dismissed L-1A Case: Business Operations

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-H-B-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 26, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PET!T!ON: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, described as a holding company which operates various businesses, seeks to 
temporarily employ the Beneficiary as its president under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(L). 
8 U.S.C. § 1101(a)(l5)(L). The L-1A 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, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States m a 
managerial or executive capacity. We dismissed the Petitioner's appeal from that decision. 
The matter is now before us on a motion to reopen. On motion, the Petitioner submits additional 
evidence regarding its sta±Ttng. We reopened the Petitioner's appeal and issued a notice of intent to 
dismiss and request for evidence (NOID/RFE), asking for current evidence of the Petitioner's 
business activity. In response to the NOID/RFE, the Petitioner has submitted further evidence. 
Upon review, and having already reopened the proceeding, we will affirm our decision to dismiss 
the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. 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, executive, or specialized knowledge capacity. Section I 0 I (a)(15)(L) of the 
Act. 
The Form 1-129 petition must include evidence that the Petitioner will employ the Beneficiary in an 
executive, managerial, or specialized knowledge capacity, including a detailed description of the 
services to be performed. 8 C.F.R. § 214.2(1)(3)(ii). In our previous decision, we quoted the 
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Matrer ofT-H-8-, Inc. 
statutory definitions of managerial capacity and executive capacity, found at section 10l(a)(44)(A) 
and (B) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Petitioner stated that it operates an automobile dealership, a diner, and a catering company. The 
Petitioner had previously provided a job description , breaking down the Beneficiary's duties into 1 I 
categories. We found that these categories lacked specific detail about the nature of the tasks to be 
performed. We stated: 
Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. See Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 
1 
1 08 (E.D .N.Y. 1989), af/'d, 905 F. 2d 41 (2d. Cir. 1990); A vyr Associate,\·, inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
On motion, the Petitioner states that the Beneficiary's stated "duties are extensive, detailed and far 
from vague, and do not constitute a repetition of the statute, as alleged by the AAO. They are, in 
fact, far more detailed than the beneficiary's duties proffered in" cases that we cited in the dismissal 
notice. The Petitioner states that the Beneficiary's job description provides a level of detail similar 
to that found in "a listing of job duties for the position of 'President' provided by the 
More specifically, the Petitioner asserts that the 
Beneficiary's job description is "of an equal level of detail ... as the industry standard developed by 
but that standard is, by design, a generic archetype that includes no details paJiicular to any 
one given position. 
In the same way that the Petitioner cannot simply quote the statute, conformity with third-party 
template job descriptions is not sufficient to meet the Petitioner's burden. The requirement to 
provide a detailed job description becomes meaningless if the Petitioner can satisfy that requirement 
by copying from a template. In this proceeding, the question is not what the typical president of a 
typical company does, but rather what this beneficiary does as the president of this particular 
company. 
In our dismissal order, we did not simply pronounce the job description to be insufficient. Rather, 
we elaborated upon specific deficiencies. We stated, for example: 
[T]he Petitioner asserts that the Beneficiary will spend 15 percent of his time working 
with the foreign entity and its subsidiary companies on vision, goals, values and 
mission, as well as on developing and implementing policies and procedures, and 
evaluating and modifying policies and procedures. This description does not convey 
an understanding of the Beneficiary's day-to-day duties but rather recites his vague 
job responsibilities and broadly-cast business objectives. 
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Matter ofT-H-E-, Inc. 
The Petitioner, on motion, does not address any of these specific deficiencies. Describing the goals 
that the Beneficiary seeks to accomplish does not tell us what he does to accomplish them. The 
Petitioner submits no new evidence relating to the Beneficiary's job description, and therefore the 
Petitioner has not shown proper cause to revisit that issue. 
A. Staffing 
In our dismissal order, we found that the Petitioner had documented only four employees at the car 
dealership, and none at the diner or catering company, as of the petition's filing date, July 27, 2015. 
On motion, the Petitioner acknowledges that the catering company had no employees at the time of 
filing, but assetis that the dealership and the diner each employed seven people on the filing date. 
