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: OCT. 3L 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-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 (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 Vermont Service Center denied the petition and affirmed that denial after 
reviewing the Petitioner's subsequent combined motion to reopen and reconsider. We dismissed the 
Petitioner's appeal concluding that the Petitioner did not establish, as required, that: (1) it had 
secured physical premises as of the date the petition was filed; and (2) it would be able to support a 
managerial or executive position within one year of approval of the petition. The Petitioner then 
filed a combined motion to reopen and motion to reconsider, which we denied. 
In this second combined motion to reopen and motion to reconsider, the Petitioner submits a brief, 
an affidavit from the Beneficiary, and evidence of its business activities from 2016 and 2017, some 
of which was previously submitted. 
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. § I 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 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). A motion to reconsider must be 
supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or 
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Matter of A-W-, Inc. 
statement of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland 
Security policy. We may grant a motion to reopen or reconsider 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. 
For the reasons discussed below, we will deny the combined motion. Although the Petitioner has 
submitted new evidence and attempted to clarify some facts that were at issue in our prior decision, 
it 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). 
The record contains a lease for office premises located at in Texas. 
However, the lease was signed in October 2014 and did not establish that the Petitioner met this 
eligibility requirement at the time of filing. 
The Petitioner has consistently claimed that it had a "lease sharing" arrangement with the office's 
prior tenant ( beginning on June 1, 20 14. The owner and president of 
confirmed the arrangement in three separate letters, and the Petitioner provided evidence of 
a $900 payment made to in September 2014 for August 2014 rent. 
In denying the previous motion, we acknowledged the Petitioner's argument that there are no 
evidentiary requirements specifying what is needed to demonstrate acquisition of "sufficient 
physical premises. " However, we explained that evidence demonstrating that the property owner or 
property manager was aware of the lease sharing arrangement would have assisted in corroborating 
the Petitioner 's explanation that it had actually obtained the landlord 's "informal" consent for the 
arrangement. 
Without such documentation from 
the landlord, we considered the secondary evidence submitted. 
and questioned whether a check for $900, specifically designated as "August rent" and written in 
mid-September was intended to cover the Petitioner's entire share of $2088 in rent (plus utilities) for 
a period of four months beginning on June 1, 2014. We also acknowledged the Petitioner's claim 
that it had use of the premises on weekdays , but questioned whether 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. 
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Matter of A-W- , Inc. 
On motion, the Petitioner submits an affidavit from the Beneficiary who explains that the Petitioner 
was unable to provide a letter from the landlord or property manager confirming the lease-sharing 
arrangement 
because a new property management company had taken the place of the company that 
provided informal consent for the arrangement. He states that the new property manager will not 
prepare a letter, provides a contact name and number for the management company, and explains 
that the property manager "asserted that the transfer of the lease to [the Petitioner] was evidence of 
the Property's knowledge of the shared lease.'' 
The Beneficiary also offers a new statement regarding the lease sharing arrangement: 
Because was mostly benefiting from the shared-lease arrangement, 
[its owner] carried more of the rent and was flexible in the payment 
terms. paid for a little more than half of the base rent and all of the 
additional costs for electricity, water and utilities. It was also agreed that [the 
Petitioner] could pay its share at the end of lease term, before we 
took over the lease. At the end of the four months , we paid $900 or 
$225 per month for our share of the rent. 
Finally, in response to our questions regarding the feasibility of the lease sharing arrangement , the 
Beneficiary explains that which provides IT training courses, did not need its offices 
on weekdays because its clientele are working professionals who cannot attend class during normal 
weekday business hours. 
The Beneficiary's statements are insufficient to establish that the Petitioner had acquired sufficient 
physical premises to house its new office as of July 2014. As noted, the record contains multiple 
letters from owner and president of None of the letters provide 
details regarding the specific agreement made between the two parties, which leaves the 
Beneficiary's new statement uncorroborated in the record. In fact, in a letter dated November 18, 
2014, stated that her company shared its space with the Petitioner "to help us split the 
rent and utility bill" and in another statement she stated that the $900 was paid as rent, with no 
mention of utilities. 
