dismissed L-1A Case: Restaurant

' 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifjing data deleted to 
prevent clearly unwarranted 
 U. S. Citizenship 
invasion of personal priV8cy 
 and Immigration 
Services 
File: 
 WAC 04 109 50389 Office: CALIFORNIA SERVICE CENTER Date: 
 sEp 2 'L LUW 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
I 
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. 
.6 
dministrative Appeals Office 
WAC 04 109 50389 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter 
is now before the ~dministrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an organization incorporated in the State of California in August 2001. 
 It operates a 
Japanese restaurant. It seeks to extend the temporary employment of the beneficiary as president of the 
petitioner for an additional two years. Accordingly, the petitioner endeavors to classify the beneficiary as a 
nonimmigrant intracompany transferee pursuant to Section 101(a)(15)(L) of the Immigration and Nationality 
Act, 8 U.S.C. 5 1101(a)(15)(L). 
The director denied the 
 on May 6,2004, determining that the petitioner had failed to establish that the 
beneficiary would be employed as a manager or executive for the United States entity. 
On appeal, counsel for the petitioner asserts that Citizenship and Immigration Services (CIS) based its 
decision on an erroneous legal conclusion. Counsel asserts that the beneficiary is not a first-line manager, 
that the beneficiary's immediate subordinate is a manager, that the beneficiary's subordinates need not 
perform professional services, and that the petitioner has a sufficient number of employees to relieve the 
beneficiary from performing non-qualifying duties. Counsel submits a brief and documentation in support of 
the appeal. . . 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. 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) further 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 himlher to perform the intended services in the United 
WAC 04 109 50389 
Page 3 
1 
States; however, the work in the United States need not be the same work which the alien 
performed abroad. 
The issue in this matter is whether the petitioner established that the beneficiary would be employed by the 
United States entity in a managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. manages the organization, or a department, subdivision, function, or 
component of the organization; 
. . 
11. 
 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; 
... 
in. 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, hnctions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
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. 9 1101(a)(44)(B), provides: 
The term "executive capacity" means 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; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
111. 
 exercises wide latitude in discretionary decision making; and 
' 
WAC 04 109 50389 
Page 4 
iv. 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In a February 27, 2004 letter appended to the petition, the petitioner indicated that: 
Beneficiary will continue to be responsible for the direction and development of Petitioner's 
activities in the United States. This will involve the executive oversight of the performances 
of co@orate staff in areas of Planning, Staffing, Budgeting and Administration. As outlined 
in the attached block staffing chart, there are and will be sufficient personneVstaff to run the 
day-to-day operation of the,restaurant. Beneficiary has not and will not be involved in the 
daily activities of the restaurant operations as it has a Restaurant Manager, cooks, waiters and 
waitresses who are sufficient to handle the activities of the restaurant. 
The petitioner added that the beneficiary spent 45 percent of her time directing the management of the 
organization including: 15 percent reviewing reports from the vice-presidenumanaging director, restaurant 
manager, and other key restaurant staff and meeting with the managerial staff on a daily basis to discuss 
operational directions, market trends and economic impact, etc.; 10 percent rendering executive oversight on 
the management of the entire operation and its management profile through her immediate subordinate, the 
vice-presidentlmanaging director; and 20 percent managing the performances of in-house managerial staff 
who in turn, manage and supervise various operational activities such as daily restaurant services, food 
preparation, financial and accounting and general operational administration, as well as making short and 
intermittent trips to the restaurant for the purpose of ensuring the restaurant is operating in a satisfactory 
manner and talking to restaurant workers and customers to obtain feedback. 
The petitioner indicated that the beneficiary spent 20 percent of her time establishing the company's policies 
and goals including: 10 percent reviewing market trends including review of market research reports 
furnished by the vice-presidenumanaging director, and recommendations from the restaurant manager and 
head chef for new food items; 5 percent planning and directing the possible expansion of the operation; and 
5 percent participating in industry related functions to keep abreast of the business' competitiveness in the 
marketplace. 
The petitioner noted that the beneficiary spent 25 percent of her time exercising wide latitude in discretionary 
decision making including: 10 percent directing sales revenue and costs; 5 percent implementing and 
directing effective financial control between the U.S. entity and the foreign parent company; 5 percent 
discussing potential contracts, and possible business litigation with a legal advisor; and 5 percent reviewing 
corporate and legal documents with business lawyers. 
The petitioner indicated that the beneficiary spent 10 percent of her time maintaining autonomy over the 
petitioner's operations including: 5 percent managing and maintaining the relationship with the parent 
company; and 5 percent traveling to attend board of director's meetings. The petitioner also noted that the 
beneficiary would not be supervised by any of the U.S. personnel. 
