dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-F- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE22,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant, seeks to temporarily employ the Beneficiary as its operations manager 
under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(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, concluding that the record did not 
establish, as required, that the Beneficiary had been employed abroad or will be employed in the 
United States in a managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director overlooked evidence clearly establishing that the 
Beneficiary has been and would be employed in a managerial capacity and did not sufficiently 
explain her reasons for denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(15)(L) of the 
Act. 
An L-lA individual petition filed on Form I-129, Petition for a Nonimmigrant Worker, must include 
evidence that the petitioner will employ the beneficiary in managerial or executive capacity, 
including a detailed description ofthe services to be performed. 8 C.F.R. § 214.2(1)(3)(ii). 
Matter of N-F- Corp. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner asserts that the Beneficiary will be employed in a managerial capacity for the U.S. 
entity. As the Petitioner does not claim that the Beneficiary will be employed in an executive 
capacity, we restrict our analysis to whether the Beneficiary will be employed in a managerial 
capacity. 
The term "managerial capacity" is defined 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 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 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 
Section 101(a)(44)(A) ofthe Act. Further, "[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." !d. 
A. Duties 
When examining the managerial capacity of the Beneficiary, we will look first to the Petitioner's 
description of the job duties. The 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.P.R. § 214.2(1)(3)(ii). Based on the definition of managerial capacity, the 
Petitioner must first show that the Beneficiary performs 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 primarily engaged in managerial duties, as opposed to 
ordinary operational activities alongside other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
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Matter of N-F- Corp. 
In its initial letter in support of the petition, the Petitioner stated that the Beneficiary will be 
"expected to work directly with employees and guests, and direct the restaurant's operation under 
the supervision of the company's President." The Petitioner stated further that the Beneficiary "will 
be required to perform the function of managing all aspects of our business activities" and that she 
will assist the president "in all business functions of keeping a restaurant running, which include[ s] 
financial duties, food and safety planning, customer service, operational activities, dealing with 
personnel, and community involvement." The Petitioner provided an estimated breakdown of the 
Beneficiary's time spent on her duties as follows: 
• Implementing all decisions and resolutions adopted by the Board of Directors and 
the President. Regularly reports on work performance to the President and Board 
of Directors. (15%, 6 hours) 
• Directly supervise and manage the restaurant managers and 
leaders/supervisor/head of the various functions of the company. Supervise the 
restaurant managers in food preparation and handling of guest complaints. 
Manage the operation of the restaurant to make sure that guests have an enjoyable 
experience in terms of food quality and dining atmosphere. (15%, 6 hours) 
• Assist President in making all decisions that affect the employees of the company. 
Schedule, supervise, train, and coordinate the work of managers and general 
personnel. Conduct initial interview of possible employees, and propose hiring 
and firing of employees to the President and the Board of Directors. (15%, 
6 hours) 
• Oversee the preparation and processing of payroll. Evaluate the performance of 
subordinate managers and professionals. Decide with the President the promotion 
and demotion of employees. Build the company's performance assessment 
system, strengthening the company's team building. Responsible for the 
assessment of the managers and the supervisors of the restaurant. (20%, 8 hours) 
• Managing financing operation of the business, such as budget, payroll, and 
purchasing. Supervise subordinate managers and professionals to make sure 
controls are in place to safeguard inventory controls. Develop initiatives to build 
sales, profitability, and guest counts. (20%, 8 hours) 
• Supervise the operation of the business to make sure of its compliance with 
standards of quality in all food and service operations, as well as with laws and 
regulations of city, county, state and the federal level. Ensure adherence to all 
Health Department (OSHA), and ADA regulations, and to all local, state, and 
federal laws. Manage the managers and subordinates to ensure the 
physical/aesthetic maintenance ofthe restaurant. (5%, 2 hours) 
• Oversee the operation of the restaurant to make sure that all safety and security 
systems and procedures are followed to assure health and safety of employees and 
guests. Establish and then oversee system of supervising correct receipt, storage, 
and handling of food and beverage products to assure quality and freshness at all 
times. (1 0%, 4 hours) 
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Matter of N-F- Corp. 
In response to the Director's request for evidence (RFE), the Petitioner expanded upon and 
reorganized the duties and time allocations initially described. For example, under the heading of 
supervising restaurant managerial staff the Petitioner amended the description to indicate that the 
Beneficiary would draft and publish the managerial job announcements, schedule and lead 
interviews, hire, fire, discipline, and promote managerial employees, as well as, direct managerial 
staff training programs and assure that the managerial employees performed their job duties. The 
Petitioner stated that this would take 15 percent of the Beneficiary's time. Although these duties 
may be a part of supervising staff, both the initial description and the position description in 
response to the Director's RFE, limit the Beneficiary's direct supervisory tasks. If the Petitioner is 
claiming that the Beneficiary is a personnel manager, we note that personnel managers are required 
to primarily supervise and control the work of other supervisory, professional, or managerial 
employees. Here, the record does not support a claim that supervising others will be the 
Beneficiary's primary duty. 
