dismissed L-1A Case: Fast-Food Restaurant

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 29, 2024 In Re: 33360573 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner is a fast-food restaurant that seeks to employ the Beneficiary temporarily as the general 
manager of its new office I under the L-lA nonimmigrant classification for intracompany transferees 
who are coming to be employed in the United States in a managerial or executive capacity. 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition concluding that the Petitioner did not 
establish that it would support the Beneficiary in a managerial or executive capacity within one year 
of the petition's approval. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. 8 C.F.R. § 214.2(1)(1). 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. 8 C.F.R. 
§ 214.2(1)(3)(ii). 
Further, regarding a new office petition, the petitioner must submit evidence to demonstrate that the 
new office will be able to support a managerial or executive position within one year. This evidence 
must establish that the petitioner secured sufficient physical premises to house its operation and 
1 The term "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(l)(l)(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. 
disclose the proposed nature and scope of the entity, its organizational structure, its financial goals, 
and the size of the U.S. investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
IT. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue to be addressed is whether 
the Petitioner provided sufficient evidence to establish 
that its operation would support the Beneficiary in a managerial or executive capacity within one year 
of the petition's approval. 2 
In the case of a new office petition, we review the petitioner's business and hiring plans and evidence 
that the business will grow sufficiently to support a beneficiary in the intended managerial or executive 
capacity. The petitioner has the burden to establish that it would realistically develop to the point 
where it would require the beneficiary to perform duties that are primarily managerial or executive in 
nature within one year of the petition's approval. Accordingly, we consider the totality of the evidence 
in determining whether the proposed position is plausible based on a petitioner's anticipated staffing 
levels and stage of development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
The record in this instance shows that the Petitioner purchased a restaurant in 2023 and was operating 
as such at the time of filing; it claimed two employees and a gross income of $400,000. Supporting 
evidence includes a cover letter in which the Petitioner stated that it plans to expand its operation to 
multiple locations and create a franchise. The Petitioner also provided a business plan listing its 
income and personnel projections over a five-year period. The plan, however, offers no timeline or 
list of anticipated financial costs associated with the proposed expansion and instead focuses on the 
Petitioner's existing restaurant, which is projected to have five employees - a general manager, an 
assistant manager, a kitchen manager/chef, and two "general staff' employees - during its first two 
years of operation, adding a sales and marketing manager and a third "general staff'' employee by the 
third year, and a fourth "general staff'' employee by the fifth year for a total of eight employees. The 
business plan also lists employee job duties; the listed job duties for the sales and marketing manager 
include creating a marketing strategy and building a website, maintaining a social media presence, and 
preparing "special promotions" to attract more customers and promote the Petitioner's brand. 
Other supporting evidence includes a consulting agreement executed in October 2023 by the Petitioner 
and a third party that was contract to assist the Petitioner in creating a "plan of action" that includes 
addressing the Petitioner's marketing needs for a contract term that was "limited to a period of [two] 
months from the date of signing." An extension of the contract term, while permitted, would have to 
be agreed upon by the contracting parties. That said, however, there is no evidence that the parties 
agreed to an extension. As such, it is reasonable to assume that, pending the hiring of a designated 
2 The Petitioner initially stated that the Beneficiary's proposed position would be in an executive capacity but claimed 
managerial capacity on appeal. Despite the inconsistency, the distinction between the terms managerial and executive 
capacity is not critical to our analysis and we therefore need not discuss it further. In general, however, the burden is on 
the Petitioner to demonstrate that the Beneficiary's responsibilities will meet the requirements of one capacity or the other. 
See sections 10l(a)(44)(A) and (B) of the Act (for definitions of managerial and executive capacity, respectively). As 
such, the Petitioner will need to resolve the noted ambiguity and clearly state whether it intends to employ the Beneficiary 
in a managerial or executive capacity should it choose to pursue this petition or file a new petition seeking to temporarily 
employ the Beneficiary as an LlA intracompany transferee. 
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sales and marketing employee, the organization's marketing needs would be the responsibility of the 
Beneficiary as the individual responsible for the Petitioner's startup and continued operation. 
In a request for evidence (RFE), the Director acknowledged the Petitioner's submission of a business 
plan that included staffing projections, but questioned how the proposed subordinate staff would 
elevate the Beneficiary to a primarily managerial or executive position. The Petitioner was asked to 
provide additional evidence to demonstrate that it's organization would support a primarily managerial 
or executive position within one year of the petition's approval. 
Although the Petitioner provided its own bank documents and business documents pertaining to its 
foreign affiliate to demonstrate adequate financial support for the U.S. operation, the RFE response 
did not address the Director's concerns about the Petitioner's projected staffing or explain how the 
proposed staffing structure would support the Beneficiary in a managerial or executive position within 
one year of the petition's approval. 
On appeal, the Petitioner asserts that its previously submitted business plan is sufficient evidence of 
its "plan to grow the business to support a managerial position." We disagree. Despite highlighting 
the importance of the sales and marketing function and referring to this function as one of "very high 
priority" over which the Beneficiary will assume "ultimate authority," the Petitioner has not explained 
who, if not the Beneficiary, will continue to fulfill its marketing needs in the absence of a designated 
sales and marketing employee. While the regulations recognize that a designated manager or 
executive responsible for setting up operations will be engaged in a variety of activities not normally 
performed by employees at the executive or managerial level, the Petitioner maintains the burden of 
demonstrating the likelihood that it would have an actual need for a manager or executive who will 
primarily perform qualifying duties after its first year of operating as a new office. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered 
to be "primarily" employed in a managerial or executive capacity. See, e.g., sections 10l(a)(44)(A) 
and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive 
duties); Matter ofChurch Scientology Int'!, 19 I&N Dec. 593,604 (Comm'r 1988). 
