dismissed L-1A Case: Fast-Food Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re : 22395873 
Appeal of California Service Center Decision 
Form I-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 14, 2022 
The Petitioner 1 operates a fast-food restaurant and seeks to employ the Beneficiary temporarily as its 
"President" under the L-1 A 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, as required, that the Beneficiary was employed and would be employed in the United States 
in a managerial or executive capacity. The matter is before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not establish that the Beneficiary would be employed in an executive capacity. 2 
Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments as to whether the Beneficiary was employed 
abroad inan executive capacity. SeeJNSv. Bagamasbad, 429U.S. 24, 25 (1976)("courtsandagencies 
are not required to make findings on issues the decision of which is unnecessary to the results they 
reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A 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 
1 The Petitioner states that it is a Florida business entity that is doing business as 
Although the Petitioner provided documents showing its use of this alternate business name, there is no formal 
documentation showing that the alternate name has been registered and is recognized by the state or federal government. 
2 Although the Petitionerreferred to the Beneficiary's position as thatof"executive/manager ," the Petitioner's appeal brief 
states that the Beneficiary " only functions in the executive capacity" and restates the definition of"executive capacity." 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. 8 C.F.R. 
§ 214.2(1)(3)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner provided sufficient evidence to establish 
that the Beneficiary's position with the U.S. entity would be in an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section IO I (a)(44)(B) of the 
Act. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Section 101 (a)( 44)(8) of the Act. The 
Petitioner must also prove that the Beneficiary will be primarily engaged in executive duties, as 
opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. 
v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
The description of the job duties must clearly describe the Beneficiary's duties and indicate whether 
such duties are in a managerial or an executive capacity. See 8 C.F.R. § 214.2(1)(3 )(ii). Beyond the 
required description of the job duties, we examine the employing company's organizational structure, 
the duties of the Beneficiary's subordinate employees, the presence of other employees to relieve the 
Beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the Beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Job Duties 
First, we will discuss the duties to be performed by the Beneficiary in the proposed position with the 
U.S. entity. We note that the actual duties themselves reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
In a supporting cover letter, the Petitioner described the Beneficiary as "perfect decision making, 
excellent communication skills and the right eye to recruit the team needed." The Petitioner also 
provided a percentage breakdown of the Beneficiary's job responsibilities, emphasizing her leadership 
position and discretionary authority over the Petitioner's goals and policies, budgets and finances, 
matters concerning negotiations with banks and vendors, and the company's "governance" and staff 
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performance. The Petitioner also stated that the Beneficiary would analyze "strategic alliances" and 
"identify new opportunities" to ensure the company's success. 
The Director determined that the offered job description was overly vague and therefore issued a 
request for evidence (RFE) notifying the Petitioner of the deficiency and asking for the submission of 
a more detailed description of the Beneficiary's proposed daily activities within the context of the 
Petitioner's business operation. The Director stated that the job description should include a 
percentage breakdown of the Beneficiary's typical managerial or executive job duties, explaining how 
the proposed position meets the statutory criteria of managerial or executive capacity. 
In response, the Petitioner provided a statement from the foreign entity's managing director discussing 
the Petitioner's current operation and plans for expansion. The statement refers to the Beneficiary's 
position as "senior level" and states that she will "exercise broad discretion over day-to-day operation 
of the U.S. organization," which is intended to include "2-3 more stores in the next 18-24 months." 
However, the Petitioner must establish that it was eligible for the requested benefit at the time of filing. 
8 C.F.R. § 103 .2(b )(1 ). Because the Petitioner was not functioning under the expanded operation at 
the time of filing, the Beneficiary's described job duties will be considered within the context of the 
single fast-food restaurant that comprised the petitioning organization during the relevant time. 
Specifically, the Beneficiary is said to "directly undertake[] oversight of the production and service 
delivery machinery of the business through the executive director, Chef, and the unit managers." 
However, the Petitioner did not elaborate on the type of "machinery" or explain how production is 
relevant to the Petitioner's fast-food operation and how the Beneficiary will execute her oversight 
authority over "production." The Petitioner also did not specify who the "unit managers" are or 
establish a need for "unit managers" within the scope of its fast-food operation. 
