dismissed L-1A Case: Trucking And Logistics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WL. 20, 2023 In Re: 27176697 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner describes itself as a trucking and logistics operation. 1 It seeks to extend the Beneficiary's 
temporary employment as its executive manager 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. 
§ 11 0l(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 that the Beneficiary would be employed in the United States in a managerial or executive 
capacity. We dismissed a subsequent appeal. The matter is now before us on combined motions to 
reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motions. 
I. MOTION TO REOPEN 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter of Coelho, 20 l&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
In dismissing the appeal, we determined that the Petitioner had not adequately described the 
Beneficiary's job duties within the context of a one-person transportation business and did not 
establish that it was adequately staffed to support the Beneficiary in an executive position at the time 
the petition was filed. We also cited to inconsistencies in the record regarding the Beneficiary's 
position title, and determined that the Petitioner had not established that these inconsistencies 
1 At part 5, item 12 of the Form I-129, the Petitioner listed its business type as "import and export of industrial 
parts/consultation ." 
regarding the Beneficiary's position title and employment capacity were the result of errors made by 
the preparer of the petition, as claimed. 
On motion, the Petitioner submits a brief: a declaration from the Beneficiary, a felony complaint 
against the preparer of the petition, its 2020 Federal and State tax returns, weekly payroll reports for 
December 2022 and January 2023, foreign payroll records for July 2021, and copies of titles for 
commercial vehicles. It also resubmits a copy of the organizational chart submitted on appeal. 
As noted in our prior decision, there are considerable inconsistencies among the Petitioner's claims as 
to whether the Beneficiary's proposed employment would be in a managerial or executive capacity. 
On motion, the Petitioner contends that "the discrepancies encountered in the evidence regarding the 
Beneficiary's title was a result of ineffective legal assistance by a non-licensed individual who was 
charged with four counts of grand theft and one count of unauthorized practice oflaw." 
The record, however, shows that the Petitioner has referred to the Beneficiary's U.S. position as both 
that of a manager and an executive, thereby undermining the claim that the petition's preparer was 
solely responsible for the inconsistencies. Namely, in a July 2020 support letter, which was provided 
as initial supporting evidence, the Beneficiary referred to his position as executive manager. In a May 
2021 letter provided in response to a request for evidence (RFE), he referred to his proposed position 
as that of a general manager. Both letters were signed by the Beneficiary in his official capacity, thus 
suggesting that the petition's preparer was not solely responsible for providing inconsistent 
information about the Beneficiary's U.S. employment capacity. Moreover, the petition was signed by 
the Beneficiary, who certified, under penalty of perjury that he "reviewed this petition and that all of 
the information contained in the petition, including all responses to specific questions, and in the 
supporting documents, is complete, true, and correct." As noted in our appellate decision, the 
Petitioner bears the burden of resolving any inconsistencies in the record with independent, objective 
evidence. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. Id. 
Moreover, while we acknowledge the submission of a pending criminal complaint against the 
petition's preparer, as well as the Beneficiary's declaration outlining the preparer's claimed errors, 
these documents and allegations do not satisfy the threshold documentary requirements for a claim of 
ineffective assistance of counsel. The Petitioner did not provide a detailed description of its agreement 
with the preparer, evidence that the preparer was informed of these allegations and was given an 
opportunity to respond, or evidence that a complaint was filed with the applicable state bar association 
( or an explanation as to why a complaint was not filed). 2 
In addition, the evidence submitted on motion relating to the Beneficiary's job duties and the 
Petitioner's staffing does not meet the requirements of a motion to reopen as set forth at 8 C.F.R. 
§ 103.5(a)(2). The submitted evidence clarifies and expands on facts that were previously requested 
2 See Matter ofLozada, 19 T&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). A claim of ineffective assistance 
of counsel must contain an affidavit attesting to the relevant facts and providing a detailed description of the agreement 
with former counsel; evidence that former counsel was informed of the allegation of ineffective assistance and was given 
an oppmtunity to respond; and, if former counsel violated his or her ethical or legal responsibilities, evidence that a 
complaint was filed with the applicable state bar association or an explanation why a complaint was not filed. Id. at 639. 