In the response to the Director's RFE, the Petitioner also added a separate heading for preparing and 
processing payroll and indicated that the Beneficiary would spend 20 percent of her time devising a 
payroll-processing schedule, computing timekeeping data from time cards, paying other types of 
income such as bonuses, commissions, and retroactive pay, printing payroll reports to verify 
accuracy, and printing the paychecks. The Petitioner noted further that the Beneficiary would spend 
an additional 20 percent of her time maintaining accounting policies and procedures and banking 
relationships, managing the preparation of the budget, and ensuring that suflicient funds are 
available for the business' operating needs. These descriptions and the time spent show that the 
Beneficiary is the individual performing the payroll, accounting, and budget functions necessary for 
the Petitioner's operations. If the Petitioner is claiming that the Beneficiary is primarily managing 
these functions, the Petitioner has not established, as required, that the Beneficiary's daily duties 
regarding the payroll, accounting, and budget functions involve managing the function while others 
perform the duties related to the function. See Matter of Z-A -. Inc., Adopted Decision 2016-02 
(AAO Apr. 14, 2016). 
The Petitioner added further that the Beneficiary will spend 15 percent of her time meeting with, 
reporting to, and making recommendations to the Board of Directors and the President. However, 
this information is not sufficiently detailed to establish the actual tasks the Beneficiary would 
perform as part of these reporting responsibilities. Thus, we cannot determine whether these tasks 
are administrative or managerial in nature. Similarly, the extent of the Beneficiary's managerial 
authority is unclear when she is "assisting" the president in deciding employee compensation, shifts, 
and schedules and in preparing the Employee Handbook and creating staff training programs and 
procedures. 
We have also reviewed the Petitioner's president's letter outlining the Beneficiary's expected 
managerial decisions. The Petitioner asserted that the Beneficiary will be expected to make 
decisions regarding: the design of the restaurant, menu, and dishes; the food and service quality to 
ensure customers' satisfaction; human resources; supply-chain management; and inventory 
management. The Petitioner, however, has not indicated who will perform the duties associated 
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.
Matter of N-F- Corp. 
with the design of the restaurant, menu, and dishes, with the supply-chain, and with the inventory, if 
not the Beneficiary. Additionally, the Petitioner does not include evidence of the president's duties 
and delineate the difference in the duties to be performed by the president and the duties to be 
performed by the Beneficiary. Thus, we cannot ascertain whether the Beneficiary's duties will 
overlap with the president's duties or are an additional support to the Petitioner's operations. Even if 
the Beneficiary may exercise some discretion over the Petitioner's day-to-day operations and may 
possess the requisite level of authority with respect to some discretionary decision-making, the 
position descriptions alone are insufficient to establish that her actual duties would be primarily 
managerial in nature. 
B. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including 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. 
The record includes the Petitioner's organizational chart which shows the Beneficiary's position as 
directly subordinate to the President and directly over two restaurant managers, who in turn are 
depicted supervising others. 
President 
I j 
I 
Operations 
Manager 
Beneficiary 
I 
Restaurants 
Managers 
(2) 
I 
I I 
3 Head Chefs 
Kitchen. Head 
Sushi. Waiter 
Hibachi 
I I 
I I I I 
8 3 Busboys & 8-10 1-2 2-3 Additional Additional 
Chefs Dishwashers Waiters Bartenders Hostesses 
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Matter of N-F- Corp. 
The Petitioner also provided job descriptions for the restaurant managers, the head chefs, and the 
head waitress. The restaurant managers are tasked with overseeing staff operations, and working 
with the head chefs and head waitress to ensure timely opening and closing tasks are completed, to 
develop a training plan for new hires, and to meet with employees to discuss customer service and 
performance issues, as well as serving as the initial point of contract for customers and clients. The 
kitchen head chef is tasked with monitoring sanitation practices, estimating amounts, and costs of 
food and ingredients, and inspecting supplies, equipment, and work areas, supervising other chefs 
and cooks, and determining production schedules and staff. The sushi and hibachi chefs are tasked 
with checking the quality of products, instructing subordinates in the preparation of food, ordering 
food and supplies, and analyzing recipes to suggest prices, and determining presentation. The head 
waitress is tasked with serving food or beverages, presenting menus, informing customers of specials 
and food preparation, as well as ensuring customers are enjoying their meals. The Petitioner does 
not specify the amount of time these individuals spend on each particular task and whether the 
positions are primarily managerial or supervisory positions. 1 
Although the record indicates that the restaurant has employees to cook meals, and serve customers, 
and two managers who supervise these tasks, it has not established that the responsibilities for 
payroll, accounting, and budget functions, as well as the design of the restaurant, and supply chain 
management are assigned to subordinate staff. Additionally, as referenced above, the Petitioner does 
not describe the Beneficiary's position as primarily supervising employees. Accordingly, we cannot 
find that the Beneficiary is primarily a personnel manager. 
