dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re: 13477669 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 29, 2020 
The Petitioner, an Italian restaurant, seeks and to temporarily employ the Beneficiary as the 
"Operations Manager" of its new office I under the L-lA nonimmigrant classification for 
intracompany transferees . See Immigration and Nationality Act (the Act) Section 10l(a)(l5)(L), 
8 U.S.C. § l 10l(a)(15)(L). The L-lA classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to 
work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that (1) the Beneficiary's foreign employment was in a managerial or 
executive capacity; and (2) the new office would support the Beneficiary in a managerial or executive 
position within one year of the petition's approval. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not establish that it would support the Beneficiary in a managerial capacity2 within 
one year of the petition's approval, as claimed. Since the identified basis for denial is dispositive of 
the appeal, we decline to reach and hereby reserve the Petitioner's arguments regarding the remaining 
ground for denial. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not 
required to make findings on issues the decision of which is unnecessary to the results they reach"); 
see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
1 The term "new office " refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214 .2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
2 The Petitioner does not claim that the Beneficiary's proposed position would be in an executive capacity . 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). 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 or executive capacity. Id. 
Further, in the case of a new office petition, the petitioner must submit evidence to demonstrate that 
the new office will be able to support a managerial or executive position within one year. This 
evidence must establish that the petitioner secured sufficient physical premises to house its operation 
and disclose the proposed nature and scope of the entity, its organizational structure, its financial goals, 
and the size of the U.S. investment. See generally 8 C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The primary issue to be addressed in this discussion is whether the Petitioner established that its 
operation would support the Beneficiary in a managerial capacity within one year of the petition's 
approval. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act. 
In the case of a new office petition, we review a petitioner's business and hiring plans and evidence 
that the business will grow sufficiently to support a beneficiary in the intended managerial or executive 
capacity. The burden is on the Petitioner to establish that it would realistically develop to the point 
where it would require the Beneficiary to perform primarily managerial or executive duties within one 
year of the petition's approval. Accordingly, we consider the totality of the evidence in analyzing 
whether the proposed managerial or executive position is plausible based on a petitioner's anticipated 
staffing levels and stage of development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
If staffing levels are used as a factor in determining whether an individual will be acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) takes into 
account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 101(a)(44)(C) of the Act. 
A. New Office Requirements 
At the time of filing this petition, the Petitioner stated that the Beneficiary will be temporarily 
transferred to the United States to serve as the Operations Manager of the restaurant, which was 
established in 2019. The Petitioner stated that at the time of filing, it employed a marketing specialist, 
an administrative assistant, a cook, a server, and a dishwasher, and claimed that it would employ 12 
individuals by the end of its first year of operations. 
2 
The Petitioner also provided a business plan containing a projected organizational chart that depicts 
the Beneficiary at the top of the organization, overseeing a restaurant manager and a marketing 
specialist. The restaurant manager is depicted as overseeing an administrative assistant, four servers, 
two cooks, and two dishwashers. According to the business plan, all twelve positions will be filled by 
the end of the Petitioner's first year of operations. 
Aside from the projected organizational chart, the business plan also includes a spreadsheet showing 
the projected timeline for hiring employees for each position as well as the anticipated total salary 
expenses for each employee per month. The chart anticipates that all positions will be filled within 
the first six months of operation, with the restaurant manager the last to be hired during the sixth 
month. According to the chart, the Petitioner's anticipated salary expenses for the first 12 months of 
operation are broken down as follows: 
Month 1: $12,492 
Month 2: $14,400 
Month 3: $19,592 
Month 4: $21,050 
Month 5: $21,050 
Month 6: $23,550 
Month 7: $23,550 
Month 8: $23,550 
Month 9: $23,550 
Month 10: $23,550 
Month 11: $23,550 
Month 12: $23,550 
Regarding its revenue and operating expenses, the Petitioner provided an additional spreadsheet 
indicating that it anticipated a gross profit of $436,414, minus anticipated total operating expenses of 
$413,838, resulting in a net profit of $22,577 in its first year. Notably, the business plan did not 
include cost projections for equipment purchase or other restaurant furnishings or supplies; however, 
the record indicates that the Petitioner's premises was previously an Italian restaurant and the 
Petitioner's purchase agreement for the premises included the assets of its predecessor. Regarding 
marketing, the Petitioner indicated that it will promote its business through various social media 
platforms, and will rely on the goodwill and reputation of its predecessor. Based on the historic 
revenues of its predecessor, the Petitioner indicated that it anticipates swift and significant growth, 
and that it hopes to employ 52 individuals by the end of its first five years of operation. 
