dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services · 
MATTER OF A-W- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner intends to operate retail cellular phone and accessories stores and seeks to temporarily 
employ the Beneficiary as the managing director of its new office under the L-1 A nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act section 
101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A 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 and affirmed that denial after 
reviewing the Petitioner's subsequent combined motion to reopen and reconsider. The Director 
concluded that the Petitioner did not establish that it had acquired sufficient physical premises to 
house the new office or that it had a qualifying relationship with the Beneficiary's foreign employer. 
We dismissed the appeal based on a finding that the Petitioner did not establish that it had secured 
physical premises as of the date the Petition was filed, and further concluded that the Petitioner did 
not provide sufficient evidence to demonstrate that it would be able to support a managerial or 
executive position within one year. 1 
In its combined motion to reopen and motion to reconsider, the Petitioner submits a brief and copies 
of evidence that is already in the record. The Petitioner asserts that we did not properly review or 
consider all of the evidence submitted and erred by expecting proof beyond what is required to meet 
the preponderance of the evidence standard. 
Upon review, we will deny the combined motion. 
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 I-290B, Notice of Appeal or Motion, with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
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We found sufficient evidence to establish that the Petitioner is a subsidiary of the Beneficiary's foreign employer and 
withdrew the Director's adverse determination regarding the qualifying relationship. 
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Matter of A-W- Inc. 
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. 
§ 103.5(a)(2). 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). We may grant a motion to reopen 
that satisfies these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ISSUES RAISED ON MOTION 
At issue in this matter is whether any new facts or arguments made on motion overcome our 
previous findings that the Petitioner did not establish that:' (1) it secured sufficient physical premises 
to house its new office prior to filing the petition in July 20 14; and (2) it would be able to support a 
managerial or executive position within one year of approval of the petition. 
The Petitioner's primary claims on motion are that we "seemed to want proof above the legal 
standard" and "failed 
to review all ofthe evidence on record." The Petitioner also addresses certain 
factual findings made in our decision and provides copies of previously submitted documentation. 
When reviewing a motion to reopen, 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." We will limit consideration to new arguments 
and any newly submitted evidence. 
For the reasons discussed below, we will deny the combined motion. Although the Petitioner has 
cited relevant precedent decisions and attempted to clarify some facts that were at issue in our prior 
decision, the Petitioner has not overcome the grounds for dismissal of the appeal. 
A. Physical Premises 
The Petitioner filed a "new office" petition and therefore must establish that it had secured sufficient 
physical premises to house its business as of the date of filing in July 2014. 
8 C.F.R. § 214.2(1)(3)(v)(A). 
In dismissing the appeal, we acknowledged that the Petitioner submitted what appeared to be a valid 
lease for office premises located at in Texas. However, the lease was 
signed in October 20 14 and therefore we agreed with the Director that the Petitioner did not 
establish, as claimed, that it had secured physical premises at this address as of the date of filing. 
We further found that the Petitioner did not submit sufficient evidence to support its claim that it 
occupied that same office prior to signing the lease in October 2014. The Petitioner consistently 
claimed to have a "lease sharing" arrangement with the office's prior tenant ( 1 
beginning on June 1, 2014. While confirmed the arrangement in three separate letters, 
and the Petitioner provided evidence of a $900 payment made to we noted that the 
Petitioner had not provided a statement from its landlord or the property management company 
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Matter of A-W- Inc. 
confirming the shared lease arrangement was authorized and the Petitioner actually occupied the 
premises at the time of filing. We further found that the single check for $900 provided as evidence 
of the Petitioner's payment of rent was insufficient to establish that it actually occupied the premises 
as of July 2014. The check was issued in mid-September 2014 for August 2014 rent. Further, the 
amount paid for a single month's rent for shared space ($900) was inconsistent with the monthly 
, rental payment of $522 set forth in lease with the landlord. 
On motion, the Petitioner emphasizes that there is "no regulatory guidance to show what is required 
to show 'sufficient physical premises."' The Petitioner addresses the amount of the check issued to 
noting that "this amount is reasonable because the monthly rent was $522.00 which 
totals $2,088.00 for 4 months. With the shared lease arrangement, Petitioner paid approximately 
half of this amount." Further, with respect to the timing of the payment, and the fact that the $900 
check was written subsequent to the filing of the petition, the Petitioner states that "when payment is 
made to is determined by the arrangement made between the parties and not by when 
the Service believes payment should be made." Finally, the Petitioner contends that we did not 
properly consider notarized statements from the parties involved in the shared lease arrangement or 
the executed leases submitted. 
