dismissed L-1A Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-5588N-F-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN.l9,2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which claims to operate a fast food restaurant, seeks to temporarily employ the 
Beneficiary as its president under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). The L-1A classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifYing foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: ( 1) the Beneficiary has been employed abroad in a managerial or 
executive capacity; and (2) the Beneficiary would be employed in the United States in a managerial or 
executive capacity. 
On appeal, the Petitioner asserts that the previously submitted evidence was sufficient to establish 
that the Beneficiary was employed abroad, and would be employed in the United States, in a 
managerial or executive capacity. The Petitioner contends that the Director failed to apply the 
preponderance of the evidence standard to the facts presented and erroneously determined that the 
Petitioner's operation of a franchised business would impact the Beneficiary's ability to perform in a 
qualifying capacity. 
Upon de novo review, we will withdraw the Director's determination that the Petitioner did not 
establish that the Beneficiary was employed abroad in a qualifying capacity.
1 
However, as the 
Petitioner did not overcome the remaining ground for denial, we will dismiss the appeal. 
1 
The evidence is sufficient to establish that the Petitioner's claimed Chinese parent company employs the Beneficiary in 
a managerial capacity. The Petitioner established by a preponderance of the evidence that the Beneficiary primarily 
manages the organization, supervises subordinate supervisors, has the authority to hire and tire personnel, and exercises 
discretion over the day-to-day operations of the company. In addition, the Petitioner documented that the foreign entity 
has 21 employees and an organizational structure that removes the Beneficiary from significant involvement in non­
managerial duties. 
Matter of F-5588N-F-, LLC 
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 capacity involving 
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)(3)(v)(B). 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. 
Section 10l(a)(l5)(L) of the Act. 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). 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
IOI(a)(44)(A) ofthe Act. 
"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 
10l(a)(44)(B) of the Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) takes into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section 10l(a)(44)(C) of the Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In the denial decision, the Director found that the Petitioner's description of the Beneficiary's 
proposed duties was vague and did not provide sufficient insight into the nature of his expected day­
to-day tasks. The Director further found that the Petitioner had not shown that the Beneficiary 
would supervise subordinate managers, professionals, or supervisors. Finally, the Director found 
that, because the business that the Beneficiary would purportedly oversee is a franchise operation, 
the Beneficiary would not have sufficient authority over the day-to-day management of the business. 
On appeal, the Petitioner asserts that the terms of its franchise agreement do not impact the 
Beneficiary's authority to manage the business. Further. the Petitioner claims that the evidence was 
2 
.
Maner of F-5588N-F-, LLC 
sufficient to establish that the Beneficiary will primarily oversee the organization as a whole, with 
responsibility for supervising subordinate managers. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the Beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, USCIS examines the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Petitioner's business and staffing levels along 
with the Beneficiary's job duties. 
A. Nature of Petitioner's Business 
The Petitioner, which was established m December 2013, states that it operates · 
a franchise restaurant located at 111 Texas. In addition, the 
Petitioner claims that it wholly owns which operates another 
restaurant, and indicates that the Beneficiary would have authority over both businesses. On the 
Form 1-129, the Petitioner stated that it had 11 employees as of April 2017 and it listed its gross 
annual income as "$491,412 + $553=$491,974." 
However, the Petitioner did not adequately document its claims that it operates two restaurants. 
With respect to the claimed primary restaurant location, the Petitioner submitted the following 
evidence: 
• Its 2015 IRS Form 1120, U.S. Corporation Income Tax Return, which lists $1,659 
in assets and $553 in "Other income" derived from r The 
company reported no salary or wage expenses, no rent expenses, and very limited 
operating expenses. The company self-identified as a management business 
providing "services.'' 
• Lease agreement for the restaurant located at which was 
executed in November 2013 and identifies and as tenants 
doing business under the trade name ' 
• Franchise agreement for the restaurant at 
efiective March 2014, which identifies the franchisee as ' and the 
operator and managing principal as 
• Copies of utility bills, invoices, tax payment receipts, and other business 
documents for the which contain references to ' 
·and, , 
3 
.
Matter~~ F-5588N-F-, LLC 
The Director specifically requested a copy of the Petitioner's 2016 tax return in a request for 
evidence (RFE), but the Petitioner did not provide this evidence. Most of the documents listed 
above support a finding that the Petitioner's claimed restaurant is actually operated by 
or ' ' and not by the Petitioner, whose relationship to this limited partnership 
has not been disclosed or documented . The Petitioner has not claimed that this is its 
subsidiary or that it operates this particular restaurant indirectly through a subsidiary. In fact, the 
Petitioner's tax return indicates that it had no subsidiaries in 2015. 
