dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re: 12801904 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: NOV. 25, 2020 
Form 1-129, Nonimmigrant Petition for an lntracompany Transferee 
The Petitioner, a convenience I iquor store, seeks to temporarily employ the Beneficiary as store director 
of its "new office"1 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 Director of the California Service Center denied the petition on three grounds. The Director 
determined that the Petitioner did not establish (1) that the Beneficiary had at least one continuous 
year of full-time employment abroad with a qualifying organization within the three years preceding 
his application for admission to the United States in the L-lA nonimmigrant classification, (2) that the 
Beneficiary was employed abroad in a managerial or executive capacity, and (3) that the Beneficiary 
would be employed in the United States in a managerial or executive capacity within one year of the 
petition's approval. 
The Petitioner filed an appeal, which we dismissed on the ground that the Petitioner did not establish 
that the Beneficiary would be employed in the United States in a managerial or executive capacity 
within one year of the petition's approval. As this determination was dispositive of the appeal, we 
reserved the Petitioner's appellate arguments regarding the Beneficiary's claimed employment with 
the foreign parent entity. 
The matter is now before us on a motion to reopen. Upon review, we will dismiss the motion on the 
ground that the record still does not establish that the Beneficiary would be employed in the United 
States in a managerial or executive capacity within one year of the petition's approval. We continue 
to reserve the remaining issues of whether the Beneficiary had at least one continuous year of full­
time employment abroad with a qualifying organization within the three years preceding his 
application for admission to the United States in the L-lA nonimmigrant classification and whether 
he was employed abroad in a managerial or executive capacity. 
1 A "new office" is an organization that has been doing business in the United States through a parent, branch, affiliate, or 
subsidiary for less than one year. 8 C.F.R. § 214.2(1)(1)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a 
"new office" operation one year within the date of approval of the petition to support an executive or managerial position. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge" for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves 
specialized knowledge. Id. The petitioner must also establish that the beneficiary's prior education, 
training, and employment qualify him or her to perform the intended services in the United States. 
8 C.F.R. § 214.2(1)(3). 
Since this is a new office petition, the petitioner must submit evidence to demonstrate that the new 
office will be able to support a managerial or executive position within one year of the petition's 
approval. This evidence must establish that the petitioner secured sufficient physical premises to 
house its operation and disclose the proposed nature and scope of the entity, its organizational 
structure, its financial goals, and the size of the U.S. investment. See generally, 8 C.F.R. 
§ 214.2(1)(3)(v). 
As defined in section 101(a)(44)(A) of the Act, the term "managerial capacity" means an assignment 
within an organization in which the employee primarily-
(i) Manages the organization, or a department, subdivision, function, or component of the 
organization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) If another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as promotion 
and leave authorization) or, if no other employee is directly supervised, functions at a 
senior level within the organizational hierarchy or with respect to the function 
managed; and 
(iv) Exercises discretion over the day-to-day operations of the activity or function for which 
the employee has authority. A first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional. 
As defined in section 101(a)(44)(B) of the Act, the term "executive capacity" means an assignment 
within an organization in which the employee primarily-
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
2 
Section 101(a)(44)(C) of the Act further provides that: 
If staffing levels are used as a factor in determining whether an individual is acting in 
a managerial or executive capacity, [U.S. Citizenship and Immigration Services] shall 
take into account the reasonable needs of the organization, component, or function in 
light of the overall purpose and stage of development of the organization, component, 
or function. An individual shall not be considered to be acting in a managerial or 
executive capacity (as previously defined) merely on the basis of the number of 
employees that the individual supervises or has supervised or directs or has directed. 
To be eligible for L-1A nonimmigrant visa classification as a manager or an executive, a petitioner 
must show that the beneficiary will perform the high-level responsibilities set forth in the statutory 
definitions at sections 101(a)(44)(A)(i)-(iv) and 101(a)(44)(B)(i)-(iv) of the Act, each of which has 
four elements. If the record does not establish that the offered position meets all four elements of the 
pertinent statutory definition, we cannot conclude that it is a qualifying managerial or executive 
position. If a petitioner establishes that the offered position meets all four elements of the applicable 
statutory definition, it must prove that the beneficiary will be primarily engaged in managerial or 
executive duties, as opposed to ordinary operational activities alongside the petitioner's other 
employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
II. ANALYSIS 
The Petitioner, a convenience liquor store established in September 2016, is the subsidiary of 
I I dbal I located inl I India. Both businesses are wholly owned 
byl I who also serves as the president of both entities. The Petitioner asserts that the 
Beneficiary has been employed byl I as its director of sales from the time that business was 
founded in December 2010. In October 2016 the Petitioner filed a "new office" petition requesting 
L-1A classification for the Beneficiary to work as the store director of the U.S. business. 
A. Employment in the United States in an Executive or Managerial Capacity Within One Year 
In denying the petition on June 6, 2019, the Director reviewed the Petitioner's initial description of 
the prospective U.S. position, the documentation submitted in response to a request for evidence and 
a subsequent notice of intent to deny, and determined that it failed to establish that the Beneficiary 
would be employed in a managerial or executive capacity within one year of the petition's approval. 
