dismissed L-1A Case: Franchise Retail

identiwing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
mLIc COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 - 
U. S. Citizenship 
and Immigration 
A, 
File: EAC 07 205 5 1640 Office: VERMONT SERVICE CENTER Date: APR 0 6 ZOlfi 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for the 
specific requirements. All motions must be submitted to the ofice that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
eny Rhew 
uhief, Administrative Appeals Office 
EAC 07 205 5 1640 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-I A nonimmigrant 
intracompany transferee pursuant to section 10 1(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 10 1 (a)( 15)(L). The petitioner, a Texas corporation, intends to operate a franchise retail pizza 
business. It claims to be a subsidiary of, located in Mexico. The petitioner seeks to 
employ the beneficiary as the president and chief executive officer of its new office in the United States for a 
period of one year. 
The director denied the petition concluding that the petitioner failed to establish that the U.S. company has 
secured sufficient physical premises to house the new office. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the U.S. 
company had in fact secured sufficient physical premises as of the date of filing. Counsel submits a brief and 
additional evidence in support of the appeal. 
To establish eligibility for the L-1 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. 5 214.2(1)(3) states 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 (l)(l)(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 filing of 
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 employment qualifies himker 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. 
EAC 07 205 5 1640 
Page 3 
The regulation at 8 C.F.R. tj 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) The organizational structure of the foreign entity. 
The sole issue addressed by the director is whether the petitioner has secured sufficient physical premises to 
house the new office, as required by 8 C.F.R. tj 214.2(1)(3)(v)(A). 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on July 2, 2007. The petitioner 
stated on Form 1-129 that its address is - in Katy, Texas, and that the beneficiary 
would be working at this same address. The petitioner also listed this address as the beneficiary's current U.S. 
address on the Form 1-129. 
The petitioner indicated that it intends to operate a restaurant and submitted a copy of an 
unsigned "development agreement" between the U.S. company, the foreign entity and, the 
franchisor. According to the terms of the development agreement, the petitioner, as developer, "must locate at 
least three available sites that appear suitable for a Store and submit for Company's evaluation a landlord's 
summary of the lease terms available for each site." The petitioner requires authorization fro- 
to proceed with preliminary lease negotiations and before signing any lease agreement. According to the 
terms of the agreement, the developer will sign the franchise agreement only after securing a store lease. 
The etitioner did not submit a copy of the lease agreement for the property located at 
4 
or any other lease agreement with its initial evidence. - 
EAC 07 205 5 1640 
Page 4 
Accordingly, on September 19, 2007, the director issued a request for additional evidence in which he 
requested, inter alia, the lease agreement and all attachments for the property located at-~ 
in Katy, Texas, and photographs of the interior and exterior of this premises. 
In response, the petitioner stated: 
within the leased space. The corporate office will serve as the main point of operations. The 
plans are to employ the necessary administrative personnel with full access to a receptionist, a 
large conference room, a copy room and all other items required to operate a business. As the 
business plan describes, [the petitioner] has purchased a franchise 
plan to open several pizza stores, but the corporate office will be at the 
A location. 
The petitioner submitted a one-year lease for a 10' by 11' office space located on the first floor om 
in Harris County Texas. The agreement was made and entered into on October 3 1, 2007, 
with a term commencing on that date. The space is authorized to be used as a general business office. The 
final page of the agreement states "the parties hereto have executed this Lease on the 1" day of July 2007." 
However, the lease was clearly signed and dated by the lessor on October 3 1,2007. 
The director denied the petition on March 3 1, 2008, concluding that the petitioner failed to establish that it 
had secured sufficient physical premises to house the new office as of the date of filing. The director 
acknowledged receipt of the lease agreement in response to the RFE, but emphasized that it was clearly 
executed on October 3 1,2007, despite the July 1, 2007 date that appears in the lease agreement. The director 
determined that, as there was no evidence of a valid lease agreement in effect as of the date the petition was 
filed, the petition cannot be approved. 
On appeal, counsel for the petitioner asserts that "the facts are that ~hvsical premises had alreadv been .. , 
secured." Counsel submits a revised lease agreement for the premises at which 
indicates that the date of execution was November 1, 2007, rather than July 1, 2007 as originally stated. 
Counsel further states: 
The Beneficiary, coming in as an Executive/managerial capacity under new office, had 
to serve as the corporate office for [the petitioner]. 
Counsel cites to Matter of LeBlanc, 13 I&N Dec. 816 (Reg. Comm. 1971) to stand for the proposition that the 
statute does not require the beneficiary of an L-1 petition to be coming to an already existing office, branch or 
other establishment of the foreign employer, as long as there is a bona fide intent to acquire physical premises 
and open an office in the United States. 
EAC 07 205 5 1640 
Page 5 
Upon review, the petitioner has not established that it had secured sufficient physical premises to house the new 
ofice. 
