dismissed L-1A Case: Restaurant

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preventclearlyunwarranted
invasionofpersonalprivacy
PUBLICCopy
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 05 104 50414 Office: TEXAS SERVICE CENTER Date: JUl .() 0 2001
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § I 10I (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.
"'/"~"/~.,.-- .:>L../" ~
Robert . iemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 10450414
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 visa petition seeking to extend the employment of its restaurant
manager as an L-lA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C . § 1101(a)(l5)(L). The petitioner is a corporation
organized under the laws of the State of Florida and alleges to operate a restaurant. 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 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 to the petitioner asserts that the beneficiary's
duties are primarily those of a function manager. 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)(l5)(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 (l)(I)(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
services in the United States; however , the work in the United States need not be the
same work which the alien performed abroad.
SRC 05 10450414
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The regulation at 8 C.F.R. § 214.2(l)(l4)(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)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(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.
The primary 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 IOI(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
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
SRC 05 10450414
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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 petitioner does not clarify in the initial petition 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. On appeal, counsel asserts that the beneficiary manages an essential
function of the organization. A beneficiary may not claim to be employed as a hybrid "executive/manager"
and rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume
that the petitioner is claiming that the beneficiary will be employed either as a manager or an executive and
will consider both classifications.
The petitioner described the beneficiary's job duties in the Form 1-129 as follows: "[The beneficiary] is the
manager of a specialty Indian/Chinese restaurant in St. Augustine, FL. He will market the restaurant."
Counsel further indicated in a letter dated February 25, 2005 that this restaurant was acquired in January 2005
even though the initial "new office" petition was approved in March 2004.
On May 27, 2005, the director requested additional evidence. The director requested, inter alia, job
descriptions for the beneficiary and subordinate employees.
In response, counsel to the petitioner provided a letter dated August 18, 2005 describing the petitioner's
staffing as follows:
Currently, [the petitioner] employs a total of 2 employees at the St. Augustine location as
well as 1 part time employee. This number does not include [the beneficiary]. The names of
the full time employees are:
1. - Chef/Cook - She has been working for the same restaurant
~years. She is in charge of cooking the different menu items,
kitchen clean up and efficiency.
2. _ Waitress/Cashier -_is in the 11 th grade and has been
working for the restaurant for the past several months. She waits on
customers and often acts as cashier.
3. - Part time Waitress/Cashier __also supplements the
restaurant during busy times as a waitress and cashier. She is also in high
school.
SRC 05 10450414
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[The beneficiary] manages these employees and primarily oversees the quality control,
financial, supply monitoring aspects of the store. He checks on new menu additions,
conducts business to business communication (between suppliers/store
signage/accountants/lawyers) and generally manages the location day-to-day.
On November 23, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, counsel to the petitioner asserts that the beneficiary's duties are primarily those of a function
manager. Counsel also attempted to add duties to the beneficiary's previously submitted job description.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 214.2(l)(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 Citizenship and
Immigration Services (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 the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
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. As explained above, 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.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
primarily in a "managerial" capacity or that he will supervise and control the work of other supervisory,
managerial, or professional employees. In support of its petition, the petitioner has vaguely described the
beneficiary as the manager of a restaurant. He manages three employees (a cook and two waitresses) and
"generally manages the location day-to-day." However, acting as a first-line supervisor of non-professional
restaurant staff is not a managerial duty. A managerial employee must have authority over day-to-day
operations beyond the level normally vested in a first-line supervisor, unless the supervised employees are
professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N
Dec. 593,604 (Comm. 1988).1
IThe petitioner has not established that the beneficiary will manage professional employees. In evaluating
whether the beneficiary manages professional employees, the AAO must evaluate whether the subordinate
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Section
101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not be
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Likewise, monitoring supplies and checking on menu additions are operational tasks which do not rise to the
level of managerial duties, and it has not been established that a subordinate staff exists which would relieve
the beneficiary of the need to perform related tasks inherent to his function as a restaurant manager. The fact
that the petitioner has given the beneficiary a managerial title, or is the sole managerial employee, does not
establish that the beneficiary is actually performing managerial duties. 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 10I(a)(44)(A) and (B) of the Act (requiring that
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church
Scientology International, 19 I&N Dec. at 604.
