U.S. Citizenship and Immigration Services

MATTER OF A-W-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 3L 2017

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner intends to operate retail cellular phone and accessories stores and seeks to temporarily employ the Beneficiary as the managing director of its new office under the L-1 A nonimmigrant classification for intracompany transferees. See 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 Vermont Service Center denied the petition and affirmed that denial after reviewing the Petitioner's subsequent combined motion to reopen and reconsider. We dismissed the Petitioner's appeal concluding that the Petitioner did not establish, as required, that: (1) it had secured physical premises as of the date the petition was filed; and (2) it would be able to support a managerial or executive position within one year of approval of the petition. The Petitioner then filed a combined motion to reopen and motion to reconsider, which we denied.

In this second combined motion to reopen and motion to reconsider, the Petitioner submits a brief, an affidavit from the Beneficiary, and evidence of its business activities from 2016 and 2017, some of which was previously submitted.

Upon review, we will deny the combined motion.

I. MOTION 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. § I 03.5(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. § 1 03.5(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). A motion to reconsider must be supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or

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Matter of A-W-, Inc.

statement of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. We may grant a motion to reopen or reconsider that satisfies these requirements and demonstrates eligibility for the requested immigration benefit.

II. ISSUES RAISED ON MOTION

At issue in this matter is whether any new facts or arguments made on motion overcome our previous findings that the Petitioner did not establish that: ( 1) it secured sufficient physical premises to house its new office prior to filing the petition in July 20 14; and (2) it would be able to support a managerial or executive position within one year of approval of the petition.

For the reasons discussed below, we will deny the combined motion. Although the Petitioner has submitted new evidence and attempted to clarify some facts that were at issue in our prior decision, it has not overcome the grounds for dismissal of the appeal.

A. Physical Premises

The Petitioner filed a "new office" petition and therefore must establish that it had secured sufficient physical premises to house its business as of the date of filing in July 2014. 8 C.F.R. § 214.2(1)(3)(v)(A).

The record contains a lease for office premises located at in Texas. However, the lease was signed in October 2014 and did not establish that the Petitioner met this eligibility requirement at the time of filing.

The Petitioner has consistently claimed that it had a "lease sharing" arrangement with the office's prior tenant ( beginning on June 1, 20 14. The owner and president of

confirmed the arrangement in three separate letters, and the Petitioner provided evidence of a $900 payment made to in September 2014 for August 2014 rent.

In denying the previous motion, we acknowledged the Petitioner's argument that there are no evidentiary requirements specifying what is needed to demonstrate acquisition of "sufficient physical premises." However, we explained that evidence demonstrating that the property owner or property manager was aware of the lease sharing arrangement would have assisted in corroborating the Petitioner' s explanation that it had actually obtained the landlord 's "informal" consent for the arrangement.

Without such documentation from the landlord, we considered the secondary evidence submitted. and questioned whether a check for $900, specifically designated as "August rent" and written in mid-September was intended to cover the Petitioner's entire share of $2088 in rent (plus utilities) for a period of four months beginning on June 1, 2014. We also acknowledged the Petitioner's claim that it had use of the premises on weekdays, but questioned whether agreed to give up its office space for five days each week without receiving any payment at all for a period of three and a half months while continuing to operate an IT training company out of the same office suite.

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Matter of A-W-, Inc.

On motion, the Petitioner submits an affidavit from the Beneficiary who explains that the Petitioner was unable to provide a letter from the landlord or property manager confirming the lease-sharing arrangement because a new property management company had taken the place of the company that provided informal consent for the arrangement. He states that the new property manager will not prepare a letter, provides a contact name and number for the management company, and explains that the property manager "asserted that the transfer of the lease to [the Petitioner] was evidence of the Property's knowledge of the shared lease.''

The Beneficiary also offers a new statement regarding the lease sharing arrangement:

Because was mostly benefiting from the shared-lease arrangement, [its owner] carried more of the rent and was flexible in the payment

terms. paid for a little more than half of the base rent and all of the additional costs for electricity, water and utilities. It was also agreed that [the Petitioner] could pay its share at the end of lease term, before we took over the lease. At the end of the four months, we paid $900 or $225 per month for our share of the rent.

Finally, in response to our questions regarding the feasibility of the lease sharing arrangement, the Beneficiary explains that which provides IT training courses, did not need its offices on weekdays because its clientele are working professionals who cannot attend class during normal weekday business hours.

The Beneficiary's statements are insufficient to establish that the Petitioner had acquired sufficient physical premises to house its new office as of July 2014. As noted, the record contains multiple letters from owner and president of None of the letters provide details regarding the specific agreement made between the two parties, which leaves the Beneficiary's new statement uncorroborated in the record. In fact, in a letter dated November 18, 2014, stated that her company shared its space with the Petitioner "to help us split the rent and utility bill" and in another statement she stated that the $900 was paid as rent, with no mention of utilities.

