remanded L-1A Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re : 17572154 
Appeal of Texas Service Center Decision 
Form I-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 23, 2021 
The Petitioner, a manufacturer and distributor of refrigerant products, seeks to temporarily employ the 
Beneficiary as its president under the L-1 A nonimmigrant classification for intracompany transferees. 
Section 101(a)(15)(L) of the Act, 8 U.S.C. § 1101(a)(l5)(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 Texas Service Center initially approved the petition, but laterrevoked the approval 
on notice, concluding that the Petitioner did not establish that it is doing business in the United States 
as defined in the regulations. Specifically, the Director determined that the Petitioner was employing 
individuals who had entered the United States using B 1 /B2 visas and was therefore not "conducting 
business as reported in the Form I-129," despite submitting documents which "indicate the U.S. 
company conducts business." The Petitioner subsequently filed combined motions to reopen and 
reconsider. The Director dismissed both motions and affirmed the revocation decision. The matter is 
now before us on appeal. 
The burden of proof to establish eligibility for the benefit sought remains with the petitioner in 
revocation proceedings. Section291 oftheAct, 8U.S.C. § 1361;MatterofCheung, 12 I&NDec. 715 
(BIA 1968); and Matter of Es time, 19 I&N Dec. 450, 452, n.1 (BIA 1987). Upon de nova review, we 
will withdraw the Director's decision to revoke the approval of the petition and remand the matter for 
further consideration and action. 
I. LEGALFRAMEWORK 
A. The L-1 A Classification 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101 ( a)( l 5)(L) of the Act. In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualify him or her 
to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
In order to meet the definition of "qualifying organization" there must be a United States employer 
doing business in the United States and a related parent, branch, affiliate or subsidiary doing business 
in at least one other country. 8 C.F.R. § 214.2(1)(1 )(ii)(G). "Doing business" means the regular, 
systematic, and continuous provision of goods and/or services by a qualifying organization and does 
not include the mere presence of an agent or office in the United States and abroad. 8 C.F.R. § 
214 .2(1)(1 )(ii)(H). 
B. Revocation Authority 
Under U.S. Citizenship and Immigration Services (USCIS) regulations, the approval of an L-lA 
petition may be revoked on notice under six specific circumstances. 8 C.F.R. § 2 l 4.2(1)(9)(iii)(A). To 
properly revoke the approval of a petition, a director must issue a notice of intent to revoke that 
contains a detailed statement of the grounds for the revocation and the time period allowed for 
rebuttal. 8 C.F.R. § 214.2(1)(9)(iii)(B). If the intended revocation is based in whole or in part on 
derogatory information that is discovered outside the record of proceedings, USCIS is obligated to 
provide notice of such information, and to make that derogatory information part of the record along 
with any rebuttal provided by the Petitioner. 8 C.F.R. § 103.2(b)(16)(i). 
II. PROCEDURAL HISTORY 
The Petitioner filed this petition to classify the Beneficiary as an L-lA executive in December 2018. 
The record reflects that the Petitioner is a manufacturer of refrigerant products and accessories such 
as copper tubing and fittings used in the HVAC industry, and the subsidiary of a Chinese company 
engaged in the same industry. The Petitioner provided evidence that it was established in 2016 and 
operates from a 100,000 square foot facility in Alabama that includes offices, a warehouse, and a 
manufacturing plant. The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, 
that it had over $15 million in gross annual income and 34 employees atthe time of filing in December 
2018. The Petitioner's stated location, business activities, staffing levels, and financial status were 
conoborated by supp01iing evidence submitted with the petition. As noted, the Director initially 
approved the petition in February 2019. 
On September 20, 2019, the Director issued a N OIR in which he informed the Petitioner that "the only 
issue to be evaluated is whether [the] U.S. organization is doing business in accordance with the 
regulations" and cited to the definition of "doing business" at 8 C.F.R. § 214.2(1)(1)(ii)(H). The 
Director acknowledged that "the petitioner provided documents that indicate the U.S. entity is 
conducting business" but emphasized that "the petitioner appears to have misrepresented the U.S. 
entity's staffing levels." 
