dismissed L-1A Case: Retail And Wholesale Trade

MATTER OF C-G-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company engaging in international retail and wholesale of fashion and construction 
products, seeks to extend the Beneficiary's temporary employment as its president and chief executive 
officer under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration 
and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § 110l(a)(15)(L). The L-IA 
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 an executive or managerial 
capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that the Beneficiary will be employed in an executive capacity in the 
United States. The Petitioner then filed an appeal, which we dismissed. 
The matter is now before us on a combined motion to reopen and reconsider. On motion, the 
Petitioner submits additional evidence that it states was not available prior to the denial of the 
petition. Further, the Petitioner asserts that it has submitted ample documentation to establish by a 
preponderance of the evidence that the Beneficiary would be employed in an executive capacity 
under the extended petition, and contends that "the AAO failed to atiiculate a rational basis for 
finding that the petitioner's staff or structure is unreasonable" pursuant to section 101(a)(44)(C) of 
the Act. 
Upon review, we will deny the motion to reopen and the motion to reconsider. 
I. MOTION REQUIREMENTS 
The regulation at 8 C.P.R. § 1 03.5(a)(l )(i) limits our authority to reopen the proceeding to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reopening, a petitioner 
must not only 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), but also show proper 
cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See 8 C.P.R.§ 103.5(a)(4). 
Matter ofC-G-, LLC 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to 
reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law ·or U.S. 
Citizenship and Immigration Services (USCIS) policy. A motion to reconsider must, when filed, 
also establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. § 103.5(a)(3). 
For the reasons to be discussed below, we find that the new evidence submitted on motion does not 
overcome the dismissal or establish that the petition should be approved. Therefore, the Petitioner 
has not shown proper cause to reopen the proceeding. 
Furthermore, we find that the Petitioner, has not established that our decision was based on an 
incorrect application law or USCIS policy, or that our decision was incorrect based on the evidence 
of record at the time of that decision. Therefore, the Petitioner has not shown proper cause for 
reconsideration. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue addressed in our prior decision is whether the Petitioner established that the 
Beneficiary would be employed in an executive capa~ity under the extended petition. 
A. Law 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(8), detines the term "executive capacity" 
as "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. 
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 (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
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Matter of C-G-. LLC 
B. Analysis 
In dismissing the Petitioner's appeal, we looked first at the Beneficiary's job duties as president and 
CEO, as described in the record. We acknowledged that some of the duties attributed to him, such 
as directing the company's financial operations, establishing and implementing policies and 
objectives, and making policy and business decisions , appeared to be executive in nature. However , 
·we further found that a significant number of his daily tasks were not qualifying executive duties. 
These duties included , but were not limited to representing foreign manufacturers in Puerto Rico, 
locating prospective marketing channels for placing construction products in Puerto Rico and the 
U.S. market overall , negotiating contracts with distributors in Puetto Rico, facilitating the import of 
materials from overseas, developing relationships with Puerto Rican retail chains by meeting , and 
making presentations of the company's products. We found that the duty description as a whole, did 
not provide a sufficient breakdown of how much time the Beneficiary would allocate to executive 
duties as opposed to marketing and business development tasks for the company's construction 
materials wholesale business . 
We also reviewed the Petitioner's business model , its organizational structure , the Beneficiary ' s 
subordinate employees, and whether there were sut1icient staff to relieve the Beneficiary from 
performing the operational duties, particularly those of its construction department, as the record did 
not reflect that the Beneficiary would have any significant involvement in the day-to-day operation 
ofthe Petitioner's fashion department, which consists of a retail women's clothing store. The record 
prior to the denial indicated that all the Petitioner's employees were assigned to manage or operate 
the store, while there were no employees assigned to perform the non-executive tasks of the 
construction materials department, such as sales, inventory , logistics , imports and marketing 
associated with the wholesale distribution of multiple product lines. 