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by the Director. The Director did not err in denying the petition based on the record before them, and 
we correctly declined to consider previously requested evidence, such as the organizational chart, 
when we dismissed the appeal. This evidence was available when the petition was originally filed, 
and was not provided in response to the RFE despite the Director's request. The Petitioner was also 
asked to provide evidence of its staffing and the percentage breakdowns listing the Beneficiary's job 
duties during the Petitioner's first year of operation, but the Petitioner did not comply with this request 
and provided only job descriptions addressing the Beneficiary's prospective employment and potential 
staffing structure. Failure to submit requested evidence that precludes a material line of inquiry shall 
be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). 
Moreover, we acknowledge the Petitioner's submission of weekly payroll reports and foreign payroll 
records in support of the assertion that it has sufficient staff to relieve the Beneficiary from performing 
non-qualifying, operational duties. The Petitioner's submission of foreign payroll documents dated in 
2021, weekly payroll records from December 2022 and January 2023, and its claim that the business 
continues to grow does not demonstrate eligibility in this case, as both the payroll documents and the 
claims of growth signify a reliance on circumstances that did not exist at the time of filing. The 
Petitioner has the burden of establishing eligibility for the requested benefit at the time offiling the 
benefit request and continuing until the final adjudication. 8 C.F.R. § 103.2(b)(l). 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as petitions 
for rehearing and motions for a new trial on the basis of newly discovered evidence. See INS v. 
Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94 (1988)). With this motion, the 
Petitioner has not met that burden. 
II. MOTION TO RECONSIDER 
A motion to reconsider must establish that our prior 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). Our review on motion is limited to reviewing our 
latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
On motion, the Petitioner contests the correctness of our prior decision. In support of the motion, the 
Petitioner asserts that we erroneously determined that the Beneficiary would perform its underlying 
operational duties because the Petitioner had no other staff to perform such tasks at the time of filing. 
The Petitioner contends that we erroneously applied Matter ofChurch Scientology Int'!, 19 I&N Dec. 
593, 604 (Comm'r 1988), which provides that an employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in 
a managerial or executive capacity. Specifically, the Petitioner asserts that we erroneously declined 
to consider the organizational chart submitted on appeal, which it claimed supported its assertion that 
the Beneficiary oversaw six employees of the foreign entity who relieved him from performing 
non-qualifying duties. 
As noted in our prior decision, we declined to consider the organizational chart because the Petitioner 
neglected to provide this evidence when it was first requested in the RFE. We advised that when a 
petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to 
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respond to that deficiency, we will not accept evidence offered for the first time on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 
1988). If the Petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the Director's request for evidence. Id. Nevertheless, even if we had 
considered this evidence, the mere existence of the foreign employees is insufficient to prove that the 
Beneficiary was working in the United States works in a primarily executive capacity. When a 
petitioner claims that employees working for related entities within the same qualifying organization 
directly or indirectly support the needs of the petitioning entity, it bears the burden to provide probative 
and relevant evidence demonstrating the existence of such staff and the nature of the services they 
provide. See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). Here, the 
Petitioner did not provide supporting evidence to demonstrate the Beneficiary's oversight and 
personnel authority over these claimed foreign subordinates, nor did it describe the duties they would 
perform for the U.S. entity. 
We farther note that the organizational chart contradicts the Petitioner's RFE response, where the 
Beneficiary claimed that the Petitioner planned to employ "a team of 4-5 foll-time employees" and 
employed an operations manager, a manager, and a head of brokerage services in the U.S. office at the 
time the response was submitted. The Petitioner bears the burden of resolving any inconsistencies in 
the record with independent, objective evidence. See Matter ofHo, 19 I&N Dec. at 591-92. As we 
noted previously, such unresolved material inconsistencies may lead us to reevaluate the reliability 
and sufficiency of other evidence submitted in support of the requested immigration benefit. See id. 
The Petitioner did not offer evidence to resolve the noted inconsistencies regarding the Beneficiary's 
position and subordinate staffing structure and therefore we appropriately questioned the reliability of 
the Beneficiary's position title, job descriptions, and the availability of employees to relieve him from 
performing non-qualifying duties. 
III. CONCLUSION 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not established 
that our previous decision was based on an incorrect application of law or policy at the time we issued 
our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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