dismissed L-1A Case: Restaurant

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 08 070 5 1203 Office: VERMONT SERVICE CENTER 
 DateQ~~ 0 1 2008 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 10 1 (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 Mher inquiry must be made to that office. 
/Robert P. ~iek, Chief 
Administrative Appeals Office 
EAC 08 070 5 1203 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend its employment of the beneficiary as its store 
manager as an L-1 A nonirnmigrant intracompany transferee pursuant to section 10 1 (a)(lS)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ I 10 1 (a)(lS)(L). The petitioner is a Texas corporation 
that owns and operates a restaurant. The petitioner seeks to continue to employ the beneficiary as its store 
manager from January 12,2008 until February 23,2010. 
The director denied the petition based on the conclusion that the petitioner failed to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. The 
AAO notes that the director's consideration of the beneficiary's salary was inappropriate in so much as the 
director relied, at least in part, on this factor in determining that the beneficiary does not occupy a bona fide 
managerial or executive position. As such, the director's observation with regard to an irrelevant factor is 
hereby withdrawn. Nevertheless, the record supports the director's ultimate conclusion with regard to the 
petitioner's eligibility for the immigration benefit sought. The director's decision will therefore be affirmed. 
A full discussion of the underlying basis for the AAO's conclusion is provided below. 
On appeal, counsel disputes the director's conclusion, arguing that the petitioner has two previously approved 
Form 1-1 29s filed on behalf of the instant beneficiary, which are based on facts similar to those in the instant 
matter. A brief and supporting evidence are also provided. 
To establish eligibility for the L-1 nonirnmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101 (a)(lS)(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. 3 214.2(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. 
EAC 08 070 51203 
Page 3 
(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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 withtn the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 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. 
The primary issue in this proceeding is whether the United States petitioner will employ the beneficiary in a 
primarily managerial or executive capacity under an approved petition. 
EAC 08 070 5 1203 
Page 4 
In su ort of the Form 1-129, the petitioner provided a letter dated January 8, 2007 from its president, = 
, who provided the following list of the duties and responsibilities the beneficiary would be expected 
to carry out in his proposed position with the U.S. entity: 
The Pleneficiary will bear responsibility to [sic] oversee all aspects of operations in the 
restaurant, including sales, costs, hiring and terminating, ordering, inventory and 
marketing. 
He will exercise discretion over the day-to-day routines and operations of the restaurant to 
keep it running smoothly. 
He will attend the monthly co-op meeting, [sic] with the authority to vote. 
The [bleneficiary will also be responsible to [sic] implement Pizza Inn [clorporate's 
concept or products, and through management of his lower level employees maintain food 
quality. [He] is also responsible to [sic] meet financial and operational goals set by the 
company. 
He will bear responsibility to [sic] supervise and control, assign and schedule duties, 
motivate and develop each employee to maintain a friendly and efficient restaurant, with 
authority to hire and fire personnel. 
[Tlhe [beneficiary's proposed] position . . . is within a multi-tier reporting structure. 
The [clhief [clook reports directly to the [beneficiary], and the four (4) cooks report 
directly to the [clhief [clook. 
In addition, the [hlead [dlriver reports to the [beneficiary], and the four (4) [dlrivers report 
to the [hlead [dlriver. 
In addition, two (2) receptionists report to the [hlead [rleceptionist who in turn reports to 
the [beneficiary]. 
The [beneficiary] bears supervisory control over the [clhief [clook, the [hlead [dlriver, and 
the [hlead [rleceptionist, as well as all personnel beneath those mid-manager positions. 
The [bleneficiary will maintain and continuously improve the company's high standard of 
cleanliness and manage through employees below him [for] preventative maintenance of 
the restaurant. 
He will review individual performance[s] at least every three months and recommends [sic] 
salary adjustments in wages as deserved, as well as bear responsibility for purchase of food, 
beverages, and supplies as needed and will supervise food preparation to ensure the quality 
EAC 08 070 51203 
Page 5 
and standards of restaurant products. 
The [bleneficiary will utilize all management tools to keep neat, accurate and current 
records providing the historical data to effectively plan for increased sales and profit. 