As noted by the Petitioner, it must establish that it meets each eligibility requirement of the benefit 
sought by a preponderance of the evidence. Matter ofChawathe, 25 I& N Dec. 369, 375-76 (AAO 
201 0). In other words, a petitioner must show that what it claims is "more likely than not" or 
"probably" true. To determine whether a petitioner has met its burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including, relevance, probative 
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value, and credibility) ofthe evidence. Id at 376; Matter of E-M-, 20 I&N Dec. 77,79-80 (Comm'r 
1989). 
In our dismissal notice, we emphasized first and foremost the lack of any statement from the 
landlord or property management company to corroborate the Petitioner's explanation that it 
obtained the landlord's "informal" consent for a shared leasing arrangement at the premises in 
question. Such evidence, which the Director specifically asked for in her request for evidence, 
would reasonably have greater probative value than a series of letters from the claimed co-tenant 
supported by a single rent check. While the Petitioner correctly asserts that there are no specific 
evidentiary requirements specifying what is needed to demonstrate acquisition of "sufficient 
physical premises," the Director has the discretion to request any evidence she deems necessary. 
8 C.F.R. § 214.2(l)(viii). Here, where the Petitioner claimed to have no formal, written lease or sub­
lease arrangement in place at the time of filing, it was reasonable to request evidence to corroborate 
its statements about the vaguely described "lease-sharing" arrangement and the property owner's 
awareness of such arrangement. 
Without such documentation from the landlord, we considered the secondary evidence submitted. 
After reviewing the explanations in counsel's brief on appeal, we cannot determin~ that a check for 
$900, specifically designated as "August rent" and written in mid-September was intended to cover 
the Petitioner's entire share of $2,088 in rent (plus utilities) for a period of four months beginning on 
June 1, 2014. The Petitioner has not documented any agreed terms of the lease sharing arrangement, 
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Matter of A-W- Inc. 
but now suggests that agreed to give up its office space for five days each week 
without receiving any payment at all for a period of three and a half months while continuing to 
operate an IT training company out of the same office suite. Neither this explanation, nor the 
multiple letters from the co-tenant, which are all lacking in detail, is sufficient to overcome the other 
deficiencies in the submitted evidence. 
The Petitioner has not overcome our finding that the record does not establish that it had secured 
sufficient physical premises as of the date of filing. 
B. New Office Requirements 
In dismissing the appeal, we further found that the evidence was insufficient to establish that the 
Petitioner would support 
a managerial or executive position within one year. 
In order to qualify for L-1 nonimmigrant classification during the first year of operations, the 
regulations require a petitioner to disclose the proposed nature of the business and the size of the 
U.S. investment, and establish that the proposed enterprise will support an executive or managerial 
position within one year of the approval of the petition. See 8 C.P.R. § 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be an 
actual need for a manager or executive who will primarily perform qualifying duties. 
The Petitioner stated that it will operate a chain of retail cellular phone stores expected to generate 
over $1.1 million in revenue. The Petitioner stated that it had 12 employees when the petition was 
filed and expressly that it "has acquired a majority ownership of four wireless companies." We 
acknowledged that the Petitioner, as a new office, is not required to establish that it has already hired 
staff or doing business. However, the Petitioner here indicated that it already had 12 employees on 
its payroll and identified them by name and position title; its business plan did not indicate that 
additional employees would be hired during the first year. Therefore, we found the Petitioner's 
employee list and organizational chart alone insufficient to support its statements regarding its 
structure and staffing. 
Further, we determined that, since the business plan was premised on its claim that it had already 
acquired a controlling interest in four separate companies, it should have provided relevant and 
probative evidence of its ownership of these companies to support the claimed relationship. The 
Petitioner had provided a copy of an "Agreement for Purchase and Sale of Units" relating to each of 
the four claimed subsidiaries, indicating a purchase price between $16,100 and $31,000, 
respectively, in exchange for 51% ownership. Under the terms of the agreements, the Petitioner was 
to make three payments by check to each company, with closing dates set between April 28, 2014, 
and July 28, 2014. We acknowledged that the Petitioner had submitted copies ofthree checks issued 
to each of the claimed subsidiaries (12 checks total), as evidence of the purchases, but noted that five 
checks post-dated the filing of the petition while other checks were written out of order, raising 
questions regarding the validity of the dates written on the checks. 
