dismissed L-1A Case: Investment And Food Service

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U.S. Department of Homeland Security 
U.S. Citi zenship and Immigr ation Services 
Administrative Appeals Offi ce (AAO) 
20 Massachusetts Ave. , N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAY 1 6 2014 OFFICE: VERMONT SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. § 110l(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-prec edent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsid er or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision . Please review the Form 1-2908 instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
!;#_ 1-Ron Rosenberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigr ant visa petition . The 
petitioner subsequently filed an appeal to the Administrative Appeals Office (AAO). The AAO dismissed the 
petitioner's appeal and affirmed its decision on motion . The matter is now before the AAO again on a second 
motion to reopen. The motion will be granted and the AAO will affirm its previous decision. The petition 
will remain denied. 
The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an L-1A 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 New York corporation, is self-described as engaging in investment 
and restaurant operations. The petitioner claims to be an affiliate of ocated in India. The 
beneficiary was previously granted one year in L-1A status in order to open a new office in the United States 
and the petitioner now seeks to extend the beneficiary's status for three additional years . 
The director denied the petition , concluding that the petitioner failed to establish that the beneficiary would be 
employed in a qualifying executive or managerial capacity. The director also found that the petitioner had not 
provided sufficient evidence of its financial status and had not established that it had secured physical 
premises for its business. The director dismissed the petitioner 's subsequent motion to reopen. 
The petitioner subsequently filed an appeal. The AAO dismissed the appeal, concluding that the petitioner: 
(1) failed to establish that the beneficiary would be employed in a managerial or executive capacity; and (2) 
failed to establish that it had been doing business for the previous year, as required by 8 C.P.R. 
§ 214.2(1)(14)(ii)(B). The AAO further found that the petitioner submitted insufficient evidence of its 
financial status to establish that it was doing business at the time of filing. The AAO withdrew the director's 
finding that the petitioner did not maintain physical 
premises for its business. 
The petitioner subsequently filed a motion to reopen. The AAO granted the motion and affirmed its prior 
decision, determining that the petitioner had not overcome the grounds for dismissal of the appeal. The 
matter is now before the AAO on a second motion to reopen. 
The regulation at 8 C.P.R. § 103.5(a)(2) states, in pertinent part: "A motion to reopen must state the new facts to 
be provided in the reopened proceeding and be supported by affidavits or other documentary evidence ." 
In support of the motion, the petitioner submits the following: (1) a signed statement by the beneficiary listing the 
principal duties she performs in her role as senior manager; (2) a research paper on the textile and fabrication 
market in the United States prepared in conjunction with its initial new office petition; (3) letters from U.S. textile 
distributors stating the sale of the petitioner's products would not go forward; (4) a hotel broker agreement signed 
by the petitioner in 2010; (5) a financing proposal for the purchase of a motel the petitioner "was seriously 
considering" dated February 27, 2011; (6) a share certificate issuing the beneficiary a five percent interest in 
LLC dated August 19, 2013 and copies of checks for payment of equity interest; (7) the beneficiary's 
job description for the position of OQerations Manager for the management 
company for a hotel owned by LLC; and (8) the petitioner's IRS Form 940: Employer's Annual 
Federal Unemployment Return for 2013 and IRS Form 941, Employer's Quarterly Federal Tax Return, for the 
first three quarters of 2013. 
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Counsel explains the significance of the submitted evidence and asserts that such evidence is sufficient to 
overcome the AAO's findings on appeal. With respect to the beneficiary's employment capacity, the petitioner 
submits a new list of job duties for the beneficiary. Counsel states that the job duties show that the beneficiary 
supervises the managers who perform the actual administrative functions of the business. Counsel states that the 
prior list of job duties was intended to "show the scope of involvement in the business" and not the beneficiary's 
actual day-to-day duties. 
With respect to USCIS' finding that the petitioner failed to establish that it was doing business during the year 
preceding the filing of the petition, the counsel states that the petitioner's activities during the relevant time period 
constitute "doing business" as the petitioner was "attempting to continue its textile business" or enter into an 
alternative business during the year following the initial new office approval. Counsel explains that the remaining 
evidence submitted on motion is intended to establish the petitioner's financial condition and business operation. 
Upon review of the evidence submitted on motion, and for the reasons discussed herein, the petitioner has not 
overcome the grounds for denial of the petition and dismissal of the petitioner's appeal. 
I. THELAW 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(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)(14)(ii) provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(1)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined 1n 
paragraph (1)(1 )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
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I. MANAGERIAL OR EXECUTIVE CAPACITY 
The first issue to be addressed is whether the petitioner established that it will employ the beneficiary in a 
qualifying managerial or executive capacity as those terms are defined at section 101(a)(44)(A) and (B) of the 
Act. 