We further found that the Petitioner claimed for the first time on appeal that employees of the 
Petitioner's Bulgarian affiliate would relieve the Beneficiary from performing administrative , sales 
and other non-qualifying duties associated with the trading of construction materials in Puerto Rico. 
We reviewed the foreign entity's organizational chart and the foreign employees' employment 
contracts and found that there was insufficient evidence to show that the foreign employees relieve 
the Beneficiary from performing day-to:..day operational tasks associated with the sales, inventory , 
logistics, imports or marketing of the construction materials products in Puerto Rico and the United 
States. Accordingly , absent evidence that someone other than the Beneficiary was available to 
perform the majority of the non-executive , day-to-day duties of the company's construction 
materials distribution business, we found insufficient evidence to establish that the Beneficiary ' s 
actual duties would be primarily executive in nature as of the date of tiling. 
On motion, the Petitioner asserts that our decision "misrepresent s and ignores the relevant 
documents submitted and the facts that may be derived from those documents ." Specifically , the 
Petitioner asserts that we overlooked the contract between the foreign entity, and the 
Beneficiary 
which, according to the Petitioner "provides that all the commercial activities of [the 
Petitioner] in Puerto Rico are supported by in Bulgaria. " 
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(b)(6)
Matter ofC-G-, LLC 
We have reviewed the referenced document, which is titled "Collaborative and Cooperative Activity 
Agreement" and is dated "11-06-2008." The document identities the parties as the Beneficiary and 
and states that "the parties declare their intention of collaboration and cooperative 
activities in the field of market research and implementation of projects in the United States of 
America and the Caribbean countries." It identifies the intended areas of collaboration as investment 
in and construction of holiday and tourist resort, lease or sale of completed projects, development of 
franchise projects in leading shopping malls, and market research and commercial development in 
the field of construction equipment. The document indicates that the Beneficiary would be paid 
$15,000 monthly during his stay in Puerto Rico, the Dominican Republic or elsewhere in the 
Caribbean, during the 10-year term ofthe agreement. 
Upon review, we find this agreement insufficient to establish the Bulgarian entity's employees will 
relieve the Beneficiary from significant involvement in the day-to-day, non-executive tasks 
associated with the wholesale distribution of construction equipment and materials in Puerto Rico 
and the United States. The agreement pre-dates the corporate existence of the petitioning company 
by 4 years and does not specifically provide for employees to perform specific tasks 
for the construction department of the Petitioner, which was formed in 2012 and did not begin 
importing construction products to Puerto Rico until a later date. This agreement generally indicates 
that the foreign entity will collaborate and cooperate with the Beneficiary on future endeavors, but 
does not meet the Petitioner's burden to establish that the non-executive functions of its construction 
department are performed by someone other than the Beneficiary himself. 
In addition, the Petitioner suggests that we overlooked evidence showing that employs a 
staff of six employees and asserts that "between the six direct employees on the petitioner's payroll 
in the U.S. and the six employees available through the overseas affiliate in Bulgaria" ... [the 
Beneficiary] has sufficient ground level support (from 12 employees) to relive him from performing 
non-executive tasks." However, we acknowledged both the U.S. employees and the foreign 
employees in our decision. We determined that all of the direct U.S. employees were working in the 
Petitioner's retail store and did not assist the Beneficiary with the non-executive duties of the 
construction materials business. As noted above, we acknowledged that the Petitioner provided 
evidence that the foreign entity employed six employees, but found that it did not provide 
descriptions of job duties for any of these employees in support of a claim that they actually relieve 
the Beneficiary from performing non-executive duties associated with the construction materials 
wholesale business. 