The NOIR describes a USCIS site visit that occurred at the Petitioner's facility in June 2019, noting 
that the visit was prompted by a complaint filed with USCIS. The Director stated that the complaint 
alleged that the Petitioner "was employing Chinese Nationals that had entered the United States under 
a B 1 /B2 visa; and that the Chinese nationals had misrepresented the purpose of their visits with officers 
at the point of entry." The NO IR advises that Immigration Officers met with the Petitioner's executive 
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vice president, toured the facility, and had the executive vice president complete a questionnaire and 
provide additional employment documents regarding current and former staff. The NOIR further 
states: 
Upon review of the evidence, officers determined that there were nine Chinese 
nationals that entered the United States using B 1 /B2 visas in order to work at the U.S. 
entity. In addition, officers found several homes the Chinese Nationals would stay in 
when there were in the United States working at the U.S. entity. USCIS has determined 
the petitioner may have committed fraud by misrepresenting its business 
demographics, and by not conducting business as reported in the evidence. 
The response to the NOIR included a detailed brief in which the Petitioner argued that the Chinese 
foreign nationals (all employees of the Petitioner's parent company) were engaged in pennissible 
activities, had disclosed the purpose of their travel to consular officials and/or border officials, and 
received all remuneration, including salaries and temporary housing, from the foreign entity. The 
Petitioner's brief included a lengthy discussion of the Bl classification, including the applicable 
regulations, case law and pertinent information from the Foreign Affairs Manual, in support of its 
assertion that the foreign nationals' activities were compliant with immigration laws. The Petitioner 
further asse1ied that even if there was a lack of strict compliance, such actions were not intentional 
and did not rise to the level of fraud or misrepresentation as suggested by the Director. Finally, the 
Petitioner argued that the temporary presence of employees from the foreign entity has "no relevance 
to the determination of whether the U.S. entity was 'doing business' as required by the statute and 
regulations." 
The Petitioner's response included, among other items, additional evidence of the company's business 
activities, an affidavit from the Beneficiary, and personal statements from the foreign nationals in 
question, in which they discussed their employment with the foreign entity and the purpose and details 
of their stays in the United States in Bl/B2 status. These personal statements were accompanied by 
copies of their Forms DS-160, Nonimmigrant Visa Application, their U.S. arrival and departure 
records, and evidence intended to document their receipt of salary payments from the Petitioner's 
parent company during the period in question. 
The Director revoked the approval of the petition, once again indicating that "the only issue to be 
evaluated in this case is whether your U.S. organization is doing business in accordance with the 
regulations." The revocation decision only briefly discussed the Petitioner's response to the NOIR 
and acknowledges that "[m]any of the documents indicate the U.S. entity conducts business." The 
Director further stated: 
USCIS informed the petitioner that "USCIS has determined the petitioner may have 
committed fraud by misrepresenting its business demographics, and by not conducting 
business as reported in the evidence." The evidence acknowledges that Chinese 
national[s] entered the U.S. in order to work at the U.S. entity. Even though the 
petitioner claims the [C]hinese nationals were not paid by the U.S. entity, the petitioner 
did not provide sufficient corroborating evidence to support the claim. For example, 
the petitioner provided a spreadsheet that lists the name, date, salary, etc. for the 
reported Chinese nationals. However, the document is not an official document, such 
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as a tax document. You have not established that the foreign entity was conducting 
busines as reported on the Form I-129; and the statement of facts contained in the 
petition was not true and correct. 
The Director concluded that "it does not appear your U.S. organization is doing business in accordance 
with the regulations." The Director dismissed the Petitioner's subsequent combined motion to reopen 
and motion to reconsider determining that it did not meet the regulatory requirements for either type 
of motion at 8 C.F.R. § 103.5(a)(2) and(3). 
III. WITHDRAWAL OF DIRECTOR'S DECISION 
The primary issue before us on appeal is whether the Director properly revoked the approval of the 
petition based on a dete1mination that the Petitioner is not doing business in the United States. 
On appeal, the Petitioner maintains that the Director failed to address evidence in the record 
establishing that it is doing business in accordance with the definition at 8 C.F.R. § 214.2(1)(1)(2)(H). 
