dismissed L-1A Case: Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6336105 
Motion on Administrative Appeals Office Decision 
Form I-129, Petition for Nonimmigrant Worker (L-lA) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV. 13, 2019 
The Petitioner, describing itself as a technology company providing software as a service, filed a Form 
I-129, Petition for L-lA Manager or Executive seeking to continue the Beneficiary's temporary 
employment as its chief operating officer..1 Immigration and Nationality Act (the Act) 
section 101(a)(15)(L), 8 U.S .C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition , concluding that the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity 
under an extended petition. 
The Petitioner later filed an appeal, which we dismissed. In dismissing the appeal, we affirmed the 
Director's conclusion that the Petitioner did not demonstrate that the Beneficiary would be employed 
in a managerial or executive capacity under an extended petition. Further, we also noted that the 
Petitioner was listed as "inactive" and subject to "administrative termination" as of the date of our 
adjudication of the appeal. We indicated that this raised question as to the whether the Petitioner 
continued to exist as an importing employer .. 2 The matter is now before us again on a motion to reopen 
and a motion to reconsider. 
On motion, the Petitioner's counsel submits an additional explanation of the Beneficiary's executive 
level duties and contends that this clears up any confusion as to his daily tasks . The Petitioner asserts 
that the Beneficiary oversees subordinate managers supervising operational level sales employees that 
primarily relieve him from performing non-qualifying operational duties. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motion to reopen and the 
motion to reconsider. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
January 13, 2017, 1.mtil January 12, 2018. 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 . 
2 On motion, the Petitioner submits a printout of its business status from the Office of the I I Secretary of State 
reflecting that it is active and in good standing as of April 23, 2019. As such, this additional issue we raised on appeal is 
withdrawn . 
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 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). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner does not submit additional documentary evidence or affidavits, only a brief 
from counsel setting forth additional details related to the Beneficiary's claimed executive-level duties 
along with certain legal contentions. As noted above, a motion to must (1) state the new facts to be 
provided in the reopened proceeding; and they must (2) be supported by affidavits or other 
documentary evidence. 8 C.F.R. § 103.5(a)(2). We note that the assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's statements must be substantiated in the record 
with independent evidence through affidavits and declarations. Here, the Petitioner has not submitted 
any additional documentary evidence specific to whether the Beneficiary would act in an executive 
capacity under an extended petition; as such, it has not met the requirements of a motion to reopen. 
Therefore, the motion to reopen is dismissed. 
B. Motion to Reconsider 
As noted, the Petitioner submits additional details regarding the Beneficiary's claimed executive-level 
duties in the United States. The Petitioner asserts that this clarification from counsel is sufficient to 
establish that its operations and employees are sufficient to support him in an executive capacity. As 
noted in our previous decision, the Petitioner only contends that the Beneficiary would be employed 
in an executive capacity; as such, we will only analyze this issue and not whether he would be 
employed in a managerial capacity. 
The term "executive capacity" is defined as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) of the Act. 
In dismissing the appeal, we concluded that the Petitioner had submitted an ambiguous duty 
description for the Beneficiary lacking detail as to his specific daily tasks and also noted that the 
description did not reference its specific business operations. Further, we stated that an additional 
duty description provided for the Beneficiary in response to the Director's request for evidence (RFE) 
included several apparent non-qualifying operational duties suggesting his significant involvement in 
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sales and service delivery related tasks. We also pointed to the Petitioner's apparently limited 
operations after one year and emphasized that the evidence reflected that it had not hired operations 
staff to handle order fulfillment, delivery, and customer support functions. We concluded that the 
evidence suggested that the Petitioner had not developed sufficiently after one year to support the 
Beneficiary in a qualifying executive capacity. For instance, we indicated that the Petitioner did not 
submit supporting documentation to substantiate its claimed employees and that it provided vague 
duty descriptions for the Beneficiary's claimed subordinates. 
On motion, Petitioner's counsel submits an additional duty description for the Beneficiary and 
contends that this establishes "the specific nature of the beneficiary's duties" as executive in nature. 
For instance, the Petitioner listed broad categories of duties for the Beneficiary along with general 
percentages of time he devoted to each and listed additional tasks that made up each of these 
categories. The additional duties are as follows: 
Leadership- 15% 
• Establish the goals and policies of the organization, 
• Act at all times in a way that is professional and respectful, 
• Craft organizational goals and policies which respect and support all employees, 
and 
• Coach and mentor staff as appropriate to improve performance and meet with staff 
to encourage morale and discuss upcoming special projects or new products. 
