dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Massachusetts Avc., N.W., Rm. A3042 
Washington, DC 20529 
US. Citizenship 
and Immigration 
FILE: SRC 02 167 5 193 1 Office: TEXAS SERVICE CENTER Date: JUN 2 8 2~5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
drninistrative Appeals Ofice 
SRC 02 167 51931 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated in 1989 and 
claims to be a Salvadorian restaurant. The petitioner claims that it maintains a subsidiary relationship with 
located in San Salvador, El Salvador. It seeks to extend its authorization to employ the 
beneficiary temporarily in the United States as its operations manager for a period of two years. The director 
determined that the evidence was not sufficient to establish that: (1) there was a qualifying relationship 
between the foreign entity and the U.S. entity; and (2) the beneficiary would be employed primarily in a 
managerial or executive capacity. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence submitted was 
sufficient to establish a qualifying relationship between the U.S. and foreign entities and that the beneficiary 
wilI be employed in a managerial or executive capacity. 
To establish L-1 eligibility under section lOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 1 lOl(a)(lS)(L), the petitioner must demonstrate that the beneficiary, within three years preceding the 
beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. $ 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
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: 
(1) Evidence that the petitioner and the organization which employed or will employ 
the alien are qualifying organizations as defined in paragraph (I)(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. 
The first issue in this proceeding is whether the petitioner has established that a qualifying relationship exists 
between the U.S. and foreign entities. 
SRC 02 167 51931 
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The pertinent regulations at 8 C.F.R. 9 214.2(1)(l)(ii) define a "qualifying organization" and related terms as: 
(G) Qualifiing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions 
of a parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of 
this section; 
(2) Is or will be doing business (engaging in international trade is not required) 
as an employer in the United States and in at least one other country directly 
or through a parent, branch, affiliate, or subsidiary for the duration of the 
alien's stay in the United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 10 1 (a)(15)(L) of the Act. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operation division or office of the same organization housed in a 
different location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the ent~ty; or awns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) Affiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
The petitioner initially stated that 100 percent of the U.S. entity's stock was owned by the foreign company. 
In support of the petition, the petitioner submitted copies of its Articles of Incorporation, stock certificates, 
assignment of stock certification, corporate resolution approving assignment, waiver of notice of special 
organizational meeting of the directors and shareholders, and IRS Form 1120, U.S. Corporation Income Tax 
Return for the year ending March 3 1,2001. 
SRC 02 167 51931 
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In response to the director's request for evidence, the petitioner submitted a copy of an amended U.S. 
Corporation Income Tax March 3 1, 200 1. The amendment demonstrated thal 
50 percent an wned 50 percent of the company's stock. The petitioner also 
that indicated a transfer of stock fro-nd 
entity, in total. The petitioner submitted copies of a Waiver of Notice of Special 
Organization Meeting, Corporate Resolution, and U.S. entity stock certificates one through eight. 
The director determined that the evidence was insufficient to establish a qualifying relationship between the 
U.S. and foreign entities. The director noted inconsistencies in the number of authorized shares the U.S. 
organization had authority to issue and the number that had actually issued. The director also noted that the 
U.S. entity's TRS Form 1120, Corporate Income Tax Return and its amendment, IRS Form 1120X for the year 
ending March 3 1, 2001 contained information contrary to statements made and evidence submitted in support 
of the petition. The director noted that the original owners of stock certificates 2, 5, and 6 had not signed 
the back of the stock certificates, thus rendering them still valid. The director also noted that the petitioner 
had stated thatwas 50 percent owner of the U.S. entity on March 31, 2001; but that the stock 
certificates submitted do not establish that fact. The director stated that the petitioner failed to address why 
stock certificates #6 and #7 were submitted into evidence when they were not valid. The director also stated 
that the petitioner had failed to submit evidence demonstrating the ownership of the foreibm entity. The 
director's position remained the same in her response to the petitioner's Motion to Reopen/Reconsider. 
