dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 18, 2024 In Re: 34549108 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner, a company owning and operating a restaurant, seeks to extend the temporary 
employment of the Beneficiary as an "executive/manager" under the L-lA nonimmigrant 
classification for intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 
101(a)(15)(L), 8 U.S.C. § 1101(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 the record did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
States. The matter is now before us on appeal under 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, 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 admission into the United States. 8 C.F.R. 
§ 214.2(l)(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. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary 's behalf which was approved for a one-year 
period ending on April 25, 2023 . A "new office" is an organization that has been doing business in the United States 
through a parent, branch, affiliate, or subsidiary 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 one year within the date of approval of the petition to support 
an executive or managerial position. 
IT. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue we will analyze is whether the Petitioner established that it would employ the 
Beneficiary in a managerial or executive capacity in the United States. The Petitioner did not clearly 
indicate in support of the petition whether the Beneficiary would be employed in a managerial or an 
executive capacity, submitting the title of "executive/manager." In response to the Director's request 
for evidence (RFE), the Petitioner stated that the Beneficiary "will be employed in an executive 
position ... considered to be the CEO [ chief executive officer]." Now, on appeal, the Petitioner 
contends that "contrary to what the decision from the Director states, [the Beneficiary's] duties are in 
a managerial and executive capacity." 
A petitioner claiming that a beneficiary will perform as a "hybrid" manager/executive will not meet 
its burden of proof unless it has demonstrated that the beneficiary was primarily engaged in either 
managerial or executive capacity duties. See section 10l(a)(44)(A)-(B) of the Act. While in some 
instances there may be duties that could qualify as both managerial and executive in nature, it is the 
petitioner's burden to establish that the beneficiary's duties meet each criteria set forth in the statutory 
definition for either managerial or executive capacity. A petition may not be approved if the evidence 
ofrecord does not establish that the beneficiary was primarily employed abroad in either a managerial 
or executive capacity. Therefore, as a preliminary matter, the Petitioner's shifting assertions as to the 
Beneficiary's employment in either a managerial or executive capacity leave uncertainty as to his 
actual qualifying role. The Petitioner must resolve inconsistencies and ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-
92 (BIA 1988). Regardless, we will analyze both whether the Beneficiary would be employed in a 
managerial and an executive capacity. 
"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. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101(a)(44)(B) of the 
Act. 
When examining the managerial or executive capacity of a given beneficiary, we will review the 
petitioner's description of the job duties. 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 in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
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A. Duties 
To be eligible for L-lA nonimmigrant visa classification as a manager or executive, a petitioner must 
show that the beneficiary will perform the high-level responsibilities set forth in the statutory 
definition at section 10l(a)(44)(A) and (B)(i)-(iv) of the Act. If the record does not establish that the 
offered position meets all four of these elements, we cannot conclude that it is a qualifying managerial 
or executive position. 
If a petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, it must prove that the beneficiary will be primarily engaged in managerial or executive 
duties, as opposed to ordinary operational activities alongside its other employees. See F amily Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether a given beneficiary's duties will 
be primarily managerial or executive, we consider the petitioner's description of the job duties, the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the presence 
of other employees to relieve the beneficiary from performing operational duties, the nature of the 
business, and any other factors that will contribute to understanding a beneficiary's actual duties and 
role in a business. 
The Petitioner indicated in support of the petition, filed in late March 2023, that the prior L-1 A 
intracompany transferee position was approved on behalf of the Beneficiary "with the vision to open 
a Lebanese grill." However, the Petitioner indicated a diner restaurant was already operating at this 
planned location, and that the Beneficiary decided to keep this concept. The Petitioner stated that the 
Beneficiary oversaw "the financial, human resources, and marketing of the company," noting that "it 
would like an extension of his visa so he has more time to grow the business and turn a profit." Later 
in response to the request for evidence (RFE) in November 2023, the Petitioner submitted the 
following duties for the Beneficiary: 
Every day, [the Beneficiary] spends about 15% of his time reviewing sales from the 
day before, checking customer surveys and complaints, and checking social media 
posts, like Facebook and Instagram. He meets with [the branch manager] every day to 
go over employee schedules and other issues that may come up over the weekend. 
On Monday, [the Beneficiary] reviews payroll and trainings for employees. 
Oftentimes, he meets with [the branch manager] because [the branch manager] directly 
oversee the staff. [The Beneficiary] will review staffing and vacancies and has the sole 
discretion to hire and fire in the company. [The Beneficiary] does not perform the 
actual review of waitstaff and floor staff, he is apprised of [the branch manager's] 
findings the reviews are discussed. [The Beneficiary] spends 25% of his time with 
human resources matters. 