Both of these statements appear to be inconsistent with the Beneficiary's new claim that the Petitioner's single $900 payment to was intended to cover "more than half of the base rent" of $522 per month as well as all utilities over a four-month period. Further, if this was the arrangement, the Petitioner's share of the rent alone would have been more than the $225 per month that the Petitioner now claims it paid. If the two parties to this claimed informal lease sharing arrangement cannot consistently describe what the agreed terms were, then their statements have limited probative value. The Petitioner must support its assertions with relevant, probative and credible evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010).

The Petitioner again suggests that we contact the property manager's representative directly in order to verify its claims. However, the burden of proof in the current matter is on the Petitioner. See. e.g, Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013).

Matter of A-W-, Inc.

The Petitioner cannot transfer that burden to USCIS by requesting that we independently obtain evidence to corroborate its claims.

The Petitioner's submission on motion does not overcome our previous finding or establish that the Petitioner had secured sufficient physical premises to house its new office as of July 2014 when it filed the petition.

B. New Office Requirements

In denying the previous motion, we further found that the evidence was insufficient to establish that the Petitioner would support a managerial or executive position within one year.

In order to qualify for L-1 nonimmigrant classification during the first year of operations, the regulations require a petitioner to disclose the proposed nature of the business and the size of the U.S. investment, and establish that the proposed enterprise will support an executive or managerial position within one year ofthe approval ofthe petition. See 8 C.F.R. § 214.2(1)(3)(v)(C).

The Petitioner stated that it will operate a chain of retail cellular phone stores expected to generate over $1.1 million in revenue. The Petitioner indicated it had 12 employees when the petition was filed and expressly noted that it "has acquired a majority ownership of four wireless companies.'' Since the Petitioner's business plan was premised on its claim that it had already acquired a controlling interest in four separate companies, we looked for evidence of its ownership of these companies to support the claimed relationship. In dismissing the appeal, we found that the evidence of this ownership, which including copies of purchase agreements and checks issued to the purpmied sellers, to be insufficient. We further found that the Petitioner did not provide any formal evidence of ownership for the claimed subsidiary companies, such as membership or stock certificates, articles of incorporation or association, minutes of shareholder or member meetings discussing the sale of stock or membership units, or any other primary evidence that a change in ownership actually occurred.

In the previous motion, the Petitioner stated that its business plan "was not based on the premise that the company is already staffed and operating through its claimed subsidiaries" as its statements "were conditioned and largely dependent upon the approval of the L-1 A visa petition." The Petitioner emphasized, that it had not made all required payments to the owners of the subsidiary entities prior to the filing date, but merely showed a commitment to acquire these companies. At the same time, the Petitioner stated that "[ s ]ince the subsidiaries were acquired, they were merged into [the Petitioner] and no formal registration with the state needed to be made'" because "[t]he contract itself served as the final documentation of the acquisition."

In our decision denying the motion, we noted that the Petitioner unequivocally stated at the time of filing that it had already acquired a majority interest in four subsidiaries and transferred their employees to its own payroll, but later claimed that it had merely committed to do so. Further, we noted that the Petitioner simultaneously claimed, within the same brief, that its acquisition of the

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Matter of A-W-, Inc.

four subsidiaries was: (1) completed after the petition was denied through a "merger'' process that produced no documentation; and (2) entirely contingent upon the approval of this visa petition.

In the affidavit submitted in support of this motion, the Beneficiary states that: (l) the Petitioner's operations were largely dependent on the approval of the L-1A visa; (2) the Petitioner was committed to purchasing all four companies and had prepared agreements for their purchase which were contingent upon approval of this petition; (3) the Petitioner was fully prepared to acquire the companies, their employees and customers; and ( 4) the Petitioner was eventually forced to back out of the purchase agreements due to delays in obtaining an approval for the instant petition.

The Beneficiary further states that, since the end of 2016, the Petitioner has been operating a salon and a retail store. The motion includes evidence related to both of these businesses and the Petitioner asserts that it has now shown that it is able to support a managerial or executive position "for over one year."

In order for the Petitioner to overcome our previous finding, it would need to clarify the inconsistencies in the record regarding its claimed acquisition of four businesses and its ability to carry out the business plan submitted at the time of filing. The Beneficiary's statement does not explain why the Petitioner indicated throughout its initial filing that it had already completed the acquisition of four businesses, or why it appeared to state in the previous motion that the acquisitions of these businesses had been completed through a merger after the denial of the petition. Further, notwithstanding the Beneficiary's claims here, we note there were no contingencies mentioned in the submitted purchase agreements.

As noted in our previous decision, if the Petitioner had submitted relevant, probative evidence in support of its statement that it proceeded with the claimed purchase of the subsidiaries and took over payroll for its employees as it initially claimed that it had done or would do, that evidence would tend to support the claims made in its business plan. Evidence showing that the company started doing business in 2016 does not support a finding that the company would have supported a managerial or executive within one year of filing the petition in the summer of 2014.

The Petitioner has not overcome our finding that it did not provide sufficient evidence to show that it would support a managerial or executive position within one year of an approval of the new office petition.

III. CONCLUSION

For the reasons discussed, the Petitioner has not shown proper cause for reopenmg or reconsideration or established eligibility for the immigrant benefit sought.

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Matter of A-W-, Inc.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter of A-W-, Inc., ID# 756846 (AAO Oct. 31, 2017)