dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re : 21880902 
Motion on Administrative Appeals Office Decision 
Form I-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 29 , 2022 
The Petitioner, an owner and operator of a retail grocery store, seeks to temporarily employ the 
Beneficiary as the general manager and chief executive officer (CEO) of its new office under the L-lA 
nonimmigrantclassification forintracompany transferees. 1 Section 101 (a)(l 5)(L)ofthe Immigration and 
Nationality Act (the Act), section 1 0l(a)(l 5)(L), 8 U.S.C . § 11 0l(a)(l 5)(L). 
The Director of the California Service Center denied the petition. The Director determined that the 
Petitioner did not establish that it would employ the Beneficiary in a managerial or executive capacity 
within one year of new office formation. The Director also questioned the Petitioner's eligibility to 
file a "new office" petition on behalf of the Beneficiary, noting that an affiliate of the Petitioner, which 
operated the same retail establishment at the same location, had previously employed the Beneficiary 
under another L-1 A new office petition. 2 We dismissed the Petitioner's subsequent appeal, concluding 
that it was not eligible to file a "new office" petition on the Beneficiary's behalf. We then dismissed 
the Petitioner's subsequent motion to reconsider, concluding that although the Petitioner disagreed 
with our determination that it was ineligible to file this petition as a "new office ," it did not demonstrate 
that we incorrectly applied the law or USCIS policy in reaching that determination. More specifically, 
we pointed out that the Petitioner , despite being incorporated as a separate entity from its former U.S. 
affiliate, was established by the same foreign parent company for the purpose of managing the same 
"new operation" ( a grocery store) at the same location and with the same employees. We also rejected 
the claim that the Petitioner is a new office because it has a different business model from its former 
affiliate; we found that the record does not support this claim , which counsel raised for the first time 
on appeal. As such, we concluded that the Petitioner was not, in fact , a "new office" and did not 
warrant treatment as such. The matter is now before us on a second motion to reopen and reconsider. 
1 The term "new office"refers to an organization that has been doing business in the United States through a parent, branch, 
affiliate , or subsidiary forless than one year. The regulation at 8 C.F.R . § 214.2(1)(3 )(v)(C) allows a "new office" operation 
no more than one year from the date ofa pproval of the petition to support an executive or managerial position. 
2 The record reflects that the Petitioner 's affiliatd filed a new office petition on theBeneficiaiy 's 
behalf which was approved and valid from November 16, 2016 until October 31, 2017. The affiliate 's petition to extend 
that petition was denied by the Director of the California Service Center and we dismissed its subsequent appeal of that 
decision on August 9, 2018. The Petitioner in this matter was incorporated one weeklateron August 15, 2018 . Both U.S. 
entities are wholly owned by the same foreign parent company . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance ofthe evidence. Section29 l of the Act, 8 U.S.C. § 1361 ;MatterofChawathe, 25 I&N 
Dec. 369,375 (AAO 2010). Upon review, we will dismiss the motion to reopen and reconsider. 
I. MOTION REQUIREMENTS 
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 (1) state the reasons for reconsideration and establish that the decision 
was based on an incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) 
policy, and (2) establish that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
The regulation at 8 C.F.R. § 103.5(a)(l )(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reopening or 
reconsideration, a petitioner must not only meet the formal filing requirements (such as submission of 
a properly completed Form I-290B, Notice of Appeal or Motion, with the correct fee), but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See8 C.F.R. § 103.5(a)(4). 
II. ANALYSIS 
The issue at hand is whether the Petitioner has offered new facts or established that we incorrectly 
applied the law or U.S. Citizenship and Immigration Services (USCIS) policy to the evidence in the 
record at the time of our prior decision dismissing the motion to reconsider. 
As a preliminary matter, we note that motions for the reopening or reconsideration of immigration 
proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial 
on the basis of newly discovered evidence. SeeINSv. Doherty,502 U.S. 314,323 (1992)(citingINS 
v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden." INS 
v. Abudu, 485 U.S. at 110. 