Daily, [the Beneficiary] reviews costs and budgets for the company. He reviews vendor 
invoices and adjusts inventory accordingly. He engineers a cost effective menu based 
on the cost of goods and creates a budget for the cost of goods. Once a week, he 
produces a profit and loss report. [The Beneficiary] takes this time to review the 
financial goals of the company and adjust as he sees necessary, including updating 
forecasts and financial strategies. He also approves supplier payments and invoices. 
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When needed, he meets with the accountants of the company. He spends about 30% 
of his time preparing and completing these functions. 
In addition to his daily functions, on Wednesdays, [the Beneficiary] meets with [the 
branch manager] again to discuss the overall operation of the business. He reviews the 
profit and loss report that he prepared the day before and he addresses and other cost 
issues. He discussed customer feedback and how to improve the customer experience 
based on this review of social media and customer surveys. He informs supervisor(s) 
of promotions or events to improve sales and also reviews workplace safety and health 
standards. [The Beneficiary] spends about 30% of his time preparing and directing this 
meeting. 
[The Beneficiary] also oversees the company's marketing. He reviews all marketing 
materials and reviews strategy and planning. Right now, he utilizes Facebook and 
Instagram to market the business. He develops marketing campaigns and implements 
them on those platforms to draw business to the company. He reviews all marketing 
materials to maintain consistency branding between written and electronic media. He 
collaborates with [ the branch manager] to ensure staff are aware of any promotions that 
are advertised on social media to improve sales and brand awareness. [The 
Beneficiary] also reviews competition and performs reconnaissance on competition 
marketing strategies to maintain competitiveness. He spends approximately 20% of 
his time on this. 
The Petitioner submitted a duty description reflecting his wide involvement in non-qualifying tasks 
related to the daily operation of the business. For instance, the duty description states that he would 
be responsible for reviewing sales daily, checking customer surveys and complaints, checking social 
media posts, and reviewing employees' schedules. Likewise, the duty description discusses the 
Beneficiary reviewing vendor invoices, adjusting inventory, creating cost effective menu items, and 
handling supplier payments and invoices. In addition, the Petitioner explained that the Beneficiary 
would be tasked with monitoring workplace safety and health standards, utilizing social media to 
market the business, and formulating and promulgating promotions. As such, the Beneficiary's duty 
description indicates his substantial involvement in performing a wide array of non-qualifying 
operational tasks, or at the very least, his performance of ordinary operational activities alongside his 
colleagues. 
Whether the Beneficiary is a managerial or executive employee turns on whether the Petitioner has 
sustained its burden of proving that their duties are "primarily" managerial or executive. See sections 
10l(a)(44)(A) and (B) of the Act. Here, the Petitioner does not document what proportion of the 
Beneficiary's duties were managerial or executive-level functions when the petition was filed and 
what proportion were non-qualifying operational tasks. The Petitioner submitted a duty description 
indicating that the Beneficiary's duties likely included several administrative or operational tasks, but 
it did not sufficiently quantify the time he spent on these duties as compared to qualifying managerial 
or executive-level duties. For this reason, we cannot determine whether the Beneficiary was primarily 
performing the duties of a manager or executive as of the date the petition was filed. See IKEA US, 
Inc. v. US Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
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In contrast, the Petitioner did not sufficiently articulate or document what managerial or executive­
level tasks he was performing when the petition was filed. The Petitioner did not detail or document 
the trainings he formulated, personnel decisions he made, and the financial strategies he implemented. 
Similarly, the Petitioner did not properly explain and document the workplace safety and health 
standards he set or the marketing campaigns and strategies he implemented. The Petitioner also 
indicated that the Beneficiary would devote 25% of his time to payroll and human resource matters, 
despite stating it had only one employee when the petition was filed. Further, the Petitioner submitted 
little supporting documentation to substantiate that he was primarily delegating the non-qualifying 
operational duties, prominently listed in his duty description, to his claimed subordinates, including 
the asserted branch manager. This lack of evidence leaves substantial question as to whether the 
Beneficiary was primarily performing qualifying managerial or executive duties when the petition was 
filed. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
managerial or executive 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, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). The Petitioner must resolve inconsistencies and ambiguities in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
Even though the Beneficiary holds a senior position within the organization, the fact that he 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 
10l(a)(44)(A) and (B) of the Act. By statute, eligibility for this classification requires that the duties 
of a position be "primarily" managerial or executive in nature. Id. The Beneficiary may exercise 
discretion over the Petitioner's day-to-day operations and possess the requisite level of authority with 
respect to discretionary decision-making; however, the position descriptions alone are insufficient to 
establish that his actual duties would be primarily managerial or executive in nature. 
B. Operations and Staffing 
Pursuant to section 10l(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and 
Immigration Services (USCIS) must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. 
The Petitioner's statements in support of the petition leave substantial uncertainty as to whether it was 
sufficiently operational to support him in a managerial or executive capacity when the petition was 
filed in late March 2023. For example, the petition reflected that the Petitioner earned no revenue and 
had only one employee, stating that the Beneficiary would "assist in running the day-today operations 
once the business is up and running (emphasis added)." The Petitioner indicated elsewhere in support 
of the petition that it employed one supervisor, two to four waitstaff, and "around" four kitchen staff. 