Also, as the Petitioner does not include a position description for the company's president or 
distinguished the Beneficiary's duties from the duties performed by its president we cannot examine 
the role each individual plays within the organization. The Petitioner has not supported the 
organizational hierarchy it claims is in place with probative evidence. The record does not include 
sufficient evidence demonstrating that the Beneficiary will perform primarily managerial duties, 
rather than the operational and administrative tasks necessary to run the restaurant. The Petitioner 
has not established that the Beneficiary will be employed in a primarily managerial capacity for the 
U.S. entity. 
III. MANAGERIAL CAPACITY FOR THE FOREIGN ENTITY 
The Petitioner states that the Beneficiary is the vice general manager of its parent company, an 
investment and consulting company, established in 2010. The Petitioner asserts that the Beneficiary 
began her employment for the foreign entity in March 2015, and that since that time she has been in 
charge of the foreign entity's consulting, marketing, and finance departments. The Petitioner claims 
1 The record does not include evidence of the Petitioner's staffing when the petition was filed. The record included the 
restaurant's Texas employer's quarterly reports for the 2015 year, and the first quarter of 2016, reports submitted to the 
Texas government prior to the foreign entity's purchase of an interest in the petitioning company in May 2016. These 
reports do not depict the restaurant's number of employees after the Petitioner purchased its interest or when the petition 
was filed in August 2016. 
Matter of N-F- Corp. 
that the Beneficiary's employment for the foreign entity is in a managerial capacity. Accordingly, 
we will limit our analysis as to whether the Petitioner has established that the Beneficiary has been 
employed in a managerial position. The statutory definition of managerial capacity set out above is 
also applicable to the analysis of the Beneficiary's foreign employment. 
A. Duties 
The Petitioner described the Beneficiary's duties for the foreign entity as follows: 
a. Assist the General Manager in formulating the company's business development 
strategies, and organizing and supervising the implementation of all programs and 
plans; 
b. Meet with potential clients to discuss objectives, whether in residential or 
commercial real estate; 
c. Provide real estate analysis and advising services to clients such as construction 
developers and property investors; 
d. Prepare necessary real estate market research tools and set out a schedule to 
perform and report to client on research results; 
e. Develop, implement, and execute strategic marketing plans for the Company in 
order to attract potential clients and retain existing ones; 
f. Manage and coordinate marketing and creative staff; 
g. Lead market research efforts to uncover the viability of current and existing 
services; 
h. Liaise with media organizations and advertising agencies; 
1. Work with clients to determine budget and target market; 
J. Assist in the determination of pricing in relation to services offered and 
competitors' pricing; 
k. Oversee the operations of the financial department, including the design of an 
organizational structure adequate for achieving the Company's goals and 
objectives; 
1. Manage the preparation of the Company's budget; 
m. Engage in ongoing cost reduction analyses in all areas of the Company; 
n. Interpret the Company's financial results to General Manager and recommend 
improvement activities; [and] 
o. Engage in ongoing cost reduction analyses in all areas of the Company. 
The foreign entity's organizational chart depicts the Beneficiary reporting directly to the General 
Manager and as over a consulting department with one employee, a marketing department with two 
employees, and a financing department with two employees. To demonstrate the Beneficiary's 
employment for the foreign entity, the Petitioner submitted a salary settlement list of the foreign 
entity's employees for the 2015 year signed by the Beneficiary and the general manager. The 
Beneficiary is identified as receiving a monthly salary beginning in January 2015 and continuing 
throughout the year. This document also identifies a supervisor as the sole employee in the 
Matter ofN-F- Corp. 
consulting department, a supervisor and an employee in the financial department, and a supervisor 
and employee in the marketing department. The Petitioner also submits a personnel document 
signed by the Beneficiary as a vice general manager in May 2014. The Beneficiary's "Certificate of 
Employment" signed by a representative of the foreign entity states that the Beneficiary "works and 
serves as the vice general manager of our company from March 2015 till now" and is dated July 
2016. 
In response to the Director's RFE, the Petitioner submitted a letter signed by a representative of the 
foreign entity noting that the Beneficiary's decisions included personnel decisions for the marketing, 
financial, and consulting departments, company budget and marketing strategies decisions, and 
consulting strategies decisions. The representative also re-organized the initially stated duties into 
four categories. The representative stated that the Beneficiary spent: 10 percent of her time 
implementing company policies and procedures established by superiors; 30 percent of her time 
overseeing the consulting department operations; 30 percent of her time overseeing the marketing 
department operations; and 30 percent of her time overseeing the financial department operations. 