As previously noted, the Petitioner's hiring plan shows that a sales and marketing employee will not 
be hired until the Petitioner's third year of operation. Despite the previously referenced consulting 
agreement which shows that a third party was hired to assist the Petitioner with a "plan of action" that 
included addressing the Petitioner's marketing needs, the agreement applied to a time period that 
preceded this petition's January 2024 date of filing. And despite the potential for the parties to extend 
the contract term, the record does not show that an extension was in effect at the time of filing. See 
8 C.F.R. § 103.2(b)(l) (stating that the affected party has the burden of proof to establish eligibility 
for the requested benefit at the time of filing the benefit request and continuing until the final 
adjudication). We further note that the Petitioner's proposed organizational chart does not list a 
consultant, nor does the record indicate that the Petitioner planned to contract the consultant for 
provision of marketing services beyond the initial contract term. See Matter of Chawathe, 25 I&N 
Dec. 369, 376 (AAO 2010) (stating that a petitioner must support its assertions with relevant, 
probative, and credible evidence). Thus, given the Petitioner's plan to function without a sales and 
marketing employee until its third year of operation, it is unclear who, if not the Beneficiary, would 
perform the sales and marketing duties pending the projected hiring. Without evidence of adequate 
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staffing beyond the Petitioner's new office phase of operation, we cannot conclude that the Petitioner 
will have the ability to support the Beneficiary in a managerial or executive position. See id. 
In addition, we note that on appeal the Petitioner mentions that it "plans to increase its headcount to 
six employees" in its first five years of operation. However, as previously discussed, the personnel 
projections incorporated into the Petitioner's business plan list a total of eight employees within that 
five-year period. Thus, the headcount that the Petitioner now mentions on appeal is inconsistent with 
the business plan and indicates a smaller staff than originally projected. See Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988) (stating that inconsistencies in the record must be resolved with 
independent, objective evidence). 
Further, the Petitioner has not adequately described the Beneficiary's job duties or disclosed specific 
actions the Beneficiary plans to undertake during the company's first year of operation to explain how 
he plans to ensure that the new office will progress beyond the rudimentary phase of development. 
While the Petitioner provided an organizational chart depicting the Beneficiary at the top of its 
organizational hierarchy and listed job duties indicating that the Beneficiary has discretionary 
authority consistent with his top-level position, the Beneficiary's listed job duties are vague and offer 
no meaningful insight about his projected activities within the context of a five-person fast-food 
restaurant. For instance, the job duty breakdown states that the Beneficiary will be responsible for: 
developing and implementing "the Company's vision, mission, and overall direction," "the 
Company's overall strategy," and "effective growth strategies and processes"; updating plans and 
objectives; "maintain[ing] awareness of both the external and internal competitive landscape"; and 
ensuring the company's growth. However, it is unclear what actual tasks the Beneficiary would carry 
out to ensure the Petitioner's progression into the next phase of development. 
We also question whether the Beneficiary's role with respect to the development and implementation 
of marketing and advertising campaigns would truly be limited to oversight, as the job duty breakdown 
indicates. As noted earlier, the hiring of a marketing employee is only projected to happen in the 
Petitioner's third year of operation. Therefore, it seems likely that the Beneficiary would continue to 
perform, rather than oversee, the underlying duties of the sales and marketing function as there is no 
one in the organization, aside from the Beneficiary, available to perform these duties. This ambiguity 
leads us to further question whether the Petitioner would be able to support the Beneficiary in a 
managerial or executive capacity within one year of the petition's approval, as the Petitioner has not 
established that it would have the ability to relieve the Beneficiary from having to primarily perform 
operational job duties. The fact that the Beneficiary will manage or direct the business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of section 101 (a)(44) of the Act. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" executive or managerial in nature. 
Sections 101(A)(44)(A) and (B) of the Act. 
On appeal, the Petitioner reiterates the previously submitted job description with the same generalities, 
thus conveying no further information about the actual job duties the Beneficiary would perform 
during the Petitioner's new office phase of operation. And although the Petitioner highlights the 
Beneficiary's position as the "ultimate authority" with responsibility for "all company tasks," it does 
not explain how the general manager of a fast-food restaurant with a four-person subordinate staff 
could be employed in a primarily managerial or executive position within one year of the petition's 
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approval. Reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. See 
8 C.F.R. § 214.2(1)(3)(ii). As indicated earlier, it is the Petitioner's burden to establish that it will 
support a managerial or executive position within one year of the petition's approval. See 8 C.F.R. 
§ 214.2(1)(3)(v)(C). Here, the record does not show that the Petitioner has met that burden. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not provided sufficient evidence demonstrating 
that it would employ the Beneficiary in a managerial or executive capacity within one year of the 
petition's approval. Therefore this petition cannot be approved. 
ORDER: The appeal is dismissed. 
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