dismissed L-1A Case: Food Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-F-G- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 24. 2017 
PETITION: FORM 1-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a food management services operation. seeks to temporarily employ the Beneficiary as 
the general manager of its new otlice 1 under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section IOI(a)(I5)(L). 8 U.S.C. 
§ 1101(a)(15)(L). The L-IA 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 Petitioner did 
not establish. as required, that the new otlice would support a managerial or executive position within 
one year after approval of the petition. 
On appeal, the Petitioner contends that the Director misinterpreted the supporting evidence and 
misapplied the law. 
Upon de novo review. we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification. a qualiiying organization must 
have employed the beneficiary "in a capacity that is managerial, executive. or involves specialized 
knowledge." for one continuous year ··vvithin three years preceding the [bendiciary"sl application 
for admission into the United States.'' Section 10l(a)(l5)(L) ofthe Act. 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. !d. The 
petitioner must also establish that the beneficiary's prior education. training. and employment 
qualifies him or her to perform the intended services in the United States. 8 C.F.R. § :214.2(1)(3). 
1 
The tem1 "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)(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. 
Matter ofR-F-G- LLC 
Also, if the Form 1-129, Petition for a Nonimmigrant Worker. indicates that the Beneficiary is 
coming to the United States in L-1 A status to open or to be employed in a new otlice, the Petitioner 
must submit evidence to demonstrate that the new oflicc will be able to support a managerial or 
executive position within one year. This evidence includes information regarding the new office· s 
physical premises, the proposed nature and scope of the entity, its organizational structure. its 
financial goals, and the size ofthe U.S. investment. See generally. 8 C.F.R. § 214.2(1)(3)(v). 
The term "executive capacity'' is defined as an assignment within an organization in which the 
employee primarily directs the management of the organization or a m~jor 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 10l(a)(44)(B) ofthe Act. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that its new office would be able to 
support a managerial or executive position within one year of approval of the petition. 2 
The Director acknowledged the submitted position descriptions for the Beneficiary and his 
subordinates. but found that one of the subordinate's joh duties do not comport with the Petitioner's 
planned business structure. The Director concluded that the record lacks sufficient evidence to 
establish that the Petitioner would have the organizational complexity to relieve the Beneficiary 
from significant involvement in the day-to-day operations of the company within a one-year period. 
On appeal, the Petitioner states that the Beneficiary would be employed in an executive capacity and 
asserts that it received adequate funding to start doing business as soon as the Beneficiary's visa gets 
approved. The Petitioner emphasizes the Beneficiary's discretionary authority and reiterates the 
previously provided job description. contending that it provided a list of ··20 detailed duties·· which 
establish that the Beneficiary would allocate the majority of his time to executive-level job duties. 
A. New Office Requirements 
In the case of a new oftice petition. beyond the description of a beneficiary's proposed job duties. 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. A 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 analyzing \\hcther 
2 The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. Therefore. our analysis 
will address only whether the record contains sufficient evidence to establish that the Beneficiary·s proposed 
employment would be in an executive capacity. 
2 
Matter of R-F-G- LLC 
the proposed managerial or executive position is plausible based on a petitioner's anticipated stafting 
levels and stage of development within a one-year period. ,)'ee 8 C.F.R. ~ 214.2(1)(3 )(v)(C). 
In a supporting cover letter, the Petitioner listed the steps it has taken thus far in preparation to start 
doing business. The Petitioner stated that it initially plans to focus on fast food retail chains within 
the coffee and bakery sector and that the Beneficiary would be responsible for developing and 
growing the U.S. operation. The Petitioner provided the Beneficiary" s duty breakdown in support of 
its assertions about the proposed position. 
The Petitioner also provided a business plan indicating that the foreign parent entity invested 
approximately $400,000 in the U.S. stati-up operation and that $17.353 remains as the initial capital 
after the Petitioner's purchase of a franchise restaurant. The business plan includes estimated 
income statements and statling projections for the Petitioner's first five years of operation. In the 
course of our review, we observed that the salary expenses provided in the income statements do not 
match the salary calculations that were included in the staffing plans. Namely. the projected income 
statement indicates that the Beneficiary's salary expenses for its first two years of operation would 
be $253,956 and $341,604. respectively. while the statiing projections page shows the salary 
calculations for the same two years as $242.796 and $330.480. respectively. The Petitioner must 
resolve this incongruity in the record with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Further, the business plan shows a progressive increase in projected revenues. costs. and other 
expenses. However, the plan does not include provisions for the purchase of additional restaurants 
during the five years for which the projections were made. Rather, the Petitioner seemingly 
indicates that additional business acquisitions would occur sometime after its initial five years of 
operation and it does not identify any factors that would reasonably explain \vhy the company would 
consistently experience annual increases in revenues. costs. and other expenses without expanding 
its business operation. 