With regard to the size of the U.S. investment, the Petitioner submitted bank statements indicating two 
initial deposits of$14,000 and $20,000, and a balance of$20,110.85 at the time of filing. Both deposits 
originated from the personal accounts of the Beneficiary and I I not a corporate account 
of the foreign entity. 3 
3 The record indicates that both the Beneficiary and .... I ____ _.I are shareholders of the foreign entity and the U.S. 
entity. 
3 
In denying the petition, the Director determined that the evidence was insufficient to establish the 
financial ability of the foreign entity to remunerate the Beneficiary and to commence doing business 
in the United States. Upon review, we concur with the Director's findings. 
We agree with the Director's determination that the record does not sufficiently document the size of 
the foreign entity's investment in the U.S. operation. Neither the Petitioner's supporting letters or its 
business plan outline the actual or anticipated investment by the foreign entity into the U.S. entity. 
The Petitioner simply restates the qualifying relationship between the foreign and U.S. entities by 
outlining their ownership composition. Although the record indicates that $34,000 was deposited into 
the Petitioner's bank account prior to the filing of the petition, the deposits originated from the personal 
accounts of the foreign entity's shareholders and not the foreign entity itself. The deposits made in 
the personal capacity of these individuals cannot be considered evidence of the foreign entity's 
contributions. While the record contains documentation regarding the financial status of the foreign 
entity, the record contains no documentation demonstrating the amount of its investment, if any, into 
the U.S. operation. 
The Petitioner has also provided an insufficient business plan resulting in an incomplete understanding 
of the Petitioner's hiring timeline and projected costs. Although the Petitioner provided a spreadsheet 
which includes operating and capital costs, it did not adequately itemize projected expenses and 
income. This lack of information about the cost of doing business leads us to question how the 
Petitioner derived the revenue and expenditure estimates that were included in its first-year projection. 
Moreover, although the personnel spreadsheet indicates the anticipated dates of hire for the 
Petitioner's additional employees, and assigns a monetary amount for the salary expenses to be paid 
each month, it does not provide a similar accounting of monthly ( or quarterly) anticipated revenue. 
Rather, the Petitioner provides another spreadsheet with its annual projected sales and operating 
expenses without itemizing the elements that contribute to its annual projection. Instead, it provides 
another chart indicating that it expects to have 42 transactions per day, at an estimated $40 per 
transaction, for 350 days per year. 
While this accounting provides an estimate for the Petitioner's total anticipated annual sales, it does 
not provide a monthly or quarterly breakdown of these projections, such that we can determine whether 
the Petitioner has sufficient fonds to remunerate the Beneficiary. Given the Petitioner's claims that it 
employed the Beneficiary and four other individuals at the time of filing, it is unclear how the 
Petitioner, with a current bank balance of $20,110.85, will remunerate the Beneficiary his annual 
salary of $45,000 as well as the salaries of current and future employees. The absence of a detailed 
revenue chart itemizing anticipated monthly or quarterly sales raises questions with regard to the 
Petitioner's ability to meet its proposed hiring timeline within its first year of operation. 
The new office regulations are premised on the understanding that a new company will progress to a 
stage of development where it will be able to support a beneficiary in a managerial or executive 
capacity. Here, the Petitioner provided a deficient business plan that contains vague information 
regarding its anticipated revenues, expenses and hiring timeline. It also lacks sufficient information 
that would allow us to gain a meaningful understanding of the specific benchmarks that the Petitioner 
intends to meet during its first year of operation to ensure that it will adequately develop and have the 
ability to relieve the Beneficiary from having to primarily perform its operational and administrative 
tasks within one year of this petition's approval. 
