remanded L-1A Case: Wine Import

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-W-USA INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 24, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wine importer and wholesaler, seeks to temporarily employ the Beneficiary as the 
chief executive officer of its new office 1 under the L-1 A nonimmigrant classification for intracompany 
transferees. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 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 California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary was employed abroad in a managerial or executive 
capacity. The Petitioner filed a combined motion to reopen and reconsider, which the Director 
denied. The matter is now before us on appeal. 
On appeal, the Petitioner contends that the Director improperly denied the motions to reopen and 
reconsider because additional documentary evidence specific to the Beneficiary's asserted 
managerial and professional subordinates abroad was not considered and addressed. Further, the 
Petitioner asserts that the Director also did not address responses and evidence specific to 
discrepancies noted by the Director in the initial decision. 
We will withdraw the Director's decision and remand the matter for the entry of a new decision 
consistent with the following analysis. 
I. MOTION REQUIREMENTS 
The Petitioner did not appeal the initial denial of the underlying petition. Rather, the Petitioner 
appealed the Director's subsequent finding that the motion did not meet the requirements of a 
motion to reopen, a motion to reconsider, or both. Therefore, the merits of the denial order, and of 
1 The tenn "new office" refers to an organization which has been doing business in the United States 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 no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Matter of T-W- USA Inc 
the underlying petition, are not before us. The only issue before us is whether the Director properly 
found that the motion did not meet applicable requirements. 
To merit reopening or reconsideration, a petitioner must 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), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 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 (1) state the reasons for reconsideration; (2) be 
supported by any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or policy; and (3) establish that the decision was incorrect based on the 
evidence ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
Upon review, we conclude that the Director did not properly consider and address evidence and 
assertions provided by the Petitioner on motion. 
In the initial denial decision, the Director concluded that the Petitioner submitted the same foreign 
duty description for the Beneficiary in response to the request for evidence (RFE) as that provided in 
support of the petition despite a request to provide more detailed duties addressing his typical 
managerial or executive duties and decisions. Further, the Director noted discrepancies in the 
Beneficiary's stated job title, pointed to investment funds he received from his in-laws, and 
emphasized an apparent discrepancy in the number of years the foreign employer had been 
operating. The Director also indicated that the Petitioner did not submit evidence to substantiate that 
the Beneficiary's subordinates held bachelor's degrees. 
In response to the RFE, the Petitioner submitted additional examples of managerial decisions made 
by the Beneficiary. On motion, the Petitioner further provided additional evidence and attempted to 
address the discrepancies noted by the Director in the initial decision. Further, the Petitioner 
provided "Employment Record Books" specific to the Beneficiary's claimed managerial and 
professional subordinates abroad and these documents listed wages paid to employees in 2015, their 
specific bachelor's degrees, and their positions with the foreign employer. In addition, the Petitioner 
discussed the Director's claimed discrepancies on the record, stating that two titles mentioned for the 
Beneficiary, deputy director and vice director for commerce and sales affairs, were interchangeable 
and not a material discrepancy. Likewise, the Petitioner contested the Director's conclusion that the 
Beneficiary had received $150,000 from his in-laws to invest in the new venture, noting that the 
Director did not specifically address on what evidence this determination was made. Lastly, the 
Petitioner stated that its vineyard has existed for over 30 years, but that the foreign employer had 
only been incorporated in 1995, thus explaining this apparent discrepancy emphasized by the 
Director. It also provided evidence specific to demonstrating that the vineyard had operated for 
several decades prior to being formally incorporated in 1995. 
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Matter of T-W-USA Inc 
In denying the Petitioner's motion, the Director stated that the Petitioner merely resubmitted 
documentation and statements previously provided on the record and concluded that no clear reason 
was provided for reconsideration. In addition, the Director determined that the evidence provided by 
the Petitioner on motion did not constitute new facts sufficient to reopen the matter. 
Upon review, we conclude that the Director did not properly consider evidence and assertions in its 
latest motion decision. For instance, the Director indicated in the RFE that the Beneficiary's duties 
were overly vague and generic and requested that the Petitioner submit additional detail regarding 
his typical managerial or executive duties and decisions abroad. In the initial decision, the Director 
stated that the Petitioner did not respond to this request and that it merely resubmitted the 
Beneficiary's previously provided foreign duties. However, this is not reflected on the record. 
Although the Petitioner did resubmit the Beneficiary's previously provided foreign duties, it also 
provided several additional examples of managerial decisions he made abroad. It does not appear 
that the Director considered these additional examples in the initial decision or on motion. 
Furthermore, the Director did not discuss the Petitioner's assertions in response to discrepancies 
noted by the Director in the initial decision. For instance, the Beneficiary's titles of deputy director 
and vice director for commerce and sales affairs do not appear to be materially different. The 
Director did not address this contention in the motion decision. Likewise, the Petitioner submitted 
additional evidence appearing to indicate that it has been operating for several decades, contrary to 
the Director's conclusion. The Director also did not articulate in either decision how it was 
determined that the Beneficiary had received $150,000 to invest in the Petitioner from his in-laws, 
nor why this was relevant to denying the petition. The Director should have discussed the 
Petitioner's responses to these noted discrepancies on motion. 
We also concur that the Director should have considered and addressed the additional evidence 
submitted on motion specific to the Beneficiary's claimed managerial and professional subordinates 
abroad, including documentary evidence of the wages paid to these employees in 2015, their specific 
bachelor's degrees, and their positions with the foreign employer. Although we agree that this 
evidence likely existed at the time of the Petitioner's RFE, the Director did not specifically request 
this evidence at that time, and it should have been considered on motion. 
For these reasons, we withdraw the Director's previous decision and remand the matter for 
consideration of the additional assertions and documentary evidence submitted by the Petitioner on 
motion. 
III. ADDITIONAL ISSUE 
Although not addressed by the Director in either decision, we note that the record as currently 
constituted does not appear to support a finding that the Beneficiary would act in a managerial or 
executive capacity in the United States within one year of an approval of the petition. 
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Matter of T-W- USA Inc 
The Petitioner did not provide a detailed description of the duties the Beneficiary would perform in 
the United States. The Petitioner merely stated that the Beneficiary's duties in the United States 
would be identical to those he performed abroad. However, the Petitioner asserts that the 
Beneficiary has several managerial subordinates abroad, including four immediately subordinate 
managers, while his proposed position in the United States involved launching a wine distribution 
company with few projected employees during the first year. For instance, the Petitioner's business 
plan reflected that it would hire only one administrative employee subordinate to the Beneficiary 
during the first year. Given the limited hiring projections during the first year, it is not clear how the 
Beneficiary would perform the same duties in the United States as he would abroad. Without further 
explanation and evidence, it cannot be determined that the Petitioner will be operating sufficiently to 
support the Beneficiary in a qualifying managerial or executive role within one year. See generally, 
8 C.F.R. § 214.2(1)(3)(v). 
IV. CONCLUSION 
On remand, the Director should consider the assertions and evidence submitted on motion with 
respect to the Beneficiary's foreign employment. The Director should also afford the Petitioner the 
opportunity to submit additional evidence and assertions specific to his proposed employment in the 
United States. 
ORDER: The decision of the Director dated March 6, 2018 is withdrawn. The matter is 
remanded for the entry of a new decision consistent with the foregoing analysis. 
Cite as Matter ofT-W-USA Inc, ID# 1637200 (AAO Sept. 24, 2018) 
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