dismissed L-1A Case: Real Estate And Restaurant Operations

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13, 2019 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which states that it operates a "Real Estate Investment, Restaurant Operations, 
Remodeling, Trading" business seeks to continue the Beneficiary's temporary employment as its 
president/chief executive officer (CEO) under the L-lA nonimmigrant classification for intracompany 
transferees. Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. 
§ 1101(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 Vermont Service Center denied the petition, 1 concluding that the Petitioner did 
not establish, as required, that it would employ the Beneficiary in a managerial or executive capacity 
under an extended petition. 
On appeal, the Petitioner submits additional evidence and asserts that it demonstrated that the 
Beneficiary will be employed in both a managerial capacity and an executive capacity. 2 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(l5)(L) of the Act. In addition, the beneficiary must 
1 The Director initially denied the petition on September 22, 2015, after concluding that the Petitioner did not establish 
that it was doing business as defined in the regulations. The Petitioner appealed and we withdrew the Director's decision 
and remanded the matter for fmther proceedings and entry of a new decision. 
2 While the appeal was pending, we discovered that the restaurant the Petitioner operated through its subsidiary had closed 
in September 2018, and issued a notice of intent to dismiss and request for evidence (NOTD/RFE) pursuant to 8 C.F.R. 
§ 103.2(b )(16)(i). In response, to our notice, the Petitioner emphasized that the closure of the restaurant occurred after the 
requested validity period for this petition (January 7, 2015, until January 6, 2017), provided evidence that it is pursuing 
another retail business opportunity, and requested that we issue a decision on the merits based on the evidence in the record 
from the relevant time period. 
Matter of S- LLC 
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 also establish that the beneficiary's prior education, training, and employment qualify him or her 
to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
II. DEFINITIONS 
"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 
101(a)(44)(A) of the Act. 
The term "executive capacity" is defined as 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 101(a)(44)(B) of the Act. 
Based on the definitions of managerial and executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in a managerial or executive capacity under an extended petition. 
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 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, 
we examine 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. 
2 
Matter of S- LLC 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
At the time of filing, the Petitioner noted that it "is in the process of negotiating and entering into 
contractual agreements for acquisition of multiple residential properties," noting that the Beneficiary 
"has been focused on achieving the corporate goal of refurbishing, remodeling and rebuilding 
distressed and otherwise dilapidated and unfinished properties." The Petitioner also noted that it 
"recently acquired LJs Restaurant" and that the Beneficiary was looking into the acquisition of 
other retail businesses and professional services companies. 
The Petitioner's initial letter provided a broad overview of the Beneficiary's responsibilities as 
president/CEO that focused on his level of authority within the company, rather than his actual day­
to-day job duties. In fact, many of the duties simply paraphrased the statutory definition of executive 
capacity. For example, the Petitioner stated that the Beneficiary "exercises wide 
managerial/discretionary authority" with respect to "corporate vision" and "policy matters"; 
establishes and implements "policies, goals, objectives and procedures"; "directs and coordinates the 
activities of [the Petitioner]"; formulates "corporate vision" and the company's mission; and 
"formulates directives to achieve corporate goals." The Petitioner did not provide examples of specific 
policies, goals, or objectives he has implemented or the specific duties he performs to carry out these 
broad responsibilities within the context of its business operations. 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, 
1997 WL 188942 at *5 (S.D.N.Y.). 
Several of the remaining duties related to the Beneficiary's involvement in the Petitioner's claimed 
real estate activities. The Petitioner noted that he would be "overseeing activities directly related to 
researching, bidding, fonding and acquiring residential properties"; determining "project requirements 
based on property attributes, local trends and customer needs"; and "representing [the foreign entity 
and the Petitioner] in negotiations with real estate developers, builders, and materials suppliers." 
However, the record did not include evidence of any past, current, or prospective real estate projects 
undertaken by the Petitioner in support of its claim that the Beneficiary manages these activities. 
Further, all of the claimed staff mentioned at the time of filing were restaurant workers, and the 
Petitioner did not claim that anyone was available to support the Beneficiary's in performing 
operational and administrative tasks associated with real estate activities. Therefore, the Beneficiary's 
claimed managerial or executive duties related to the company's real estate and other expansion efforts 
were not adequately supported by the record. At the same time, the initial description did not include 
any specific references to the restaurant operations despite the Petitioner's claim that all of the 
Beneficiary's subordinates work in the restaurant. 
