dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
File: WAC 04 027 51599 Office: CALIFORNIA SERVICE CENTER Date: APR 2 4 2m 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 027 5 1599 
Page 2 
DISCUSSION: The Director, California 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 CEO and managing 
director as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of California that operates a Peruvian specialty restaurant. The petitioner claims that it 
is the affiliate of located in Mollendo, Peru. The beneficiary was initially granted a 
one-year period in the United States and the petitioner now seeks to extend the 
beneficiary's stay for an additional two years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
erred in determining that the beneficiary was not acting as a manager or executive. Counsel argues that by 
virtue of his position as the petitioner's CEO his duties are at the managerial and executive level, particularly 
since the duties of the beneficiary involve significant authority over the generalized policy of the organization 
and since substantially all of his duties are managerial or executive. 
To establish eligibility for the L-1 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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC 04 027 51599 
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(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 himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 9 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(a) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(b) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(c) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(d) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(e) 
 Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 
 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and 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 
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(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 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 October 27, 2003, the petitioner stated that currently, the beneficiary was actively pursuing 
other locations and continued to be in the process of marketing and promoting the first restaurant location it 
had recently opened for the petitioner. With regard to his duties, the petitioner described them as follows: 
[The beneficiary] will give instruction and direction to managers as regards to operations 
and development methods and strategies. [The beneficiary] has full authority to hire and 
fire all employees of the business, [sic] he will when required oversee training programs 
as performed by the general manager. 
On March 17, 2004, the director requested additional evidence. 
 Specifically, the director requested an 
organizational chart for the U.S. and foreign entities, the petitioner's quarterly tax returns and payroll 
summaries, a statement of the petitioner's staffing level, the titles, duties, and educational levels of all the 
petitioner's employees, and finally, a more detailed description of the beneficiary's duties. 
In a response dated June 8, 2004, the petitioner submitted quarterly wage reports for the last quarter of 2002, 
all of 2003, and the first quarter of 2004. Each report indicated that the beneficiary received wages, and each 
report included a different combination of employees in addition to the beneficiary. During the quarter 
ending December 3 1, 2003, during which the extension request was filed, the documentation indicated that 
the petitioner employed the beneficiary, a store manager, and two other employees in unidentified positions. 
Additionally, the petitioner provided an organizational chart for the U.S. entity which indicated that the 
beneficiary oversaw five employees, namely: 
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Finally, the petitioner provided the following updated description of the beneficiary's duties: 
Assign daily tasks to Store Manager. Ensure that all tasks are completed in a timely fashion 
by the management team and staff. (5% of time) 
Weekly management meeting; Create and discuss restaurant policy, financial status and sales 
projections, promotional plans, customer satisfaction level, and other operational concerns. 
(1 5% of time) 
Review weekly sales audits as prepared by accountant. 
 (10% of time) 
Review summary of company purchases with manager via tradebills, purchase orders, and 
inventories. (5% of time) 
Review the cost analysis on weekly purchases as prepared by Store Manager. 
(10% of time) Order changes and expenditures as needed. 
Establishing rapport with executives of suppliers and conduct warehouse visitation and sales 
meetings. Negotiating and Entering contracts with suppliers. 
 (25% of time) 
Discuss and Monitor quality control of products and facility with the restaurant manager. 
(5% of time) 
Research other states for possible [petitionerl's locations, currently looking at Miami, Los 
Angeles, and Tennessee. 
 (10% of time) 
Supervise payments of taxes and other financial obligations. 
 (5% of time) 
Supervise monthly audits of deposits and payments made. 
 (10% of time) 
On June 24, 2004, the director denied the petition. The director determined that the petitioner had failed to 
establish that the beneficiary would be functioning in a primarily managerial or executive capacity. 
Specifically, the director noted that the evidence provided in support of the extension did not support a 
finding that the petitioner's business required the services of a manager or executive and concluded that, based 
on the record, the beneficiary was not operating in a capacity that was primarily managerial or executive. 