He will supervise the [alssistant [sltore [mlanager in the maintenance of proper accounting 
and cash handling procedures, proper record retention, and sales reporting to be followed as 
required by the franchise agreement. 
He will identify opportunities to improve quality in the store. 
The petitioner also provided an organizational chart, depicting the beneficiary's position as third from the top 
within the company's hierarchy, subordinate directly to the company's vice-president. The chart indicates that 
the beneficiary's direct subordinate is an assistant manager, whose direct subordinates include the head cook, 
the head driver, and the head receptionist. Thus, according to the hierarchy depicted in the organizational 
chart, the beneficiary is purportedly relieved from having to oversee the restaurant employees by virtue of 
having an assistant manager who is depicted as the individual with this oversight responsibility. 
On March 3, 2008, Citizenship and Immigration Services (CIS) issued a request for additional evidence, 
(WE) instructing the petitioner to indicate how the beneficiary's duties in the United States have been and 
would be within a qualifying managerial or executive capacity. The petitioner was asked to provide job 
descriptions for its employees accompanied by hourly breakdowns of their assigned duties. The petitioner 
also requested that the petitioner provide its quarterly tax returns for all four quarters of 2007, as well as 
copies of any IRS Forms W-2 and W-3 the petitioner issued in 2007. 
In response, the petitioner provided a letter dated April 15, 2007, which included the following additional 
description of the beneficiary's proposed employment: 
The [bleneficiary exercises discretion over the day-to-day routines and operations of the 
restaurant to keep it running smoothly primarily through [the] management of subordinate 
employees. These are the employees who prepare the food and report to the [hlead [clook, 
and the employees to take orders and report to the [hlead [rleceptionist. It is on thee 
activities that the [bleneficiary spends the vast majority of his time. 
The employment of [hlead [clook, [hlead [dlriver, and [hlead [rleceptionist relieve the 
[bleneficiary of the need to directly supervise the employees immediately below each of 
them. 
The employment of lower level employees, such as cooks, drivers, and receptionists 
involve the core tasks that are required to be done to operate the restaurant. Our statements 
relating to purchase of food, beverages, and supplies as needed, occur resulting fiom 
reports others make to the [bleneficiary, not from his own hands-on primary efforts to 
determine. 
EAC 08 070 5 1203 
Page 6 
[The petitioner] has assistance to [sic the b eneficia 
 as [.]tore [mlanger in the form of 
an [alssistant [sltore [mlanger, Mr. ]W~O assist[s] the [bleneficiary in 
preparing reports, maintaining inventory, executing advertising plans, conducting 
interviews, ensuring adherence to cash handling procedures, maintaining weekly revenue 
and expenses and maintaining and updating monthly spreadsheets which he presents to the 
[sltore [mlanager, relieving the [bleneficiary of directly performing all of these tasks. 
The [bleneficiary has direct supervisory management control over the [hlead [clook, the 
[hlead [dlriver, and [sic] the [hlead [rleceptionist, [and] the [alssistant [mlanager. He has 
indirect supervisory control over lower level personnel beneath those mid-manager 
positions. 
The way that the [bleneficiary implements Pizza Inn Corporate's concept of products, [sic] 
is through management of lower level employees to maintain food quality. In this way, the 
[bleneficiary uses the personnel within his chain of command to meet food quality 
requirements making each mid-level manager responsible to the [bleneficiary for the 
performance of lower level employees. He cannot and does not do this alone. 
The [hlead [clook reports to the [sltore [mlanager, and the four (4) cooks reports directly 
to the [hlead [clook, including an [alssistant [clook within this structure. 
In addition, the [hlead [dlriver reports to the [sltore [mlanager, and the four (4) [dlrivers 
report to the [hlead [dlriver, including an [alssistant [dlriver. 
In addition, two (2) receptionists report to the [hlead [rleceptionist who in turn reports to 
the [sjtore [mlanager. 
Tasks such as maintaining and continuously improving [the petitionerl's high standard of 
cleanliness occur through the chain of command for employees below the [bleneficiary 
related to preventative maintenance of the restaurant. 