The Director recounted the Petitioner's description of the new office in the United States as a 
convenience store offering produce, packaged foods, drinks, staples, clothing, and other items, with 
the parent company adding to the inventory by shipping clothing products to the Petitioner for sale in 
the United States. According to the Petitioner it intended to hire, in addition to the Beneficiary as 
store manager, a general manager, two assistant managers, and six general retail staff employees 
within the first year of operation. 
The Director stated that the description of the store director's job duties was too general in nature, did 
not sufficiently explain what the Beneficiary would do on a day-to-day basis, included non-qualifying 
tasks, and did not indicate the percentage of time the Beneficiary would spend on each duty. The 
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Director concluded that the evidence did not establish that the Beneficiary would be employed 
primarily in a managerial or executive capacity within one year of the petition's approval. The 
Director also analyzed the Petitioner's prospective organizational chart and the job duties to be 
exercised by the prospective employees. The Director concluded that the Petitioner had not provided 
sufficient evidence to demonstrate that its prospective organizational structure would reach a level of 
complexity within one year of the petition's approval whereby the Beneficiary would be employed in 
a managerial or executive capacity. In summation, the Director stated that the evidence of record did 
not establish that the new U.S. business would support an executive or managerial position within one 
year of the petition's approval. 
On appeal the Petitioner's only submissions with regard to the Beneficiary's prospective employment 
in the United States were copies of a "Site Feasibility Report" (dated January 6, 2016) for the proposed 
development of a commercial lot in I I Georgia, and the Petitioner's business plan which was 
already in the record. The Petitioner did not explain how the site feasibility report for a lot ini==l 
Georgia, related to the Beneficiary's prospective employment with the new U.S. business inL_J 
Texas, and the contents of the business plan had already been considered by the Director in his 
decision. 
In dismissing the appeal we stated that the Petitioner did not specifically dispute the Director's adverse 
conclusion regarding the Beneficiary's proposed employment in a managerial or executive capacity 
in the United States or explain how the Director erred in making that adverse determination, and 
therefore had abandoned its challenge of the decision on this ground. We also reviewed the 
Petitioner's previously submitted evidence, analyzed in the Director's decision, and concluded that it 
did not show the Petitioner's operations would support the Beneficiary in a managerial or executive 
capacity within one year of the petition's approval. 2 
The Petitioner has filed a motion to reopen. The regulation at 8 C.F.R. § 103.5(a)(2) provides that: 
A motion to reopen must state the new facts to be provided in the reopened proceeding 
and be supported by affidavits or other documentary evidence. 
In its motion3 the Petitioner asserts that the Beneficiary "serves as an executive" with "responsi bi I ities 
"far beyond the scope of a manager or supervisor" because he negotiated the purchase of the U.S. 
business, filed articles of incorporation, will negotiate the purchase of inventory, train management 
staff, establish cash handling procedures, and oversee the financial reporting for the business. The 
Petitioner submits a copy of a document purpor!lD,.9....!Q..,be a "Bill of Sale" dated October 1, 2016, 
whereby thel ~ business inL__JTexas, was purchased by the Beneficiary on 
behalf of the Petitioner. Neither the business activities described by the Petitioner nor the alleged 
purchase and sale transaction demonstrate that the Beneficiary's job duties with the Petitioner are 
2 As previously indicated, in our dismissal of the appeal we reserved the Petitioner's arguments regarding the Beneficiary's 
claimed employment with the foreign parent entity. 
3 The Petitioner indicated on the Form 1-290B, Notice of Appeal or Motion, that it was filing a motion to reopen. The brief 
that accompanied the motion was entitled "Motion in Support of Motion to Reopen and Reconsider." At the outset of the 
brief, however, the Petitioner stated that it "submits this Motion to Reopen ... supported by documentary evidence 
demonstrating eligibility for the requested immigration benefit." Reading the document as a whole we conclude that the 
Petitioner intended to file a motion to reopen, as indicated on the Form 1-290B, and not a combined motion to reopen and 
reconsider. 
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primarily executive in nature, which appears to be the Petitioner's emphasis (for the first time) on 
motion. The Petitioner has not shown how the Beneficiary's employment in the United States meets 
all four elements of executive capacity as defined in section 101(a)(44)(B) of the Act. Nor has the 
Petitioner shown that the Beneficiary's U.S. employment meets all four elements of managerial 
capacity as defined in section 101(a)(44)(A) of the Act. Furthermore, the Petitioner has not established 
that the Beneficiary will be primarily engaged in executive or managerial duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS. 
In short, the facts and evidence submitted on motion are not sufficient to overcome our previous 
determination that the Petitioner has not established that the Beneficiary will be employed in a 
managerial or executive capacity by the U.S. business within one year of the petition's approval. Thus, 
the Petitioner has not shown proper cause to reopen this proceeding. 
In visa petition 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 in 
this case. 
B. Reserved Issues 
As previously indicated, we reserve the issues of (1) whether the Beneficiary had at least one 
continuous year of full-time employment abroad with a qualifying organization within the three years 
preceding his application for admission to the United States in the L-1A nonimmigrant classification 
and (2) whether the Beneficiary was employed abroad in a managerial or executive capacity. 
111. CONCLUSION 
For the reasons discussed above the Petitioner has not shown proper cause to reopen this proceeding. 
The motion will be dismissed for this reason. 
ORDER: The motion to reopen is dismissed. 
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