dismissed L-1A Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-E- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 14, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which intends to operate specialty ice cream stores, seeks to temporarily employ the 
Beneficiary as the operations manager of its new office 1 under the L- lA nonimmigrant classification 
for intracompany transferees. Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § 110l(a)(l5)(L). The L-lA 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 California Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the new office would support a managerial or executive position within 
one year; and (2) the Beneficiary has been employed abroad in a managerial or executive capacity. 
On appeal, the Petitioner contends that the Beneficiary had been employed abroad in a managerial 
capacity for over one year at the time of filing. In addition, the Petitioner maintains that it submitted 
sufficient evidence to establish that its new office would support a managerial position within one year. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity 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. Id. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(1)(1)(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 of A-E- LLC 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The first issue to be addressed is whether the Petitioner established that its new office would support 
a managerial position within one year. The Petitioner does not claim that the Beneficiary would be 
employed in an executive capacity. 
"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 
10l(a)(44)(A) of the Act. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well as 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. 
Accordingly, the totality of the evidence must be considered in analyzing whether the proposed 
managerial position is plausible considering a petitioner's anticipated staffing levels and stage of 
development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
A. Duties 
The Petitioner intends to operate specialty ice cream stores. In a statement in support of the petition, 
it stated that the Beneficiary will perform the following duties as "operations manager": 
• Review reports submitted by staff members to recommend approval or to suggest 
changes. 
• Direct or coordinate activities of Store Managers and the Accountant; 
• Recommending the hiring of new staff; 
• Responsible for advertising new job openings, conducting interviews and 
negotiating employment contracts with employees; 
• Prepare staff work schedules and assign specific duties; 
• Monitor suppliers to ensure that they efficiently and effectively provide needed 
goods or services within budgetary limits; 
• Establish or implement departmental policies, goals, objectives or procedures, in 
conjunction with board members, organization officials, or staff members; 
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Matter of A-E- LLC 
• Perform personnel functions such as selection, training, or evaluation; 
• Develop and implement product-marketing strategies, including advertising 
campaigns or sales promotions; 
• Recommend locations for new facilities or oversee the remodeling or renovating of 
current facilities; and 
• Direct non-merchandising departments of businesses, such as advertising or 
purchasing. 
In a request for evidence (RFE), the Director advised the Petitioner that the submitted description was 
lacking sufficient detail regarding what the Beneficiary would be doing on a day-to-day basis, and as 
written, appeared to include several non-qualifying duties that are not consistent with the definition of 
managerial capacity. 
In response to the RFE, the Petitioner submitted the same list of duties, and attempted to elaborate by 
providing supplemental information regarding each responsibility. However, in most instances, this 
additional information did not provide further insight into the nature of the Beneficiary's expected 
tasks during the first year of operations or beyond nor further explanation of how he would divide his 
time between managerial and non-managerial tasks. With respect to many of the responsibilities, the 
Petitioner simply paraphrased the original duties rather than providing additional explanation 
regarding the Beneficiary's proposed daily tasks. For example, the Petitioner indicated that the 
Beneficiary's responsibility for "recommending the hiring of new staff' would involve being "in 
charge of the hiring of any new staff:" his responsibility to "prepare staff work schedules and assign 
specific duties" would involve "setting employees' work hours and adjusting their schedules in case 
of leave or sickness of any employee," and his responsibility for implementing policies, goals and 
objectives would involve "ensur[ing] that all policies are understood and followed." 
The Petitioner noted that the Beneficiary would invest time in enrolling the Petitioner to participate in 
food delivery applications such as Uber Eats, Yelp and Zomato, develop employee manuals, and adjust 
store hours as necessary, but the Petitioner did not explain how he would be required to perform these 
types of tasks on a regular and ongoing basis. 
Therefore, we agree with the Director's determination that the description was insufficient to establish 
that the Beneficiary's actual duties would be primarily managerial in nature within one year. More 
than half of the duties relate to personnel functions, such as recruiting, interviewing, selecting, training, 
or overseeing subordinate staff While the Beneficiary's authority over personnel matters is noted, it 
appears to extend to both store managers and lower level staff: and the Petitioner has not established 
that duties such as training a clerk or setting work schedules for retail employees are qualifying 
managerial tasks. 
