dismissed L-1A Case: Window Cleaning Service

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 27 , 2023 In Re: 27918151 
Motion on Administrati ve Appeals Office Decision 
Form I-129 , Petition for a Nonimmigrant Work er (L-lA Manager or Executive) 
The Petitioner , a high-rise window cleaning service , seeks to temporarily employ the Beneficiary as 
its chief executive officer (CEO) and vice president 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 Petitioner did 
not establish that it would employ the Beneficiary in the United States in an 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 motion . 
A motion to reopen must state new facts and be supported by documentary evidence . 8 C.F.R. 
§ 103.5(a)(2). 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). We may grant motions that satisfy 
these requirements and demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 
I&N Dec. 464 , 4 73 (BIA 1992) (requiring that new evidence have the potential to change the 
outcome). Our review on motion is limited to reviewing our latest decision. 8 C .F.R. § 103.5(a)(l )(ii). 
On motion , the Petitioner submits 2022 tax documents, a revised job description for the Beneficiary's 
proposed position , and documents relating to the operation of the business. The Petitioner asserts that 
these new facts establish eligibility , by addressing previously identified deficiencies . The Petitioner 
contests the correctness of our prior decision. 
In our appellate decision , we stated that the Petitioner's response to a request for evidence (RFE) from 
the Director "did not include the requested evidence of payments made to the Petitioner 's claimed 
personnel in 2022 ." The Petitioner states , on motion, the Director did not broadly request evidence of 
wages paid in 2022 . Rather , the Director requested specific types ofdocumentation , which were either 
inapplicable or unavailable when the Petitioner had to response to the RFE. We acknowledge that the 
RFE response was due before the end of 2022, and therefore year-end tax documents would not have 
been available. Nevertheless, it is evident from the range of documentation requested that the Director 
sought evidence of payments to subordinates. The Director had requested "State Quarterly Wage 
Reports for the 1st, and 2nd quarter of 2022," the Petitioner's "payroll summary, and Forms W-2, 
W-3, and 1099-MISC showing wages paid to all employees under the beneficiaiy's direction." 
The Petitioner observes, on motion, that bank statements submitted with the RFE response show 
individual payments to contractors in 2022. But the Petitioner submitted those bank statements as 
evidence of its business activity, not as evidence of payment of subordinates. The bank statements 
show electronic payments to several recipients, generally identified only by their first names, and not 
all of these individuals are named on the Petitioner's organizational chart. 
Newly submitted IRS Forms 1099-NEC, Nonemployee Compensation, show payments to six 
contractors during 2022: 
President $32,077 Window Cleaner 1 $25,221 
Supervisor $33,110 Window Cleaner 2 $21,000 
Operations Assistant $11,296 1 Window Cleaner 3 $9,260 
To establish the Beneficiary's discretionary authority and delegation of lower-level tasks, the 
Petitioner submits copies of email messages, contracts, and related documents. 
We did not dispute the presence of subordinate staff, or the claim that the Beneficiaiy would have 
some degree of discretiona1y authority over the company; we acknowledged he would "occupy [a] 
senior position." While we noted the lack of evidence of subordinates' compensation in 2022, this 
deficiency in the evidence was not a principal basis for dismissal of the appeal. Rather, we discussed 
the Petitioner's staffing in the context of whether the subordinate workers permit the Beneficiary to 
perform primarily executive duties. We will further explore this issue in the discussion of the motion 
to reconsider, below. 
The newly submitted evidence and information does not show proper cause to reopen the proceeding, 
and therefore we will dismiss the motion to reopen. 
The Petitioner contends that, in our appellate decision, we improperly cited court decisions that 
concern claims regarding a managerial capacity, whereas the Petitioner here seeks to employ the 
Beneficiary in an executive capacity. We cited the cases not as binding case law that closely matches 
the fact pattern before us, but as persuasive authority in reference to a particular point that applies 
equally to managerial and executive capacities. The statutory definitions of both terms require a given 
beneficiary's duties to be either "primarily" managerial or "primarily" executive. See section 
10l(a)(32)(A) and (B) of the Act. In Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006), the court 
held: "the facts in the record do not compel the conclusion that [the beneficiary] was primarily engaged 
in managerial duties, as opposed to ordinary operational activities alongside Family's five other 
employees." Id. at 1316. While the decision in Systronics Corp. v. INS, 153 F. Supp. 2d 7 (D.D.C. 
1 The Petitioner acknowledges, on motion, that it had previously claimed that the operations assistant earns $24,000 per 
year, but that individual earned substantially less in both 2021 ($18,900) and 2022 ($11,296). 
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200 I) relied on factors that are not applicable to the case now before us, it included the relevant 
observation that a company's small size could be one of several factors to consider when determining 
the nature of a beneficiary's duties. See id. at 15. 
The Petitioner had previously cited another case, Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570 (N.D. 