The Petitioner did submit copies of IRS Forms W-2 and W-3 as evidence of wages paid to its 
claimed employees in 2015 and 2016, as well as copies of quarterly state and federal tax returns for 
these years. However , the Petitioner indicated on its 2015 tax return that it paid $0 in salaries and 
wages in 2015, despite submitting a Form W-3 that shows $171,572.65 in salaries and wages to 50 
employees during that year. The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufliciency 
of other evidence submitted in support of the requested immigration benefit. !d. 
For the reasons stated above, the Petitioner has not supported its claim that it operates the restaurant 
at It has not shown that it has earned income from the restaurant. that it leases 
the restaurant's premises, or that it is the franchisee at this location. The primary annual income 
figure 
the Petitioner indicated on the Form I-129 ($491,412) is equivalent to the gross receipts 
reported by its claimed subsidiary, on its 2015 federal tax return, and does not 
represent sales at the location. 
However , the Petitioner has not submitted sufficient evidence to support its claim that it wholly 
owns or that the Beneficiary would, as a result of this parent-subsidiary 
relationship , oversee both restaurant businesses. The record shows that was 
established in October 2014. The Petitioner submitted a "Purchase Agreement" indicating that it 
agreed to purchase all "shares" of this limited liability company for ten dollars in November 2016, 
and that the closing of the transaction would occur in 60 days. signed the document on 
behalf of both the buyer and seller in his capacity as "owner." 
This purchase agreement, by itself, does not establish that the Petitioner acquired the claimed 
ownership interest in First, a limited liability company does not issue "shares " or 
"stock" and for that reason, the terms of the purchase agreement are not credible. Further, the 
Petitioner did not show that the transaction closed occurred 60 days after this agreement was signed 
or that the purchase was finalized. The Petitioner did not submit copies of the claimed subsidiary ' s 
operating agreement, articles of organization, minutes of membership meetings addressing a change 
in ownership, or copies of membership certificates. Finally, it is unclear whether the 
Petitioner's claimed minority owner , would have been authorized to sign the purchase 
agreement as 
the Petitioner's ''owner." 
As noted, the Petitioner opted not to provide a copy of its 2016 federal tax return, which would 
contain information regarding the company's ownership of other U.S. entities, and may have assisted 
4 
.
Matter of F-5588N-F-. LLC 
in corroborating its claimed relationship with As a result of these deficiencies 
in the Petitioner's evidence , it has not established that is its subsidiary. Therefore , in 
reviewing the Petitioner's claimed staffing levels and the Beneficiary's proposed duties, we will not 
consider his proposed supervision of staff employed by . or evidence of its business 
activities. 
Based on the foregoing discussion, the Petitioner has not established that it is operating, or that the 
Beneficiary would be managing, two restaurants, either directly or through a subsidiary company. 
Further, the Petitioner's 2015 tax return indicates that the company may be minimally operational. 
B. Staffing Levels and Organizational Structure 
As noted, the Petitioner provided evidence in the form of IRS Form W-2s, payroll statements from 
an external provider, and copies of state and federal quarterly wage reports in support of its claim 
that it is operating the claimed restaurant. The Petitioner did not explain why it did not report any 
sales or salary and wage expenses on its tax return, or why all other supporting evidence shows that 
the restaurant is more likely than not operated by a different company. 
Nevertheless, even if the Petitioner had shown that it operates the restaurant and employs the persons 
identified in the organizational chart, the record does not establish that the business would support 
the Beneficiary in a managerial or executive capacity. The Petitioner's chart indicates that the 
Beneficiary will oversee a vice president who will in turn supervise a general manager. 
The chart indicates that two shift leaders report to the general manager. The lower-level staff 
includes 
three crew members , three fry cooks, and three cashiers. 
The statutory definition of "managerial capacity" allows for both "personnel managers'' and 
"function managers." See section IOI(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that 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. "2 Section IOI(a)(44)(A)(iv) ofthe Act. 
2 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. (f 8 C.F.R. § 204.5(k)(2) 
(defining "profession '' to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation") . Section I 0 I (a)(32) of the Act, states that "[t]he term pr()(ession 
shall include but not be limited to architects , engineers, lawyers, physicians, surgeons, and teachers in elementar y or 
secondary schools , colleges, academie s. or seminarie s.'' 