In a request for evidence (RFE), the Director instructed the Petitioner to provide a more detailed 
description of the Beneficiary's duties and the percentage of time he would spend on specific tasks 
under an extended petition. The Director also observed that the initial evidence contained supporting 
3 
Matter of S- LLC 
documentation reflecting that the Beneficiary has been providing services at the restaurant jointly 
managed by the Petitioner and its U.S. subsidiary, rather than engaging in oversight ofreal estate and 
expansion activities as stated in the Petitioner's initial letter. 
The Petitioner's response to the RFE did not provide the requested detailed breakdown of the 
Beneficiary's day-to-day job duties and the amount of time to be spent on each specific task. Instead, 
the Petitioner provided a brief statement from the Beneficiary in which he farther addressed the nature 
of the company's activities and his role as follows: 
Our original vision was to work in the real estate and construction sector. However, 
shortly after our operations began and after spending substantial time on looking at 
construction projects the US housing market fluctuated negatively. Accordingly, I was 
directed by [the parent company's board] to investigate and research other businesses. 
Based on this direction and in line with [the parent company's vision] [the Petitioner] 
opened a subsidiary ~ I The objective was to acquire old and dying 
restaurants and renovate and modernize them. Our first acquisition and renovation cost 
over $500,000. We have learnt a lot from this experience and finally are turning around 
a dying restaurant that employs over 25 U.S. Workers. 
I work around 80 hours - seven days a week. About ... two hours a week are spent in 
discussion issues with [the foreign entity's] directors and the Board .... I spend about 
five hours a week discussing issues with professional[s], like lawyers, accountants, and 
architects. I spend about seventy four hours in management and executive level issues. 
I discuss the daily issues and set the agenda with the chefs, managers, front of house 
staff as well as the kitchen staff I also monitor the progress of the operations and make 
changes as needed. 
As noted, the Director initially denied the petition based solely on a finding that the Petitioner did not 
establish that it was doing business as defined in the regulations. In our decision remanding the matter 
to the Director, we addressed the deficiencies in the submitted position descriptions. First, we noted 
that the initial description described the Beneficiary's responsibilities in broad and abstract terms, 
made repeated references to the Petitioner's engagement in real estate activities which had not been 
documented in the record, and did not discuss the Beneficiary's duties with respect to the restaurant 
operations. We also noted that, while the Beneficiary's statement in response to the RFE clarified that 
he allocates almost all of his time to activities associated with the restaurant (74 hours per week), the 
record still lacked a detailed description of his actual duties within the scope of the restaurant's day­
to-day operations. 
Accordingly, on remand, the Director issued a new RFE, and instructed the Petitioner to provide a 
more detailed description of the Beneficiary's duties and the percentage of time to be allocated to each 
specific task. Although the Petitioner submitted a response to the RFE, it once again did not provide 
the requested detailed breakdown of the Beneficiary's duties. 
Specifically, the Petitioner submitted a new letter signed by the Beneficiary in which he stated that he 
acts in an executive capacity for the Petitioner, as he is "making all decisions that affect the future of 
4 
Matter of S- LLC 
the company and its operations." He noted that he identified the opportunity to purchase the restaurant, 
executed the purchase, established! I created the management plan, directed the purchase 
of all needed equipment, set up vendor accounts, hired employees, and "performed all financial 
oversight." The Beneficiary farther stated that he acts in a managerial capacity with respect to the 
restaurant because he hires and fires all staff: supervises the staff including subordinate kitchen and 
floor managers, oversees vendor and supply operations, oversees marketing programs, and oversees 
all other daily operations of the business. 
In the denial decision, the Director emphasized that the Petitioner's response "includes no additional 
evidence to farther describe the beneficiary's day-to-day duties within the scope of the restaurant." 
The Petitioner has not provided any additional information regarding the Beneficiary's day-to-day 
duties on appeal and only briefly addresses this issue by noting that the Beneficiary "manages every 
aspect of the operation and has absolute authority to hire and fire personnel and supervises all of the 
personnel that includes a restaurant manager, a floor manager, and a kitchen manager ( executive 
chef)." 
Based on the foregoing, the Petitioner has not met its burden to provide a detailed description of the 
services the Beneficiary will provide under the extended petition. The descriptions submitted are too 
ambiguous to establish the nature of the Beneficiary's typical duties and are insufficient to establish 
that he primarily performs higher-level tasks consistent with the statutory definition of either 
managerial or executive capacity. The Petitioner did not provide examples of the Beneficiary's actual 
duties, evidence of his work product, or other supporting documentation that would assist in 
establishing the nature of the specific tasks he performs for the company. Reciting a beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require 
a detailed description of the beneficiary's daily job duties. The actual duties themselves will reveal 
the true nature of the employment. Fedin Bros., 724 F. Supp. at 1108, aff'd, 905 F.2d 41 (2d. Cir. 