The response statement also contains a list of vague job duties highlighting the Beneficiary's 
discretionary authority. For instance, the list states that the Beneficiary will be responsible for 
"[ d]eveloping, planning and establishing" goals and policies, hiring and firing personnel, reviewing 
financial statements and reports, having "autonomous control" over "the successful direction of the 
[Petitioner's] activities," maintaining responsibility over development of the "administrative sector," 
and "[f]ormulating [] other necessary policies" as needed. However, the Petitioner offered no insight 
as to the policies the Beneficiary has or will develop and plan, nor did it explain what the 
"administrative sector" is or how this term is relevant to the Petitioner's operation; the Petitioner also 
did not specify the tasks involved in developing the "administrative sector." In addition, the Petitioner 
did not clarify how maintaining "autonomous control" over the company's "successful direction" 
represents a regularly performed activity, nor did it specify the underlying tasks associated with this 
responsibility. Likewise, the record does not indicate that hiring and firing personnel, reviewing 
financial statements, and setting goals are activities that the Beneficiary would perform in the daily or 
weekly course of the Petitioner's operation. In other words, the list does not offer meaningful content 
that would further our understanding of the Beneficiary's daily or weekly activities and her executive 
role within the organization. 
The Petitioner also stated that the Beneficiary would find "a suitable location to establish the retail 
business," negotiate the lease for the said location, and "[a]quire all necessary equipment and 
furnishings for the facility." However, the Petitioner did not establish that these are executive-level 
tasks. Also, although the Petitioner claimed that 85% of the Beneficiary's time would be allocated to 
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executive job duties, it neglected to comply with the RFE request for a job duty breakdown with a 
percentage of time assigned to individual job duties. As a result of the noted deficiencies and 
ambiguities, the record lacks an adequate description of the Beneficiary's proposed job and does not 
establish that the Beneficiary would dedicate her time primarily to duties of an executive nature. 
The Director subsequently denied the petition, finding that the Petitioner provided a deficient job 
description listing generic job duties that do not clarify what the Beneficiary would actually be doing 
or the nature of her role within the context of a fast-food operation. 
On appeal, the Petitioner disputes the denial, claiming that the Beneficiary "has grown the business to 
be profitable" within a year's time, emphasizing the Beneficiary's claimed contributions to the success 
of its U.S. investment in a fast-food restaurant. However, given that the Petitioner's sole focus at the 
time of filing was operating a fast-food establishment that was purchased from its prior owner, it is 
unclear precisely what steps the Beneficiary took to demonstrate that she "has grown the business." 
Further, despite claiming that the Beneficiary "only functions in the executive capacity," the Petitioner 
does not off er evidence that furthers our understanding of the Beneficiary's proposed executive job 
duties; instead, it offers a list of broadly stated job duties that are nearly identical to those listed in a 
job description that was submitted initially in support of the petition. In this job description, the 
Petitioner makes general claims about the Beneficiary's responsibilities, which include formulating 
short- and long-term goals and policies, and planning and directing "the company's financial, 
governance, and commercial operations." However, aside from referring to plans to expand its 
operations intol I the Petitioner does not identify specific business goals that the Beneficiary set 
or point to policies she implemented; nor does the Petitioner establish a need for setting goals and 
policies on a daily or weekly basis within the Petitioner's fast-food operation. Further, other than 
conveying a sense of the Beneficiary's discretionary authority by stating that the Beneficiary would 
direct "the company's financial, governance, and commercial operations," the Petitioner does not 
elaborate on the specific actions this general set of duties would entail within the scope of the 
Petitioner's business. 
The Petitioner also indicates that the Beneficiary will have discretionary authority over the company's 
future prospects in that she will identify investment opportunities and coordinate "international 
strategic planning" with its claimed foreign parent entity. However, the Petitioner did not specify the 
tasks involved in finding investment options or establish that those tasks would be executive in nature. 