WAC 04 109 50389 
Page 5 
The petitioner also provided job descriptions for the beneficiary's subordinates including the 
vice-president/managihg director, the accountant, and the restaurant manager. The petitioner described the 
vice-presidentlmanaging director's position as: 
He will assist the Beneficiary in making business decisions to implement newly developed 
techniques and strategies. He will recommend strategic planning regarding complex business 
policies and operation issues and problems. He will identify critical operational performance 
deficiencies. He will manage resources planning and delegate job responsibilities to the 
Restaurant Manager to manage the daily restaurant activities. He has immediate management 
authority over the Restaurant Manager and the Accountant. He is responsible for gathering 
financial records from the Accountant and will report to the Beneficiary to allow her to make 
chief financial decisions in support of the business operation and development. 
The petitioner indicated that the "accountant" is responsible for daily receivables and payables, monthly 
income and expense statements, payroll withholding and reporting, preparing financial budgeting and 
forecasting, and compiling and preparing monthly, quarterly, and yearly profit and loss statements and 
balance sheets for filing corporate tax returns. The petitioner indicated that the restaurant manager plans and 
organizes the menu, delegates and assigns job responsibilities, supervises the daily restaurant performance, 
and has authority to hire additional part-time and full-time workers. 
The petitioner's organizational chart showed the beneficiary in the position of president and listed the 
vice-presidentlmanaging director as her immediate subordinate. The vice-presidentlmanaging director's 
immediate subordinates included the "accountant," independent contractors and advisors identified as a 
certified public accountant, a lawyer, a broker, and the restaurant manager. The organizational chart showed 
a cook (head chef), three cooks, and five servers reporting to the restaurant manager. 
On March 17, 2004, the director requested among other things: (1) the petitioner's organizational chart 
describing its managerial hierarchy and staffing levels, including the current names of all executives, 
managers, supervisors, the number of employees within each department and listing all employees under the 
beneficiary's supervision by name, job title, brief description of their job duties, educational level, and annual 
salarieslwages; (2) the petitioner's California Forms DE-6, Quarterly Wage Report for all employees for the 
last quarter accepted by the State of California; and (3) a list of the goals and policies the beneficiary had 
established the last six months, a list of the specific discretionary decisions that the beneficiary had exercised 
over the last six months, and a specific day-to-day description of the duties the beneficiary had performed 
over the last six months. 
In an April 13, 2004 response, counsel for the petitioner noted that the beneficiary had been at the foreign 
entity since the beginning of 2004. Counsel noted that in the last six months the beneficiary had been in the 
United States, the beneficiary had secured the profitable status of the petitioner's restaurant, coordinated 
reporting systems with the parent entity, set policies to obtain the goal of expanding the U.S. entity to a 
holding company by participating in industry related trade shows, sought additional business opportunities by 
hiring an in-house business development advisor, and had created a corporate management team capable of 
operating the restaurant and attending to future business expansion needs. Counsel indicated that the 
WAC 04 109 50389 
Page 6 
beneficiary had formulated procedures to secure business revenues by internal restructuring, and improving 
services, marketing, and promotion. 
Counsel re-stated the initial description of the beneficiary's duties. 
 The petitioner also provided an 
organizational chart that included the names of its employees and a list of the employees' job duties. The 
petitioner provided job .descriptions similar to the initial descriptions provided for the 
vice-presidentlmanaging director, "accountant," and restaurant manager. The petitioner also included a job 
description for the newly hired business development advisor indicating that the individual in this position 
had a high school education and assisted in the development of business base and expansion, planned and 
suggested business opportunities for the company, and worked with outside contract business brokers and 
agents. 
The petitioner also provided its California Form DE-6, Quarterly Wage and Withholding Report, for the first 
quarter of 2004, the quarter in which the petition was filed. The California Form DE-6 confirmed that the 
petitioner had employed seven employees in January 2004 and 14 employees in February and March 2004. 
The list of employees corresponded to the names shown on the petitioner's organizational chart. The record 
also includes the petitioner's Internal Revenue Service (IRS) Forms 1120, U.S. Corporation Income Tax 
Return for 2002 and 2003. On Schedule E of the petitioner's 2002 and 2003 IRS Form 1120, the petitioner 
lists the beneficiary and the individual identified as "accountant" as officers of the corporation. On the 
petitioner's 2003 IRS Form 1120, Schedule E, the petitioner notes that the "accountant" devotes only 20 
percent of his or her time to the corporation. 