In dismissing the petitioner's appeal, the AAO found that the petitioner submitted an overly broad description of 
the beneficiary's duties that failed to convey what she would actually do on a day-to-day basis . Further, the AAO 
found that the submitted position description included duties which 
could not be considered managerial or 
executive in nature, such as direct involvement with vendor relationships, marketing, supply issues, and hiring 
low-level staff. The AAO acknowledged that the beneficiary would supervise two store managers with their own 
subordinates, but emphasized that the petitioner failed to provide adequate descriptions for the subordinate 
managers, and thus did not establish that they would relieve the beneficiary from performing non-qualifying 
functions associated with the day-to-day operations of the company's two Subway stores. 
In support of the previous motion, counsel for the petitioner asserted that "the Beneficiary's primary activities 
revolve around the financial responsibilities associated with [the petitioner's) operations, including , without 
limitation, searching for additional investment opportunities." Counsel emphasized that the beneficiary is the 
majority owner of the business and therefore receives only general supervision and exercises discretion in the 
operation of the business. Counsel observed that the beneficiary's signature on the petitioner's lease and purchase 
agreements is evidence of her executive decision-making authority. In addition, the petitioner submitted a 
detailed statement of the beneficiary's "daily duties." 
In support of the current motion to reopen, the petitioner submits a new list of job duties for the beneficiary. 
Counsel states that the prior list detailed "every activity that she might be involved in ... regardless of whether 
the duty was part of her standard regular activities as a manager." Regarding the AAO 's finding that a number of 
the beneficiary 's duties were non-managerial, counsel stated that the list "was submitted to show the scope of 
involvement of the business." 
The beneficiary's revised list of duties includes the following: supervises payroll run (10% ); meeting with store 
manager and employees (10% ); reviews monthly expenses (10% ); contact with vendors (5% ); supervises 
managers in making sure food safety guidelines are followed (5%); reviews maintenance and store safety 
procedures (1% ); supervises maintenance of business records to increase sales (3% ); review daily reports and 
review sales (5% ); check inventory reports against cash register totals (1% ); reviews inventory (2% ); plans and 
sets business goals (10% ); perform human recourse duties including payroll and benefits (10% ); track local and 
national marketing initiatives (2% ). 
Upon review of counsel's assertions and the revised position description submitted on motion, the petitioner has 
not overcome the AAO's prior determination. The evidence of record does not establish that the beneficiary 
would be employed in a qualifying managerial or executive capacity as those terms are defined at sections 
lOl(a)( 44)(A) and (B) of the Act. 
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(1)(3)(ii). Prior to the denial of the petition, the 
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petitioner submitted only a vague description of the duties the beneficiary performed during the first year of 
operations, and a broad overview of the duties she would perform under the extended petition. For example, 
in response to the director's request for a comprehensive description of the beneficiary's proposed duties, the 
petitioner stated that the beneficiary "oversees at an executive level all areas of the business, from the hiring 
and firing a staff of eleven people in the United States ... while maintaining a successful operation in all 
respects." The petitioner further asserted that the beneficiary is "in charge of the company's profitability and 
long range growth," and for seeking new business opportunities. 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), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associat es, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). 
Subsequent to the denial of the petition, the petitioner submitted a description of the beneficiary's actual daily 
tasks which reflected that her day-to-day duties are primarily non-qualifying in nature. Specifically, the job 
description provided on appeal indicates that the beneficiary is expected to perform inventory and routine 
daily accounting, order supplies, work behind the counter as necessary, deal with customer complaints , run 
daily sales reports , prepare the payroll, check time cards, and set up employee benefits. The statement of 
duties submitted on appeal indicates that the beneficiary's actual duties include many administrative and 
operational functions that cannot be classified as managerial or executive in nature. Further, the job 
description is inconsistent with the petitioner's previous claims that the beneficiary primarily oversees the 
company's main functions, rather than being directly involved in the day-to-day operations of the stores . The 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava , 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 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 lnt 'l., 19 I&N Dec. 593, 604 (Comm 'r 1988). 
In support of the current motion to reopen, the petitioner submits a revised list of job duties for the 
beneficiary. The new job description indicates that the beneficiary oversees subordinate managers in 
performance of a number of duties instead of performing those duties herself. Counsel states that the new 
position description overcomes the AAO's finding there is some overlap between the position descriptions 
provided for the beneficiary and for the store manager position, and its finding that the beneficiary is solely 
responsible for a number of non-qualifying duties, none of which are delegated to subordinate personnel. 
Counsel states this list shows that the beneficiary is not involved in the day-to-day duties. On appeal or on 
motion, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its 
level of authority 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'r 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
USCIS requirements . See Matter of Izummi , 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
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Furthermore, a number of the beneficiary's duties under the second motion to reopen are non-qualifying duties 
including: performing human resources duties, such as payroll and benefits; setting up employee benefici ary; 
tracking local and national marketing initiatives and supporting them; and contacts with vendor. 
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 
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). The beneficiary may exercise the appropriate level of authority as 
the petitioner's senior manager and majority owner; however, the petitioner must still establish that her actual 
duties are primarily managerial or executive in nature. For the reasons discussed above, the petitioner has not 
met this burden. Accordingly, the petition will remain denied. 