Likewise, the Petitioner did not elaborate on the activities involved in "international strategic 
planning" or explain the significance of this duty within the context of the U.S. operation. The 
Petitioner also stated that the Beneficiary will set and monitor budgets, determine a marketing strategy, 
and assess the need for hiring a marketing company. Although there is likely a need to set budgets 
and assess marketing needs on an intermittent basis, the Petitioner did not establish a need to have the 
Beneficiary perform these activities within the course of the company's daily or weekly operation. 
The same is true of the Beneficiary's responsibility to analyze the online food industry and "strategic 
alliances" or to hire "management teams" and monitor staff performance, the latter of which was said 
to be done through "annual evaluations." 
While the sum of the Beneficiary's responsibilities indicates a heightened level of discretion over the 
Petitioner's day-to-day operations and the requisite level of authority with respect to discretionaty 
decision-making, the record does not establish that her actual duties would be primarily executive in 
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nature. To make this determination, we rely on specific information about a beneficiary's actual daily 
tasks as an important indication of whether their duties are primarily executive in nature; otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). As discussed, 
however, the Petitioner provided a vague job description that offers little insight as to the specific 
activities the Beneficiary would unde1iake within the scope of the operation that existed at the time of 
filing. Thus, although the Petitioner claims that the Beneficiary will focus on the 'implementation of 
its flagship store in I no evidence was submitted to show that plans for a store were 
under way at the time this petition was filed. 
Further, the Petitioner has not established that traveling in search of an expansion location and securing 
a lease to accommodate a "flagship store" are executive, as opposed to operational,job duties. 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 
101 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); Matter of Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). 
Because of the noted ambiguities in the Beneficiary's job description, it is unclear how much of her 
time would be dedicated to performingnon-executivetasks, thus precluding the finding that she would 
primarily dedicate her time to perf orming executive-level tasks that comprise her "executive senior­
level position" as claimed. 
B. Staffing 
Next, we will address the Petitioner's staffing at the time of filing. When staffing levels are used as a 
factor in dete1mining whether an individual is acting in an executive capacity, the reasonable needs of 
the organization must be considered in light of the overall purpose and stage of development of the 
organization. See section 101(a)(44)(C) of the Act. 
The Petitioner did not provide the "current number of employees" in the petition form as requested 
and instead claimed six employees in its supporting statement, while listing seven total positions - a 
restaurant manager, an assistant manager, a kitchen manager, two shift leaders/cooks, and two drivers. 
The Petitioner also provided an organizational chart depicting a five-tier structure comprised of seven 
employees. Despite stating that the staffing as described in the chart would be "fulfilled by the end of 
2020," the organizational chart listed no vacant positions and included the name of the employee 
assigned to each of the seven listed positions. The chart shows the Beneficiary at the top tier as the 
president, overseeing a six-person restaurant staff; a manager of front reception and kitchen staff is 
depicted as the Beneficiary's direct subordinate, followed by an assistant manager who is also listed 
as pizza cook and in charge of pasta and salads. The assistant manager is depicted as overseeing a 
"pizza cook & daily prep" employee and a kitchen manager, the latter of which is shown as overseeing 
two drivers. Because the Petitioner did not clarify the ambiguities concerning the size of its staff or 
the positions comprising that staff, it is unclear how many employees the Petitioner had and which 
positions were filled at the time of filing. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988) 
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(requiring a Petitioner to resolve any inconsistencies in the record with independent, objective 
evidence). 
In the RFE, the Director questioned whether the employees' job descriptions accurately reflect the job 
duties they would perform and whether the scope of the Petitioner's business activity and its corporate 
structure are such that would supp01i the Beneficiary in an executive capacity. The Director asked the 
Petitioner to provide an organizational chart listing all employees by name and job title and 
summarizing each employee's job duties, educational level, and salary. The Petitioner was also asked 
to provide evidence of employee wages in the form of a payroll summary and tax documents, such as 
Forms W-2, W-3, and 1099-MISC. 
