dismissed L-1A Case: Food Service

identifYing'datadeletedto ..
.Pft'\'etltcfearfy unwarranted .
· in~i..ofpersonalpriv8C1
.PUBLICCOPV
U.S. Department of Homeland Secur ity
2.0 Massachusetts Ave., N.W., Rrn. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services .
FILE: WAC 05 083 50821 Office: CALIFORNIA SERVICE CENTER . Date: MAR o12D01
INRE: Petitioner:
Beneficiary:
PETITION: Petit ion for a Nonimmigrant Worker Pursuant to Section i01(a)(15)(L ) of the Immigrationand
Nationality Act, 8 U.S.c. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS :
This is the decision of the Administrative Appeals Office in your case . All documents have been returned to the office
that originally decided your case. Any further inquiry must be made to that office.
--~._-..- .- . _-
Robert P. Wiemann , Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 083 50821
. Page 2
DISCUSSION: The Director, California Service Center , denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) ,on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petit,ion seeking to extend the employment of its assistant operations
manager as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act) , 8 U.S.C . · § 1101(a)(15)(L). The petitioner, a co .rporation
organized in the Territory of Guam, claims to be the affiliate ofSubway Investments Corporation, located in
Saipan, Commonwealth OfNorthern Mariana Islands. The petitioner claims to operate retail sandwich stores,
namely Subway restaurant chains.
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary will be
employed in the United States in a primarily managerial or executive capacity ; or (2) a qualifying relationship
.existed between the petitioner and the foreign entity .
. ' Counsel for the petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner seeks
to disprove the director's conclusions, and submits a brief and additional evidence III support of his
contentions.
To establish eligibility for the L-l nonimmigrant visa .classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically , a qualifying organization must have employed the '
beneficiary in a qualifying 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. ;
The regulation at 8 C.F.R.§ 214.2(1)(3) provides that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the alien
are qualifying organizations as defined in paragraph(1)(1)(ii)(G)of this section.
(ii) Evidence that the alien will be employed in . an executive , managerial, or specialized
.knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous 'year of full-time employment abroad
with a qualifying organization within the three years preceding the filingof the petition.
(iv) Evidence that the alien's prior year of employment abroad 'was in a position that was
managerial, executive, or involved specialized knowledge .and that the alien's prior
education, training, and employmentqualifies him/her to perform the intended services in
the United States; however, the work in the United States need not be the same work which
the alien performed abroad.
WAC 05 083 50821
Page 3
The first issue in this matter is whether the beneficiary will be employed by the United States entity in a
primarily managerial or executive capacity.'
Section 101(a)(44)(A) of the Act, 8 U.S.C. § ll01(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization); or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the. supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization; .
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
On the L Supplement to the Form 1-129, the petitioner stated that the beneficiary would be managing eight
Subway restaurants in the United States and would oversee eight supervisors and eight assistant. supervisors.
Additionally, in an undated statement entitled "Operations Manager" submitted with the petition, the
beneficiary's position was described as follows:
WAC 0508350821
Page 4
Manages all operations of business, engaged in [Sjubway restaurant chain and related
services. Primarily directs, supervises, and controls the work of all subordinate supervisory,
managerial, and professional employees. Exercises discretion in day to day operations of
Guam branch office. Has the power to hire and fire employees or to recommend those as
well as other personnei actionsfor all employees of the business. .
On March 16, 2005, the director .requested additional evidence pertaining to the nature of the beneficiary's
, position in the U.S. business. The request specifically asked the petitioner to submit a list of all employees
under the beneficiary's supervision as well as a more detailed description of the beneficiary's duties, including
the percentage of time devoted to each duty. .
The petitioner submitted a response dated June 3, 2005. The petitioner provided an organizational chart for
the entire business organization, which demonstrated that the beneficiary, as an assistant operations manager
for the petitioner, will continue to oversee the employees of two Subway stores.' Specifically, store 22053 is
shown to employ six employees: five sandwich artists and one certified sandwich artist; whereas store 7400 is
shown to employ three sandwich artists and one re-certifiedsandwich artist. Although the position of "store
team leader/supervisor" was also described, no employees were identified as being employed in t¥s position.