Tasks such as review of individual performance at least every three months and making 
salary adjustments in wages as deserved, are primarily managerial tasks. 
The [bleneficiary's supervision of food preparation to ensure the quality and standards of 
restaurant products is also through the [hlead [clook and the [clooks as lower level 
employees, not directly. 
The [bleneficiary supervises and controls, assigns and schedules duties. He sets the tone 
and motivates and develops each employee to maintain a friendly and efficient restaurant, 
and he has authority to hire and fire employees who work for him. 
While non-qualifying tasks such as utilizing all management tools to keep neat, accurate 
EAC 08 070 51203 
Page 7 
and current records providing the historical data to effectively plan for increased sales and 
profit, identifying opportunities to improve store quality, and technically bearing overall 
responsibility for store operations exist here as in any business, the primary activities in 
which the [bleneficiary engages involve the direct management of persons through the 
chain of command in the operation of the store to make the store run smoothly and 
efficiently. 
The petitioner also provided a list of fourteen employees and hourly breakdowns of their respective job 
duties. While the petitioner provided each employee's corresponding W-2 statement for 2007, it is unclear 
which employees, if any, were still working for the petitioner's pizza restaurant in January 2008 when the 
petition was filed. 
On May 6, 2008, the director denied the petition discussing the job duties and responsibilities of the 
petitioner's restaurant employees. The director determined that the petitioner's staff is primarily comprised of 
non-professional employees whose positions do not require college degrees. The director found that the 
nature of the subordinates' job duties suggests that the position occupied by the beneficiary is neither 
managerial nor executive in nature. The director also commented on the beneficiary's job description, finding 
that the petitioner provided an overly broad job description, which included only general managerial functions 
but failed to specify exactly which of the beneficiary's job duties can be deemed managerial or executive. 
The AAO notes that the director erred in considering the beneficiary's salary as a factor in whether or not he 
has been and would be employed in a qualifying capacity. The director also made reference to the petitioner's 
2006 tax return, which is not relevant in the matter of a petition filed in 2008. Nevertheless, the director 
properly concluded that in light of the petitioner's organizational hierarchy and the lack of specific managerial 
duties attributed to the beneficiary, it cannot be concluded that the beneficiary has been and would be 
employed in a managerial or executive capacity as previously claimed. 
On appeal, counsel vehemently opposes the director's decision, citing three grounds as the basis for his 
arguments . 
First, counsel refers to the petitioner's previously approved L-1A petitions for the same beneficiary. 
However, each nonimmigrant petition is a separate record of proceeding with a separate burden of proof; each 
petition must stand on its own individual merits. CIS is not required to assume the burden of searching 
through previously provided evidence submitted in support of other petitions to determine the approvability of 
the petition at hand in the present matter. The prior nonirnmigrant approvals do not preclude CIS from 
denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). 
Furthermore, if the previous nonirnrnigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comrn. 1988). It would be absurd to suggest that CIS or 
EAC 08 070 5 1203 
Page 8 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1 988). 
Additionally, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 11 39 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Next, counsel provides a copy of an interoffice memorandum, which sets guidelines for denying petitions that 
had been previously approved for the same petitioner.1 Counsel asserts that the director in the present matter 
failed to comply with pertinent instructions issued in the cited memorandum. However, CIS memoranda 
merely articulate internal guidelines for service personnel; they do not establish judicially enforceable rights. 
An agency's internal personnel guidelines "neither confer upon [plaintiffs] substantive rights nor provide 
procedures upon which [they] may rely." Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 
2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th Cir. 1987)). 
Lastly, counsel asserts that the director confused the duties for which the beneficiary "bears responsibility" 
with those duties that the beneficiary personally performs. Counsel states that the director ignored the 
petitioner's "[two-]tier managerial structure" in which the beneficiary directly oversees the work of three 
managerial employees, who in turn oversee the work of other lower-level employees within the petitioner's 
organizational hierarchy. Counsel contends that the petitioner has provided sufficiently detailed job 
descriptions, which clarify the actual job duties the beneficiary will perform. 
Upon review, the AAO finds that counsel's assertions are not persuasive. 
