dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington. DC 20529 
Petition: Pcthion for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. Q: 1 101(a)(15)(L) 
IN 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 offlce. 
kministratirc Appeals Onice 
SRC 04 087 50164 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimrnigrant petition seeking to extend the employment of its president 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. 5 1 IOl(a)(15)(L). The petitioner is a corporation organized in the State of Florida that 
operates a crepe restaurant. The petitioner claims that it is the subsidiary o 
Carqueiranne, France. The beneficiary was initially granted a one-year period 
the United States and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish: (1) that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity, and (2) that the petitioner had 
been doing business for the previous year. 
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 states that the petitioner 
submitted sufficient evidence to establish that the beneficiary will perform primarily managerial or executive 
duties, and asserts "the evidence submitted clearly supports a very active and full first year of business 
operations and activity." In support of these assertions, counsel submits a brief. 
To establish eligibility for the L-1 nonirnrnigrant visa classification, the petitioner must meet the criteria 
outlined iu 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 
SRC 04 087 50164 
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education, training, and employment qualifies himher 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. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also 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)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(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 management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision. function, or component of 
the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and frre or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
SRC 04 087 50164 
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(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. 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)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(3), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a statement submitted with the initial petition on February 3, 2004, the petitioner described the 
beneficiary's job duties as follows: 
As President, [the beneficiary] is responsible for the overall executive control of the 
Corporation, and for: 
Directing the management of the organization; 
Setting all corporate goals, policies and procedures; 
Directing the realization of corporate policies and procedures; 
Representing the Company to financial and legal entities; 
Conceiving the company's business pIan and directing its execution; 
Setting and directing the implementation of the Company's short-term and long-term 
sales and marketing strategies and objectives; 
Setting and directing the implementation of standards to ensure customer satisfaction; 
Exercising discretion over day-to-day operations of the business; 
Directing research and implementation of all future business opportunities; 
Setting budgets and cash flows and directing their implementation; 
Setting pricing policies and directing their implementation; 
Hiring and firing middle management and restaurant personnel; 
Directing continued compliance with required permits; 
Directing implementation of and adhesion to all safety regulations; 
Motivating staff. 
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The petitioner indicated on Form 1-129 that the company had two employees at the time of filing and 
submitted an organizational chart depicting the beneficiary as president and general manager, a "chef de 
cuisine," a restaurant manager, a part-time kitchen assistant and a part-time waiterlwaitress. The petitioner 
also submitted 2003 Fonns W-2, Wage and Tax Statement, for the employees identified as its restaurant 
manager, who received wages and tips of $491.50, and its chef, who received wages and tips of $5,667. The 
petitioner also submitted an invoice from a cleaning services company indicating that it had paid $1,200 for 
the services of a full-time dishwasherlcleaning person in December 2003. 
On February 11, 2004, the director requested additional evidence to establish that the beneficiary had been 
employed in a managerial or executive capacity, including: (1) a definitive statement describing the 
beneficiary's U.S. employment, including, in part, a list of all duties, percentage of time spent on each duty, 
number of subordinate managers/supervisors reporting to the beneficiary, and a description of the job titles, 
duties and educational background of his subordinates; (2) a copy of Form 1099 for the petitioner's contract 
employee, along with receipts, bills, 1-9s or other documents to establish salaries being paid to contract 
employees, their job titles, and number of hours worked; (3) copies of state and federal quarterly wage reports 
for 2003 to the present; and (4) an organizational chart for the U.S. entity with names assigned for all 
employees. 
In a response dated February 20, 2004, the petitioner submitted the following description of the beneficiary's 
typical eight-hour workday: 
Long-TedContinual Duties 
Duties % Time Spent 
Reviewing and adapting Company policies and procedures such as 7% - 34 min. 
product mix, ingredients, how to prepare and serve 
All major decisions for the Department other than policy and procedures 3% - 14 min. 
including setting and revising the long-term company budget, pricing 
structure, profit margin on food items. 
Setting long-term goals in sales of each of the Company's products. . . 2% - 10 rnin. 
Establishing the means to reach those goals such as advertising and 
sponsorships, wine tastings, minimizing low-margin and emphasizing 5% - 24 min. 
high margin food and beverage lines. 
Adjusting salaries and staff levels to optimum levels through hiring and 3% - 14 min. 
firing when necessary. 
Staff training, on-the-job, in cooking, serving, client management 8% - 38 rnin. 
Long-term monitoring that policies and procedures are adhered to, 2% - 10 min. 
