
why it did not establish that the Beneficiary would be employed in an executive capacity. The 
Petitioner does not further address this issue. We will deny the motions. 
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. § 1 03.5(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. 
§ 1 03.5(a)(2). A motion to reconsider is based on legal grounds and must (1) state the reasons for 
reconsideration; (2) be supported by any pertinent precedent decisions to establish that the decision 
Matter of S-G- Inc. 
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 
A. Motion to Reopen 
The Petitioner stated that it is a restaurant business established in 2015, but acknowledged that its 
restaurant business was not open and doing business at the time of filing this extension petition. The 
Petitioner explained, in response to the Director's RFE and on appeal, that due to construction 
obstacles it was unable to hire staff and was forced to delay operations. In our dismissal of the 
appeal, we found that a visa petition that involved the opening of a new office may be extended only 
if the Petitioner meets all of the enumerated regulatory criteria, including establishing that it was 
doing business for the previous year. See 8 C.F.R. § 214.2(1)(14)(ii)(B). 
In its motion to reopen, the Petitioner submits a statement listing several of the construction 
obstacles it had encountered and indicates that at various intervals it had addressed the construction 
issues. For example, the Petitioner states that the roof detail plan for the restaurant was finally ready 
and was approved on November 22, 2016, almost five months after it had filed this extension 
petition. The Petitioner requests that we issue an RFE so that it may have the opportunity to further 
develop the record on the issue of doing business. 
We have considered the Petitioner's statement of facts regarding its efforts to commence doing 
business; however, these facts are not relevant to the issue at hand. As we determined previously, 
the extension of a new office petition requires that the Petitioner establish that it has been engaged in 
the regular, systematic, and continuous provision of goods or services in the United States for the 
entire year prior to filing the petition. Issuing an RFE regarding the company's current operational 
status would not cure the Petitioner's acknowledged inability to satisfy the new office extension 
regulations at the time of filing. The Petitioner should also note that there is no provision permitting 
additional time to submit a brief or additional evidence on a motion to reopen or reconsider. The 
additional evidence must comprise the motion. See 8 C.F.R §§ 103.5(a)(2)-(3). 
Accordingly, the Petitioner's motion to reopen does not contain any new facts that are relevant in a 
reopened proceeding. The motion to reopen is not supported by affidavits or documentary evidence 
demonstrating eligibility at the time the underlying petition was filed. The Petitioner has not shown 
proper cause to reopen the proceeding and the motion to reopen will be denied. 
B. Motion to Reconsider 
In its motion to reconsider, the Petitioner asserts that the regulation at 8 C.F.R. § 214.2(l)(14)(ii) 
governing an extension petition for a new office and the regulation at 8 C.F.R. § 214.2(1)(3)(v)(c) 
governing the opening of a new office, create a regulatory ambiguity that would allow us to exercise 
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Matter of S-G- Inc. 
favorable discretion and approve this extension petition. We disagree. The regulations are distinct 
and clear. 
The new office regulation, which allows a petitioner one year to do sufficient business to support a 
manager or executive, is distinct from the new office extension regulation, which requires that a 
petitioner establish that it has been doing business for the previous year. That is, a petitioner may 
establish that it has been doing business for the previous year, but may not be sufficiently complex to 
establish that it can support a manager or executive position, as those terms are defined in the statute. 
See section 101(a)(44) (A) or (B) of the Act. In this matter, the Petitioner has not established the 
first hurdle of eligibility for the extension of a new office petition because it has not established that 
it was doing business during the validity period of the previously approved new office petition, as 
required. The Petitioner was also unable to establish the separate and distinct requirement of being 
sufficiently complex to support the Beneficiary in an executive capacity, even though the new office 
regulation allowed the Petitioner a year to accomplish this level of complexity. As we determined, 
the Petitioner did not have an organizational hierarchy with a tier of managerial employees, or any 
other support staff, through whom the Beneficiary could be expected to direct the management of the 
organization when the new office extension petition was filed. Thus, the record also did not 
establish that the Petitioner had grown sufficiently in the past year to support an executive position, 
as it had no staff to relieve him from performing all of the administrative and operational tasks of the 
organization. 
The Petitioner has not established that our prior decision was incorrect at the time of that decision. 
Therefore, the motion to reconsider will be denied. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopemng or 
reconsideration or established eligibility for the immigrant benefit sought. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofS-G- Inc., ID# 457723 (AAO June 29, 2017) 
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