Operational Planning and Management- 25% 
• Speak daily with the canvassers in order to effectively gather information regarding 
their first hand understanding of their markets to use that information to adjust the 
directions of the organization as a whole in order to ensure the company's policies 
are properly responsive, 
• Obtain the information necessary to formulate the plans and policies which will 
ensure the organization's success, 
• Make follow-up calls to clients and coordinate and organize meetings with clients, 
and 
• Prepare quarterly reports which the Beneficiary uses to determine the efficacy of 
the policies and the organization's performance relative to goals set. 
Program Planning and Management- 25% 
• 
• 
• 
• 
• 
Produce plans for the operation of the organization aimed at achieving the 
organizational goals, 
Work on the development of marketing plans which will provide direction for his 
subordinates, including general policies which managers and canvassers are 
expected to specifically implement for each client, 
Research the types of potential clients and develop guidelines for promotional 
materials his subordinate will tailor to actual leads, 
Meet weekly with subordinates to obtain examples of how they have implemented 
these plans, and 
Travel to site locations to troubleshoot or provide remote hands on technical 
support as needed and act as a last line of technical defense for client problems. 
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Human Resources Planning and Management -5% 
• 
• 
• 
• 
• 
• 
• 
• 
Determine if there is a need to add farther personnel by examining sales reports, 
Determine the direction the Petitioner needs to take so his subordinates can implement that 
direction with regard to staffing levels, and 
Ensure proper staff training orientation and provide direction on company goals . 
Financial Planning and Management- 5% 
Ensure that programs and services offered by the organization reflect the goals and 
priorities of the CEO, 
Oversee the implementation of performance reviews for employees and monitor cash flow 
of the organization, 
Review the budget of the CFO and determine if it adequately estimates the company's 
income, and 
Identify immediate additional capital and secure sources of fonding . 
Risk Management- 15% 
• Provide direction for the organization which will identify and mitigate risk, 
• Update organizational plans for securing personnel and client files, 
• Consider risk management in all plans and proposals, and 
• Direct the management of data and proprietary information. 
Once again, similar to the duty descriptions submitted in support of the petition and in response to the 
Director's RFE, the Petitioner provides a generic duty description for the Beneficiary which does not 
sufficiently detail and substantiate his daily tasks. Further, the Petitioner submits no supporting 
documentation to corroborate the Beneficiary's performance of qualifying executive-level duties. The 
duty description includes several generic duties that could apply to any executive acting in any industry 
and they provide little insight into the Beneficiary's actual day-to-day executive-level tasks. For 
instance, the Petitioner did not sufficiently detail or document the goals and policies of the organization 
the Beneficiary established, the special projects or new products he coordinated with staff, or plans 
and policies he established after coordinating with his claimed canvassers. Likewise, it did not 
articulate or document plans the Beneficiary produced for the operation of the organization, marketing 
plans he developed for each client, clients he worked with, guidelines for promotional materials he put 
in place, or technical issues he resolved through his subordinates. 
In addition, the Petitioner did not detail or substantiate with supporting evidence staffing levels the 
Beneficiary implemented, staff training he completed, programs and services he put in place, capital 
or sources of fonding he secured, direction he provided to mitigate risks, risks the company faced and 
he overcame, organizational plans for securing personnel and client files he updated, plans and 
proposals he considered, or proprietary data he managed. In fact, despite emphasizing several times 
in the updated duty description that the Beneficiary would establish the "goals and policies" of the 
Petitioner, it did not provide a single specific example of a goal or policy he set, nor did not submit 
documentation to corroborate them. Similarly, the Petitioner also indicates that the Beneficiary 
delegated technical support and other operational matters to his subordinates, but the record does not 
include any evidence of him delegating these tasks to his subordinates. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive in nature, otherwise 
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meeting the definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
Therefore, the updated duty description submitted by the Petitioner on appeal does not overcome the 
primary basis of dismissal in our previous decision; namely, that the Beneficiary's duties are 
insufficiently vague and generic to establish that he would primarily perform qualifying executive­
level duties under the extended petition. 