In a request for evidence (RFE), the Director noted that the Petitioner·s plan to branch out by 
acquiring multiple chain restaurants is inconsistent with its five-year personnel plan. which does not 
indicate a change in the number of employees the Petitioner would have from its first year to its fifth 
year of operation. The Director also acknowledged the Pditioner's submission of an agreement to 
purchase a restaurant that is contingent upon the approval of the instant visa petition and instructed 
the Petitioner to provide a statement explaining how the proposed business venture will support the 
Beneficiary in a managerial or executive position within one year. The Petitioner was also asked to 
include a timetable for each action. commencing with the date the instant petition was tiled. 
In response, the Petitioner provided a statement claiming that the foreign entity decided to start a 
company in the United States for the purpose of .. expanding its food management services to a 
global market." The Petitioner restated the statutory provisions in support of its assertion that it is 
not statutorily required to show business growth or '"project continual increase in personnel 
numbers." The Petitioner contended that it will be doing business as a fully staffed franchise 
restaurant operation and claimed that it '"has demonstrated through a credible and researched 
Matter of R-F-G- LLC 
business plan that [it] will generate higher profits each year." The Petitioner reproduced its five-year 
summary of revenues and expenses and resubmitted its original business plan \Vhere it focused on 
the existing restaurant's ''prime location" as a factor for the restaurant's success. The plan also 
indicates that the Petitioner intends to ''branch out into additional bakery/cafe/coffee-shop style 
chains ... in the United States," but does not provide any details as to the time frame for such 
expansion. Regardless, the Petitioner's response letter states that its projected financial grO\vth is 
based on its ownership of one restaurant and indicates that there are no current plans to expand to 
other locations during its first five years of operation. 
In the denial decision, the Director concluded that the record did not establish that the Petitioner 
would support the Beneficiary in a managerial or executive position \vi thin one year of the petition's 
approval. The Director acknowledged the Petitioner's claim that it hired a franchise operations 
manager and a financial manager and its submission of job descriptions for these positions. 
However, the Director found that the franchise manager's job description. which stated that this 
position would oversee "management teams'' and made references to "franchise stores." did not 
comport with the scope and structure of the Petitioner's single-restaurant operation. The Director 
determined that the Petitioner did not submit sufficient evidence to demonstrate a realistic 
expectation that its new ot1ice would achieve the operational and organizational complexity that is 
necessary to support the Beneficiary in a managerial or executive capacity. 
On appeal, the Petitioner contends that the Director overlooked other portions of the franchise 
manager's job description, which indicate that this position would he responsible for new business 
opportunities and research new prospective locations. However. these job duties are also 
inconsistent with the Petitioner's claim that its initial five-year plan is premised on its operation of 
only one store, which does not appear to warrant the employment of "management teams" or require 
that research be done to acquire stores at other locations. As previously stated. the Petitioner is 
expected to resolve discrepancies in the record by submitting independent. objective evidence. !d. at 
591-92. Here. the Petitioner indicates that it does not plan to ''branch out" to operate multiple 
restaurants during its first year, or even during its first five years. of operation. Therefore. any job 
duties that imply and are premised on a more immediate expansion plan are misleading and do not 
reflect the franchise manager's actual tasks. This leads us to question what tasks the franchise 
manager position would be assigned and how or whether this position would help to support the 
Beneficiary's employment in an executive capacity within one year. 
Further, the Petitioner's current claim that it ''will acquire additional fast food locations in future 
years'' is not helpful in establishing eligibility in this matter, where the Petitioner must demonstrate 
the likelihood that it will employ the Beneficiary in an executive capacity within one year of the 
petition's approval. The Petitioner stated multiple times that its operation will be comprised of one 
restaurant location for the foreseeable future. It is the Petitioner's burden to establish that this 
business model is sufficient to support the Beneficiary in an executive capacity. While the Petitioner 
points to its ability to "immediately commence profitable operations, .. this factor does not establish 
that the Petitioner will develop sufficiently such that it will have the ability to support the 
Beneficiary in a position where his duties would be primarily executive in nature. Moreover. as 
noted earlier in this decision. the Petitioner has not provided sufficient evidence to support the 
4 
Matter of R-F-G- LLC 
revenue growth projections mapped out in its business plan. While the Petitioner properly points out 
that business growth is not statutorily required to establish eligibility. the new office regulations are 
premised on the understanding that a new company will progress to a stage of development \\here it 
will be able to support a beneficiary in a managerial or executive capacity. The Petitioner claims 
that it will be able to support the Beneficiary in an executive capacity immediately upon 
commencing its business operation; however, it does not provide sutlicient evidence to support this 
claim. The Petitioner also did not provide sufficient evidence to support its financial projections. 