Therefore , we must focus on the level of education required by the position , rather than the degree held by s ubordinate 
employee. The possession of a bachelor 's degree by a subordinate employee does not automaticall y lead to the 
conclusion that an employee is employed in a profes sional capacity. 
5 
.
Matter of F-5588N-F -, LLC 
The Petitioner's vice president , the only subordinate employee claimed to have a 
bachelor's degree, is not listed on its payro1l records. The Petitioner claims it does not pay a salary 
to him because he will receive company profits as a minority owner. The Petitioner submitted 
resume, which indicates that he owns and manages a company engaged in property 
development and management, as well as operation of 10 and restaurants 
(including the Petitioner's claimed restaurant). The Petitioner has not shown that he would be a 
regular full-time employee , rather than managing his own company and its many investments and 
restaurants. Therefore, the Petitioner ' s claim that will spend 40 hours per week assisting 
the Beneficiary in overseeing the operation of a single restaurant is not credible, and his actual role 
in the day-to-day operations, if any, is unclear. 
The Petitioner claimed that its store manager and two shift leaders are also full-time employees, but 
only the manager earned wages commensurate with full-time employment based on the most recent 
wage evidence available (fourth quarter of 20 16). The wages pajd to the two shitt leaders during 
that quarter indicate that they worked an average of 21 and 29 hours per week, respectively. The 
remaining part-time employees earned combined salaries equivalent to an average of 128 working 
hours per week, or the equivalent of three full-time workers . The record contains evidence that the 
restaurant is open for at least 12 hours daily or 84 hours per week. The Petitioner did not establish 
how one manager, two part-time shift leaders, and the equivalent of 3 full-time worker s would be 
sufficient to operate a restaurant with these operating hours . In fact, based on the Petitioner 's 
description of its operations, the restaurant would need to have at least four workers present during 
al1 operating hours (a manager/shift leader, a cashier, a fry cook, and a crew member) . 
The evidence must substantiate that the duties of a beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy. By itself, an organizational 
chart showing multiple tiers of subordinate employees is not and will not establish that an 
organization is sufficiently complex to support a qualifying managerial posi6on. Here, the totality of 
the evidence does not support a conclusion that the Beneficiary's claimed subordinates are 
supervisors , managers, or professionals. Instead, the Beneficiary's claimed subordinates perform the 
actual day-to-day tasks of operating the fast food restaurant. Therefore, even if the Petitioner had 
credibly documented that it is actually operating the restaurant , the evidence is 
still insufficient to establish that the company would employ the Beneiiciary as a personnel manager 
or that it would have sufficient staff to relieve him from invo1vement in the day-to-day operations of 
the restaurant. 
C. Duties 
Initially, the Petitioner provided an extremely general description of the Beneficiary 's proposed 
duties that could have described any senior position within any company. For example, the 
Petitioner stated that he will "establish and carry out company goals, policies and procedures," 
"direct and oversee the company's financial and budgetary activities, " " manage general activities 
related to making produc ts and providing services," and "ov ersee the public image of the company, " 
among other duties . The Petitioner maintained that his duties would be primarily executive in 
nature. 
6 
.
Matter of F-5588lV-F-. LLC 
In response to the Director ' s RFE. the Petitioner submitted a lengthy list of duties and assigned a 
percentage of time to each proposed task, indicating that such duties would require 105% of his time 
and would be primarily managerial in nature. The description indicated that he would conduct many 
job duties through the subordinate ''Director" (also identified as the vice president) and the store 
"general managers." However, as discussed above, the Petitioner did not establish that it actually 
operates the restaurant at that it operates the restaurant at 
through a subsidiary, that it actually employs a vice president/Director, or that it has full-time 
general managers on staff. Therefore, the Beneficiary's claimed job duties are not corroborated by 
evidence and we cannot determine what he would actually be doing as the president of a company 
that reported $553 in annual income according to the most recent tax return submitted for our 
rev1ew. 
Given the lack of evidence regarding the actual nature and extent of the Petitioner ' s activities , it is 
difficult to review the Beneficiary's proposed duties in context. The job description submitted in 
response to the RFE would be credible only if the Petitioner had established that it employs a full­
time vice president, full-time subordinate general managers, and operates multiple restaurants. In 
addition, some of the stated duties are unclear, such as the Petitioner's claim that the Beneficiary 
would spent 10% of his time coordinating the management of the Petitioner with its claimed parent 
company. The Beneficiary owns and manages the foreign entity and it is unlikely that he would, for 
example, prepare and present reports to himself. 