Both of these statements appear to be inconsistent with the Beneficiary's new claim that the 
Petitioner 's single $900 payment to was intended to cover "more than half of the base 
rent" of $522 per month as well as all utilities over a four-month period. Further, if this was the 
arrangement, the Petitioner's share of the rent alone would have been more than the $225 per month 
that the Petitioner now claims it paid. If the two parties to this claimed informal lease sharing 
arrangement cannot consistently describe what the agreed terms were, then their statements have 
limited probative value. The Petitioner must support its assertions with relevant, probative and 
credible evidence. See Matter ofChawathe , 25 I&N Dec. 369, 376 (AAO 2010). 
The Petitioner 
again suggests that we contact the property manager 's representative directly in order 
to verify its claims. However, the burden of proof in the current matter is on the Petitioner. See. 
e.g, Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Matter of A-W-, Inc. 
The Petitioner cannot transfer that burden to USCIS by requesting that we independently obtain 
evidence to corroborate its claims. 
The Petitioner's submission on motion does not overcome our previous finding or establish that the 
Petitioner had secured sufficient physical premises to house its new office as of July 2014 when it 
filed the petition. 
B. New Office Requirements 
In denying the previous motion, 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 ofthe approval ofthe petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
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 indicated it had 12 employees when the petition was 
filed and expressly noted that it "has acquired a majority ownership of four wireless companies.'' 
Since the Petitioner's business plan was premised on its claim that it had already acquired a 
controlling interest in four separate companies, we looked for evidence of its ownership of these 
companies to support the claimed relationship. In dismissing the appeal, we found that the evidence 
of this ownership, which including copies of purchase agreements and checks issued to the purpmied 
sellers, to be insufficient. We further found 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. 
In the previous motion, the Petitioner stated 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-1 A visa petition." The 
Petitioner emphasized, that it had not made all required payments to the owners of the subsidiary 
entities prior to the filing date, but merely showed a commitment to acquire these companies. At the 
same time, the Petitioner stated that "[ s ]ince the subsidiaries were acquired, they were merged into 
[the Petitioner] and no formal registration with the state needed to be made'" because 
"[t]he contract itself served as the final documentation of the acquisition." 
In our decision denying the motion, we noted that 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, but later claimed that it had merely committed to do so. Further, we 
noted that the Petitioner simultaneously claimed, within the same brief, that its acquisition of the 
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Matter of A-W-, Inc. 
four subsidiaries was: (1) completed after the petition was denied through a "merger'' process that 
produced no documentation; and (2) entirely contingent upon the approval of this visa petition. 
In the affidavit submitted in support of this motion, the Beneficiary states that: (l) the Petitioner's 
operations were largely dependent on the approval of the L-1A visa; (2) the Petitioner was 
committed to purchasing all four companies and had prepared agreements for their purchase which 
were contingent upon approval of this petition; (3) the Petitioner was fully prepared to acquire the 
companies, their employees and customers; and ( 4) the Petitioner was eventually forced to back out 
of the purchase agreements due to delays in obtaining an approval for the instant petition. 
The Beneficiary further states that, since the end of 2016, the Petitioner has been operating a salon 
and a retail store. The motion includes evidence related to both of these businesses and the 
Petitioner asserts that it has now shown that it is able to support a managerial or executive position 
"for over one year." 
In order for the Petitioner to overcome our previous finding, it would need to clarify the 
inconsistencies in the record regarding its claimed acquisition of four businesses and its ability to 
carry out the business plan submitted at the time of filing. The Beneficiary's statement does not 
explain why the Petitioner indicated throughout its initial filing that it had already completed the 
acquisition of four businesses, or why it appeared to state in the previous motion that the acquisitions 
of these businesses had been completed through a merger after the denial of the petition. Further, 
notwithstanding the Beneficiary's claims here, we note there were no contingencies mentioned in the 
submitted purchase agreements. 
As noted in our previous decision, 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 done or would do, that evidence would 
tend to support the claims made in its business plan. Evidence showing that the company started 
doing business in 2016 does not support a finding that the company would have supported a 
managerial or executive within one year of filing the petition in the summer of 2014. 
The Petitioner has not overcome our finding that it 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. 
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Matter of A-W-, Inc. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of A-W-, Inc., ID# 756846 (AAO Oct. 31, 2017)