Goals are met, growth ratio is as planned. 
SRC 04 087 50 164 
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Researching and implementing future business decisions. 5% - 24 rnin. 
Short-TeMrequently Recurring Duties 
Duties % Time Spent 
Setting short-term corporate sales goals and review with managers 15% - lhr.12min. 
All major decisions for the Company such as setting and revising 5% - 24 min. 
short term budget. 
Exercising discretion over day-to-day business operations and adjusting 15% - 1 hr. l2min. 
purchase and sales policy as needed. 
Monitoring product and service quality within the Company on a daily 10% - 48 min. 
basis. 
Motivating staff through personal encouragement, incentive campaigns 15% - 1 hr. 12 min. 
and other means. 
Adjusting and fine tune all operations according to staff suggestions, 5% - 24 min. 
market research, client feedback, overall business plan. 
The petitioner submitted a separate statement describing the duties of the beneficiary's subordinates as 
follows: 
Chef de Cuisine Reports to [the beneficiary], President. Responsible for 
overall activities. Specializes in preparation of the dishes served 
and the finding and daily purchasing of ingredients. Education: High School Diploma, 
cooking courses. 40 hours per week. Date of first employment: August, 2003: restaurant, 
November, 2003, chef. 
Restaurant Manager Reports to [the beneficiary], President. 
Responsible for the c restaurant, including all place settings, 
reception and seating of guests, serving of guests, billing and payments. Also responsible for 
overall cleanliness of the restaurant and all its facilities 
Cuisine, secondary reporting t 
of the restaurant. Responsible for cleaning restaurant and restrooms on daily basis. 
WaiterNaitressPart Time (Proposed). Reports to 
C 
o be hired when 
number of clients warrants. Responsible for seating 
SKC 04 087 50164 
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The petitioner also submitted its Florida Forms UCT-6, Employer's Quarterly Report, for the last three 
quarters of 2003, indicatin that was employed by the petitioner from April 2003 through 
December 2003, an as employed by the petitioner beginning in October 2003. 
e 
In a decision dated March 4, 2004, the director determined that the petitioner had failed to establish that the 
beneficiary will be primarily performing in a managerial or executive capacity. The director noted that the 
beneficiary is not managing other managers or professionals, and that the evidence submitted indicates that 
the beneficiary would be required to engage in the day-today business activities of the company. Further, the 
director noted that the evidence submitted is conflicting with respect to the number of employees and their 
compensation. Finally, the director noted that the petitioner had not established that the beneficiary is 
managing or directing a function. Consequently, the director denied the petition. 
On appeal, counsel for the petitioner asserts that the petitioner has submitted sufficient evidence to establish 
that the beneficiary will serve as a manager or executive under the extended petition. Counsel emphasizes that 
the beneficiary operates at a senior level within the petitioner's organizational hierarchy and is not performing 
the "day-to-day ministerial functions as previously surmised, but rather developing plans for his subordinates 
to carry out." Counsel further states that the beneficiary manages the most important executive functions but 
also manages "subordinate managers and personnel as clearly presented in the evidence." 
Upon review, counsel's assertions are not persuasive. 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. 
24.2()(3)(). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial 
sections of the two statutory definitions. A petitioner must establish that a beneficiary meets each of the four 
criteria set forth in the statutory definition for executive and the statutory definition for manager if it is 
representing the beneficiary is both an executive and a manager. In this case, the petitioner has asserted that 
the beneficiary perfonns both executive and managerial functions. 
Rather than providing a specific description of the beneficiary's duties with the initial petition, the petitioner 
generally paraphrased the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 8 
U.S.C. 3 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as "directing the management 
of the organization," "establishing goals and policies of the organization," and "exercising discretion over 
day-to operations." However, conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient to meet the petitioner's burden of proof. 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), ard, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at "5 
(S.D.N.Y.). 
The more detailed description of the beneficiary's job duties reveals that he devotes approximately half of his 
time to supervisory functions that would generally not be considered executive in nature, including training, 
monitoring, and motivating the restaurant's staff, and communicating saIes goals to employees. Although the 
beneficiary is not required to supervise personnel, if it is claimed that his duties involve supervising 
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employees, the petitioner must establish that the subordinate employees are supervisory, professional, or 
managerial. See 8 101 (a)(44)(A)(ii) of the Act. 
The beneficiary supervises a chef who is a high school graduate and a restaurant manager. Although, the 
restaurant manager possesses an accounting degree, she performs the duties of a hostess, waitress and cashier. 