The organizational chart further indicated that the beneficiary was overseen by an operations manager,a
1 It is noted for the record that the petitioner initially claims on the Form 1-129 that the beneficiary will be,
employed as an operations manager, responsible for managing eight Subway restaurants and overseeing the
work of eight supervisors and eight assistant supervisors. In response to the director'srequest for evidence;
however, the petitioner indicates that th'e beneficiary will continue to be employed as '~n assistant operations
manager, responsible for managing two Subway restaurants and overseeing the work of eight .sandwich
artists, one certified sandwich artist, and one re-certified sandwich artist. On appeal, the petitioner indicates
that the beneficiary has s'ince been promoted to an operations manager position, responsible for managing
three Subway stores and overseeing the work of one store team leader, one assistant store team Ieader.nine
sandwich artists, three certified sandwich artists, and threere-certified sandwich artists. This promotion
occurred on August 31, 2005, more than six'months after the petition extension was filed and five days after it.
was denied terminating the beneficiary's employment authorization pursuant to 8 C.F.R. §274a.12(b)(20).
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer,
seeking immigration benefits. See, e.g., Spencer Enterprises, Inc. v. U'S; 345 F.3d 683, 694 (9 th Cir., 2003).
However, anytime a petition includes numerous errors and' discrepancies, and the petitioner fails to resolve
those errors and discrepancies after CIS provides an opportunity to do so; those inconsistencies will raise
serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect Of the petitioner's
proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence
offered in support .of the visa petition. Matter of HO,19 I&N Dec. 582, 591 (BIA 1988). In this case, the
discrepancies' and errors catalogued above lead.the AAO to conclude that the evidence of the beneficiary's
eligibility is not credible. ,. Accordingly, the petitioner has not established the beneficiary's' eligibility for the
requested nonimmigrant visa classification.
WAC 05 083 50821
Page 5
director of operations, a managing director, a vice-president, and a president. With regard to additional
details regarding her duties and her position, the petitioner provided the following list:
• Conduct in store training to Subway store Supervisors and Subway Sandwich
Artists; (15%)
• To conduct interview and screening of Subway applicants; (5%)
• Responsible. in training employees to comply with Subway standard procedure;
(15%)
• To ensure all the assistant trainers to follow"[sic] the Subway training agenda and
training checklist to train employees; (5%)
• To do evaluation reports of the employees periodicaily; (5%)
• To ensure stores are being operated to Subway standards and quality services are.
provided to all customers; (15%)
• To ensure all Sandwich Artist[s] are following Subway prescribed formula and
procedures in preparing the sandwiches, wraps, and salads; (15%)
• To motivate Sandwich Artist[s] in Subway operation; (10%)
• To prepare work schedules and salesreports; (5%)
• To issue warnings to substandard employees for violating company policy; (2%)
• To handle customer complaints; (1%)
• To assist employees to achieve corporate goals with recommended employee
incentive program. (7%)
On August 25,2005, the director denied the petition. The director found that the evidence in the record was
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive
capacity. The director concluded that the documentary evidence submitted did not establish that the
beneficiary would function at a senior level within the organization, and that some of the identified duties of
the beneficiary were not traditionally managerial or executive in nature. Finally, the director noted that the
description of duties was not specific enough to warrant approval. On appeal, counsel for the petitioner
attempts to refute the director's basis for the denial by providing documentation in the form of a "verification
of employment" letter, in which the petitioner's vice-president affirms that the beneficiary is employed in a
managerial capacity.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The definitions of executive and
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high
level responsibilities that are specified in the definitions. Second, the petitioner m~st prove that the
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her
time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th
Cir. July 30, 1991).
The description of duties provided in the initial statement simply adopt many of the key phrases used in "the
regulatory definitions of managerial and executive capacity. General statements such as "exercises discretion
, in day to day operations" and directs, supervises, and controls the work of all subordinate ... employees" do
WAC 05 083 50821
Page 6
little to clarify the exact nature of the beneficiary 's duties. Conclusory assertions regarding the ,beneficiary 's
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not
satisfy the petitioner's burden of proof. Fedin Bro s. Co., Ltd. v.Sava , 724 F. Supp. 1103 , 1108 (E .D.N.Y.
1989), afJ'd, 905 F . 2d 41 (2d. Cir. 1990) ; Aryr Associates, Inc. v. Meissner , i997 WL 188942 at *5
(S.D.N.Y.). Reciting the 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. With the initial
evidence, the petit ioner failed to answer a critical quest ion in this case: What does the beneficiary primarily
,do on a daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros,
Co" Ltd. v. Sava, 724 F. Supp. a1'l108.