The Petitioner also provided a revised salary receipt document for 2015 which showed that the 
Beneficiary had not received a salary for January and February of 2015. The Petitioner does not 
explain why the initial record included two documents signed by the Beneficiary showing that she 
was employed in January and February of 2015. The ambiguity in the record regarding the 
Beneficiary's employment date casts doubt on the legitimacy of the Beneficiary's actual 
employment and suggests that some of the documents may have been copied from another 
individual's employment records. Nevertheless, we will review the duties the foreign entity claimed 
the Beneficiary performed while in its employ. 
The foreign entity's job description, for the most part, describes the Beneficiary as performing 
specific functions. For example, although the foreign entity indicated that the Beneficiary 
"oversees" the consulting department, her tasks include meeting with potential clients, providing real 
estate analysis and advice, developing and preparing client reports evaluating the performance, 
allocation, and strategy of their real estate holdings, and conducting special research on real estate 
topics. These are the duties of a financial or real estate consultant, not the duties of a manager as 
defined in the statute. Similarly, developing, implementing, and executing marketing plans, liaising 
with media organizations and advertising agencies, and working with clients on their budget and 
target market, are the duties of an individual performing marketing and consulting duties. Again, to 
satisfy the statutory definition of managerial capacity, the Petitioner must prove that the Beneficiary 
will be primarily engaged in managerial duties, as opposed to ordinary operational activities 
alongside the Petitioner's other employees. See, e.g., Family Inc. v. USCJS, 469 F.3d at 1316. Here, 
the descriptions of duties and allocation of the Beneficiary's time indicates that the Beneficiary 
spends a significant portion of her time performing the consulting, financial, and marketing duties 
for the foreign entity. 
Other duties, such as leading market research and managing the preparation of the company's budget 
do not provide sufficient detail to determine if these tasks are primarily managerial tasks or require 
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Matter of N-F- Corp. 
the Beneficiary's performance of market research and preparing the budget. The description of the 
Beneficiary's marketing subordinate's duties does not specifically address the market research 
necessary to uncover the viability of current and existing services. Likewise, the Beneficiary's 
financial subordinate performs basic bookkeeping duties, not duties related to the foreign entity's 
budget. In response to the Director's RFE, the foreign entity claimed that the Beneficiary supervised 
and controlled the work of her subordinates by being available and engaging in frequent meetings. 
However, the foreign entity does not allocate the Beneficiary's time to supervising others, and 
references, without detail, her management and coordination of the marketing and creative staff. 
The Petitioner has not submitted sufficient probative evidence to establish that the Beneficiary's 
duties for the foreign entity are primarily managerial in nature. 
B. Staffing 
We have also reviewed the foreign entity's organizational structure, staffing, and the Beneficiary's 
subordinates' duties. Although the foreign entity identifies one individual in each of the consulting, 
marketing, and financial departments as a supervisor, none of the descriptions for the supervisory 
employees show that they primarily supervise other employees. The consultant department 
supervisor appears to perform duties similar to the Beneficiary's duties related to the consulting 
department. The marketing supervisor analyzes trends, leads the promotion of the company, 
identifies new markets, and prepares and implements the marketing budget and marketing plans. 
These duties also do not include the supervision of others. As noted above, the financial department 
supervisor's duties include bookkeeping tasks, not supervising others. The record is insufficient to 
establish that the Beneficiary's subordinates are supervisors. Likewise, the Beneficiary's 
subordinates' duties, as described, do not include managerial duties. 
On appeal, the Petitioner references the list of employees it claims the Beneficiary supervises and 
identifies them as "professional" employees. Although a beneficiary is not required to supervise 
personnel, if a petitioner claims that a beneficiary's duties involve supervising employees, then a 
petitioner must establish that the subordinate employees are supervisory, professional, or managerial. 
See section 101(a)(44)(A)(ii) ofthe Act. 
In evaluating whether a beneficiary manages professional employees, we 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 101 ( 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 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. 
9 
Matter of N-F- Corp. 
In this matter, the Petitioner has not established that a bachelor's degree is required to perform the 
duties the foreign entity attributed to the Beneficiary's subordinates. If the Beneficiary is a 
personnel manager for the foreign entity, she is at most a first-line supervisor of non-professional 
employees. Although the Petitioner does not appear to claim that the Beneficiary performs as a 
function manager for the foreign entity, we find that the description of the Beneficiary's duties 
shows that she is primarily performing the consulting, financial, and marketing tasks, and is not 
managing these functions. The record in this matter does not establish that the Beneficiary has been 
performing in a managerial capacity for the foreign entity. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary has been 
employed abroad, or would be employed in the United States, in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fN-F- Corp., ID# 388284 (AAO June 22, 2017) 
10