On appeal, counsel argues that the qualifying relationship of the U.S. and foreign entities has been established 
through legal stock transfers. Counsel also argues that Florida corporate law does not require the actual 
issuance of stock certificates in order to prove ownership. Counsel further argues that the evidence submitted 
demonstrates a valid transfer of stock, although some original stock certificates were incomplete. Counsel 
asserts that stock certificates number 7 and 8 are valid as a result of a valid transfer agreement being signed 
and entered into. 
The petitioner submitted copies of Share Purchase Agreements, dated April 12, 2001; Assignment of Stocks, 
dated April 12,2001; and an undated Corporate Resolution. A petitioner must establish eIigbility at the time of 
filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). Citizenship and 
Immigration Services (CIS) cannot consider facts that come into being only subsequent to the filing of a 
petition. See Matter of Bardouille, 18 I&N Dec. 1 14 (BIA 1981). Therefore, a petitioner may not make 
material changes to a petition that has already been filed in an effort to make an apparently deficient petition 
conform to CIS requirements. See Matter of lzummi, 22 I&N Dec. 1 69, 1 75 (Comm. 1 998). 
The petitioner has not submitted sufficient proof of stock purchase by the foreign entity. There have been no 
bank statements, canceled checks or any other business documents presented to substantiate the purchase of 
the U.S. entity's stock by the foreign entity. There are no certified meeting minutes that demonstrate the 
foreign ent~ty's interest in purchasing shares of stock in the U.S. entity, nor has there been evidence presented 
to show an agreement by the directors and shareholders of the foreign entity to purchase such stock. Further, 
there has been no independent documentary evidence submitted to substantiate information contained in the 
U.S. entity's analysis of change in stockholder's equity. Simply going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
SRC 02 167 51931 
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The petitioner submitted copies of the U.S. entity's stock certificates, IRS Forms 1 I20 and 1120X, and the 
petition, which all contain inconsistent information that has not been adequately explained. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and 
attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where 
the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BZA 1988). Furthermore, 
evidence that is created by the petitioner after Citizenship and Immigration Services (CIS) points out the 
deficiencies and inconsistencies in the petition will not be considered independent and objective evidence. 
Necessarily, independent and objective evidence would be evidence that is contemporaneous with the event 
that is to be proven and existent at the time of the director's notice. 
In view of the inconsistencies, and lack of evidence to substantiate the petitioner's claim, the record is 
insufficient to establish ownership and control of the U.S. company by the foreign entity. The record does not 
demonstrate that the foreign entity has actually utilized company funds to purchase shares of stock in the U.S. 
company nor does it demonstrate that the foreign entity controls the U.S. entity. Hence, it cannot be 
concluded that the petitioner has established that a qualifying relationship exists between the U.S. and foreign 
entities. For this reason, the petition may not be approved. 
The second issue in this proceeding is whether the petitioner has established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
Section 1 Ol(a)(44)(A) of the Act, 8 U.S.C. 3 1 10 l(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; 
(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 fire 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 
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. 8 1 lOl(a)(44)(B), provides: 
SRC 02 167 51931 
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The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(0 Directs the management of the organization or a major component or 
function of the organization; 
(i i) 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 the petition, the petitioner stated that the beneficiary's responsibilities would continue to consist of 
"directing the daily business of the restaurant, including company finances, inventory control, employment 
matters, menu selection, pricing, and quality control." 
In a letter of support dated April 22, 2002, the beneficiary stated: 
While in the United States, my objective is to function at a managerial level handling all the 
activities of restaurant operations. Part of my responsibility is to handle the company 
finances and assist with policy formulation. The other part of my function is to review 
company costs, negotiate with food and supply vendors, ensure all county and city licenses 
are current, ensure health code compliance and confer with my counterpart, the company 
president, to review our overall efficiency, profitability, menu creations, and personnel 
productivity. 
In a letter of support, dated May 2,2002, the petitioner described the beneficiary's duties as: 
The beneficiary will continue working as Operations Manager of the U.S. Corporation and 
will continue his managerial roles in both companies. The beneficiary will oversee the 
restaurant's daily operations and supervise two other managers and staff. In addition, the 
beneficiary will handle the company finances, and review reports with the other shift 
managers to determine company costs, revenue, inventory control and various employment 
matters that involve the restaurant staff. He will exercise full discretion to make changes in 
the menu pricing, food offerings, and changes in the operational staff. 