1990). Here, the Petitioner has not provided the necessary detail or an adequate explanation of the 
Beneficiary's activities in the course of his daily routine. 
The fact that the Beneficiary will manage or direct a business as its senior employee does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of section 101 (a)( 44) of the Act. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" executive or managerial in nature. 
While the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and possess 
the requisite level of authority with respect to discretionary decision-making, a broad position 
description alone is insufficient to establish that his actual duties would be primarily managerial or 
executive in nature. 
B. Business Activities, Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual will be acting in a 
managerial or executive capacity, we take 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. 
5 
Matter of S- LLC 
The Petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, that it operates a "Real 
Estate Investment, Restaurant Operations, Remodeling, Trading" business with 38 employees and 
gross annual income of $1.5 million. As noted, the sole documented line of business at the time of 
filing wasDs Restaurant, and all of the individuals who were claimed to work for the Petitioner 
and its subsidiary I I were restaurant employees. 
The Petitioner did not submit an organizational chart at the time of filing in January 2015, but did 
include a list of more than 40 employees, identified by name and position title, in its initial letter in 
support of the petition. The employee list included a general manager, an assistant general manager, 
two managers, an executive chef, a sous chef, and various cooks, dishwashers, servers and food 
runners. On page 4 of its letter, the Petitioner stated trat its general manager isl I and on 
page 7, it identified its general manager d._ ____ _. Both of these employees were also identified 
as "servers" on the employee list, as were both managers and the assistant general manager 0 I I. Notably,! I, norl O I received an IRS Form W-2 from the Petitioner or 
its subsidiary in 2014.3 In addition, the individual identified as the restaurant's executive chef,0 
I I did not appear on either company's payroll at the time of filing. Therefore, it is unclear 
who, if anyone, occupied the positions of general manager, assistant general manager, and executive 
chef when the petition was filed. 
Further, although the Petitioner claimed to have close to 40 (or 
1
ore) stafl at the time of filing, payroll 
summaries from December 2014 and January 2015 indicate that had 19 to 20 employees and 
the Petitioner had 10 employees, for a total of no more than 30 staff. 
In the RFE issued in March 2015, the Director requested a detailed organizational chart, with the 
names, job titles, job duties, education level and salary for all employees, as well as supporting 
evidence of payments made to employees and any contractors. While the Petitioner submitted 
additional payroll summaries and Forms W-2 for 2014, it did not provide the requested organizational 
chart and job descriptions for the Beneficiary's subordinate staff. Therefore in the second RFE issued 
on remand, the Director once again requested an organizational chart and more detailed information 
regarding the company's employees, including their names, job titles, job duties, and salaries. 
Although the Petitioner submitted an organizational chart depicting 23 employees in response to the 
RFE, it was undated and was not accompanied by the requested information regarding the job duties 
performed by the claimed subordinates. The chart indicated that the Petitioner employed the 
restaurant's kitchen staff (executive chef, sous chefs, cooks and dishwashers), while I I 
employed the bar manager, floor manager, and servers, hosts, food runners and bartenders. The 
previously identified positions of "general manager" and "assistant general manager" did not appear 
on the chart. 
The Petitioner also provided copies of state quarterly wage reports for both companies for all four 
quarters of 2016 as well as 2016 W-2 forms. The individuals identified as the bar manager and floor 
manager received $9668 and $4166, respectively, with approximately three-quarters of their respective 
31 I received $8979 in wages froml I in 2014 and was paid an hourly wage consistent with that of a 
tipped employee ($2.13 per hour) which suggests that she was likely employed as a server and not as a restaurant general 
manager. She did not appear onl ts payroll for the pay period ended on January 2, 2015. 
6 
Matter of S- LLC 
pay derived from tips, which, without farther explanation, appears to be inconsistent with their claimed 
managerial or supervisory positions. 