In response, the Petitioner stated that the Beneficiary, in her capacity as the company's president, 
"directly undertakes oversight of the production and service delivery machinery of the business 
through the executive director, Chef, and the unit managers." The Petitioner further stated that that 
the Beneficiary "doubles as the chief quality control fact of the business" and is "assisted ... by the 
Executive Director HR/Administrations in all matter's [sic] personnel, payroll; book/record keeping 
and documentation, [sic] and by Director Operations on all matters sales, delivery; [sic] customer 
service and business development. Although the Petitioner provided an organizational chart depicting 
the Beneficiary as head of the organization, the chart did not include the referenced "Executive 
Director HR/Administrations" or the "Director Operations" positions. Rather, the chart shows the 
Beneficiary overseeing a 12-person restaurant operation, which includes a general manager and 
manager of the front reception and kitchen as her two direct subordinates. In turn, the latter is depicted 
as overseeing a cook and a "kitchen management & pizza cook" position, while the general manager 
is shown as overseeing an "inventory & marketing controller" employee. 
The bottom tier of the chart includes a pasta cook, a salad and wings cook, and a pizza cook, all three 
under the supervision of the "kitchen management & pizza cook" position. The remainder of the 
bottom tier consists of four drivers depicted as subordinate to the "inventory & marketing controller" 
employee. The Petitioner did not acknowledge the exclusion of the "Executive Director 
HR/ Administrations" and the "Director Operations" positions from its organizational chart, nor did it 
explain how the Beneficiary will be impacted by the lack of employees to fill these positions. In a 
subsequent portion of the response statement, the Petitioner provided more inconsistent information 
about the Beneficiary's subordinates. On the one hand, the Petitioner claimed that the Beneficiary 
will have "three subordinate managers/supervisors," while on the other hand, it stated that the 
Beneficiary's subordinates will include a general manager, two shift managers, and two shift 
supervisors, thus totaling five employees; and in a follow-up discussion of the organizational 
hierarchy, the Petitioner offered a third version, claiming that the general manager would be the 
Beneficiary's direct subordinate, while the shift manager would be directly subordinate to the general 
manager, and no further information was provided regarding a reporting hierarchy for the shift 
supervisors. The Petitioner must resolve these inconsistencies in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. These 
unresolved discrepancies preclude a meaningful understanding of the Petitioner's reporting structure 
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and further detract from the claim that the Petitioner has a sufficient support structure capable of 
relieving the Beneficiary from having to primarily perform non-executive job duties. 
Lastly, the Petitioner provided limited wage evidence, including a 2021 quarterly tax return for the 
second quarter and pays tubs for three employees filling the positions of the general manager, inventory 
and marketing controller, and pasta cook. As no other paystubs were provided, it is unclear who the 
fourth employee may have been, what position they held, and whether they were employed at the time 
of filing or were hired at a later date. This lack of wage documents 3 underscores the existing 
ambiguities and inconsistencies regarding the Petitioner's organizational structure and the record's 
lack of evidence resolving those inconsistencies. See id. Thus, although the Petitioner contends on 
appeal that the Beneficiary "hired the right number of staff even during the difficult times of labor 
shortage," the record does not suppmithat claim. See Matter of Chawathe, 25 I&N Dec. 369,376 
(AAO 2010) ( establishing that the Petitioner must support its assertions with relevant, probative, and 
credible evidence). 
In sum, we find that the Petitioner provided deficient evidence pertaining to its staffing and the 
Beneficiary's proposed job duties. As such, the Petitioner did not establish that the Beneficiary would 
allocate her time primarily to executive tasks in her proposed position. 
III. FOREIGN EMPLOYMENT 
In addition, we note that throughout this proceeding the Petitioner has maintained the claim that the 
Beneficiary is "extremely qualified" for the proposed position based on her "extensive food and 
beverage background" through prior employment. The Beneficiary's resume, which was provided in 
support of the petition, shows a history of continued employment in a management capacity, including 
employment as a "Country Manager & Business Development Manager" for an Indian restaurant chain 
from July 2013 to August 2016, followed by a senior financial adviser position from September 2016 
to August 2018, and continuing with a management position atl I 
the Petitioner's claimed parent entity. However, in a nonimmigrant visa (NIV) application, which was 
filed in April 2018, the Beneficiary provided information that is inconsistent with her and the 
Petitioner's current claims concerning her foreign employment. Namely, when asked about her 
primary occupation in the NIVapplication, the Beneficiary identified her occupation as "homemaker." 