The Petitioner also claims that the Beneficiary would spend 20% of his time on business 
development, including evaluating marketing strategies, conducting commercial surveys, initiating 
market research studies , and presenting reports and recommendations for new business opportunities 
to the board of directors. The Petitioner has not established that these types of duties are managerial 
or executive in nature, rather than non-qualifying market research and reporting tasks. Further, the 
Petitioner has not identified what type of business opportunities the company would be pursuing , or 
provided credible evidence of the nature of the business to support a finding that it requires a 
manager or executive to devote a large portion of his time to these activities. 
Similarly, the record does not establish how the Beneficiary would allocate 35% of his time to 
managing the company 's financial and budgeting activities. As noted, the Petitioner has 
documented that it earned $535 in income in 2015 and opted not to provide evidence of its earnings 
for 2016. Based on this limited information, the Petitioner has not documented its need for a 
manager or executive who would spend more than one-third of his time overseeing these activities. 
The Petitioner 
has not provided a realistic description of the Beneficiary proposed daily activities as 
necessary to establish that his role requires him to perfonn primarily managerial or executive duties. 
In addition, even if the Petitioner had sufficiently documented that it actually operates a restaurant as 
claimed, the submitted evidence did not establish that the Petitioner would have sufticient staff to 
remove the Beneficiary from involvement in the day-to-day operations of its claimed restaurant. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
.
Matter~~ F-5588N-F-. LLC 
meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily " managerial or executive in nature. Sections I 0 I (A)( 44 )(A) or 
(B) of the Act. 
Due to the deficiencies in the Petitioner ' s evidence, both with respect to the nature of the operations 
and the Beneficiary's duties, it has not established that he would be employed in a managerial or 
executive capacity. 
III. QUALIFYING RELATIONSHIP 
Although not addressed by the Director , the Petitioner has not submitted sufficient evidence to 
establish that it has a qualifying relationship with the Beneficiary's foreign employer. 
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 related as a "parent and subsidiary" or as "affiliates." See section 101 ( a)(15)(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"). 
The Petitioner states that it is a majority-owned subsidiary of the foreign entity , based on that 
entity ' s purchase of a 51% ownership interest in the compan y in November 2016. As evidence of 
the claimed relationship , the Petitioner submitted: (1) a "Stock Subscription and Purchase 
Agreement " indicating that the Petitioner agreed to issue l 041 of its 2041 authorized shares to the 
foreign entity in exchange for a total subscription price of $350 ,000 ($335.21 per share) ; (2) a wire 
transfer confirmation indicating that the Petitioner received a $350 ,000 wire transfer from a U.S. 
account owned by the Beneficiary and his spouse on November 30, 20 16; (3) stock certificate no. 1 
indicating that the Petitioner issued 1000 shares to in December 2013; and (4) stock 
certificate no. 4 indicating that the Petitioner issued I 041 shares to the foreign entity in November 
2016. The Petitioner later submitted a stock transfer ledger indicating that transferred I 041 
share s to the foreign entity , leaving him with 1000 shares . However, according to the purchase 
agreement, those "shares" were newly issued in 2016 . 
The Petitioner did not explain why a limited liability company (LLC) would issue stock certificates 
and stock subscription agreements as if it were established as a stock corporation . LLCs are 
generally obligated by the jurisdiction of formation to maintain records identifying members by 
name , address, and percentage of ownership, and written statements of the contributions made by 
each member, the times at which additional contributions are to be made, events requiring the 
dissolution of the limited liability company, and the dates on which each member became a member. 
These membership records, along with the LLC's operating agreement , certificates of membership 
interest, and minutes of membership and management meetings, must be examined to determine the 
total number of members , the percentage of each member 's ownership interest , the appointment of 
managers, and the degree of control ceded to the managers by the members. The Petitioner's 
submi ssion of evidence related to stock transactions raises questions regarding the validit y of these 
claimed transactions . 
8 
Matter of F-5588N-F-. LLC 
In addition, the Petitioner attempted to document the foreign entity"s purchase of an ownership 
interest, but it did not explain why the funds it received came from the Beneficiary's personal bank 
account and not from the foreign entity. It did not provide documentation that the foreign entity paid 
for the claimed share purchase. For these reasons, the Petitioner has not submitted sufficient 
credible evidence of its qualifying relationship with the foreign entity. 
IV. CONCLUSION 
The Petitioner has not established that the Beneficiary would be employed in the United States in 
managerial or executive capacity or that it has a qualifying relationship with the Beneticiary's 
foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter o{F-5588N-F-. LLC, ID# 919697 (AAO Jan. 19, 2018) 
9