Overall, the petitioner has revealed so little about what the beneficiary will do on a day-to-day basis other
than manage three employees in their operation of a restaurant that it has not been established that the
beneficiary will be primarily engaged in performing managerial duties. Specifics are clearly an important
indication of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F.
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
On appeal, counsel to the petitioner attempts to supplement the beneficiary's job description and asserts that
the beneficiary manages an essential function of the organization? However, the petitioner has not
established that the beneficiary manages an essential function. 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. The term "essential function" is not defined by statute or regulation. If a petitioner claims that the
beneficiary is managing an essential function, the petitioner must furnish a written job offer that clearly
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.D. 1966). As the petitioner has not revealed the educational background
or skill level of the subordinate employees, it has not been established that they are professional employees.
2The additional "job duties" listed by counsel for the first time on appeal will not be considered by the AAO.
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 Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Moreover, the
director specifically requested a description of the beneficiary's "exact duties" in the Request for Evidence.
The petitioner provided a response. The petitioner cannot, for the first time on appeal, materially supplement
this job description. The AAO will not consider this evidence for any purpose. See Matter of Soriano, 19
I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be
adjudicated based on the record of proceeding before the director.
SRC 05 10450414
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describes the duties to be performed in managing the essential function, i.e., 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. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the
function rather than performs the duties related to the function. In this matter, the petitioner has not provided
evidence that the beneficiary manages an essential function. The petitioner's vague job description fails to
document what proportion of the beneficiary's duties would be managerial functions, if any, and what
proportion would be non-managerial. Also, as explained above, the record establishes that the beneficiary is
performing the tasks related to the function and is acting as a first-line supervisor of non-professional
restaurant employees. Absent a clear and credible description of the time spent by the beneficiary performing
managerial duties, the AAO cannot determine what proportion of his duties would be managerial, if any, nor
can it deduce whether the beneficiary is primarily performing the duties of a function manager. See IKEA US,
Inc. v. U.s. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day
basis. Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line
supervisor and is performing non-qualifying administrative or operational tasks. Therefore, the petitioner has
not established that the beneficiary is employed primarily in an executive capacity.
Although a company's size alone, without taking into account the reasonable needs of the organization, may
not be the determining factor in approving a visa for a multinational manager or executive (see §
101(a)(44)(C) of the Act), it is appropriate for CIS to consider the size of the petitioning company in
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees
who would perform the non-managerial or non-executive operations of the company, or a "shell company"
that does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F.
Supp. 2d 7, 15 (D.D.C. 2001). The reasonable needs of the petitioner serve only as a factor in evaluating the
lack of staff in the context of reviewing the claimed managerial or executive duties. The petitioner must still
establish that the beneficiary is to be employed in the United States in a primarily managerial or executive
capacity, pursuant to sections 101(a)(44)(A) and (B) of the Act. As discussed above, the petitioner has not
established this essential element of eligibility.
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Accordingly , in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties , and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner has not established that it was "doing business" during its
first year in operation as required by 8 C.F .R. § 214.2(1)(14 )(ii)(B). The petitioner's original "new office"
petition was approved on March 2, 2004. However, as explained in the letter dated February 25, 2005, the
restaurant now being operated was not acquired until January 2005 , approximately 10 months after the
approval of the "new office" petition. The record is devoid of any evidence of business activity prior to the
acquisition of the restaurant. Moreover , the record is unclear as to whether the petitioner even truly owns
and/or operates the restaurant. The petitioner avers in the Form 1-129 that the beneficiary purchased the
restaurant in January 2005, although other evidence suggests that the petitioner actually employs the
individuals working there. Regardless, the petitioner fails to explain this serious inconsistency , or to establish
that the petitioner has been doing business in the United States as required by 8 C.F.R. § 214.2(l)(14)(ii)(B). 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). 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. Id. at 591.
Accordingly , the petitioner has not established that it was "doing business" during its first year in operation as
required by 8 C.F.R. § 21 4.2(l)(l4)(ii)(B), and the petition may not be approved for this additional reason.
The initial approval of an L-l A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of the petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
subsequent petition. See section 291 of the Act , 8 U.S.C. § 1361.
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 Dor 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 it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc ., 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. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.