On appeal, counsel for the petitioner restates the relevant portions of the definitions of both managerial and 
executive capacity, and claims that the beneficiary performs the stated duties of both capacities. Counsel 
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Page 6 
challenges the director's conclusion that the beneficiary's duties were described in only broad and general 
terms, and claims that the description of duties provided was thorough, accurate, and adequately described the 
nature of the beneficiary's position in the United States. Counsel further states that as of the filing of the 
appeal, the petitioner now employs seven employees and that the U.S. business is prospering. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2(1)(3)(). 
 The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner, however, does not clarify whether the beneficiary is claiming to be primarily 
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under 
section 101(a)(44)(B) of the Act. Instead, counsel merely claims that the beneficiary's duties are managerial 
or executive, which appears to be requesting consideration of both classifications in the event that the 
beneficiary's duties fail to meet the requirements of one of the definitions. A beneficiary may not claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If the 
petitioner chooses to represent the beneficiary as both an executive and a manager, it must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the statutory 
definition for manager. 
The definitions of executive and managerial capacity have two main parts. First, the petitioner must show that 
the beneficiary performs the high level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
The description of the beneficiary's duties provided in the petitioner's initial letter of support was extremely 
generalized and at times seemed to paraphrase the regulatory definitions. For example, descriptions such as 
"full authority to hire and fire all employees" and "oversee training programs" do little to clarify what the 
beneficiary does on a daily basis. 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. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Suva, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
In response to the request for evidence, the petitioner submitted a more detailed description of the 
beneficiary's duties, which included a breakdown of the percentage of time devoted to each stated duty. 
Specifically, counsel indicates that 25% of the beneficiary's time is spent negotiating contracts and building a 
rapport with clients. Other major duties include the weekly management meeting (15%), review of weekly 
sales audits (lo%), review of cost analysis (lo%), researching potential markets in other states for expansion 
(lo%), and supervising monthly audits of deposits and payment (10%). Taken together, these duties compile 
80% of the beneficiary's time. 
On appeal, it is noted that counsel submits a newly-updated description of the beneficiary's duties, which 
includes new percentage breakdowns of the time the beneficiary allegedly devotes to each of these 
WAC 04 027 5 1599 
Page 7 
newly-identified tasks. This evidence, however, will not be considered. On appeal, a petitioner cannot offer a 
new position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izurnrni, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Although the AAO notes that the petitioner's 
business has been expanding since the filing of the extension request, the relevant evidence for purposes of 
this discussion is the nature of the beneficiary's position at the time of filing, and not during the present time 
frame. 
Therefore, while the petitioner's more specific description of duties provided in response to the request for 
evidence is helpful to clarify the nature of an average workday for the beneficiary, it presents additional 
problems, because traditionally, negotiating contracts and reviewing financial figures do not fall directly 
under traditional managerial or executive duties as defined in the statute. Rather, these duties are essential to 
the viability of the petitioner's business. An employee who primarily performs the tasks necessary to produce 
a product or to provide services is not considered to be employed in a managerial or executive capacity. 
Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Furthermore, the nature of the petitioner's staffing levels and hierarchical structure is unclear based on the 
evidence provided. In response to the request for evidence, the petitioner submitted an organizational chart 
indicating that the beneficiary oversees an accountant, a store manager, two chefs, and a restaurant worker. 
The quarterly tax return submitted for the period in which the extension request was filed, however, does not 
list the same employees as being on the petitioner's payroll at that time. The quarterly return for the quarter 
ending December 3 1,2003 indicates that the petitioner employed the beneficiary, the store manager identified 
in the organizational chart, and two other employees whose position titles, education, and duties are not 
known. The AAO notes that after review of all quarterly tax returns, the current staff of subordinates, 
excluding the store manager, does not appear to have worked for the petitioner until at least April of 2004, 
which is five months after the petition's filing date. 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 of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
Therefore, the record reflects that at the time of filing, the petitioner employed the beneficia 
 the store 
manager, and two other general employees: an- No 
information regarding the position titles, duties, or educational levels was provided for t ese two emp oyees. 
In addition, no information regarding the duties of ~r.as provided other than his position title. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 3 101 (a)(44)(A)(ii) of the Act. 