The petitioner described the shifts at its restaurant as: 
A.M. SHIFT 
SRC 02 167 51931 
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P.M. SHIFT 
In response to the director's request for evidence on the subject, the petitioner submitted a copy of the U.S. 
entity's organizational chart that depicted the beneficiary as general manager. The chart also showed that two 
shift managers, eight cooks, and six servers were under the beneficiary's direction. The petitioner submitted 
employee lists which demonstrated that the two shift managers were employed on a full-time basis; one server 
and one cook were employed on a full-time basis; five cooks were employed on a part-time basis; three 
servers and one cook received per diem; and two servers and one cook's employment was not classified. The 
petitioner also submitted copies of its IRS Form 941, Employer's Quarterly Federal Tax Returns for the 
quarters ending March 3 1, 2001, June 30, 2001, September 30, 2001, December 3 1, 2001, and March 3 1, 
2002. Each listed eight to ten employees. 
The petitioner stated that the beneficiary supervised the U.S. entity's entire operation that consisted of two 
managers, seven employees, and seven independent contractors who were employed on a per diem basis. The 
petitioner also stated that the restaurant was a family owned business and that the beneficiary was best suited 
The director determined that the petitioner had failed to demonstrate that it was in need of an executive or 
manager or that the beneficiary's actual duties qualify as managerial or executive in nature. The director 
noted that the entity's cooks make less than the minimum wage that would be earned by a full-time employee. 
The director also noted that the petitioner had failed to submit evidence to show that the other employees 
were paid contractors. The director further noted that the evidence submitted by the petitioner failed to 
establish that the beneficiary was being paid by the foreign entity although the petitioner had stated that he 
was. The director also noted that, based upon the petitioner's statement and the lack of compensation 
recorded on its 2001 Income Tax Return, it appeared that the beneficiary was not compensated by the U.S. 
entity. The director stated that the record established that the petitioner did not have any qualifying 
employees and therefore, the beneficiary, although possessing the title of president, would be carrying out the 
day-to-day operations of the business and would not be supervising any employees. The director also stated 
that the evidence in the record was not persuasive in demonstrating that "the US. entity had grown to a point 
where it could remunerate the beneficiary, or where the beneficiary would function at a senior level, or with 
respect to a function." The director noted that the petitioner had failed to demonstrate that it was in need of a 
manager or executive. The director's decision in denying the petitioner's Motion to ReopenJReconsider was 
based upon the same premises. 
SRC 02 167 51931 
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On appeal, counsel argues that the beneficiary performs as both an operations manager and vice-president, with 
the managerial role occupying most of his time. Counsel also argues that the beneficiary serves as a function 
manager and supervises two shift managers at the restaurant. Counsel cites to Matter of Irish Dairy Board to 
substantiate his argument. Counsel contends that the beneficiary manages the administrative aspects of the 
business; that he manages and oversees the lutchen stae that he is responsible for the financial and transactional 
aspects of the business; and that he supervises two managerial employees who are the highest paid workers. 
Counsel cites to the Department of Labor's Occupational Outlook Handbook's discussion of Restaurant and Food 
Service Managers and the Dictiona of Occupational Titles (DOT) in support of his contention. CounseI argues 
that the wire transfers show as the remitter of the funds from El Salvador. 
Counsel's assertions are not persuasive. Neither the statements nor the evidence received is sufficient to 
demonstrate that the beneficiary will be employed primarily in a managerial or executive capacity. Counsel 
asserts that the beneficiary will serve as a functional manager and as a part-time executive. 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. 5 214.2(1)(3)(ii). A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial in nature. A petitioner 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. Therefore, the petitioner must demonstrate that the beneficiary's 
responsibilities will meet the requirements of either capacity. Although counsel contends that the beneficiary 
mostly functions as a manager and partially functions as an executive, this generalization is insufficient to 
establish how much of his time is spent performing managerial or executive duties. 