4 
B. Duties 
We also reviewed the job descriptions of the Beneficiary and his projected subordinates and we find 
the duty descriptions to be insufficient to establish that the Beneficiary would perform primarily 
managerial job duties within one year of the petition's approval. In a supporting cover letter, the 
Petitioner stated that the Beneficiary will lead the development and expansion of the Petitioner's 
restaurant, and described the duties of his proffered position as follows: 
Supervising and controlling the work of the Restaurant Manager (28%) 
a. Defining Restaurant Manager role and objectives (1 %) 
b. Assisting in defining career paths (1 %) 
c. Developing overall performance standards (1 %) 
d. Defining specific performance objectives, deadlines, and deliverables (2%) 
e. Communicating company-wide and individual goals and aligning them with the 
corporate strategy (3%) 
f. Meeting in person with the Restaurant manager daily to review results, obtain 
feedback, and revise goals and objectives (2%) 
g. Measuring results against agreed-upon objectives and performance standards (1 %) 
h. Providing feedback and revising goals and objectives (1 %) 
1. Providing training and coaching on performance (2%) 
J. Identify training needs and areas of improvement for professional employees (1 %) 
k. Working the Restaurant manager to ensure a higher level of customer satisfaction 
by being a liaison between clients and the Company's internal operations (1 %) 
Has the authority to hire employees and to make personnel actions, including 
employee promotions, firing, and leave authorizations. 
• Authority to hire employees 
a. Liaising with Administrative Assistant to define disciplinary and termination 
policies and to coordinate the preparation and revision of the Company's 
employment contracts and employee handbook (1 %) 
b. Defining positions to be hired (0.5%) 
c. Filling out request to fill out open positions (0.5%) 
d. Interviewing job candidates and filling out standard interview forms (2%) 
e. Administrating and analyzing KSA [knowledge, skills and abilities] tests to 
determine the best fit for the job (1 %) 
f. Liaising with Administrative Assistant to ensure the performance of background 
check on job candidates (1 %) 
g. Deciding which candidates to hire (1 % ) 
• Authority to make personnel actions 
a. Completing and administering annual performance reviews (3%) 
5 
b. Making personnel actions based on performance reviews, such as hiring, 
termination, promotions, and disciplinary actions (2%) 
Manage the organization (25%) 
The above percentage of time can be further broken down as follows 
• Conducting SWOT (a study undertaken by an organization to identify its internal 
strengths and weaknesses, as well as its external opportunities and threats) analyses 
to identify situational strengths And weaknesses, as well as opportunities and 
threats, with the goal of defining goals and objectives (3%) 
• Establishing and carrying out short- and long-term goals and policies to ensure the 
company's strategy, implementation, and execution are contributing to top and 
bottom-line improvements in key areas such as cash flow, sales growth, market 
share, and return on investment (3%) 
• Setting strategic objectives that focused on internal processes to ensure the 
greatest impact on customer satisfaction (2%) 
• Defining the competencies needed to maintain market leadership and maximizing 
the effectiveness of those internal systems (2%) 
• Setting long-term strategic objectives focused primarily on creating value and 
differentiating [the Petitioner] when acquiring, retaining or servicing with the 
customer (2%) 
• Ensuring that organizational objectives are clearly communicated to all levels of 
the company so that employees have a clear line of sight of what they are working 
towards ( 1 % ) 
• Coordinating strategic planning with the Restaurant Manager and international 
strategic planning with the Ukrainian affiliate (1 %) 
• Reviewing and updating goals and objectives to ensure compliance with the 
competitive landscape, the company's positioning strategies, industry standards, 
and regulations, among other criteria (1 % ) 
• Setting and communicating company-wide, departmental, and individual goals and 
aligning them with the corporate strategy (2%) 
Supervise and control 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 (17%) 
The above percentage can be further broken down as follows: 
• Monitoring staff performance through annual evaluations and ensuring highest 
level of customer/client service (6%) 
• Monitoring progress on goals and providing coaching on performance (3%) 
• Meeting with the management team on a weekly basis to review results, obtain 
feedback, and revise goals and objectives (8%) 
Exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority (30%) 
6 
• Exploring, identifying and making decisions on the need for further investment 
(5%) 
• Legally representing the company, having authority to bind it in contract and acting 
as the corporate bank account signatory (5%) 
• Analyzing the U.S. economy and marketplace to identify new opportunities and 
deciding the introduction of new products to be provided by [the Petitioner] (5%) 
• Analyzing and establishing strategic alliances that will contribute to [the 
Petitioner's] growth and profitability (5%) 
• Assessing changes in the marketplace and analyzing competitors' reactions in order 
to revise and update [the Petitioner's] service and pricing strategies (5%) 
• Making service, pricing, staffing, marketing, and financial decisions that have 
implications across multiple functional areas (5%) 
We agree with the Director's determination that this description does not provide sufficient insight 
into the nature of the Beneficiary's day-to-day duties. For example, the Petitioner indicated that the 
Beneficiary will spend 30% of his time exercising discretion over the day-to-day operations of the 
activity for which he has authority, and 25% of his time managing the organization. 