Furthermore, in our previous decision, we pointed to various non-qualifying operational duties 
included in the Beneficiary's duty description such as him coordinating with canvassers daily on client 
matters, identifying interested clients and target markets, developing sample promotional materials, 
and completing follow-up phone calls to clients to check on customer satisfaction. On motion, the 
Petitioner again lists non-qualifying duties for the Beneficiary, such as him coordinating with 
canvassers on client solutions, making follow-up calls to clients, and providing technical support. 
However, again, these non-qualifying duties are included throughout the record and the updated duty 
description. The Petitioner only vaguely states that "85% at least" of the Beneficiary's time would be 
devoted to qualifying executive-level duties, but it does not specifically indicate how much time he 
would devote to each of his non-qualifying operational tasks. Further, the Petitioner submits no 
evidence to substantiate that the Beneficiary primarily delegates non-qualifying operational tasks to 
his claimed subordinates as claimed. For example, the Petitioner contends that "any local support or 
integration that is needed is carried out by the canvassers or remotely from the parent company," yet 
it submits no evidence on the record, or now on motion, to corroborate the engagement of these 
employees or to demonstrate that the Beneficiary primarily delegated duties to them. 
Again, whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained 
its burden of proving that their duties are "primarily" executive. See sections 10l(a)(44)(B) of the 
Act. Here, the Petitioner does not sufficiently document what proportion of the Beneficiary's duties 
would be executive functions and what proportion would be non-qualifying. The Petitioner lists the 
Beneficiary's duties as including both executive tasks and administrative or operational duties, but 
does not sufficiently quantify the time the Beneficiary spends on these different tasks. For this reason, 
we cannot determine whether the Beneficiary is primarily performing the duties of an executive. See 
IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Furthermore, in dismissing the appeal, we also pointed to the Petitioner's limited operations after one 
year and noted that it had not hired operations staff to handle order fulfillment, delivery, and customer 
support functions; indicating that it had not developed sufficiently after one year to support the 
Beneficiary in a qualifying executive capacity. For instance, we emphasized that the Petitioner did 
not submit evidence to substantiate its claimed employees and that it had provided vague duty 
descriptions for the Beneficiary's claimed subordinates. 
On motion, the Petitioner does little to overcome these additional grounds for dismissal. In fact, the 
Petitioner makes conflicting statements indicating that "the organizational chart submitted in response 
to the request for evidence is the correct one," which was asserted to include subordinate operational 
level "canvassers," but later states that "[the canvassers] had not yet been hired" as of the date the 
petition was filed. The Petitioner must resolve this inconsistency in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
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1988). The Petitioner only vaguely states that the canvassers "work hours they choose themselves and 
work mainly from home or remotely" and that "they fall between part time and full time." However, 
the Petitioner does not articulate the actual hours of these employees, whether they were employed as 
of the date the petition was filed, nor does it submit supporting documentation to corroborate their 
employment, such as payroll documentation, federal or state quarterly wage reports, or other similar 
objective evidence. Likewise, as we also discussed in our previous decision, the Petitioner submitted 
vague and generic duty descriptions for the Beneficiary's claimed subordinates, including the two 
claimed chief marketing officers and the chief financial officer. However, the Petitioner does nothing 
to address this insufficiency on motion. In sum, the lack of evidence of the Petitioner's staffing leaves 
substantial uncertainty as to whether it developed sufficiently to support the Beneficiary within a 
complex organizational hierarchy after one year. 3 
Lastly, the regulations further require that a petitioner requesting the extension of a new office petition 
on behalf of a beneficiary submit evidence of the financial status of the United States operation. 8 
C.F.R. § 214.2(1)(1)(14)(ii)(E). The Petitioner only briefly indicated in the Form 1-129 that it had 
earned $15,000 in revenue as of the date the petition was filed. This level ofrevenue during the first 
year does not reflect that the Petitioner's operations have developed sufficiently to support the 
Beneficiary in an executive capacity; in fact, it is not clear how it would have maintained its operations 
under an extended petition given this low level of revenue. Otherwise, the Petitioner provides no 
evidence to demonstrate its financial position as of the date the petition was filed to establish that it 
was operating sufficiently to support the Beneficiary in an executive capacity. 
For the foregoing reasons, the Petitioner has not set forth sufficient reasons to demonstrate that our 
previous dismissal decision was based on an incorrect application oflaw 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). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
3 The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the intended U.S. operation one year within the date of approval 
of the petition to support an executive position. There is no provision in USCIS regulations allowing for an extension of 
this one-year period. 
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