Though requested by the director, the petitioner did not provide the level of education required to perform the 
duties of the beneficiary's subordinates, and further did not provided the requested details regarding their 
WAC 04 027 5 1599 
Page 8 
positions. Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. tj 103.2(b)(14). 
 Thus, the petitioner has not established that these 
employees possess or require an advanced degree, such that they could be classified as professionals. Nor has 
the petitioner shown that these employees supervise subordinate staff members or manage a clearly defined 
department or function of the petitioner, such that they could be classified as managers or supervisors. Thus, 
the petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional, or 
managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
Based on the small number of subordinates, whose positions and duties are not readily identified, it appears 
that the beneficiary is not primarily engaged in managerial or executive tasks. Specifically, there are a 
multitude of non-qualifying duties associated with the maintenance and expansion of the petitioner's 
restaurant, none of which have been clearly delegated to a staff of subordinates. Absent evidence to the 
contrary, therefore, it must be concluded the beneficiary is heavily engaged in these non-qualifying duties. 
As noted by counsel on appeal, if staffing levels are used as a factor in determining whether an individual is 
acting in a managerial or executive capacity, CIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. See 9 
101(a)(44)(C) of the Act, 8 U.S.C. 9 1101(a)(44)(C). In the present matter, however, the regulations provide 
strict evidentiary requirements for the extension of a "new office" petition and require CIS to examine the 
organizational structure and staffing levels of the petitioner. 
 See 8 C.F.R. 9 214.2(1)(14)(ii)(D). 
 The 
regulation at 8 C.F.R. tj 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of 
approval of the petition to support an executive or managerial position. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and administrative 
tasks, the petitioner is ineligible by regulation for an extension. 
In this matter, the petitioner indicates that it took seven months to obtain necessary permits and begin 
operating the business, but that the petitioner's business is now successfully expanding and slowly exiting its 
growth phase. While counsel for the petitioner alleges on appeal that the petitioner had since hired additional 
employees for a total of seven, including the beneficiary, this allegation is irrelevant. 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). 
The record, therefore, is not persuasive in demonstrating that the beneficiary has been or will be employed in 
a primarily managerial or executive capacity. The petitioner indicates that it plans to hire additional managers 
and employees in the future and further expand the business. However, as noted above, 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. Id. Furthermore, 
8 C.F.R. tj 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval 
of the petition to support an executive or managerial position. There is no provision in CIS regulations that 
allows for an extension of this one-year period. Counsel continually alleges that the petitioner is still in a 
start-up phase and therefore should be treated accordingly. If the business is not sufficiently operational after 
one year, however, the petitioner is ineligible by regulation for an extension. In the instant matter, the 
WAC 04 027 5 1599 
Page 9 
petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial or 
executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. 8 214.2(1)(3). 
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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
Beyond the decision of the director, the petitioner has provided insufficient evidence to establish that a 
qualifying relationship exists between the petitioner and the foreign entity. The regulation and case law 
confirm that ownership and control are the factors that must be examined in determining whether a qualifying 
relationship exists between United States and foreign entities for purposes of this visa classification. Matter 
of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 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 of Church Scientology 
International, 19 I&N Dec. at 595. 
In this matter, the petitioner claims that an individual, namely, Rosario Katherine Chirinos Laguna, owns 
100% of both the petitioner and the foreign entity. As general evidence of a petitioner's claimed qualifying 
relationship, stock certificates, the corporate stock certificate ledger, stock certificate registry, corporate 
bylaws, and the minutes of relevant annual shareholder meetings must 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 of Siemens Medical Systems, 
Inc., 19 I&N at 362. Without full disclosure of all relevant documents, CIS is unable to determine the 
elements of ownership and control. The director requested evidence establishing the ownership of the foreign 
entity in the request for evidence in the form of an annual report. The petitioner responded by stating that 
because the foreign entity is a sole proprietorship, it was not required to file such a report, and therefore 
omitted any documentary evidence establishing the ownership structure of the foreign entity. Without clear 
evidence of the ownership structure of that entity, the AAO cannot determine that the petitioner and foreign 
entity are aff~liates. For this additional reason, the petition may not be approved. 
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. 200 I), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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ORDER: The appeal is dismissed.