A. Motion to Reopen 
First, we will discuss whether the Petitioner offered new facts supported by evidence to warrant 
reopening our prior decision to dismiss the original motion to reconsider. We note that the new facts 
in a motion to reopen must possess such significance that "the new evidence offered would likely 
change the result in the case." See Matter of Coelho, 20 I&N Dec. 464,473 (BIA 1992). In other 
words, a motion to reopen should only be granted under a limited set of circumstances where the 
Petitioner demonstrates that the new evidence would result in a different outcome. See id. 
As noted earlier, in our prior decision we determined that the Petitioner did not off er evidence to 
support counsel's claim that it was established for the purpose of operating as a franchisor of Asian 
food stores. Furthermore, we determined that counsel's claim was inconsistent with the evidence on 
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record. We noted that the record indicates that the Petitioner was established for the purpose of 
continuing to operate al I California grocery store known as which 
was previously operated by the Petitioner's affiliate, after that entity's 
attempt to extend the Beneficiary's L-lA status was unsuccessful. 
In the matter at hand, the Petitioner does not offer new facts. Rather, it offers evidence in the f orm of 
a statement fro ml a self-described "seasoned business man [sic] and a leader of a prestigious 
non-profit for successful overseas Chinese business people." I I stated that the Petitioner 
approached him in August 2018 "regarding its plan to franchise its business." I I claimed that 
there were "many meetings" during which he and the Petitioner discussed "multiple strategies and 
specific locations for the franchise." 
However, the record contains no evidence to support! I claims, such as dates or locations of 
the "many meetings" he purportedly had, who attended those meetings, or specific information 
outlining the "multiple strategies" for carrying out the 
purported 
franchise plan; nor has evidence been 
submitted to show that either the Petitioneror took actual steps towards the claimed objective 
of starting a franchise of the grocery store operation, as the Petitioner continues to operate at the same 
location as its prior U.S. affiliate and would not operate at a different location in addition to the 
affiliate. The Petitioner must support its asse1iions with relevant, probative, and credible 
evidence. SeeMatterofChawathe, 25 I&NDec. 369,376 (AAO 2010).1 !statement, without 
actual evidence of the claims made therein, is not sufficient to support the Petitioner's claim regarding 
its intent to open a new office for the purpose of executing its new business goal of franchising its 
existing grocery store operation. 
For the reasons discussed, the Petitioner has not shown proper cause for reopening our prior decision. 
B. Motion to Reconsider 
Next, we turn to the Petitioner's motion to reconsider. In our prior decision, we addressed the 
Petitioner's argument that it was "legally incorrect" for USCIS to preclude a "new office" designation 
to a newly formed corporation whose "business model and purpose" would be different from that of 
its previously formed U.S. affiliate. Namely, we questioned the validity of the purportedly new 
business model and purpose, given that the Petitioner did not disclose any intent to operate under a 
new "business model and purpose" at the time of filing, but rather that counsel made this claim and 
did so for the first time on appeal. We also pointed to the lack of evidence in support of counsel's 
claim, noting that neither the Petitioner's business p Ian nor the previously submitted letters from the 
Petitioner and its foreign parent company mentioned any plans to franchise. Meanwhile, we noted 
that the record contains "ample evidence" that the Petitioner was established for the purpose of 
continuing to operate the same grocery store as was operated by its U.S. affiliate, whose attempt to 
extend the Beneficiary's L-1 A status was unsuccessful. We determined that the foreign parent 
company's statement that the Petitioner "would take over the whole business from [the former 
subsidiary]" was indicative of the Petitioner's intent to continue operating the same retail store. 
Also, while we again acknowledged that the Petitioner and its former affiliate are separate legal entities 
with separate tax identification numbers, we looked beyond these factors and focused on the fact that 
the Petitioner and its U.S. affiliate were established by the same foreign parent company for the 
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purpose of managing the same "new operation" (a grocery store) at the same location and with the 
same employees. We pointed out that the Petitioner did not claim that we erred in determining that 
the applicable L-1 regulations do not afford the foreign company another opportunity to seek a new 
office petition on behalf of the same Beneficiary with respect to the same "new operation," regardless 
of the petitioning entity. Rather, we noted that the Petitioner instead put forth a new claim, arguing 
that its business model is different from that of its former affiliate, a claim that we noted was made by 
counsel on appeal and was not supp01ied by the record. In sum, while we recognized that the Petitioner 
disagreed with our determination that it was ineligible to file this petition as a "new office," we 
concluded that the Petitioner did not demonstrate that we incorrectly applied the law or users policy 
in reaching that determination. 