The petitioner, however, attempted to answer this question by providing a more detailed overview of the
beneficiary's duties and the percentage of time she devoted to each duty in the response to the request for
evidence. However, many of the duties identified, including "[c]onduct in store training to Subway store
Supervisors and Subway Sandwich Artists" and "motivate Sandwich Artist in Subway operation" do not fall
directly under traditional managerial duties as defined in the statute . By actively engaging in training and
other first-hand tasks, it appears that the beneficiarymay be performing services necessary to the provision of
the petitioner's services . An employee who primarily performs the tasks necessary to produce a product or to
provide services is not considered to be employed in a 'managerial or executive capacity. Matter of Church
SCientology International ,·19 I&N Dec. 593 , 604 (Comm. 1988).
, Furthermore , upon review of the organizational chart and the current structure of the petitioner , it appears that
the beneficiary is in ' charge of two Subway restaurants . ,Each restaurant employs sandwich artists, and each
one has a certified sandwich artist and a re-certified sandwich artist , respectively . Despite identifying the
position of "store team leaders/supervisors ," no employees are listed as filling those positions. As a result,
therefore, based on the nature of the petitioner's business operations, and the fact that the organizational chart
shows five managerial employees above the beneficiary in the organizational hierarchy, it appears that the
beneficiary is merely a first-line supervisor. A managerial or executive employee must have authority over
day-to-day operations beyond the .Ievel normally vested in, a first-line supervisor, unless the supervised
employees are professionals. See id. at 604. Since the employees under the beneficiary's supervision are
sandwich artists, 'who essentially are food preparersas identified in their position descriptions, these
employees are not professional in nature.
Despite the "verification of employment" letter submitted by counsel on appeal , the vice-president's assertion
that the beneficiary is employed in a managerial capacity i s simply insufficient to establish that she satisfies
the regulatory requirements in this matter. Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matt er oj Sofjici, 22 I&N Dec .
158, 165 (Comm. 1998) (citing Matter oj Treasure Craft oj California , 14 I&N Dec . 190 (Reg. Comm.
1972)). In the instant matter , it is unclear how the beneficiary can engage primarily in managerial or
executive tasks , particularly when her subordinate employees are food handlers and no other person has been
designated as a store leader or supervisor. In ,addition, no one has been designated to conduct inventory;
handle administrative or accounting tasks , or manage payroll for these two stores . The petitioner claims that
the beneficiary oversees a subordinate staff of managerial , supervisory and/or professional employees, and is
thus qualified for an extension of the petition. The ultimate fact, however, is that the employment situation
WAC 05 083 50821
Page 7
presented before the AAO is not credible based on the conflicting evidence in the record regarding the
beneficiary's actual position and duties as well as those of her subordinates . Moreover , the attempts by the
petitioner to change the position and promote the beneficiary on appeal , after the filing of the petition , are
unacceptable. On appeal , a petitioner cannot offer a new position to the beqeficiary ,or materially change a
position's title, its level ofauthority within the organizational hierarchy , or the associated job responsibilities.
The petitioner must establish that the position offered to the beneficiary when the petition was filed merits
classification as a managerial or executive position. Matter of Michelin Tire Corp ., 17 I&N Dec. 248, 249
(Reg. Comm. 1978). A petitioner may not make material changes to a petition in an effort to make a deficient
petition conform to CIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998) .
Based on the evidence presented, the beneficiary is not employed in a predominantly managerial or executive
position. For this reason ; the petition may not be approved. ,
The second issue in the present matter is whether the petitioner and the foreign organization are qualified
organizations as defined by 8. C.F.R. § 2l4 .2(l)(1)(ii)(G). The regulation defines the term "qualifying
organization" as a United States or foreign firm, corporation, or other legal entity which:
(J) Meets exactly one of the qualifying relationships specified in the defi~itions of aparent,
branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not required) as an
employer in the United States and iri at least one other country directly or through a
parent, branch , affiliate, or subsidiary for the duration of the alien's stay in the United
States as an intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.
Additionally, the regulation at 8 C.F.R. § 214.2(l)(1)(i i) provides:
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries.
(1) "Branch" means an operating division or office of the same organization housed in ' a
different location .
(K) "Subsidiary" means a firm , corporation, or other legal entity of which a parent owns ,
directly Or indirectly, more than half of the entity and controls the entity; or owns ,
directly or indirectly , half of the' entity and controls the entity ; or owns ,' directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over
the entity ; or owns , directly or indirectly , less than half of the entity, but in fact controls
the entity.