On motion, the Petitioner states that the Beneficiary relies on "the professional support staff in 
Bulgaria to coordinate the logistics of the sale, packaging, shipment and exportation of merchandise 
and material from Europe to Puerto Rico, and well as its importation and delivery of this 
merchandise in Puerto Rico and the United States." It further asserts that the evidence of record 
"identifies the employees utilized for the development, production, sale and distribution of the 
merchandise," and claims that "the sheer volume work and responsibilities generated by the 
exclusive representation agreements and contracts" negotiated with business entities in Europe, the 
United States and Puerto Rico "provides the clearest evidence of [the Beneficiary's] executive 
prowess and the need of the support staff in Puerto Rico and Bulgaria." The Petitioner contends that 
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Matter of C-G-, LLC 
"logic dictates" that the Beneficiary "simply could hot conclude these agreements and fulfill the 
commercial obligations they entail without the support of his subordinate staff." 
While the Petitioner submits new evidence in support of the motion, including an updated list ofthe 
foreign entity's employees, it has not submitted position descriptions for these Bulgaria-based 
employees in support of its assertion that they perform the bulk of the operational and administrative 
tasks associated with the Petitioner's construction materials trading business in Puerto Rico. The 
Petitioner's contentions on motion suggest that we should assume that the Beneficiary must have a 
support staff given the scope of the business; however, it is the Petitioner's burden to establish who, 
specifically, is relieving the Beneficiary from performing the day-to-day duties of purchasing and 
arranging for the shipment of products from various European manufacturers to Puerto Rico, and 
who is arranging for their marketing, sale and distribution within Puerto Rico. 
At the time of filing, the Petitioner indicated that the foreign entity had six employees and provided 
an organizational chart, payroll statements, and employment contracts. These employees were 
identified on the chart as a property management and rental employee who supervised three 
"auxiliary employees," an employee responsible for "export to Puerto Rico, USA and Caribbean," 
and one employee who was not named on the submitted organizational chart, but appears to be an 
accountant. The submitted employment contracts identify these workers as a chief accountant, a 
technical secretary, a "head of 'self defense unit," and three security guards, with no contract 
provided for the employee in the export section. Again, the Petitioner did not provide position 
descriptions for these workers; while it is reasonable to believe that the employee responsible for 
exports to Puerto Rico would be charged with logistical aspects of getting the construction materials 
products from Europe to Puerto Rico, we will not assume that this one employee performed most of 
the non-executive duties associated with the entire construction materials business, particularly when 
the Petitioner attributed many sales and marketing duties to the Beneficiary. We will not speculate 
about the duties of the remaining employees, but see no reason to conclude that a security guard 
based in Bulgaria, for example, is involved in the day-to-day operations of the Puerto Rican 
business. 
The updated foreign employee list submitted on motion indicates that the company employs an 
accountant, a general export manager, a warehouse manager and five "worker-employee" positions, 
is also unaccompanied by position descriptions, and does not provide sufficient support for the 
Petitioner's claim that the Bulgarian staff perform the operational and administrative aspects of its 
construction management business. 
The Petitioner also indicates that it is providing an updated description of the Beneficiary's duties in 
support of the motion, but, upon review, the description is identical to that submitted in response to 
the Director's request for evidence, prior to the denial of the petition. The Petitioner has added 
percentages to the duties previously listed; however, the deficiencies we addressed in our previous 
decision have not been resolved. Without additional specifics regarding the Beneficiary's actual 
duties and evidence of duties performed by staff of the foreign entity, we cannot determine that the 
Beneficiary's actual duties, as ofthe date of filing, would be primarily executive in nature. 
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Matter of C-G-, LLC 
The Petitioner submits additional evidence that was not previously provided, which includes: (1) 
Annual Tax Declaration for 2015; (2) a chart tiled "Availability of Goods" for the 
Petitioner as of October 2016; (3) a list ofthe Petitioner's customers; (4) evidence relating to 
an affiliate of the Petitioner which was established in Florida subsequent to the filing of 
this petition; ( 5) copies of invoices the Petitioner issued in 2015 and 20 16; ( 6) the Petitioner's 2015 
corporate tax return; and (7) ·copies of IRS Form W-2PR issued to eight employees of the 
Petitioner's fashion department in 2015. The Petitioner states that the newly submitted documents 
"lend further support and evidence of the petitioner's ongoing business activities and growth in the 
United States throughout 201.6 to date." However, as the Petitioner does not claim that this evidence 
directly relates to establishing the Beneficiary's employment in an executive capacity as of the date 
of filing, we find that it does not warrant the reopening of the petition. 