which indicate that the Petitioner will experience business growth without actually undergoing any 
type of business expansion. The Petitioner must support its assertions with relevant, probative. and 
credible evidence. See Matter of'Chawathe, 25 I&N Dec. 369. 376 (AAO 2010). Without sufficient 
evidence, we cannot determine, that the Petitioner will have either the need or the ability to employ 
the Beneficiary in an executive capacity within one year of approval of the petition. 
B. Duties 
The Director also reviewed the Petitioner's descriptions of the Beneticim-y"s proposed duties and 
found the duty descriptions to be insufficient to establish that he would perform primarily 
managerial or executive duties within one year. 
Initially, the Petitioner provided a deficient job description indicating that the Beneficiary would 
allocate his time to duties in four main categories: operations management for 45% of the time. 
goals and policies for 15% of the time. human resources for 20% of the time. and financial 
management for the remaining 20% of the time. Although duties were listed in each category. most 
were vague and did not describe the actual tasks the Beneficiary would perform. 
In the RFE, the Director observed that the initial description was overly broad and did not provide 
insight as to the daily job duties the Beneficiary would perform. The Petitioner's response includes 
a statement indicating that the Beneficiary would be employed in an executive capacity and that 
"[f]rom the outset of joining the [Petitioner's] team'' he would allocate the majority of his time to 
executive job duties. Despite being told that the original job description \vas overly broad. the 
Petitioner resubmitted that job description and focused on the Beneficiary's discretionary authority 
to make decisions that will "influence and directly impact the operations" of the company. While 
the Petitioner also stated that the Beneficiary would he '·fully responsible for handling the 
company's operations, marketing, and business directives:· it did not actually identify any "business 
directives" or state who, if not the Beneficiary. would perform the marketing duties. which were not 
specifically assigned to either of the Beneficiary's direct subordinates. The Petitioner also claimed 
that the Beneficiary's position "requires experience and capability in leading and managing teams. 
building relationships, defining market segmentation and client differentiation strategies. and 
defining value propositions." 
While the Petitioner provided a proposed organizational chart, it did not identify any .. teams" for the 
Beneficiary to manage, nor did it specify the types of .. relationships" the Beneficiary would huild. 
The Petitioner also did not clarify how "market segmentation and client differentiation'' and .. value 
propositions'' apply within the context of its plan to operate a restaurant business whose clients arc 
5 
Matter r?f R-F-G- LLC 
fast food proprietors in a mall setting. While these duties seemingly fit the definition of executive 
capacity, they do not readily apply to the type of business the Petitioner plans to operate and thus 
they detract from our understanding ofthe Beneficiary's duties and future role within the petitioning 
organization. If USCIS finds reason to believe that an assertion stated in the petition is not true. 
USCIS may reject that assertion. See, e.g, section 204(b) ofthe Act. 8 U.S.C. ~ 1154(b): Anetekhai 
v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bake1y Shop. Inc. v. Nelson. 705 F. Supp. 7, 10 
(D.D.C. 1988); Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001 ). 
Further, while we acknowledge the Beneficiary's placement at the top of the organizational 
hierarchy and the Petitioner's focus on the Beneficiary's discretionary authority within the scope of 
the business, these elements, without other evidence. are not sunicient to establish that the Petitioner 
would be able to support the Beneficiary in a primarily executive capacity. Conclusory assertions 
regarding the Beneficiary's employment capacity are not sufficient. 
The Director found that the Beneficiary's job duties appeared to be inconsistent with the scope and 
nature of the proposed business. The Director acknowledged that the listed duties are .. executive or 
managerial sounding," but found that the job description did not provide sunicient information about 
the actual tasks the Beneficiary would perform to determine whether such tasks vvould actually be 
managerial or executive. 
On appeal, the Petitioner claims that the business it seeks to operate is already established and can 
readily support the Beneficiary in an executive capacity. The Petitioner further contends that the 
previously provided job description includes ''a detailed breakdown" of the Beneficiary"s proposed 
job duties and neglects to acknowledge the Director's finding that the previously submitted job 
description was too vague. The Petitioner does not provide additional information about the 
proposed job duties to allow for a meaningful understanding of the executive tasks the Beneficiary 
would purportedly perform. 