The petitioner has not established that these employees perform duties that would require completion of a 
bachelor's degree, such that they could be classified as professionals. Nor has the petitioner shown that either 
of these employees supervise subordinate staff members or provided job descriptions which would establish 
that either of the beneficiary's subordinates manage a clearly defined department or function of the petitioner, 
such that they could be classified as supervisors or managers. Thus, the petitioner has not shown that the 
beneficiary's subordinate employees are supervisory, professional, or managerial, as required by section 
10 l(a)(44)(A)(ii) of the Act. 
Counsel correctly states on appeal that the beneficiary is not required to manage others in order to be 
considered a manager or executive, so long as the he manages an important function of the company. 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, 8 U.S.C. 5 1 10 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essentiaI function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties athibuted to managing the essential function. 8 
C.F.R. 5 214.2(1)(3)(ii). In this matter, the petitioner has not defined an essential function managed by the 
beneficiary, other than counsel's vague statement on appeal that the beneficiary manages "important 
executive functions of the company." Managing an organization in its entirety does not constitute managing a 
function. Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The assertions of counsel do not constitute evidence. Matler of Obaigbena, 19 
I&N Dec. 533,534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 1&N Dec. 503, 506 (BIA 1980). Furthermore, as already discussed, the petitioner has indicated that the 
beneficiary does devote as much as half of his time to supervising his subordinates, which further undermines 
counsel's argument on appeal that the beneficiary meets the requirements of a function manager. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 5 110 1(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. ;5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. Q 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year 
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
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A critical analysis of the nature of the petitioner's business undermines counsel's assertion that the 
subordinate employees relieve the beneficiary from performing non-qualifying duties. The petitioner operates 
a restaurant that is open seven days a week for a total of 66 hours, according to the hours of operation listed 
on a sample menu submitted by the petitioner. The petitioner claims to employ the beneficiary as president, a 
full-time chef, a full-time restaurant manager, who actually performs +e duties of a hostess, waitress and 
cashier, and a cleaning person/dishwasher. The petitioner claims that its fuH-time employees work 40 hours 
per week; however the petitioner's payroll records indicate that the restaurant manager received less than 
$500 in wages and tips for the last quarter of 2003. Over a nine-month period, the chef received a total of 
$5,667 in wages and tips. The petitioner has not submitted any documentary evidence, such as copies of 
recent paychecks, to establish that these employees were employed on a full-time basis when the petition was 
filed in February 2004. Even if the petitioner had established that the beneficiary's subordinates work on a 
full-time basis, it still has not explained how a staff of only three employees are sufficient to meet the 
reasonable needs of the petitioner's service-oriented business. 
As noted above, the petitioner's restaurant is open for business for 66 hours per week and only employs the 
beneficiary and two other employees who the petitioner claims work 40 hours per week. The business would 
reasonably require at least two people in the restaurant during all operating hours. Therefore, it can only be 
assumed, and has not been proven otherwise, that the beneficiary is performing the food preparation duties of 
the chef and the various operational and customer service duties of the restaurant manager during the 26 hours 
per week when neither subordinate employee is available. Based on the record of proceeding, the 
beneficiary's job duties are principally composed of non-qualifying duties that preclude him from functioning 
in a primarily managerial or executive role. An employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be employed in a managerial or executive 
capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comrn. 1988). 
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). Although the beneficiary in this case clearly performs some duties 
of an executive, the record does not demonstrate that such duties would require the majority of his time on a 
day-to-day basis, as claimed by the petitioner. The petitioner has not established that it employs a subordinate 
staff sufficient to relieve the beneficiary from directly providing the services of the restaurant on a day-today 
basis. Merely claiming that the beneficiary is a manager or executive is insufficient to establish eligibility. 
It is noted that the petitioner indicates that it plans to hire additional employees in the future. However, the 
petitioner must establish eligibility at the time of filing the nonirnmigrant 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
On appeal. counsel further refers to a several unpublished AAO decisions to support its assertion that the 
beneficiary in this case is qualified for the benefit sought. Counsel has furnished no evidence to establish that 
the facts of the instant petition are analogous to those in the cited matters. Going on record without 
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Page 10 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Furthermore, while 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
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. The regulation at 8 C.F.R. § 2 14.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the petition to support an executive 
or managerial position. In order to qualify for an extension of L-1 nonimmigrant classification under a 
petition involving a new office, the petitioner must demonstrate through evidence, such as a description of 
both the beneficiary's duties and the staff of the organization, that the beneficiary will be employed in a 
primarily managerial or executive capacity. In the instant matter, the petitioner has not reached the point that 
it can employ the beneficiary in a predominantly managerial or executive position. For this reason, the 
petition may not be approved. 