The Petitioner again emphasizes that any concerns the Director may have regarding compliance wi1h 
immigration laws governing BI nonimmigrant business visitors "have no relevance to the 
determination of whether the U.S. entity was 'doing business' as required by the statute and 
regulations." 
We observe that in both the NOIR and the notice of revocation, the Director acknowledged that the 
record includes documentation "indicating the U.S. entity is conducting business." The Director did 
not express any doubts that the Petitioner operates the stated type of business at the location identified 
on the petition or indicate that the site visit revealed that the company was not engaged in the regular, 
systematic and continuous provision of goods and/or services of the type described in the record. 
While the Director has expressed concerns with the Petitioner's reported staffing levels, which we will 
discuss below, his determination that the company's activities do not meet the definition of "doing 
business" is not supported by the record. Because the Director indicated that the revocation decision 
was based solely on a determination thatthe Petitioner's activities do not meet the definition of"doing 
business," the decision is withdrawn. 
IV. BASIS FOR REMAND 
Although the Director identified the "doing business" requirement as the "sole issue" to be addressed 
in this matter, the revocation decision includes determinations that "the statement of facts contained 
in the petition was not true and correct," that "the petitioner may have committed fraud by 
misrepresenting its business demographics," and that the Petitioner did not establish that "the foreign 
entity was conducting business as reported on the Form I-129." 
With these statements, the Director raised serious and relevant concerns that require further 
explanation and further development in the record of proceedings. However, the Director made the 
statements with little to no discussion of how the record supports these conclusions. We note that an 
officer must fully explain the reasons for denying a visa petition in order to allow the Petitioner a fair 
opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. 
See 8 C.F.R. § 103.3(a)(l)(i); see alsoMatterofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a 
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decision must fully explain the reasons for denying a motion to allow the respondent a meaningful 
opportunity to challenge the determination on appeal). 
As we cannot sustain the appeal with these issues unresolved, we will remand the matter to the Director 
for further consideration, issuance of a new NOIR, and, if warranted, a new revocation decision. 
A director's determination that "the statement of facts contained in the petition was not true and 
correct," may form the basis for revoking an approved L-1 petition on notice. See 8 C.F.R. § 
2 l 4.2(1)(9)(iii)(A)( 4). Here, however, the Director did not adequately inform the Petitioner what 
specific facts have been determined to be "not true and correct." It appears that the Director may be 
referring to the number of employees stated on the Form I-129, as the NOIR states that the Petitioner 
"appears to have misrepresented the U.S. entity's staffing levels." The Director ultimately determined 
that there was insufficient evidence to support the Petitioner's claim that its parent company 
remunerated all Chinese company staff who have come to the United States on a Bl /82 visa. 
The Petitioner stated on the Form I-129 that it had 34 employees as of December 2018. Its initial 
evidence included a copy of its most recent IRS Form 941, Employer's Quarterly Federal Tax Return, 
showing it repmied 31 employees in September 2018. It also provided recent payroll records and an 
employee list that identified 34 employees byname and job title. 
In response to the NOIR, the Petitioner acknowledged that employees from its Chinese parent 
company have entered on B1/B2 visas to perform activities that the Petitioner believes to be 
permissible for business visitors. The Petitioner maintained that such foreign employees have always 
remained on the parent company's payroll. It included the foreign entity's internal payroll records 
with the NOIR response. In the revocation decision, the Director determined that the Petitioner, in its 
response to the NOIR, "acknowledges that Chinese national[s] entered the U.S. in order to work at the 
U.S. entity," but did not address the Petitioner's arguments that the activities of those individuals were 
permitted under the applicable law. Rather, the Director focused on a lack of "official" documentation 
demonstrating that the Chinese nationals were paid by the foreign entity rather than the U.S. entity. 
The Director followed this analysis with a conclusion that "the statement of facts contained in the 
petition was not true and correct" without further elaborating. 
