dismissed L-1A Case: Retail

MATTER OF D-G- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 7, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a clothing and art store, seeks to temporarily employ the Beneficiary as director of sales 
of its new office1 under the L-lA nonimmigrant classification for intracompany transferees. See 
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, concluding that the record did not 
establish, as required, that the new office would support a managerial or executive position within one 
year after approval of the petition. The Petitioner appealed that decision, and we dismissed the appeal 
with two additional findings. Specifically, we found that the Petitioner had not: (1) established the 
financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in 
the United States, and (2) secured sufficient physical premises to house its business operations. 
The matter is now before us on a motion to reconsider. On motion, the Petitioner asserts that we erred 
by arriving at unwarranted and unreasonable conclusions. 
We will deny the motion. 
I. MOTION REQUIREMENTS 
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 statement of U.S. 
Citizenship and Immigration Services or Department of Homeland Security policy. 
1 The term "new office" refers to an organization which has been doing business in the United States 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 no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Matter of D-G- Inc. 
II. FUNCTION MANAGER 
A petitioner seeking to employ a beneficiary as a manager or executive of a new office must 
establish that the new office will support an executive or managerial position within one year of 
approval of the petition. 8 C.F.R. § 214.2(1)(3)(v)(C). 
In our decision, we acknowledged that the Beneficiary's discretionary authority over the Petitioner's 
sales department, but we found that the Petitioner did not show that the Beneficiary's duties are 
primarily managerial as required by section 101(a)(44)(A) of the Act. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act. On motion, the Petitioner asserts 
that the Beneficiary qualifies as a function manager because she will manage essential functions of 
the organization. 
The Petitioner acknowledges that it "did not argue 'function manager' in [its] initial claims," but 
asserts that we acted in an "unreasonable and burdensome" manner by not considering the issue 
anyway. The burden, however, is on the Beneficiary to establish eligibility, not on us to consider the 
raw evidence on appeal and then determine whether there is a way to interpret that evidence to the 
Petitioner's advantage. A motion to reconsider must establish that the decision was incorrect based 
on the evidence of record at the time of the initial decision. At the time of the initial decision, the 
Petitioner had not claimed that the Beneficiary was a function manager, and therefore we did not err 
by failing to consider such a claim. 
In our appellate decision, we found that the Petitioner had not "articulated a specific function that the 
Beneficiary will manage." On motion, the Petitioner specifies that the Beneficiary manages an 
essential function through her "discretionary authority over [ the Petitioner's] sales department." The 
Petitioner also asserts: "if beneficiary manages an essential function within the organization, it is 
hard to believe beneficiary won't be primarily ... a manager or executive." The Petitioner does not 
explain how the conclusion follows from the premise, such that responsibility for an essential 
function should be presumed to occupy the majority of an individual's time. 
It is reasonable to assert that sales are an essential function of the petitioning entity, and while the 
Beneficiary may be responsible for leading the sales department, it does not automatically follow 
that her duties would be primarily managerial. In our previous decision, we quoted the 
Beneficiary's claimed job description at length, and identified several specific deficiencies in that 
description. For example, the Petitioner asserted that the Beneficiary "is in charge of the 
development of new products," but the Petitioner has no current or projected employees involved in 
product development, and the Petitioner did not explain or corroborate the implication that the 
Beneficiary would have a role in the development of products manufactured by third-party suppliers. 
On motion, the Petitioner does not respond to any of these specific points. Therefore, the job 
description is of questionable accuracy and, therefore, limited probative weight. 
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Matter of D-G- Inc. 
The Petitioner has not established that we erred in finding that the Beneficiary will not be primarily 
employed in a managerial capacity within one year of approval of the petition. 
III. FINANCIAL SUPPORT 
A petitioner seeking to open a new office must "submit evidence ... [to establish] the financial 
ability of the foreign entity to remunerate the beneficiary and to commence doing business in the 
United States." 8 C.F.R. § 214.2(1)(3)(v)(C)(2). The Petitioner's business plan anticipated "$2 
million dollars investment ... for 2016 to 2018," but at the time of filing, the Petitioner had received 
only $160,000 from its parent company, as shown on bank documents. We found that, according to 
this same evidence, "the parent company carried a bank balance of around ... $1.42 million." We 
concluded that the Petitioner had not established the foreign entity's ability invest the remaining 
$1.84 million in the U.S. entity over the next two years. 
On motion, the Petitioner states there is "[ n ]o indication ... the foreign [entity] won't be able to 
invest a further $1.84 million in the U.S. entity over the next two years .... It is unreasonable and 
unprofessional for AAO to predict [the] foreign entity's future." The Petitioner does not explain 
how our conclusion was in error. We did not attempt to "predict [the] foreign entity's future." 
Rather, we found that the foreign entity's demonstrated available assets were less than the projected 
investment in the petitioning U.S. company, and that the Petitioner had not established that the 
company would be able to make up for the shortfall. The Petitioner does not show on motion that 
the existing record demonstrated the foreign company's ability to make the full investment during 
the period described. 
The Petitioner has not shown that our finding regarding the foreign entity's finances was in error. 
IV. SUFFICIENT PHYSICAL PREMISES 
The Petitioner must establish at the time of filing that it has secured sufficient physical premises to 
house its business operations. See 8 C.F.R. § 214.2(1)(3)(v)(A). In our appellate decision, we noted 
that the Petitioner claimed in July 2017 that it would recruit warehouse staff "by June 2017," but had 
not shown that it had secured warehouse space where they would work. We concluded: "If the 
Petitioner plans to hire warehouse workers, but has no warehouse, then it has not secured sufficient 
physical premises to house its business operations." 
On motion, the Petitioner states that it had previously submitted evidence to show that it has adhered 
to its business plan, and that there was no indication to the contrary. The Petitioner, on motion, does 
not specify what evidence it previously offered in this regard, and the Petitioner provides no specific 
response to the issue of the warehouse space. Therefore, the Petitioner has not established that we 
erred in our findings in that regard. 
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Matter of D-G- Inc. 
V. CONCLUSION 
The Petitioner did not establish that we erred in our prior decision, or show that the petition was 
approvable at the time of filing. 
ORDER: The motion to reconsider is denied. 
Cite as Matter of D-G- Inc., ID# 1751023 (AAO Nov. 7, 2018) 
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