The evidence of record clearly shows that, as of the date the petition was filed, the only premises secured was a 
residential premises for the beneficiary that was clearly not neither intended nor suited to house the petitioner's 
retail pizza business. Counsel's reliance on Matter of LeBlanc is misplaced, as that decision predates the 
Immigration Act of 1990 and the implementation of the regulations governing "new office" petitions by nearly 20 
years. If a petitioner indicates that a beneficiary is coming to the United States to open a "new office," it must 
show that it is prepared to commence doing business immediately upon approval so that it will support a 
manager or executive within the one-year timeframe. See generally, 8 C.F.R. 5 214.2(1)(3)(~). At the time of 
filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired 
sufficient physical premises to house the new office. 8 C.F.R. 5 214.2(1)(3)(v)(A). Here, the petitioner 
acquired its business premises nearly four months after the petition was filed and did not anticipate leasing 
premises for its restaurant until March 2008, nearly eight months after the petition was filed. 
The petitioner must establish eligibility at the time of filing the nbnimmigrant visa petition. A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg. Comm. 1978). Therefore, the director correctly 
determined that the petitioner failed to meet the evidentiary criteria at 8 C.F.R. 5 214.2(1)(3)(v)(A), and the 
appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the intended United States 
operation, within one year of the approval of the petition, will support an executive or managerial position, as 
required by 8 C.F.R. 3 2 14.2(1)(3)(v)(C). 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby 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 full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
Here, it is apparent that the petitioner is not prepared to commence doing business upon approval of the 
petition. According to the milestones outlined in the petitioner's business plan, it does not anticipate opening 
its first pizza store until July 2008, a full year after the date the petition was filed. The petitioner indicates 
that it intends to hire a manager in February 2008, but has not clearly identified this position's proposed 
responsibilities. The petitioner also fails to indicate when it intends to hire workers to perform the day-to-day 
operations of the petitioner's restaurant, or whether it would be fully staffed within one year. In addition, the 
petitioner indicates that it intends to hire 6 to 12 employees for its store, such as pizza makers and cashiers, 
but it has not identified who would be responsible for administrative duties, day-to-day financial tasks, 
EAC 07 205 5 1640 
Page 6 
training employees, purchasing, marketing, and other non-qualifying duties relating to the day-to-day 
operations of the business. As such, the evidence of record does not establish that the beneficiary would be 
relieved from performing these tasks within one year of approval of the petition. The petitioner indicates that 
its store will be open for 91 hours per week, but the limited evidence in the record suggests that it intends to 
hire a single manager. Therefore, it is unclear whether the beneficiary would be relieved fiom directly 
supervising non-professional personnel working in the restaurant during the hours when the manager is off- 
duty. 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." Section 101 (a)(44)(A)(iv) of the Act; 8 
C.F.R. tj 2 14.2(1)(1)(ii)(B)(2). 
The petitioner indicates that the beneficiary's duties will be managerial or executive in nature and that he will 
have authority to hire and fire personnel, develop the petitioner's stores, and make decisions on locations, 
marketing, and operations. However, the petitioner has not established that these would be the beneficiary's 
primary duties within one year of approval of the petition. The definitions of executive and managerial 
capacity each 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 must 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). While it appears that the beneficiary would exercise the requisite level of authority over the new office 
in the United States as its president and chief executive officer, the petitioner has not established that he 
would be relieved from performing non-qualifying duties within one year. 
Furthermore, the beneficiary himself stated the following in response to the request for evidence: 
I personally believe that a new business or a new company is like a baby, I have to take care 
of every simply aspect to make it grow, I will work in every single position to understand and 
learn every little aspect of the new venture, the best way, starting from scratch. . . . I will 
work in every single store, from cleaning to preparation of food. I will roll on all the positions 
because I need to have the knowledge to motivate and to teach my successors. 
Given that the petitioner does not intend to open its first location until July 2008, it appears that the 
beneficiary anticipates being involved in the day-to-day operations of the business after the first year. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Intn 'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner has failed to establish any clear distinctions between the proposed qualifying and non- 
qualifying duties of the beneficiary. Specifically, the petitioner submitted no information to establish the 
percentage of time the beneficiary actually will perform the claimed managerial or executive duties after the 
first year of operations. In light of the foregoing discussion, the petitioner's anticipated delay in commencing 
business, and its vague personnel plan, the evidence collectively brings into question how much of the 
beneficiary's time could actually be devoted to managerial or executive duties at the end of the first year of 
EAC 07 205 5 1640 
Page 7 
operations. The beneficiary must be primarily performing duties that are managerial or executive at that time. 
Furthermore, the petitioner bears the burden of documenting what portion of the beneficiary's duties will be 
managerial or executive and what proportion will be non-managerial or non-executive. Republic of Transkei 
v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the lack of these percentages, the record does not 
demonstrate that the beneficiary will function primarily as a manager or executive within one year. For this 
additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afJ" 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. U.S. 
Dept. of Transp., NTSB, 925 F.2d 1147, 1 149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.