Similarly, while the Petitioner indicates that the Beneficiary will establish goals and objectives, it did 
not attempt to explain what this responsibility would entail or how much of his time would be allocated 
to this responsibility or other higher-level functions. 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 Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs., Inc. v. Meissner, 
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Matter of A-E- LLC 
1997 WL 188942 at *5 (S.D.N.Y.). Here, the Petitioner has not provided the necessary detail or an 
adequate explanation of the Beneficiary's proposed activities in the course of his daily routine. 
We acknowledge that the Beneficiary, as the Petitioner's senior employee, would have authority to 
establish policies for the company, supervise any employees hired, and make decisions regarding the 
company's overall direction. However, the Petitioner must also establish that these types of 
responsibilities would primarily occupy the Beneficiary's time within one year, and to make this 
determination, we review the totality of the evidence. The Beneficiary's discretionary authority is only 
one of several factors we consider in determining whether the Petitioner would employ him in a 
qualifying capacity at the end of the one-year new office period. 
The Director's decision reflects that he properly considered the evidence as a whole to determine 
whether the Petitioner met its burden to show that it would have a reasonable need for the Beneficiary 
to primarily perform the claimed managerial duties within one year. For the additional reasons 
discussed below, the Petitioner has not met this burden. 
B. Business Plan and Projected Staffing 
In order to qualify for L-lA nonimmigrant classification during the first year of operations, the 
regulations require a petitioner to disclose the proposed nature of the business and the size of the U.S. 
investment, and establish that the proposed enterprise will support an executive or managerial position 
within one year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evidence should 
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves 
away from the developmental stage to foll operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
At the time of filing, the Petitioner stated that it had recently acquired majority ownership in two U.S. 
companies that currently operate a total of three'~-----,,-----~' stores in Texas. The Petitioner 
provided the latest tax returns for the two subsidiaries and evidence of the current staffing of each 
retail location, and indicated on the petition that the Beneficiary is expected to work at all three stores. 
The Petitioner did not submit a business plan or other evidence regarding the proposed nature of the 
office including its intended scope, its expected organizational structure, or its financial goals for the 
first year of operations. Although the Petitioner indicated that one of the Beneficiary's duties would 
involve researching additional locations, it did not provide evidence of its anticipated startup costs and 
operating expenses, nor did it provide evidence of its financial ability to acquire additional locations 
during its first year. The Petitioner indicates that its foreign parent company paid $1000 for its sole 
membership interest in the company, but the record does not contain any other information regarding 
the expected size of the financial investment in the new office. 
In the RFE, the Director requested evidence to address these evidentiary deficiencies, such as a copy 
of the Petitioner's business plan, additional information regarding the company's hiring plans for the 
first year of operations, proof of the capital contribution made to the petitioning company, and copies 
of its bank statements, among other items. The Petitioner's response to the RFE did not include this 
evidence or comparable evidence. 
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Matter of A-E- LLC 
Absent evidence that the Petitioner intends to hire additional staff within its initial year of operations, 
we will evaluate the documented staffing and structure of the three ice cream shops to determine the 
company's ability to support a managerial position. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A) 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 Id. If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 
§ 214.2(1)(1)(ii)(B)(3). 
The Petitioner indicates that the Beneficiary's direct subordinates will include the store manager of its 
I I location, a business manager who oversees both the I land I I locations, and a 
contracted accountant whose relatidnship (ith the Petitioner is not documented in the record. The 
Petitioner provided evidence that th store is staffed by a full-time manager, a part-time assistant 
manager, and a part-time cashier. 3 The Petitioner stated that its I I store employs a business 
manager (who divides his time between the I I and I I stores) and one clerk whose 
Form W-2 for 2017 shows that she received $1060 in wages for the year. It is unclear that the clerk 
continued to be employed by the Petitioner's subsidiary when this petition was filed in 2018. 4 Finally, 
the Petitioner indicated that thel O I store is staffed by the aforementioned business manager, 
an assistant manager, and a cashier. 