The Petitioner states that this is relevant because it affects our finding that an understaffed business 
would necessarily require the Beneficiary to perform non-qualifying operational and administrative 
tasks. 
1. Automobile Dealership 
We found that the Petitioner had documented only four out of seven claimed employees at the car 
dealership as of the date of filing. As a result, we also concluded that the dealership's general 
manager had to perform significant non-managerial tasks, precluding us from finding that the 
Beneficiary's direct subordinate would be a managerial or supervisory employee. 
On motion, the Petitioner states that this conclusion was mistaken, but the Petitioner does not 
elaborate on this point, identify past evidence, or submit any new documentation to show that we 
undercounted the car dealership's employees. In our prior decision, we noted the car dealership's 
IRS Forms 941, Employer's Quarterly Federal Tax Returns. In the third quarter of 2015, which 
included the filing date, the Petitioner reported paying a total of $25,905 to four employees. The 
Petitioner, on motion, does not explain why we should have concluded that the dealership had seven 
employees as of the filing date. 
The Petitioner submits a job description for the car dealership's general manager. The job 
description appears to be a generic template rather that one tailored to the specific needs of the 
position. A number of items on the list do not appear to be compatible with the dealership's 
structure. For example, one of the duties refers to "[e]ffectively communicating with the 
comptroller/office manager on a weekly basis," but the organizational chart shows no comptroller or 
office manager. The description also states that the general manager "[o]versee[s] the monthly 
financial statement," but the organizational chart does not indicate who prepares that statement. 
Also, the description refers to "the hiring and training of all department managers," whereas the 
dealership does not have multiple departments or managers for those departments. 
Therefore, we will not disturb our prior findings relating to the car dealership. 
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Matter ofT-H-8-, Inc. 
2. Diner 
The Petitioner's organizational chart shows nine employees at the diner. In our dismissal notice, we 
found that the record did not show that the Petitioner's diner had any employees as of the petition's 
filing date. On motion, the Petitioner submits copies of 46 paychecks issued by the diner, dated 
between June 6 and September 5, 2015. 
The newly submitted checks provide evidence, however fragmentary, that the diner had employees 
at the time of filing on July 27, 2015. This evidence constitutes proper cause to reopen the 
proceeding so that we can reevaluate the Petitioner's claims in that light of the new documentation. 
We note that the Beneficiary signed all of the submitted paychecks, which suggests that the diner 
had no administrative personnel to handle that function. 
The four most recent rounds of paychecks, including the time surrounding the filing date, show the 
following amounts, correlated to the titles shown on the organizational chart: 
Title July 5-6 
General Manager 
Chef (Continental) $756.90 
Chef (American) 264.00 
Assistant Manager 330.00 
Driver/Host/Server 678.63 
Driver/Host/Server 550.00 
[not named on chart] 550.00 
[not named on chart] 184.00 
[not named on chart] 250.00 
[not named on chmi] 499.90 
[not named on chart! 
July 20 
$958.00 
1250.00 
1360.00 
1281.36 
200.00 
II 00.00 
556.00 
150.00 
82.50 
August 5 
$1458.00 
1250.00 
1041.00 
September 5 
$958.00 
250.00 
1250.00 
I 041.00 
212.31 
II 00.00 
95.00 
120.00 
The organizational chmi also named two prep cooks and third driver/host/server. but their names do 
not appear on the submitted checks from the above date range. 
The checks described above are consistent with the assertion that the diner was staffed at the time of 
filing, but they also show major fluctuations in both the amounts paid and the number of workers 
paid at a given time. The checks show payments to nine employees in July 2015, but only three in 
August, the number rising back to eight in September. Some checks dated June 20, 2015, are 
marked "Paycheck 6/1 - 6/15," indicating that the checks were issued shmily after a semimonthly 
pay period. If the diner routinely paid its workers in that manner, then the Petitioner has 
documented only three active employees for the second half of July 2015 (including the filing date), 
and none for the first half of August 2015. The three documented payments are for high-ranking 
employees, but with no documented payments to subordinates, it is not clear who performed 
operational tasks such as cooking, cleaning, and serving customers at the time of tiling. 
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Matter ofT-H-E-, inc. 