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Matter of A-W-Ine. 
In addition, we emphasized that the purchase agreements and checks would nevertheless be 
insufficient to establish acquisition of ownership in these separate legal entities, noting that the 
Petitioner did not provide any formal evidence of ownership for the claimed subsidiary companies, 
such as membership or stock certificates, articles of incorporation or association, minutes of 
shareholder or member meetings discussing the sale of stock or membership units, or any other 
primary evidence that a change in ownership actually occurred. 
On motion, the Petitioner asserts that although it claimed that it had 12 employees, it was not 
required to show any current employment in support of its new office petition. The Petitioner states 
that the business plan, (which included an organizational chart and job duties for each position), and 
an employee list, which included names, job titles and social security numbers for each employee 
already on staff, was more than sufficient to satisfy the requirements for a new office petition and 
showed each employee's commitment to work for the Petitioner. 
The Petitioner also states that its business plan "was not based on the premise that the company is 
already staffed and operating through its claimed subsidiaries" as its statements "were conditioned 
and largely dependent upon the approval of the L-lA visa petition." The Petitioner emphasizes, that, 
as noted in our decision, it had not made all required payments to the owners of the subsidiary 
entities prior to the filing date. The Petitioner further asserts: 
By virtue of execution of the agreement and payment of the initial payments, 
Petitioner has shown commitment to the contracts and acquired these interests. Since 
the subsidiaries were acquired, they were merged into [the Petitioner] and no formal 
registration with the state needed to be made. The contract itself served as the final 
documentation of the acquisition. 
The Petitioner's statement is not accompanied by any additional evidence and does not overcome 
our finding that the evidence submitted previously was sufficient to establish that the company 
would be able to support a managerial or executive position within one year. 
Whereas the Petitioner unequivocally stated at the time of filing that it had already acquired a 
majority interest in four subsidiaries and transferred their employees to its own payroll, it now 
claims that it had merely committed to do so. If that is the case, it is unclear why the Petitioner did 
not simply state this initially, rather than claiming that the purchase transactions were already 
complete. The Petitioner must resolve this inconsistency in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Although we noted the absence of any formal corporate documentation for any of the claimed 
subsidiaries in the record, the Petitioner has not submitted any additional evidence in support of this 
motion. Further, the Petitioner's claim that the companies were "merged into" the Petitioner upon 
completion of the acquisition with no further documentation or formal registration with any state 
authority is not credible. The Petitioner submitted four agreements to acquire 51% of stock or 
membership units of four different companies, meaning that, even if the purchase of shares or units 
were complete, the Petitioner would only have a controlling interest, not sufficient to effect a 
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Matter of A-W- Inc. 
complete merger of each claimed subsidiary into the petitioning company. Further, we note there is 
no mention of a merger in any of the four purchase agreements. 
A merger of one company into another would generally result in the former company reporting that 
status to the relevant state secretary of state. Here, the Petitioner has not adequately supported its 
claim that the purchase agreements themselves would reasonably be the sole documentation 
generated by a stock/membership purchase and total merger. The P~titioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). 
Finally, we note that the Petitioner seems to simultaneously claim, within the same brief, that its 
acquisition of the four subsidiaries was: (1) completed after the petition was denied and (2) entirely 
contingent upon the approyal of this visa petition. If the Petitioner had submitted relevant, probative 
evidence in support of its statement that it proceeded with the claimed purchase of the subsidiaries 
and took over payroll for its employees as it initially claimed that it had or would, that evidence 
would tend to support the claims made in its business plan. However, it has not done so and the 
explanations it has provided are confusing and do not overcome our concerns. 
In sum, the newly submitted arguments, when considered in the context of the totality of the 
evidence, do not overcome our finding that the Petitioner did not provide sufficient evidence to show 
that it would support a managerial or executive position within one year of an approval of the new 
office petition. · 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopenmg 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 of A-W- Inc., ID# 356935 (AAO May 31, 2017) 
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