In the denial decision, the Director noted several deficiencies with respect to the evidence submitted 
to document the Petitioner's staffing and structure, noting the dual roles attributed to the claimed 
managerial employees at the time of filing, the significant drop in the number of claimed employees 
(from 38 to 24), and the lack of position descriptions for subordinate staff 
The Petitioner does not address the Director's specific findings on appeal and instead emphasizes that 
the Beneficiary supervises "a restaurant manager, a floor manager, and a kitchen manager ( executive 
chef)." The Petitioner states that "[t]hese 'subordinate managers' function within their authorities, 
answering to and supervised by the Beneficiary." The Petitioner submits evidence of wages paid to 
employees in 2017 and early 2018. However, the requested validity period for this petition was 
January 2015 until January 2017 and the Petitioner must establish that it had the ability to support the 
Beneficiary in a managerial or executive capacity at the time of filing and during the requested validity 
dates. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 1 0l(a)(44)(A) of the Act. The Petitioner has not claimed that the Beneficiary 
qualifies as a function manager, but emphasizes his oversight of subordinate staff 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." 4 
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(l)(l)(ii)(B)(3). 
As noted, at the time of filing the Petitioner stated that it employed a general manager, an assistant 
general manager, an executive chef;kitchen manager, and two "managers" subordinate to the 
Beneficiary. The Petitioner noted that the general manager is "responsible for the overall day-to-day 
management of the restaurant and its staff," the assistant general manager provides "executive and 
managerial support to the general manager," and the executive chef is responsible for menu creation, 
food production, and quality control. At the same time, the Petitioner listed the general manager, 
assistant manager, and both managers as "servers" on the initial employee list, and did not provide an 
explanation for these apparently dual roles. Moreover, the submitted evidence did not corroborate the 
4 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 IO I (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." 
Therefore, we must focus on the level of education required by the position, rather than the degree held by subordinate 
employee. The possession of a bachelor's degree by a subordinate employee does not automatically lead to the conclusion 
that an employee is employed in a professional capacity. 
7 
Matter of S- LLC 
Petitioner's employment of the individuals claimed to hold the general manager, assistant general 
manager, and executive chef positions at the time of filing. Finally, although requested by the Director, 
the record does not contain a detailed description for any claimed subordinate staff. For all of these 
reasons, the record does not sufficiently support the Petitioner's claim that the Beneficiary would be 
overseeing managerial or supervisory employees as of the date of filing. 
The Petitioner also noted that the claimed general manager and assistant general manager have 
bachelor's degrees; however, since the record does not establish that they were employed by the 
Petitioner at the time of filing, it cannot establish that the Beneficiary would be supervising subordinate 
professionals. Further, the Petitioner did not provide a sufficiently detailed description of the duties 
and requirements for these positions to support a finding that they are professional positions. 
Accordingly, the Petitioner has not established that the Beneficiary would employed as a personnel 
manager based on his supervision of subordinate managerial, supervisory, or professionals staff. 
The Petitioner also claims that the Beneficiary would be employed in an executive capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a 
beneficiary must have the ability to "direct the management" and "establish the goals and policies" of 
that organization. Inherent to the definition, the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-day operations of the enterprise. An individual will 
not be deemed an executive under the statute simply because they have an executive title or because they 
"direct" the enterprise as the owner or sole managerial employee. A beneficiary must also exercise 
"wide latitude in discretionary decision making" and receive only "general supervision or direction from 
higher level executives, the board of directors, or stockholders of the organization." Id. 
Here, while the Petitioner submitted a broad description of the Beneficiary's position emphasizing his 
responsibility for establishing the goals and policies of the company, the record as a whole does not 
establish what he would be doing on a daily basis within the context of the Petitioner's business. The 
Beneficiary himself stated that he spends more than 70 hours per week in the Petitioner's restaurant 
and the record does not establish how the restaurant staff, who are mostly part-time employees, relieve 
him from engaging in non-managerial and non-executive tasks. Further, the Petitioner did not 
document its employment of the claimed supervisory or managerial staff who are claimed to relieve 
the Beneficiary from directly overseeing the lower-level workers. Even if we conclude that the 
Beneficiary would be relieved from performing the restaurant's routine food preparation and customer 
service functions, the record does not establish that he would be relieved from performing non­
executive tasks associated with operating the restaurant, such as purchasing food and supplies, 
administrative activities, record keeping, banking, marketing, and first-line supervisory duties. For 
these reasons, the record does not establish that the Beneficiary would be employed in an executive 
capacity. 
Due to the evidentiary deficiencies addressed above, the Petitioner did not meet its burden to establish 
that the Beneficiary would be employed in a managerial or executive capacity under an extended 
petition. 
8 
Matter of S- LLC 
IV. CONCLUSION 
The appeal will be dismissed 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-LLC, ID# 2229452 (AAO June 13, 2019) 
9