dismissed L-1A Case: Restaurant

identifyingdata.deletedto
prevent clearly unwarranted
invasionofpersonalprivacy
PUBLICCopy
U.S. Department of Homeland Security
20 Mass Ave. N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 05 048 52352 Office: TEXAS SERVICE CENTER Date: JUL 0 5 2007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § IIOI(a)(l5)(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 office.
~~...
Administrative Appeals Office
www.uscis.gov
SRC 05 048 52352
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 nonimmigrant petition seeking to extend the employment of its food manager as an
L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of
Georgia that is operating as a Mexican restaurant. The petitioner claims that it is the affiliate of Farmacias de
Similares, S.A. de C.V., located in Mexico. The beneficiary was initially granted a one-year period of stay to
open a new office in 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 that the beneficiary would be
employed in the United States in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal and motion to reconsider. 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 asserts
that the beneficiary has been and would continue to be employed as an executive and a manager by the
petitioner. In support of this assertion, the petitioner submits a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in 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. § 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 (I)(1)(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 him/her to perform the intended
SRC 05 048 52352
Page 3
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. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening ofa
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 (1)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined In
paragraph (1)(1)(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 managerial or executive
capacity; and
(E) Evidence of the financial status of the United States operation.
At issue in the present matter is whether the beneficiary would 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 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. A first-line supervisor is not considered to be
SRC 05 048 52352
Page 4
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. § 1101 (a)(44)(B), 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 letter dated December 8, 2004 accompanying the initial petition, the petitioner states the following with
respect to the beneficiary's job duties:
We continue to have the need for a [fJood [m]anager to ensure that the day-to-day U.S.
operations run efficiently, economically, and safely. In this position, [the beneficiary] will
continue to hire, fire, pay and supervise all operations personnel. She will continue to
manage the training of U.S. personnel to prepare authentic and exotic Mexican dishes and
delicacies. She will also continue to manage the hiring and training of U.S. personnel, who
will in tum be responsible for the cooking, cleaning, and sales of our products. She will be
responsible for inventory build-up and maintenance and will also handle customer service
activities. Furthermore, [the beneficiary] will be responsible for overseeing the sanitation of
the restaurant to ensure compliance with the Health Department. She will also oversee the
preparation of dishes, pricing and taste quality.
On December 21, 2004, the director requested further evidence that the beneficiary is performing in a
managerial or executive capacity in the U.S. company. Specifically, the director noted that the employees
whom the beneficiary supervises do not appear to be professionals and requested a description of their job
duties and educational backgrounds.
In a letter dated January 25, 2005, the petitioner described the beneficiary's employment with the U.S. entity
as follows:
[The beneficiary's] temporary employment with [the U.S. entity] will continue to be under the
job title of Manager - Food Operations and Vice President. [The beneficiary] owns 50% of
the restaurant. In this managerial position, she manages the company and the restaurant's 4
employees. . .. She manages an essential function within the organization - the cooking,
inventory, sales and marketing. She contacts media to place advertising in newspapers, radio,
SRC 05 048 52352
Page 5
and flyers. She has the authority to hire and fire other employees, as well as authorize
vacation leave and bonuses. [The beneficiary] exercises direction over the day-to-day
activities for sales, inventory, and operations. As the Vice President of the corporation, [the
beneficiary] will continue to work with the President and establish the goals and policies of
the restaurant, and exercise decision-making in all aspects of the corporation. She reports
directly to the President of the corporation.
Regarding the beneficiary's subordinate employees, the petitioner stated:
[The beneficiary] currently supervises four individuals - 3 chefs and 1 cashier. The three
chefs have the responsibilities of preparing the meat, sauces, and vegetables to the
restaurant's proprietary recipes. The chefs are responsible for notifying [the beneficiary] of
any inventory needs, suggestions, and vacation requests. The cashier is responsible for all
accounts receivable due to sales. Two of the chefs have 9 years of schooling, one of the chefs
completed 11 years of schooling, the fourth chef holds a bachelor's degree, and the cashier
holds a bachelor's degree. All four individuals have been employed with [the U.S. entity]
since July 2003. 1
On February 17, 2005, the director denied the petition concluding that the petitioner did not establish that the
beneficiary would be employed in the United States in a primarily managerial or executive capacity.
Specifically, the director determined that the petitioner has not shown that the beneficiary would be
supervising a staff of professional, managerial or supervisory personnel who would relieve the beneficiary
from performing non-qualifying duties. The director further found that the beneficiary would have to engage
in the day-to-day business activities of the company given the current structure of the company. The director
also determined that the petitioner has failed to show that the beneficiary would be managing an essential
function within the company.