Further verification efforts have raised additional questions. Attempts to verify the diner's continued 
operation indicated that the establishment had closed sometime around late 2016. 1 
In our NOID/RFE, we advised the Petitioner of this information and asked for documentary 
evidence to show that the diner still exists and operates. In response, the Petitioner states that it had 
closed the diner at its original address, and was in the process of moving the diner into unused office 
space at the Petitioner's headquarters location. 
The Petitioner did not claim that the diner had reopened, only that it was taking steps to relocate the 
business. The Petitioner had not taken most of those steps when we issued the NOID/RFE in 
January 2017. Most of the new documentation that the Petitioner has submitted dates from April 
2017, days before the Petitioner submitted its response to the NOID/RFE. Therefore, the record 
does not show that the Petitioner was actively, consistently attempting to reopen the diner before we 
asked about the issue. 
The Petitioner's response shows that the diner has been closed for several months, and remains 
closed now. Therefore, the diner has no current need or justification for a management position to 
oversee its operation. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied ±rom the time of the filing and continuing through 
adjudication. 8 C.F.R. ~ I 03.2(b)(l ). Therefore, we can consider the diner's closure when weighing 
the Petitioner's eligibility. 
The Petitioner's response to the NOID/RFE also raises impot1ant questions regarding the paychecks 
which led us to reopen the proceeding. Although the Petitioner had previously submitted IRS wage 
and tax documentation ti·om the car dealership, it did not do so for the diner. For the latter business, 
the Petitioner has only submitted photocopies of checks which do not show any evidence of 
processing for payment. The only corroboration for the checks is a previously submitted copy of the 
diner's September 2015 bank statement, which shows check numbers and amounts corresponding to 
the eight checks dated September 5th. The amounts on those checks range from $95 to $1250, 
averaging $753.29. The bank statement corroborates the amounts on the checks, but not the payees. 
This distinction is important because of tax information that the Petitioner submits on motion. 
ln response to the NOID/RFE, the Petitioner has submitted Internal Revenue Service documentation 
for the diner, showing that the diner paid $14,000 in wages to two employees in 20 !52 (specifically, 
$7500 to its general manager and $6500 to an employee not named on the organizational chart). The 
diner did not report any expenses under "cost of labor" that would reflect non-employee 
compensation. 
1 An online review includes a photograph of the diner with the word ·'Closed" painted on the window. A more recent 
photograph available online shows the same site with a new sign, identifying a new restaurant. We identified the online 
sources for the information in the NOID/RFE. (Printouts from both pages added to record January 18, 20 16.) 
2 The documents are IRS Forms 941; IRS Forms W·2, Wage and Tax Statements; IRS Form W-3. Transmittal of Wage 
and Tax Statements; and IRS Form 1065, U.S. Return of Partnership Income. 
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Maller ofT-!1-B-, Inc. 
The newly submitted IRS documents are not consistent with the photocopied paychecks submitted 
previously, and they do not support the Petitioner's claim that the diner had seven employees as of 
the petition's July 2015 filing date. 
The Petitioner submits copies of the diner's bank statements, showing images of processed checks. 
The earliest statement is from August 2015, after the petition's filing date. The Petitioner did not 
submit the check images included in the September 2015 statement. Therefore, the submitted bank 
statements substantiate only a small number of the paychecks reproduced in the Petitioner's earlier 
submissions. If the diner had more than two employees in 2015, then the diner provided false 
information to the Internal Revenue Service. The Petitioner has not resolved or even addressed this 
significant issue. The preponderance of the submitted evidence indicates that the diner had two, not 
seven, employees at the time of filing, neither of whom earned a full-time wage. 
Ill. CONCLUSION 
Because the IRS documentation from the diner contradicts the Petitioner's claims, the Petitioner has 
not overcome our finding that its staffing at the time of filing did not warrant managerial oversight. 
Furthermore, the subsequent closure of the diner has further reduced the Petitioner's needs in this 
area. The Petitioner has not established that it would employ the Beneficiary in a managerial 
capacity. 
ORDER: The appeal is dismissed. 
Cite as Maller ofT-H-E-, inc., 10# 219088 (AAO May 26, 2017)