The second issue in this proceeding is whether the petitioner has established that it has been doing business 
for the entire previous year as required by 8 C.F.R. 3 214,2(1)(14)(ii)(B). Pursuant to 8 C.F.R. 
5 214.2(1)(l)(ii)(H) "doing business" means the regular, systematic and continuous provision of goods and/or 
services. The beneficiary was granted an initial one-year period to open a new office valid from February 27, 
2003 to February 19,2004. Thus, the petitioner is expected to submit evidence that it has been doing business 
since the date of the approval of the initial petition. 
In support of the initial petition, the petitioner submitted: (1) evidence that it purchased its restaurant and 
acquired a lease for the property on May 23, 2003; (2) an invoice dated December 31, 2003 evidencing 
payment to a cleaning services company for a dishwasher/cleaning person; (3) invoices for rental of a 
dishwasher in November and December 2003; (4) a December 4,2003 statement from a restaurant equipment 
provider; (5) an invoice for kitchen supplies purchased in January 2004; (6) copies of seven guest checks for 
meals purchased at the restaurant; and (7) its balance statement for the period ending December 3 1, 2003. The 
petitioner stated that it commenced operations in May 2003. 
On February 11, 2004, the director requested additional evidence of business conducted by the petitioner 
during the past year, including documentation that permits the petitioner to do business as -' 
The petitioner submitted invoices from a local newspaper for advertisements placed in May. July and August 
2003; an electric bill for August 2003; two additional invoices for supplies purchased in September and 
November 2003; a June 2003 invoice for air conditioning service addressed to the restaurant's previous 
owner; bank statements for November and December 2003; and a January 31, 2004 invoice from a cleaning 
services provider for the services of a cleaning person/dishwasher. The petitioner also provided evidence that 
it registered the fictitious name February 12,-2004. This name is shown on the 
petitioner's photographs, menu and some of the submitted documents. while other documents show the - - 
petitioner is doing business as 'm 
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The director denied the petition on March 4, 2004, determining that the petitioner had not established that it 
has been conducting business for the previous year. The director noted that the evidence submitted shows that 
the petitioner purchased 'limited inventory and utility services for the business" which is insufficient to 
establish that the petitioner has met the regulatory requirements of doing business. 
On appeal, counsel for the petitioner states "it is our position that the petitioner has had a remarkable and 
outstanding first year of business. The mere fact for a restaurant to survive, and yet more, turn a profit within 
the first year is outstanding. . . The evidence submitted clearly supports a very active and full f~st year of 
business operations and activity which runs contrary to the Service's position on this issue." 
Upon review, the petitioner has not established that it was doing business for the entire previous year as 
required by 8 C.F.R. 5 214,2(1)(14)(ii)(B). The beneficiary entered the United States in L-1 status for the first 
time on April 24, 2003 nearly two months after the new office petition was approved, purchased the restaurant 
from its previous owner on May 13, 2003 and signed a lease on May 20, 2003, which was to commence on 
May 23,2003. The petitioner claims that it has been doing business since that date and emphasizes its overall 
saIes for 2003. The AAO concurs with the director, however, that the minimal evidence submitted is 
insufficient to establish that the petitioner has been operating for the entire previous year. Again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Treasure Crafr of Calfornia, 14 I&N Dec. at 190. In this case, there is no 
evidence to establish that the petitioner was doing business between the date of approval and the acquisition 
of the restaurant on May 23, 2003. Further, there is insufficient evidence to substantiate the petitioner's claim 
that it began operating the restaurant in May 2003. For this additional reason, the petition may not be 
approved. 
The AAO also notes that the regulation at 8 C.F.R. 5 214.2(1)(3)(v)(A) requires a petitioner that seeks to open 
a new office to submit evidence that it has acquired sufficient physical premises to commence doing business. 
In the present matter, since the petitioner did not acquire its restaurant until three months following the 
approval of the new office petition, either the petitioner did not comply with this requirement, misrepresented 
that they had complied, or the director committed gross error in approving the petition without evidence of the 
petitioner's physical premises. Regardless, the approval of the initial petition may be subject to revocation 
based on the evidence submitted with this petition. See 8 C.F.R. 5 214.2(1)(9)(iii). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.