(L) "Affiliate" means
WAC 05 083 50821
Page 8
. (1) One of two subsidiaries both of which are owned and controlled by the same
parent orindividual, or '
(2) One of two legal entities owned arid controlled by the same group of
individuals, each individual owning and controlling approximately the same
share or proportion of each entit,Y,or
(3) In the case of a partnership' that is organized in the United States to provide
accounting services along with managerial and/or consulting services and that
markets its accounting services under an internationally recognized.name under
an agreement with a worldwide coordinating organization that is owned and
controlled by the member accounting firms, a partnership . (or similar
organization) that is organized outside the United States to provide accounting
services shall be considered to be an affiliate of the United States partnership if
it markets its accounting services under the same internationally recognized
name under 'the agreement 'with the worldwide coordinating ,organization of
which the United States partnership isalso a member.
In this case, the petitioner makes conflicting claims regarding the nature of the relationship between the
entities. The petitioner claims that the Guam office is an affiliate of the beneficiary 's foreign employer, with
both entities being 65 % owned by Additionally , however, franchise
agreements between the petitioner's president and~. is submitted to show that the U.S
entity operates Subway franchises , an arrangeme~he agreement given the claimed
, ownership by ••••••••••••
At the time of adjudication , there was no evidence in the record regarding the ownership of the foreign entity
in this matter. The record did contain documentary evidence showing that the petit ioner was owned 65 % by
•••••••••• , as claimed. The issue then is whether a qualifying relationship exists between the
petitioner and the beneficiary's foreign employer.
Upon review, the director denied the petition based on the fact that the basis for the qualifying relationship
appeared to be a franchise agreement. Although this reasoning was incorrect and will be withdrawn , the
director's conclusion was correct given the lack of evidence regarding the ownership of the beneficiary's
foreign employer. On appeal, counsel for the first time submits ownership documentation for the foreign
entity, which corroborates the claim that the foreign entity is 65 % owned by
and thus , on its face , appears to establish a qualifying relationship. However, this evidence may not be
considered. The petitioner was put on notice of required evidence and given a reasonable opportunity to
provide it for the record before the visa petition was adjudicated. The petitioner failed to submit the requested
evidence and now submits it on appeal. Howe ver, the AAO will not consider this evidence for any purpose .
See Matter of Soriano, 19 I&N Dec . 764 (BIA 1988) ; Matter of Obaigbena, '19 I&N Dec. 533 (BIA 1988) .
The appeal will be adjudicated based, on the record of proceeding before the director. Furthermore , an
additional problem arises from the nature of the Guam operation.
WAC 0508350821
Page 9
The ,petitioner indicates 'that the beneficiary manages or oversees two Subway restaurants in Guam, and the
record contains two franchise agreements between 7 .. 3 (owner of "Subway") and the
petitioner and foreign employer 's president, There is no evidence in the record to show that
, the beneficiary is working for the petitioning entity in Guam; rather, it appears that she renders her services
primarily to Mr. _ The record , therefore, contains no evidence to "demonstrate that the beneficiary has
.entered Guam, a US. territory, to render her services to a branch of the same employer or a parent , affiliate,
or subsidiary thereof as required by 8 C.F.R.§ 2l4.2(1)(1)(ii). The contractual agreement, executed by
Johnnie Fong in his individual capacity cannot be transferred to the petitioner unless he is and at all times
remains the owner of the controlling stock of the company. The evidence presented, however, indicates that
Transpacific International owns the majority of the petitioner, not Mr.•. Although it is possible Mr."
indirectly owns the majority of the petitioner, no evidence of this indirect ownership has been presented.
Moreover, the record also lacks evidence that the petitioner has assumed all of Mr. 2 obligations under
the franchise agreements, as required for any assignment. , Thus, even if the petitioner had adequately
established its qualifying relationship with the beneficiary 's'foreign employer, the beneficiary does not appear
, to be rendering her services to this entity . Even if she is,itwould be in violat ion of the franchise agreement.
For this additional reason, the petition may not be approved. . '
When the AAO denies a petition on multiple alternativegrounds, a plaintiff can succeed 'on a challenge only ,
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See ,
Spencer Enterprises, Inc. v. UnitedStates, 229 F. Supp. 2d1025, 1043 (E.D. Cal. 2001) , affd. 345 F.3d 683 ,
(9th Cir. 2003).
The petition will be denied for 'the above stated reasons, with each cons idered .as an ind~pendent and
alternative basis for ,denial.. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 ofthe Act, 8 U .S.C. § 1361. Here, thatburden has
not been met.
ORDER:
I
I
·1I ' ..
" I
!
The appeal is dismissed .
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