The Petitioner stated that the Beneficiary will be responsible for assessing changes in the marketplace 
and analyzing competitors' reactions in order to revise and update the Petitioner's service and pricing 
strategies; making service, pricing, staffing, marketing, and financial decisions that have implications 
across multiple functional areas; establishing and carrying out short- and long-term goals and policies; 
and defining the competencies needed to maintain market leadership and maximizing the effectiveness 
of those internal systems. The Petitioner did not provide any concrete examples of policies, strategies, 
or goals the Beneficiary would develop and implement in support of its claim that he would spend his 
time primarily focused on higher-level planning and decision-making responsibilities associated with 
the company's expansion and marketing. All of these responsibilities appear to overlap and the 
description does not identify the specific tasks that will occupy the Beneficiary's time. 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 Petitioner has not 
provided any detail or explanation of the Beneficiary's activities in the course of his daily routine. 
The actual duties themselves will reveal the true nature of the employment. 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). 
The Petitioner also states that the Beneficiary will spend 28% of his time supervising the restaurant 
manager, and 17% of his time supervising and controlling the work of other supervisory, professional, 
or managerial employees. The statutory definition of "managerial capacity" allows for both 
"personnel managers" and "function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. 
Personnel managers are required to primarily supervise and control the work of other supervisory, 
professional, or managerial 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. If a beneficiary directly supervises 
other employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). 
7 
Although the Petitioner indicates that the Beneficiary will also supervise personnel, his proposed 
duties in this area were described in abstract terms and did not convey how much time he would spend 
on personnel-related activities. Moreover, as noted by the Director, the record contains no evidence 
or clarification with regard to which additional employees he will devote 17% of his time supervising. 
Again, while the record indicates that he will spend 28% of his time supervising the restaurant 
manager, the record is devoid of information regarding the additional personnel he will supervise. 
Absent such a delineation, we cannot evaluate whether these employees are managerial, supervisory, 
or professional. Based on these deficiencies, we cannot determine whether the Beneficiary's duties 
will be primarily supervisory in nature. 
We acknowledge that the Beneficiary would assume a position as the Petitioner's senior employee 
and that as a result, he would have authority to make major decisions regarding the overall direction 
of the business. However, the fact that the Beneficiary will manage or direct a business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of section 101(a)(44) of the Act. While it is likely that the 
Beneficiary will continue to exercise discretion over the Petitioner's day-to-day operations and possess 
the requisite level of authority with respect to discretionary decision-making beyond the Petitioner's 
initial phase as a new office, the Petitioner has not provided sufficient information about the duties the 
Beneficiary would be expected to perform once that initial phase of its operation is over. As such, we 
cannot conclude that the Beneficiary would transition to primarily managerial or executive job duties 
within one year of the petition's approval. 
Accordingly, given the deficient evidence offered to support this petition, we cannot conclude that the 
Beneficiary would be employed in a managerial or executive capacity within one year of this petition's 
approval. 
ORDER: The appeal is dismissed. 
8