Ga. 1988), to support its assertion that a business's small size is not, by itself, sufficient grounds for 
denial of the petition. In our appellate decision, we disagreed with the Petitioner's assertion that the 
present case is similar to Mars Jewelers. On motion, the Petitioner maintains that Mars Jewelers is 
applicable, and the Petitioner states that its small size "is, in our opinion, the main cause of the denial 
in this case." The Petitioner offers no detailed argument to support this opinion. In our appellate 
decision, we discussed the duties and responsibilities of the Beneficiary's intended subordinates, but 
the size of the company was not, itself: a principal factor in the dismissal. Furthermore, the 1988 Mars 
Jewelers decision predates a key amendment to the Act. In language added by section 123 of the 
Immigration Act of 1990 (P.L. 101-649, Nov. 29, 1990, 104 Stat. 4995), section 101(a)(44)(C) of the 
Act allows "staffing levels" to be "used as a factor in determining whether an individual is acting in a 
managerial or executive capacity," taking into account the employer's "reasonable needs." 
In our appellate decision, we stated: "it is appropriate to consider the size of the petitioning company 
in conjunction with other relevant factors, such as the absence of employees who would perform the 
non-managerial or non-executive operations of the company." On motion, the Petitioner objects to 
the term "absence of employees," because the Petitioner has lower-level workers (contractors rather 
than employees) who perform various operational tasks. We did not state that the Petitioner has no 
support staff. Rather, we concluded that the Petitioner had not shown that its staff is sufficient to allow 
the Beneficiary to work in a primarily executive capacity. 
The Petitioner has not shown the Beneficiary's intended duties to be primarily executive in nature. In 
our dismissal notice, we stated: 
[T]he Petitioner indicated that the Beneficiary would be directly dealing with potential 
clients and partners and attending conferences and seminars to generate new contacts 
and business opportunities .... [I]t is unclear who, other than the Beneficiary, would 
be responsible for operational activities associated with the sales and marketing of the 
Petitioner's services. Although the Petitioner indicates its intent to hire a marketing 
manager in the future, the company does not claim that it cun-ently employs any sales 
or marketing staff. Therefore, we cannot determine to what extent this responsibility 
would require the Beneficiary to perform non-executive tasks. 
The Petitioner submits a new job description intended to show that the Beneficiary will "[ o ]versee all 
aspects of the operation," including "marketing, development, finance, and customer service." The 
record does not establish who would perfmm the non-executive tasks relating to those fimctions. The 
Petitioner had previously asse1ied that the Beneficiary would spend a significant amount of time 
"analyz[ing] opportunities to introduce [new] services" and, with the president, developing and 
implementing "the new sales strategy." As we observed in our prior decision, the Petitioner has no 
subordinate sales or marketing staff: and therefore it appears that the Beneficiary would perform the 
sales function himself, rather than direct the management of that function. 
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In response to our prior observation that the Beneficiary himself would apparently perform marketing 
duties, the Petitioner states: "the Supervisor and the operations assistant ... are the ones who mainly 
manage the operational activities of the company." The job descriptions of the operations assistant 
and supervisor do not include sales and marketing duties. The Petitioner also stated: "It was also 
indicated that a marketing manager would be hired later as the company expands." We previously 
acknowledged the Petitioner's plans to hire additional workers in 2023 and 2024, including a 
marketing manager and administrative assistant, but 8 C.F.R. § 103.2(b)(l) requires a petitioner to 
meet all eligibility requirements at the time of filing the petition - in this case, July 2022. The "new 
office" provisions at 8 C.F.R. § 214.2(1)(3)(v) allow for consideration of expected near-term growth 
and hiring, but the new office provisions apply only to employers that have been doing business for 
less than one year. See 8 C.F.R. § 214.2(l)(l)(ii)(F). The Petitioner, established in 2014, had been 
doing business for years before the 2022 filing date. 
An executive capacity involves more than high-level control over all or paii of an organization. The 
statutory and regulatory definition of "executive capacity" requires the executive to direct the 
management of the organization or a major component or function thereof. Section 101(a)(44)(B)(i) 
of the Act; 8 C.F.R. § 214.2(1)( 1 )(ii)(C)(l). An executive directs the management of the organization, 
major component, or essential function of a given organization by controlling the work of managerial 
or lower-level executive employees. This control could either take the form of direct supervision of 
those managers or executives or could be more indirect under some circumstances. See generally 
2 USCIS Policy Manual L.6(D), https://www.uscis.gov/policy-manual. 
There are two positions immediately subordinate to the Beneficiary's intended position: a first-line 
supervisor of window cleaners, and an operations assistant who, at the time of filing, received 
compensation commensurate with part-time work. The Petitioner has not established that these two 
individuals are "managerial or lower-level executive employees," such that the Beneficiary's authority 
over them would constitute directing the management of the organization or a major component or a 
major function thereof. The only other individual named above the supervisory level is the company's 
president. The Petitioner has asserted that the president would not be subordinate to the Beneficiary; 
this was the Petitioner's explanation for the president's omission from an organizational chart showing 
the Beneficiary's subordinates. Therefore, the Beneficiary would not direct the president's 
management of the organization. Statutorily, we must consider the reasonable needs of the petitioning 
organization, but the Petitioner has not established that its reasonable needs require two levels of 
executive authority - a president and a CEO/vice president - to oversee the work of the lower-level 
staff identified in the record. 
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 oflaw or policy at the time we issued 
our decision. Therefore, we will dismiss the motion. 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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