On May 6, 2004, the director denied the petition determining that the petitioner's California Form DE-6 
showed that the petitioner employed all but the vice-presidentlmanaging director and the restaurant manager 
part-time and that the vice-presidentlmanaging director earned only $18,000 annually as indicated on the 
vice-presidentlmanaging director's IRS Form W-2, Wage and Tax Statement for 2003. The director 
determined that: "With twelve part-time employees, one Vice[-]President perfonping non[-]professional 
duties and one full[-]time Restaurant Manager with a high school education, it is concluded that the 
beneficiary must be involved in the daily business activities of the petitioning company." The director 
concluded that the evidence is insufficient to demonstrate that the beneficiary had been or would be employed 
primarily in a managerial or executive capacity. 
On appeal, counsel for the petitioner contends that the director misread the petitioner's organizational chart 
and staffing structure. Counsel asserts that the petitioner's organizational chart clearly shows that the 
beneficiary manages at least "two-tiers" of managerial/supervisory employees. Counsel explains that the 
petitioner's corporate staff, made up of the vice-presidentlmanaging director, the part-time accountant, the 
part-time business advisor, and the full-time restaurant manager, is to assist the beneficiary in developing the 
company's business and expanding its existing restaurant business. Counsel disputes the director's 
determination that the beneficiary directly supervises the restaurant manager and notes that the 10 full-time 
and part-time restaurant workers report to the restaurant manager, not to the vice-presidentlmanaging director. 
Counsel asserts that the beneficiary's immediate subordinate, the vice-presidentlmanaging director is a 
full-time managerial employee. Counsel explains that the petitioner and the foreign entity both pay the 
WAC 04 109 50389 
Page 7 
vice-presidentlmanaging director his annual salary of $36,000. Counsel contends that the 
vice-presidentlmanaging director's management of the restaurant manager makes the vice-presidentlmanaging 
director a manageriallsupervisory employee; thus making the beneficiary a second level manager. Counsel 
disputes the director's implication that the beneficiary must supervise professional employees. 
Counsel argues that the director did not raise any objection to the senior manageriaVexecutive duties provided 
and did not make a determination on the beneficiary's job duties but rather on the number of the petitioner's 
part-time staff and on the beneficiary's failure to manage professional employees. Counsel asserts that neither 
the number of staff nor the beneficiary's lack of supervision of professional employees is relevant to this 
matter. 
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. 
§ 204.56)(5). In this matter, the petitioner provides a generic description of the beneficiary's duties that does 
not delineate the beneficiary's actual duties. 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), afd, 905 F.2d 41 (2d. 
Cir. 1990). The petitioner indicates that the beneficiary reviews reports and meets with staff, "renders 
executive oversight," reviews market trends, plans the expansion of the business, directs sales revenue and 
costs, implements effective financial control, reviews corporate and legal documents, and maintains the 
petitioner's relationship with the foreign entity. These statements vaguely reference duties that include the 
general oversight exercised by an owner of an organization. Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. at 1 103. 
The petitioner's description of the beneficiary's decision-making while in the United States does not provide 
insight into the beneficiary's actual daily duties. The petitioner indicated that the beneficiary had secured the 
profitable status of the petitioner's restaurant, coordinated reporting systems with the parent entity, set policies 
to obtain the goal of expanding the U.S. entity to a holding company by participating in industry related trade 
shows, sought additional business opportunities, and created a corporate management team. However, the 
record does not provide the specificity necessary to elevate the beneficiary's position to an executive or 
managerial position. Reciting the 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. 
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. Suva, 724 F. Supp. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). 
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, 8 U.S.C. $ 1 101(a)(44)(B). 
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 organization must have a subordinate level of 
managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad 
WAC 04 109 50389 
Page 8 
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 sole managerial employee. 
In this matter, counsel for the petitioner asserts that the individual in the position of vice-presidendmanaging 
director is the individual who provides this essential managerial tier necessary to identify and promote the 
beneficiary to an executive level. The AAO observes, however that the petitioner fails to recognize the 
vice-presidentlmanaging director as an officer of the organization on its IRS Forms 1120. This failure to 
recognize a vice-president while recognizing the petitioner's bookkeeper raises questions regarding the 
legitimacy of the petitioner's organizational structure. Doubt cast on any aspect of the petitioner's proof may, 
of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). If CIS fails to believe that a fact stated 
in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 8 1154(b); see also 
Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 
10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In addition, the petitioner provides a generic description for the vice-presidentlmanaging director's duties. 
The petitioner indicates that the vice-presidendmanaging director assists the beneficiary in making business 
decisions, recommends strategic planning, identifies operational deficiencies, and delegates job 
responsibilities to the restaurant manager. It is not clear whether it is the beneficiary or it is the vice- 
presidentlmanaging director who is actually making the business decisions and planning business strategies. 