On appeal, counsel for the petitioner contends that the beneficiary's position meets the statutory criteria for
executive and managerial capacity. Specifically, counsel states that the beneficiary "manages sales,
marketing, inventory, and production, all of which are essential functions within the organization." Counsel
also claims that the chef positions are considered "professional" by the Department of Labor. Counsel
restates the beneficiary's job duties and asserts that they meet each of the criteria in the definitions of
managerial capacity and executive capacity. In addition, counsel indicates that the beneficiary now owns
1000/0 of the U.S. entity and 50% ofa new restaurant business called also located in
Atlanta, Georgia. Counsel submits a copy of a stock certificate dated March 18, 2005 indicating that the
1 It is noted that elsewhere in the record, the petitioner stated that there are only three chefs. It is incumbent
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent
objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
SRC 05 048 52352
Page 6
beneficiary owns "100% shares" of the common stock of the U.S. entity and documentation relating to the
formation and ownership of the new restaurant.'
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been
employed in a managerial or executive capacity. 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.
§ 214.2(l)(3)(ii). 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. The petitioner must specifically state whether the beneficiary is primarily employed in a
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions.
In the job descriptions it submitted, the petitioner claimed that the beneficiary "manages an essential function
within the organization - the cooking, inventory, sales and marketing," as well as "handle[s] customer
service" and "oversee]s] the sanitation of the restaurant." The evidence shows that the staff of the U.S. entity
consists of the beneficiary, three chefs, and a cashier. However, the petitioner clearly indicates that the chefs
are solely responsible for food preparation, and the cashier is "responsible for all accounts receivables due to
sales," or in other words, receives payments from customers. As such, it would appear there is no one else on
the petitioner's staff other than the beneficiary to actually perform the sales, marketing, customer service,
sanitation, and inventory procurement and maintenance functions that the beneficiary purportedly manages
and oversees. Thus, it appears the beneficiary is performing these functions herself and does not manage or
oversee them as claimed by the petitioner. Regardless, the AAO is left to question the validity of the
petitioner's claim and the remainder of the beneficiary's claimed duties. 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. at 591. Moreover, if the
beneficiary actually performs the sales, marketing, customer service, sanitation, and inventory procurement
and maintenance functions of the U.S. company, she is performing tasks necessary to provide the company's
service or product, and these tasks would not be considered managerial or executive in nature. 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 101(a)(44)(A) and (B) of the
2 The AAO does not find the existence of the new restaurant to have any relevance to the beneficiary's
eligibility for L-I A status under the current petition. That restaurant or business was not named as the
petitioner in this matter, nor is it a foreign entity having a qualifying relationship with the petitioner in this
matter. Moreover, aside from establishing that entity's existence, counsel has provided no evidence to show
how the beneficiary's role within that entity might qualify her for L-l A status under the present petition.
Furthermore, the petitioner had made no mention of this business previously. The petitioner must establish
eligibility at the time of filing the nonimmigrant 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 of Michelin Tire
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
SRC 05 048 52352
Page 7
Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter
ofChurch Scientology Int'!., 19 I&N Dec. 593, 604 (Comm. 1988).
Counsel also appears to claim that the beneficiary qualifies as a "functional manager" since she "manages
sales, marketing, inventory, and production, all of which are essential functions within the organization." 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. § 1101(a)(44)(A)(ii). However, if it is
claimed 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. In addition, 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. As previously noted, there is
insufficient evidence that this beneficiary will manage an essential function of the company rather than
directly perform the duties related to functions that may be considered essential to the company. Again, 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. at 604.
Additionally, 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, as required by the statute. 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 101(a)(44)(A)(iv) of the Act. 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
10I(a)(32) of the Act, 8 U.S.C. § 110 l(a)(32), 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." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized 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. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.O. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by the subordinate employee. The petitioner claimed that the cashier and one of the chefs hold bachelor's
degrees. However, the possession of a bachelor's degree by a subordinate employee does not automatically
lead to the conclusion that the employee is employed in a professional capacity, as that term is defined above.