Although the Petitioner indicated that the business manager and store manager perform personnel 
duties such as employee supervision, hiring, staff training, staff evaluation, and preparation of work 
schedules, the Petitioner indicated that the Beneficiary himself would be performing these activities 
and did not explain how such duties would be shared. The Petitioner has neither claimed nor provided 
evidence to establish that the Beneficiary's proposed subordinates are professional employees. 
Further, based on the documented staffing levels, the record does not support a finding that the 
business manager or store manager are employed as managers or supervisors other than in position 
title, as two of the three stores do not appear to have adequate staff to perform the stores' day-to-day 
operational functions. 
2 To determine 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. Cf 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 101 (a)(32) of the Act, states that "[t]he term profession shall include 
but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academies, or seminaries." 
3 The most recent quarterly wage reports submitted showed that the assistant manager and cashier earned $1800 and $1536, 
respectively, in the fourth quarter of 2017, which equates to no more than 16 to 20 hours per week. 
4 The Petitioner provided evidence that the subsidiary company which operates the I I stores issued 
a total of four IRS Forms W-2, Wage and Tax Statements in 2017. However, the subsidiary's quarterly federal tax return 
for the fourth quarter of2017 shows that it had only three employees working in its two stores at the end of 2017. 
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Matter of A-E- LLC 
The Petitioner's evidence must substantiate that the duties of a beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; a chart depicting tiers of 
subordinate employees and managerial job titles are not probative and will not establish that an 
organization is sufficiently complex to support a managerial position. An individual whose primary 
duties are those of a first-line supervisor will not be considered to be acting in a managerial capacity 
merely by virtue of his or her supervisory duties unless the employees supervised are professional. 
Section 101(a)(44)(A) of the Act. 
Here, the evidence does not support a conclusion that the Beneficiary's proposed subordinates are 
supervisors, managers, or professionals. Instead, the Beneficiary's subordinates more likely than not 
perform the actual day-to-day tasks of operating the ice cream stores. The Petitioner has not provided 
evidence of an organizational structure sufficient to elevate the Beneficiary to a supervisory position 
higher than a first-line supervisor of non-professional employees. In addition, given the Petitioner's 
assertion that the Beneficiary is expected to work in all three store locations, it is unclear that he 
himself would be relieved from spending a portion of his time performing the first-line operational 
functions of the stores. As noted, the I I store in particular has only one sufficiently documented 
worker - the business manager - and he is claimed to divide his time between this store and another 
location. The Petitioner has not established that the Beneficiary would be acting in a qualifying 
capacity as a personnel manager. 
The Petitioner also has not articulated a specific function that the Beneficiary will manage or otherwise 
claimed that he would qualify as a function manager within one year. The term "function manager" 
applies generally when a beneficiary does not supervise or control the work of a subordinate staff but 
instead is primarily responsible for managing an "essential function" within the organization. See 
section 101(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will manage an essential 
function, it must clearly describe the duties to be performed in managing the essential function. In 
addition, the petitioner must demonstrate that "(1) the function is a clearly defined activity; (2) the 
function is 'essential,' i.e., core to the organization; (3) the beneficiary will primarily manage, as 
opposed to perform, the function; ( 4) the beneficiary will act at a senior level within the organizational 
hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over 
the function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 
2017). Here, the Petitioner indicates that the Beneficiary will manage the organization as a whole 
and has not clearly described the Beneficiary's duties or established that he would primarily perform 
managerial duties. 
On appeal, the Petitioner submits evidence indicating its intent to work with the franchisor of its stores, 
I I LLC, to explore the possibility of opening an additional location. However, the 
Petitioner has not provided corroborating evidence to support this potential growth such as evidence 
of the size of the investment, its financial status and objectives, or its business and hiring plans for the 
first year of operations. We cannot consider the company's potential growth absent evidence to 
support the Petitioner's claims. 
The Petitioner's appeal submission includes copies of several non-precedent AAO decisions. These 
decisions were not published as a precedent and therefore do not bind USCIS officers in future 
adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the 
specific facts of the individual case, and may be distinguishable based on the evidence in the record of 
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Matter of A-E- LLC 
proceedings, the issues considered, and applicable law and policy. Here, the Petitioner has not explained 
the significance of the submitted decisions or any substantive similarities to the instant petition, and 
simply states that the decisions "affirm[] our assertions." 