Finally, we note that the Petitioner's claim that "[t]he AAO failed to articulate a rational basis for 
finding that the petitioner's staff or structure is unreasonable," and, noting that the company 
achieved a gross profit in 2015, asserts that its "staffing levels are reasonably sufficient for the cost 
effective management of its resources and to ensure financial success." The Petitioner submits 
copies of unpublished decisions in which we sustained appeals based, in part, on a finding that the 
service center director placed undue emphasis on the size of the company in determining whether the 
beneficiaries would be employed in a managerial or executive capacity. The Petitioner has not 
established how the facts of the instant petition are analogous to those in the unpublished decision. 
While 8 C.F .R. § 103 .3( c) provides that our precedent decisions are binding on all USCIS employees 
in the administration of the Act, unpublished decisions are not similarly binding. 
A review of our prior decision reflects that we appropriately addressed the Petitioner's reasonable 
needs and staffing levels in light of its current stage of development, and did not dismiss the 
petitioner's appeal based on the size of the company: 
We note that a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a 
multinational manager or executive. See § 10l(a)(44)(C) of the Act, 8 U.S.C. 
§ 1101(a)(44)(C). In reviewing the relevance of the number of employees a petitioner 
has, federal courts have generally agreed that USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are 
substantial enough to support a manager." Family Inc. v. USCIS 469 F.3d at 1316 
(citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 
1991); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data Consulting. Inc. v. INS, 293 
F. Supp. 2d 25, 29 (D.D.C. 2003)). It is appropriate for USCIS to consider the size of 
the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the 
non-managerial or non-executive operations of the company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See. e.g., 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Here, it is not the size 
of the company that is determinative, but rather that the Petitioner has not shown that 
it has currerit employees to relieve the Beneficiary from performing the non-executive 
Matter of C-G-, LLC 
tasks associated with sales, inventory, logistics, imports, and marketing of its 
construction department in the United States. 
We reached this conclusion after noting that the Beneficiary performs a number of non-qualifying 
duties associated with the marketing and development of the construction materials wholesale 
business in Puerto Rico, after confirming that all of the Petitioner's own employees work in its retail 
clothing store, and after determining that there was insufficient evidence that the foreign entity's 
employees relieve the Beneficiary from performing non-qualifying duties associated with its import 
and wholesale distribution operations. We did not dismiss the appeal because the Petitioner is a 
small business or find that its structure is "unreasonable." Rather, we found that the Petitioner's 
claims regarding the distribution of work were not adequately supported in the record and denied the 
petition based on this evidentiary deficiency. 
The Petitioner has not submitted any new facts or evidence that would change the outcome of this case 
if the matter were reopened. Further it has not established that we based our prior decision on an 
incorrect application of law or USCIS policy, or that the decision was incorrect based on the 
evidence of record at the time of that decision. Therefore, the Petitioner has not shown grounds for 
reopening or reconsideration with respect to the sole grounds for denial. 
III. CONCLUSION 
The Petitioner should note that, unless USCIS directs otherwise, the filing of a motion to reopen or 
reconsider does not stay the execution of any decision in a case or extend a previously set departure 
date. 8 C.F.R. § 103.5(a)(1)(iv). 
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. Here, that burden 'has not been met. 
Accordingly, the combined motion will be denied, the proceedings will not be reopened or 
reconsidered, and our previous decision will not be disturbed. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofC-G- LLC, ID# 155554 (AAO Feb. 27, 2017)