The petitioner fails to document what proportion of the beneficiary's duties would be managerial functions 
and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as managerial, but 
it fails to quantify the time the beneficiary spends on them. This failure of documentation is important 
because several of the beneficiary's daily tasks, such as performing administrative duties and supervising 
non-qualifying personnel, do not fall directly under traditional managerial duties as defined in the statute. For 
this reason, the AAO cannot determine whether the beneficiary is primarily performing the duties of a 
function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. Section 10 l (a)(44)(A)(iv) of the Act. Because the beneficiary is primarily supervising a staff of 
non-professional employees, the beneficiary cannot be deemed to be primarily acting in a managerial 
capacity. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe 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." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of speciaIized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Mutler of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter ofshin, 1 1 I&N Dec. 686 (D.D. 1966). 
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Therefore, the AAO 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 
automaticalIy lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not, in fact, established that an advanced degree is 
actually necessary, for example, to perform the kitchen duties of the managers, who are among the 
beneficiary's subordinates. 
Further, the petitioner has not shown that the Department of Labor's description of a restaurant manager in the 
DOT has any bearing on this proceeding. The petitioner has not shown that the Department of Labor reserves 
the title of restaurant manager to those working in a managerial capacity as defined at section 101(c)(44)(A) 
of the Act. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial or executive capacity even though he was the sole employee. 
Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in 
the unpublished decision. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. See Mutter of Treasure Craft of CaI$ornia, 14 
I&N Dec. 190 (Reg. Comm. 1972). Furthermore, while 8 C.F.R. 4 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarIy binding. 
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. Cj 1101(a)(44)(A)(ii). If a petitioner claims 
that the beneficiary is managing an essential function, the petitioner must identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. Counsel states that the beneficiary manages the 
administrative aspects of the business in that he deals with the financial and transactional aspects of the 
organization. However, there is no evidence to show that any of the listed employees perform duties 
involving the financial or administrative aspects of the business. Nor has there been evidence submitted to 
demonstrate that any of the company's employees qualify to perform such duties. Furthermore, the petitioner 
must provide a comprehensive and detailed description of the beneficiary's daily duties demonstrating that the 
beneficiary manages the function rather than performs the duties relating to the function. 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, supra. The 
petitioner has not provided evidence that the beneficiary manages an essential function. 
Likewise, it cannot be found that the beneficiary will be employed primarily in an executive capacity. Counsel 
contends that the beneficiary will function partially as an executive vice-president of the restaurant. However, the 
petitioner has provided no comprehensive description of the beneficiary's duties that would demonstrate that he 
will be primarily directing the management of the organization or a major component or function of the 
organization, that he will be establishing goals and policies, that he will be exercising a wide latitude in 
discretionary decision-making, or that he will receive only general supervision or direction from higher-level 
individuals. Nor has there been evidence submitted to demonstrate what portion of the beneficiary's time will be 
spent performing executive duties. 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. Saw, 724 F.Supp. 1103 (E.D.N.Y. 1989), ard, 905 
SRC 02 167 51931 
Page 10 
F.2d 41 (2d. Cir. 1990). Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Furthermore, there is no plausible explanation for 
why the beneficiary, as vice-president and operations manager, supervises Ana Chavez, the president of the 
organization. 
Moreover, the petitioner has not shown that the beneficiary will function at a senior level within an organizational 
hierarchy other than in position title. It appears that the majority of the beneficiary's time will be spent 
performing the day-to-day functions of the business as well as supervising non-professional subordinates. 
Beyond the director's decision, there is insufficient documentation to establish that the foreign company is 
actively engaged in the regular, systematic, and continuous provision of goods or services. In the instant 
matter, the petitioner submitted copies of invoices from the foreign entity, which showed that the entity had 
performed business transactions for the month of April 2002. This is insufficient to show that the foreign 
entity has and will continue to do business. The term "doing business" is defined in the regulations as "the 
regular, systematic, and continuous provision of goods andlor 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 and 
abroad." 8 C.F.R. 4 214.2(1)(l)(ii). Consequently, it cannot be concluded that the petitioner has submitted 
sufficient evidence to establish that the foreign entity is a qualifying organization as required by the regulation 
at 8 C.F.R. fj 214.2(1)(1)(ii)(G)(2). For this additional reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.