On current motion, the Petitioner again argues that it merits consideration as a new office because it 
is a new legal entity and asse1is that there is no legal basis for concluding othe1wise. However, the 
Petitioner offers no evidence to support this argument, nor does it offer sufficient evidence to refute 
our finding that despite incorporating as a new legal entity with a new name, the Petitioner continues 
to operate the same grocery store at the same location and with the same employees, thereby 
undermining its designation as a "new office." The Petitioner also asserts that the AAO has "tried to 
define the 'new office"' as one that has no employees. We disagree and point to the lack of evidence 
supporting the contention that the Petitioner would, in fact, operate as a new office, as it claims. We 
find it note-worthy that despite seeking to file this petition as a new office, the record does not show 
that Petitioner plans to start a new operation or follow a new hiring plan that is consistent with that 
operation; instead, the record indicates that the Petitioner will continue its affiliate predecessor's 
operation with the assistance of staff that were already in place to accommodate that existing operation. 
Given these specific circumstances, we were correct in our conclusion that the parent company had 
exhausted its opp01iunity to launch the same operation under the "new office" regulations. 
Further, the Petitioner claims in support of the current motion that its designation as a "new office" 
was the result of a "clerical error of [sic] previous attorney." Not only does this claim undermine the 
prior arguments the Petitioner put forth in an attempt to establish that, in fact, it is a new office, but it 
is also inconsistent with previously submitted evidence, including the Petitioner's proposed 
organizational chart and corresponding five-year recruitment plan, which specifically name only the 
Beneficiary, while designating all other positions as "to be hired." 3 As these documents support the 
Petitioner's original claim that it was a new office at the time of filing, checking the "new office" box 
on the petition does not appear to have been the result of a "clerical error," as the Petitioner now 
claims. 
In essence, the Petitioner has put forth two competing and inconsistent claims: On the one hand, the 
Petitioner claims that it is a new office and relies on regulations that pertain to a "new office," offering 
evidence to support that claim; on the other hand, the Petitioner claims that checking the "new office" 
box in the petition was unintentional and that in fact it was a "clerical error." A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to users 
requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. eomm'r 1998). Furthennore, the 
Petitioner must resolve these inconsistencies in the record with independent, objective evidence 
3 Evidence in the record shows that the Petitioner would take over the staff of its U.S. affiliate and continue to operate in 
much the same way as that affiliate. 
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pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Material 
inconsistencies such as those listed, may, if unresolved, lead to reevaluation of the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Id. 
Lastly, the Petitioner urges that we focus on the "key point" of whether the Petitioner would 
sufficiently develop within one year to support the Beneficiary in a managerial or executive capacity. 
However, this "key point" is only relevant in a new office detem1ination and given the multiple 
inconsistencies surrounding the Petitioner's claim that it is a new office and its inability to resolve 
those inconsistencies, the Petitioner has not overcome our basis for dismissing the appeal. As such, 
we need not address the remaining issue concerning the Beneficiary's employment in a managerial or 
executive capacity. 4 
In light of the above, we conclude that the Petitioner has not established that our prior decision 
dismissing the motion to reconsider was incorrect based on the evidence in the record at the time of 
the initial decision. 8 C.F.R. § I 03 .5(a)(3). As previously stated, the Petitioner also has not shown 
proper cause for reopening our prior decision. 
ORDER: The motion to open and reconsider is dismissed. 
4 Because the identified basis for denial is dispositive ofthe Petitioner's appeal, we declined to reach and therefore reserved 
the Petitioner's arguments regarding the Beneficiary's proposed employment. See INS v. Bagamasbad, 429 U.S. 24, 25 
(197 6) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary totheresults 
they reach"); sec also Matter olL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) (declining to reach alternative issues on 
appeal where anapplicantis otherwise ineligible). 
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