In contrast, the Petitioner further stated in support of the petition that the restaurant was struggling at 
its current location since was in "a further suburb from I I than he originally thought," noted it 
was looking to relocate the business, and "would like an extension of his visa so that [the Beneficiary] 
had more time to grow the business and tum a profit." The Petitioner explained that the Beneficiary's 
original stay "has not been enough time for him to get the new business up and running where it needs 
to be." By comparison, approximately eight months later in response to the Director's request for 
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evidence (RFE), the Petitioner submitted a materially revised petition reflecting that it had eight 
employees and earned nearly $400,000 in revenue. 
Although we acknowledge that the Petitioner's business plans may have not gone exactly as projected 
during the first year, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require us to examine the organizational structure and staffing levels of the 
Petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only 
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 USCIS regulations allowing for an 
extension of this one-year new office period. If a business does not have the necessary staffing after 
one year to sufficiently relieve the beneficiary from performing operational and administrative tasks, 
the petitioner is ineligible by regulation for an extension. Here, the Petitioner's assertions suggest that 
it had no operations and support employees when the petition was filed leaving substantial uncertainty 
as to whether it was sufficiently operational to support the Beneficiary in a qualifying managerial or 
executive capacity when the petition was filed. Again, the Petitioner must resolve inconsistencies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. at 582, 591-92. For instance, it is noteworthy that the Petitioner provided little 
objective documentation to substantiate its asserted staffing when the petition was filed, such as state 
or federal quarterly income tax documentation or other similar objective evidence. 
As previously discussed, the Petitioner did not clearly articulate whether the Beneficiary would be 
employed in a managerial or executive capacity; however, it did state that he we would oversee a 
subordinate supervisor. The statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." 2 See section 101(a)(44)(A) 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." Id. 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(1)( 1 )(ii)(B)( 3). 
The Petitioner did not sufficiently demonstrate that the Beneficiary would qualify as a personnel 
manager under an extended petition. First, the Petitioner did not assert that the Beneficiary would 
qualify as a personnel manager based on his supervision of professional subordinates. As noted, the 
Petitioner indicated in support of the petition that the Beneficiary oversaw a supervisor, listed as a 
kitchen supervisor. However, later in support of the RFE when it claimed a more developed 
organizational chart, the Petitioner still submitted a duty description reflecting his likely wide 
involvement in the operational aspects of the business and it provided little documentation to 
corroborate that he was primarily delegating these non-qualifying tasks to a supervisory subordinate. 
Further, the Petitioner submitted no supporting evidence to substantiate his personnel authority or his 
oversight of a subordinate supervisor. In fact, as we have discussed, the Petitioner provided statements 
2 Since the Petitioner does not specifically assert that the Beneficiary would qualify as a function manager, we decline to 
analyze this issue. 
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in support of the petition leaving substantial question as to whether it was sufficiently operational to 
support him as a personnel manager when the petition was filed. 
The Petitioner also suggests that the Beneficiary would have qualified as an executive under an 
approved extension. The statutory definition of the term "executive capacity" focuses on a person's 
elevated position. Under the statute, a beneficiary must have the ability to "direct the management" 
and "establish the goals and policies" of an organization or major component or function 
thereof. Section 101(a)(44)(B) of the Act. To show that a beneficiary will "direct the management" 
of an organization or a major component or function of that organization, a petitioner must show how 
the organization, major component, or function is managed and demonstrate that the beneficiary 
primarily focuses on its broad goals and policies, rather than the day-to-day operations of such. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the organization, major component, or function as the owner or sole 
managerial employee. A 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. 
The submitted evidence and statements of the Petitioner reflect that it had limited operations as of the 
time the petition was filed leaving uncertainty as to whether it could have supported the Beneficiary 
in an executive capacity. For example, the Petitioner indicated in support of the petition that it had 
not hired any subordinate employees and suggested that the business was not yet up and running when 
the petition was filed. There is also no supporting evidence reflecting the Beneficiary's direction of 
subordinates, and as discussed, little documentation to support his performance of qualifying 
executive-level duties. In fact, as discussed previously in this decision, the provided duty description 
suggests that the Beneficiary was involved in nearly all the operational aspects of company when the 
petition was filed. Therefore, it is questionable given the Petitioner's apparent operations when the 
petition was filed, his stated duties, and the nature of the business, that the Beneficiary would have 
acted in an elevated executive-level capacity where he would primarily focus on broad goals and 
policies rather than day-to-day operations. 
For the foregoing reasons, the Petitioner has not sufficiently established that the Beneficiary would be 
employed in a managerial or executive capacity under an extended petition. 
ORDER: The appeal is dismissed. 
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