Counsel claims that the chefs' positions are "professional" positions; however, the petitioner has not, in fact,
established that an advanced degree is actually necessary to prepare the restaurant's food, or to carry out the
cashier's job. Thus, the evidence does not show that any of the beneficiary's subordinate employees can be
considered a "professional." Similarly, there is no evidence that any of the beneficiary's subordinates
supervise any other employees or otherwise function in a managerial or supervisory capacity. Because the
SRC 05 048 52352
Page 8
beneficiary is primarily supervising employees who are not professional, managerial or supervisory, the
beneficiary cannot be deemed to be primarily acting in a managerial capacity. For this additional reason, the
petition may not be approved.
Finally, the AAO finds counsel's claim on appeal that the beneficiary's position with the U.S. entity meet the
requirements for executive capacity to be without merit. In describing the beneficiary's "executive capacity,"
counsel merely paraphrases the components of the statutory definition of that term. 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), aff'd, 905 F. 2d 41 (2d. Cir. 1990);
Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Moreover, without documentary
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534
(BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,
506 (BIA 1980).
Accordingly, the petitioner has not established that the beneficiary would be employed in the United States in
a primarily managerial or executive capacity, as required by 8 C.F.R. § 214.2(1)(3).
Beyond the director's decision, the petitioner has not provided sufficient evidence to establish that there is a
qualifying relationship between the U.S. and foreign entities. The regulations and case law confirm that
ownership and control are the factors that must be examined in determining whether a qualifying relationship
exists between the United States and foreign entities for purposes of this visa classification. Matter ofChurch
Scientology International, 19 I&N Dec. at 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N
Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition,
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and
authority to control; control means the direct or indirect legal right and authority to direct the establishment,
management, and operations of an entity. Matter ofChurch Scientology International, 19 I&N Dec. at 595.
On the Form 1-129, the petitioner indicated that the U.S. entity and the foreign entity are affiliates since the
same individual, the beneficiary, owns 100% of the foreign entity and 50% of the U.S. entity.' However, the
petitioner did not submit any documentation to support its claim regarding the ownership and control of the
The AAO acknowledges that counsel claims on appeal that the beneficiary now owns 100% of the
company. Counsel submits a copy of the company's stock certificate number 3, which states that "Rosa
Navarrete" owns "1000/0 shares of the common stock" of the U.S. company. However, the stock certificate is
dated March 18, 2005, after the petition was filed, and is therefore irrelevant in determining the petitioner's
eligibility for the classification sought. The petitioner must establish eligibility at the time of filing the
nonimmigrant 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). Moreover, even if this evidence was contemporaneous with the petitioner's filing, as
discussed infra, it is not valid under Georgia law.
SRC 05 048 52352
Page 9
foreign entity. With respect to the U.S. entity, the petitioner submitted (1) a copy of stock certificate number
2, undated, indicating that the beneficiary owns "50% shares of the common stock" of the U.S. entity; (2) a
copy of a stock investment letter dated March 18, 2003 in connection with the purchase of "50% shares" of
the U.S. entity by the beneficiary; and (3) a copy of a consent of shareholders to the transfer of "50% shares"
(however, the quality of the copy is such that the date and name of the transferee are illegible). First, various
defects in the documents submitted, such as the lack of a date on the share certificate and the references in
each document to the beneficiary's ownership of "500/0 shares" of the company, without indicating the exact
number of shares owned or the number of shares of the company issued and outstanding, cause the AAO to
question the validity of these documents. Under Georgia law, a share certificate must state upon its face the
number and class of shares which such certificate represents. Ga. Code Ann. § 14-2-625(b )(3) (2006). Since
the share certificate submitted does not comply with local law and is ambiguous as to what it represents, it
does not adequately prove that the beneficiary owns or controls the petitioner. Second, as general evidence of
a petitioner's claimed qualifying relationship, these documents are not sufficient evidence to determine
whether a stockholder maintains ownership and control of a corporate entity. The corporate stock ledger,
stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also
be examined to determine the total number of shares issued, the exact number issued to the shareholder, and
the subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning company
must disclose all agreements relating to the voting of shares, the distribution of profit, the management and
direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter ofSiemens
Medical Systems, Inc., 19 I&N at 362. The petitioner has not submitted any of these additional documents.
Without full disclosure of all relevant documents, Citizenship and Immigration Services is unable to
determine the elements of ownership and control. In light of the above deficiencies in the evidence, the AAO
finds the petitioner has failed to establish that there exists a qualifying relationship between the U.S. and
foreign entities. For this additional reason, the petition will be denied.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if she shows that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043.
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. § 1361. Here, that burden has not been met. Accordingly, the
director's decision will be affirmed and the petition will be denied.
ORDER: The appeal is dismissed.