It is only the delegation of the job responsibilities to the purported restaurant manager that indicates that the 
vice-presidentlmanaging director might performs some supervisory duties. However, the record does not 
indicate how much time the vice-presidentlmanaging director devotes to this duty nor does the record contain 
any documentary evidence to substantiate the vice-presidentlrnanaging director's supervisory role. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1 972)). 
The AAO notes that, according to the petitioner's menu that was submitted for the record, the restaurant is 
open seven days a week for a total of 72 hours. The petitioner does not explain how a single restaurant 
manager earning $1500 per month could supervise the operations at all times. The fact that there are no other - 
managerial or supervisory employees other than the "vice presidentlmanaging director" and the beneficiary 
necessarily casts doubt as to whether the Vice President actually supervises the restaurant manager. 
Upon review of the information contained in the record regarding the vice-presidendmanaging director and 
his duties, the AAO finds that the description of duties is general and interchangeable with the description of 
the beneficiary's duties and is not sufficient to substantiate that this individual actually performs managerial or 
supervisory duties. The record does not establish that the vice-presidentlmanaging director's position 
provides an essential tier of managerial employees for the beneficiary to direct so that the beneficiary would 
primarily focus on the broad goals and policies of the organization rather than the day-to-day operations of 
the enterprise. 
WAC 04 109 50389 
Page 9 
The AAO acknowledges that the beneficiary hired a part-time business advisor and employs an individual to 
perform the petitioner's bookkeeping services in addition to the employees who operate the petitioner's 
restaurant, but the record does not establish that these two individuals' duties comprise 
managerial/supervisory/professional duties. Likewise, the petitioner's description of the restaurant manager's 
duties and a review of the restaurant's business and staff fail to convince that the individual in the position 
identified as restaurant manager spends the majority of his or her time supervising employees, rather than 
primarily participating in the daily operational and administrative tasks of the restaurant. The AAO notes that 
the beneficiary also spends time at the restaurant to ensure its satisfactory operation and to obtain feedback, a 
task that is not managerial or executive in nature. However, 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 lOl(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 
Int 'l., 19 I&N Dec. 593, 604 (Cornm. 1988). 
In this matter, the petitioner's description of the beneficiary's direct subordinates' duties is insufficient to 
demonstrate that these positions require individuals who perform primarily professional, managerial, or 
supervisory tasks. The petitioner's indication that these individuals assist the beneficiary in certain endeavors 
undermines the managerial and executive nature of both the beneficiary and subordinates' duties. The 
remaining portion of the beneficiary's subordinates' duties demonstrates that these individual primarily 
perform the operational and administrative tasks of the company. The record is insufficient to show that the 
beneficiary's subordinates' act primarily as supervisors. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. at 165. The record must substantiate that the duties of the beneficiary and all 
her subordinates correspond to their placement in an organization's structural hierarchy; artificial tiers of 
subordinate employees and inflated job titles are not probative and will not establish that an organization is 
sufficiently complex to support an executive or manager position. The petitioner has not provided sufficient 
documentary evidence substantiating that the beneficiary has or will perform primarily in an executive or 
managerial capacity. 
Based on the record in this matter when the petition was filed, the petitioner has not demonstrated that it has 
attained the organizational complexity wherein hiringlfiring personnel, discretionary decision-making, and 
setting company goals and policies would constitute significant components of the beneficiary's duties 
performed on a day-to-day basis. The petitioner's generic description of the beneficiary's duties, the similarity 
of the beneficiary's duties to others "managerial" employees in the organization, and the lack of documentary 
evidence substantiating the beneficiary's decision-making all contribute to the petitioner's failure to establish 
that the beneficiary will be employed in a primarily managerial or executive capacity for the petitioner. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 8 101 (a)(44)(C) of the Act, 8 U.S.C. § 1 101 (a)(44)(C). However, it is appropriate for CIS to consider the 
size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. 
WAC 04 109 50389 
Page 10 
See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Furtherpore, the reasonable needs of 
the petitioner will not supersede the requirement that the beneficiary be "primarily" employed in a managerial 
or executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 
§ 1101(a)(44). Where as here, the petitioner has not provided an adequate description of the beneficiary's 
duties or provided documentary evidence of the beneficiary's decision-making processes when the petition 
was filed, the AAO cannot conclude that the beneficiary's duties are primarily managerial or executive. An 
executive or manager's duties must be the critical factor. In this matter, the record is deficient in establishing 
the actual duties of the beneficiary or that those duties comprise primarily managerial or executive duties. For 
this reason, the petition will not be approved. 
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. 8 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.