II. DOING BUSINESS 
The next issue to be addressed is whether the petitioner established that it was doing business for the previous 
year, as required by 8 C.F.R. § 214.2(1)(14)(ii)(B). 
Doing business means the regular, systematic, and continuous provision of goods and/or services by a 
qualifying organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States. See 8 C.F.R. § 214.2(1)(1)(ii)(H). 
The petitioner's new office petition was approved for the period August 31, 2010 until August 30, 2011 . The 
record reflects that the petitioner was incorporated in New York and originally planned to develop a textiles 
business in line with the operations of its foreign affiliate. 
The petitioner's first documented attempt to conduct business as reflected in the record occurred in July 2011 
when the petitioner claims that it purchased two sandwich shops. However, as noted above, 8 C.F.R. 
§ 214.2(1)(14)(ii) requires specific evidence to be submitted when requesting an extension of a new office 
petition. In pertinent part, this regulation requires that a new Form 1-129 be accompanied by evidence that the 
United States entity has been doing business for the previous year and evidence of the financial status of the 
United States operation . The petitioner provided no evidence that it conducted any business in a regular , 
systematic and continuous way for the first ten or more months of the new office petition. For this reason 
alone, the AAO determined that the petition must be denied. 
In support of the previous motion, the petitioner submitted a newly prep ared summary of its business 
activities during the first year of operation. The petitioner made new claims that it had begun reviewing a 
number of potential investment opportunities between September 2010 and June 2011, when it located the 
investment opportunity in Texas. Specifically, the petitioner indicated that the company considered 
L-..Jn_v_e-.st-In-'g in hotel/motel properties in Montana and North Dakota, as well as a liquor store located in 
Mississippi. The petitioner submitted financial information related to each of these businesses. 
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In support of the current motion, the petitioner documents its attempts to find a textile distributor, as well as 
further information regarding a loan for the potential purchase of a motel in North Dakota as evidence that it 
was conducting business prior to July 2011. 
Upon review, the new evidence does not establish that the petitioner was doing business during the year 
preceding the filing of the petition. 
When 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. § 214.2(l)(3)(v). 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 and that it will support the beneficiary in a managerial or 
executive position within one year of approval. Specifically, the petitioner must describe the nature of its 
business, its proposed organizational structure and financial goals, and submit evidence to show that it has the 
financial ability to remunerate the beneficiary and commence doing business in the United States. !d. After 
one year, USCIS will extend the validity of the new office petition only if the entity demonstrates that it has 
been doing business in a regular, systematic, and continuous manner "for the previous year." 8 C.F.R. 
§ 214.2(1)(14)(ii)(B). 
Upon review of the current petition, it is apparent that the petitioner was not prepared to commence doing 
business upon approval of its initial new office petition. The petitioner consistently asserts that it established 
the company in order to operate a textile business in New York. While the petitioner previously indicated that 
it pursued this avenue of business for "some time," there is no documentary evidence to establish that the 
petitioner ever progressed beyond paying rent for a small office in New York. 
In support of the current motion, the petitioner continues to claim that the company immediately began 
exploring investment opportunities in other states beginning in September 2010. The petitioner now submits 
letters from textile vendors documenting its failed attempts. The petitioner reasserts its claims that it evaluated 
a potential motel investment in North Dakota. Nevertheless, the petitioner's attempts to locate potential 
investment activities do not constitute "doing business" as that term is defined at 8 C.F.R. § 214.2(1)(1)(ii)(G). 
The petitioner has not submitted evidence on motion to overcome the AAO's finding. In fact, the letters from 
textile distributors serve as evidence that the petitioner was not doing business as it could not find a 
distributor to sell its products. 
As evidence of the petitioner's financial status, the petitioner submits evidence regarding the beneficiary's 
purchase of a 5% investment in LLC, a and the beneficiary's job description 
as Operations Manager for the management company for the new venture. The petitioner 
fails to show how the beneficiary's 5% investment in another company has any bearing on the financial status 
of the petitioning organization as of August 2011. 
In addition, the petitioner has submitted additional evidence in support of its current operation of 
franchises consisting of federal employment tax filings; however, as the petitioner cannot establish that Jt was 
doing business during the relevant time period between August 2010 and August 2011, the petition cannot be 
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approved. Even if the petitioner established that it was doing business at the time of filing, it could not meet 
the regulatory requirements for a new office extension at 8 C.F.R. § 214.2(1)(14)(ii)(B). 
Upon review of the totality of the record, the petitioner fails to show that it had been conducting business for 
the prior year. Accordingly, the petition will remain denied . 
III. CONCLUSION 
The AAO's previous decisions will be affirmed and the petition will remain denied for the above stated 
reasons. 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 
2013). Here, that burden has not been met. 
ORDER: The AAO's decisions dated April 29, 2013 and February 6, 2014 are affirmed, and the 
petition remains denied.