Despite the petitioner's depiction of a multi-tiered management structure, which purports to establish that the 
beneficiary is separated from lower-level employs by three managerial employees, the record does not 
establish that the head cook, the head driver, and the head receptionist are managerial or supervisory 
employees as claimed. An employee will not be considered to be a supervisor simply because of a job title, 
because he or she is arbitrarily placed on an organizational chart in a position superior to another employee, 
or even because he or she supervises daily work activities and assignments. Rather, the employee must be 
shown to possess some significant degree of control or authority over the employment of subordinates. See 
generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (Cited in 
Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11,2007)). 
In the present matter, while the petitioner stated that the receptionists, drivers, and cooks are under the direct 
supervision of the head receptionist, head driver, and head cook, respectively, there is no indication that the 
heads of these respective functions have any control or authority over any employees. Despite the fact that all 
1 
 See Memorandum from William R. Yates, Associate Director for Operations, Signzjicance ofa Prior CIS 
Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for 
Extension of Petition Validity (April 23,2004). 
EAC 08 070 5 1203 
Page 9 
three "heads" have been charged with responsibilities to schedule and train employees within their respective 
functions, it appears that control and authority over all staff members, including their performance reviews 
and salary increases, remains with the beneficiary. There is no indication that any of the heads review the 
performance of other employees or that they have any authority to hire and fire those within their given 
functions. Furthermore, while the petitioner has provided an organizational chart indicating that the assistant 
store manager supervises the head cook, the head driver, and the head receptionist, the beneficiary's job 
description does not support such a conclusion. In fact, the petitioner has failed to clarify exactly what role 
the assistant manager would play within the organizational hierarchy if the head of the restaurant's three 
functions are required to report directly to the beneficiary. In summary, the multi-tier structure that the 
petitioner has artificially created does not persuade the AAO that the beneficiary has not and would not act as 
a first-line supervisor of a staff of non-professional employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that 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)(A)(iv) of the Act; 8 C.F.R. $214.2(1)(1)(ii)(B)(2). 
Additionally, as properly noted by the director, the petitioner's descriptions of the beneficiary's proposed 
position lack sufficient detail to convey a meaningful understanding of what actual tasks the beneficiary 
would carry out on a daily basis. This information is particularly crucial in the context of the petitioner's 
business wherein the beneficiary appears to be filling the role of a first-line supervisor. Despite the 
petitioner's repeated claims that the beneficiary is not acting as a first-line supervisor, the AAO cannot make 
an accurate determination without a detailed description of the duties assigned to the beneficiary. As 
determined by precedent case law, the actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter, the petitioner placed great emphasis on the duties that the beneficiary would not need to 
perform, rather than affirmatively stating which duties the beneficiary would perform. The petitioner 
repeatedly stated that as a result of the lower-level employees who have been and would continue to take 
customers' orders and cook and delivery the food, the beneficiary's time has not and would not be consumed 
with non-qualifying duties. In other words, the petitioner believes that the only non-qualifying duties are 
those that are directly related to customers' food orders. However, the petitioner has provided no 
documentation to establish who carries out the marketing and advertising duties for the restaurant and who 
performs the daily bookkeeping and accounting tasks that are inherent to operating a retail-based business. 
Rather, the petitioner stated that the primary portion of the beneficiary's time is devoted to "the direct 
management of persons through the chain of command." The petitioner does not provide insight as to the 
specific tasks that are associated with the beneficiary's management responsibilities. Moreover, in light of the 
above determination that the beneficiary's subordinate staff does not consist of professional, managerial, or 
supervisory employees, the AAO can only conclude that the beneficiary's managerial responsibilities require 
the performance of non-qualifying duties. While the petitioner has failed to specify exactly what duties the 
beneficiary has and would perform, the mere fact that the petitioner has stated that the primary portion of the 
beneficiary's time will be consumed by the management of non-professional, non-managerial, and non- 
supervisory employees, it cannot be concluded that the beneficiary has been or would be employed in a 
qualifying managerial or executive capacity. 
EAC 08 070 5 1203 
Page 10 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. 8 U.S.C. 3 1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.