The Petitioner goes on to restate the original job duty breakdown and time allocations without 
providing more detailed information about the Beneficiary's actual daily tasks. The Petitioner does 
not assign actual daily tasks to clarify what actions are involved in such broadly stated job duties as, 
for instance, "[o]versee[ing] and manag[ing] all company operations:· "lp]rovidjing] leadership to 
the [c]ompany:· "[c]onduct[ing] management meetings with [d]irector-lcvel subordinates." 
"[e]nsur[ing] operational excellence in day-to-day operations:· ''[oJverscc[ing] and assist[ing] ,,:ith 
the development of event-planning business," and maintaining responsibility over the company's 
"overall performance, expansion, and growth of franchise stores." While these duties speak to the 
Beneficiary's heightened level of authority, they do not specifically convey an understanding of the 
activities he is likely to engage in on a daily basis during its first year of operations and beyond. 
Specifics are clearly an important indication of whether a beneficiary"s duties are primarily 
executive or managerial 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). 
a.ffd, 905 F .2d 41 (2d. Cir. 1990). 
Matter of R-F-G- LLC 
We also note that several of the duties are in direct conflict with the Petitioner's claims and business 
plan. Namely, the reference to an "event planning business" is not supported either by the business 
plan or any of the Petitioner's prior statements, which focused on the operation of a fast food store. 
As noted earlier in this decision. the Petitioner has indicated multiple times that it does not intend to 
acquire additional franchise stores in the foreseeable future. Therefore. the claim that the 
Beneficiary would have a role in overseeing expansion and growth of additional stores is misleading 
and does not accurately reflect his proposed job duties. 
Further, in discussing the Beneficiary's role with respect to human resources. the Petitioner indicates 
that the Beneficiary would "f dlevelop and support" and '"[ m]otivate and inspire corporate managerial 
staff' and "[a]ggressively develop and maintain managerial productivity through hiring. 
performance review, and hiring.'' The Petitioner did not state what actual daily tasks retlcct the 
Beneficiary's responsibility to develop, support, and motivate staff: nor did it identify which 
positions would comprise the "corporate managerial stafT." The Petitioner also neglected to detinc 
"managerial productivity" within the context of its business operation. Without this basic 
information, we are precluded from being able to gain necessary insight about the Beneficiary's role 
with respect to human resources and we are therefore unable to conclude that his role would be that 
of an executive. Reciting the Beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sutlicient: the regulations require a detailed description of the Beneficiary's daily 
job duties. The Petitioner has not provided any detail or explained the Beneficiary· s activities in the 
course of the daily business operation. The actual duties themselves will reveal the true nature of the 
employment. !d. 
Finally, the Petitioner indicated that the Beneficiary's role as financial manager would involve 
oversight of marketing activities and marketing strategies. However. as noted earlier. the Petitioner 
did not state who would actually carry out the marketing activities and execute the marketing 
strategies. As neither of the Beneficiary's direct subordinates was assigned any marketing-related 
tasks, it is likely that the Beneficiary would not only oversee the activities associated \Vith 
marketing, but that he would actually carry out those tasks himself. While this would be acceptable 
during the Petitioner's new office phase of operation, the Petitioner must establish that it would have 
the ability to relieve the Beneficiary from these and other non-executive tasks beyond this one-year 
time period. See 8 C.F.R. § 214.2(1)(l)(ii)(F). 
The Petitioner has consistently stated that the Beneficiary will occupy the senior position in the 
company. but has not submitted a job description or supporting evidence sufficient to demonstrate 
that he would primarily engage in executive duties, or that the new office would support an 
executive position, within one year. 
III. EMPLOYMENT ABROAD 
Finally, we note that in the course of reviewing the evidence and contemplating the Petitioner's 
eligibility, we found documents outside the record that the Petitioner will need to address in any 
future filing. Specifically, in a nonimmigrant visa application that the Beneficiary completed and 
submitted to the Department of State in August 2014. the Beneficiary stated that his primary 
.
Matter of R-F-G- LLC 
occupation at that time was that of "engineering," his pnmary duties were .. engineer." and he 
identified his employer abroad as ' 
This information ts inconsistent with the Petitioner's claim that the 
Beneficiary has been employed by and since 
2013 through the present and that the position he held with that entity was that of "President and 
Chairman of the Board." 
As stated above. the Petitioner must resolve this inconsistency in all future visa petition filings where 
the Beneficiary's foreign employment is an element of eligibility. 
IV. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in an executive capacity within 
one year ofthe petition's approval. 
ORDER: The appeal is dismissed. 
Cite as Matter q{R-F-G- LLC, ID# 772654 (AAO Nov. 24, 2017)