After reviewing the totality of the evidence, we find that the Petitioner has not adequately described 
what the Beneficiary will be doing during the initial year of operations or beyond, nor has it sufficiently 
explained how the Beneficiary would be relieved from significant involvement in the non-managerial 
day-to-day activities of the business within one year. Accordingly, the Petitioner did not demonstrate 
that the Beneficiary would primarily engage in managerial duties, or that the new office would support 
a managerial position, within one year of approval of the petition. 
III. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The remaining issue to be addressed is whether the Petitioner established that the Beneficiary has been 
employed abroad in a managerial capacity. The Petitioner asserts that the Beneficiary has served as 
the operations manager for its Indian parent company since April 2016. 
The position descriptions provided for the Beneficiary's position abroad were nearly identical to those 
provided for his proposed U.S. position, and therefore contain the same deficiencies addressed above 
in that the descriptions include a combination of broadly-stated managerial duties, and non-qualifying 
operational and first-line supervisory tasks. While we do not doubt that the Beneficiary had a heighted 
level of authority over the management of the business as one of its four partners, we agree with the 
Director's determination that the record did not contain sufficient evidence to establish that he was 
primarily engaged in managerial duties. 
We acknowledge that the foreign entity, a restaurant, is claimed to have a significantly larger staff in 
comparison to the U.S. company. The Petitioner submitted excerpts from a "Monthly Muster Book" 
that includes at least 22 names for each month between August 2016 and August 2017. However, the 
Petitioner mischaracterized this evidence as the foreign entity's "payroll" when it neither names the 
foreign entity nor provides information regarding salaries paid to the individuals whose names are 
listed. For this reason, the Director correctly concluded that the evidence does not sufficiently 
corroborate the foreign entity's staffing levels during the Beneficiary's claimed year of employment 
abroad, or demonstrate that the company was sufficiently staffed and structured to allow the 
Beneficiary to allocated non-managerial tasks to subordinate supervisors and other staff. 
Finally, even if the Petitioner had established that the Beneficiary was employed by the foreign entity 
in a managerial capacity at the time it filed the petition, it must establish that he had at least one year 
of foll-time continuous employment abroad in such capacity. See 8 C.F.R. §§ 214.2(1)(3)(iii) and 
(1)(3)(v)(B). 
The Petitioner filed the petition in February 2018 and requested that the Beneficiary be granted a 
change of nonimmigrant status. The Beneficiary had been admitted to the United States in B 1/B2 
visitor status in August 2017 and the Petitioner must establish that his one year of qualifying 
employment abroad occurred prior to his last entry. Periods of time spent in the United States as a 
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Matter of A-E- LLC 
visitor do not count towards the one year foreign employment requirement. See 8 C.F.R. 
§ 214.2(1)(1)(ii)(A). 
As noted, the Petitioner stated that the Beneficiary commenced employment with the foreign entity in 
April 2016. However, the foreign entity's original limited liability partnership agreement is dated July 
6, 2016, and the Petitioner did not explain how the Beneficiary worked for the foreign entity prior to 
its legal existence. The Petitioner also submitted a Certificate of Registration for the foreign entity 
filed with the Government ofl I with an effective date of September 30, 2016, and a Food 
and Drug Administration "food business operator" license for the foreign entity's restaurant issued by 
I !State which was valid from October 26, 2016. 
The Petitioner submitted the aforementioned "muster rolls" which seemed to indicate that the 
restaurant was folly staffed and operating from August 2016; however, the submitted registration and 
license suggest that the company was not licensed to operate a restaurant at that time. Based on the 
evidence submitted, we cannot determine that the foreign entity had been doing business for a foll year 
when the Beneficiary was admitted to the United States in August 2017, or that the Beneficiary had 
been acting in the claimed managerial capacity for a foll year. For this additional reason, the Petitioner 
was not met its burden to establish that he had a foll year of employment abroad in a managerial 
capacity in the three years preceding the filing of this petition. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-E-LLC, ID# 2591012 (AAO May 14, 2019) 
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