She also responded "no"when asked whether she was previously employed. These responses lead us 
to question the validity of the Beneficiary's employment history as stated in her resume, as well as her 
and the Petitioner's respective claims that the Beneficiary was employed withl I and is 
qualified to assume an executive position with the petitioning organization. See 8 C.F.R. 
§ 214.2(1)(3 )(iv) (requiring a petitioner to establish that the beneficiary's prior education, training, and 
employment qualifies them for the intended position). Without further information we cannot tell 
whether this discrepancy would constitute material misrepresentation. 4 
3 Although the record includes other wage documents that were initially submitted in support of the petition, such 
documents predate the filing of this petition and therefore do not address the issue of the Petitioner's staffing composition 
at the time of filing. 
4 Any foreign person who, by fraud or willfully misrepresenting a material fact, seeks to procure ( or has sought to procure 
or has procured) a visa, other documentation, or admission into the United States orotherbenefitprovided under the Act 
is inadmissible. Seesection2 l 2(a)(6)(C)(i) of the Act, 8 U.S.C. § l 182(a)(6)(C)(i). 
7 
While the dismissal of this appeal is not based on the information contained in the Beneficiary's NIV 
application, the Petitioner will need to further address the listed discrepancy in any future filing where 
the issue of foreign employment is material to eligibility. 
IV. QUALIFYING RELATIONSHIP 
Lastly, although not discussed in the Director's decision, the record contains inconsistencies regarding 
the Petitioner's ownership, thus leading us to question whether the Petitioner has a qualifying 
relationship withl I the foreign entity where the Beneficiary is 
claimed to have been previously employed. 
To establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" 
offices), or that they are related as a "parent and subsidiary" or as "affiliates." See section 
10l(a)(l5)(L) of the Act; see also 8 C.F.R. § 214.2(l)(l)(ii) (providing definitions of the terms 
"parent," "branch," "subsidiary," and "affiliate"). 
In the present matter, section 1, item 12 of the L Classification Supplement states that 51 % of the 
Petitioner is owned by 39% by the Beneficiary, and 10% by The 
record contains three share certificates issued in 2019 that reiterate this ownership breakdown. 
However, on the first page of the supporting statement, the Petitioner described a different ownership 
breakdown claiming the following: "India owns 39% of the shares of the USA subsidiary," a claim 
that is inconsistent with the information provided in the L Classification Supplement and stock 
certificates and, if true, this claim would indicate that a parent-subsidiary relationship does not exist 
between the Petitioner and I Further, in the A1iicles of Amendment to the A1iicles of 
Incorporation, dated in July 2020, the Petitioner described yet another ownership breakdown in section 
E. Namely, the amendment listed the Beneficia as owner of 51 % of the U.S. entity,I I 
I las owner of 39%, and _____ as owner of the remaining 10%, thereby. 
indicating that the Beneficiary, rather tha _______ is the Petitioner's majority owner. 
As with the previously discussed inconsistency concerning the Beneficiary's foreign employment, this 
inconsistency will not serve as a basis for denial and the appeal will be dismissed based on our 
determination concerning the Beneficiary's proposed employment with the U.S. entity. However, the 
Petitioner must further address the listed discrepancy in any future filing where the issue of its 
ownership is material to eligibility. 
V. CONCLUSION 
Given the evidentiary deficiencies described above concerning the Beneficiary's job duties and the 
Petitioner's staffing, we conclude that the Petitioner has not met its evidentiary burden in establishing 
that the Beneficiary's proposed employment would be in an executive capacity and the appeal will be 
dismissed on that basis. 
ORDER: The appeal is dismissed. 
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