On remand, the Director shall review the record and issue a new N OIR clearly informing the Petitioner 
which facts containedin the petition have been determined to be "not true and correct," and the reasons 
such a determination has been made. There are legal arguments and evidentiary exhibits in the record 
that were not adequately considered in the revocation decision, including much of the brief and 
evidence submitted in response to the NOIR, and the additional evidence that the Petitioner submitted 
in support of its motion to reopen. Specifically, the Petitioner's motion included translated Chinese 
tax documentation intended to demonstrate that its parent company paid all Chinese company 
employees who spent time in the United States in B 1 /82 nonimmigrant status. 1 
1 The Director declined to consider this evidence and dismissed the motion to reopen based on a finding that such evidence 
was not "new" since it could have been submitted previously. The regulationgovemingmotions to reopen at 8 C.F.R. § 
103.5(a)(2) does not define what constitutes a "new"factand we do not require the evidence ofa "newfact"to have been 
previously unavailable orundiscoverable. Instead, we interpret "new facts" to mean facts that are relevant to the issue(s) 
raised on motion and that have not been previously submitted in the proceeding, which includes the original petition. 
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In addition, we observe that the evidence the Petitioner submitted in response to the NOIR introduced 
possible inconsistencies into the record regarding its 2018 staffing levels which were not addressed by 
the Director and which will require further explanation. According to the Petitioner's quarterly federal 
tax returns, it paid a sum of$ 772,673 in salaries and wages in 2018. However, the record reflects that 
the Petitioner reported paying only $323,473 in salaries and wages on its 2018 corporate federal tax 
return, a difference of nearly $450,000 that has not been explained. In addition, according to the 
Petitioner's IRS Forni 941 for the fourth quarter of 2018, it reported 53 employees as of December 
2018, significantly more than the 34 employees reported on the Form I-129 filed during that same 
month. The Petitioner should be given an opportunity to address these issues on remand. 
The Director also expressed concerns about the possibility of both fraud and misrepresentation in the 
NOIR, noting that "USCIS has detennined the petitioner may have committed fraud by 
misrepresenting its business demographics. "2 The Director repeated this statement in the revocation 
decision but did not specifically articulate whether it was his intent to enter a formal finding of fraud 
or willful misrepresentation of a material fact. Further, the revocation decision did not address the 
Petitioner's argument that the facts presented here, including any potential noncompliance with B 1182 
regulations, did not amount to fraud or misrepresentation. On remand, the Director should fully 
articulate these issues in a new NOIR and provide the Petitioner an opportunity to respond. 
Finally, we observe that the revocation decision includes a statement that the Petitioner did not 
establish that "the foreign entity was conducting business as reported on the Form I-129." The 
Director did not further elaborate, nor did he raise the issue of the foreign entity's business activities 
in the NOIR. We observe that this statement may have been inadvertently made. However, if it was 
the Director's intention to articulate a detennination that the foreign entity is not conducting business, 
the Director should infom1 the Petitioner of any deficiencies in the record (and, if applicable, any 
derogatory information) regarding the foreign entity's activities in a new NOIR. 
V. CONCLUSION 
For the reasons discussed, the sole stated basis for revocation was not supported by the evidence of 
record. However, because the revocation decision addressed other issues that must be resolved, we 
will remand the matter for further consideration, issuance of a new NOIR, and a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
2 The terms "fraud" and "misrepresentation" are not interchangeable. A finding of fraud requires a determination that a 
person made a false representation of a material fact with knowledge of its falsity and with the intent to deceive an 
immigration officer. Furthermore, the false representation must have been believed and acted upon by the officer. See 
Matter o{G-G-, 7 I&NDec. 161 (BIA 1956). A willful misrepresentation requires that the individual knowingly make a 
material misstatement to a government official for the purpose of obtaining an immigration benefit to which one is not 
entitled. Sergueeva v. Holder, 324 Fed. Appx. 76 (2nd Cir. 2009)(citingMattero{Kai Hing Hui, 15 I&NDec. 288, 289-
90 (B .I .A. 197 5). Material misrepresentation requires only a false statement that is material and willfully made. See 9 
FAM 40.63 N2; see alsoMatterofTijam,22I&NDec.408,424 (BIA 1998)(en banc)(Rosenberg,concurring). 
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