dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-USA, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 17,2017 
' 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner intends to operate a restaurant and seeks to temporarily employ the Beneficiary as the 
president of its new office under the L-1 A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The L-1 A 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, Vermont Service Center, denied the petitiOn. the Director concluded that the 
--"evidence of record did not establish that the Beneficiary would be employed in a managerial or 
executive capacity within 1 year of approval of the new office petition. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that it established by a 
preponderance ofthe evidence that the Beneficiary's duties will be primarily executive in nature and 
that the Petitioner will experience sufficient growth during its initial year to support an executive 
position. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for 1 continuous year within 3 years preceding the beneficiary's application for admission 
into the United States. Section 101(a)(l5)(L) of the Act. 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. !d. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
Matter ofS-USA, Inc. 
(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. 
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. See section 1 01 (a)( 44 )(C) of the Act. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
F (i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(1)(1 )(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 )Vithin 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. 
The regulation at 8 C.F.R. § 214.2(l)(3)(v) further provides that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office in the United States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involves executive or managerial 
authority over the new operation; and 
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(b)(6)
Matter ofS-USA , Inc. 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (1)(1 )(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure , and its financial goals; 
(2) The size ofthe United States investment and the financial ability of 
the foreign entity to remunerate the beneficiary and to commence 
doing business in the United States; and 
(3) The organizational structure of the foreign entity . 
II. ANALYSIS 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity under the extended petition. The 
Petitioner does not claim that the Beneficiary would be employed in a managerial capacity. 
Therefore, we restrict our analysis to whether the Beneficiary wiJI be employed in an executive 
l 
capacity. 
Upon review of the petition and the evidence of record , including the Petitioner's brief in supp01t of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary would be 
employed in an executive capacity within 1 year of the approval of the new office petition or that the 
new office. would support an executive position within 1 year. 
The Petitioner was established in 2016 and states that it intends to acquire and operate an existing 
pizza restaurant doing business as '' When a new office is established 
and commences operations, the regulations recognize that a designated manager or executive 
responsible for setting up operations will be engaged in a variety of activities not normally 
performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant 
classification during the first year of operations , the regulations require a petitioner to disclose the 
proposed nature, scope and organizational structure of the business and the size of the U.S. 
investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within 1 year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
This evidence should demonstrate a realistic expectation that the enterprise \vill succeed and rapidly 
expand as it moves away from the developmental stage to full operations , where there would be an 
actual need for a manager or executive who will primarily perform qualifying duties . 
When examining the managerial or executive capacity of the Beneficiary , we first review the 
Petitioner ' s description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii) . The definitions of executive 
and managerial capacity have two parts. First, the Petitioner must show that the Beneficiary will 
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Matter ofS-USA, Inc. 
perform certain high-level responsibilities. Champion World. Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 1444 70 (9th Cir. July 30, 1991 ). Second, the Petitioner must prove that the Beneficiary 
would be primarily engaged in managerial or executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees, within 1 year of the approval of the petition. 
See, e.g., Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc., 940 
F.2d 1533. 
At the time of filing, the Petitioner provided a letter from the Beneficiary's foreign employer, which 
included a description of the Beneficiary's proposed responsibilities as president and indicated he 
will "direct the management of the organization" through a subordinate manager and two department 
supervisors; "research market demand and implement marketing strategies; establish the company's 
budgetary policies and goals; "set customer service standards"; "ensure compliance with legal 
requirements" such as health code regulations; hire an experienced manager, marketing personnel 
and other restaurant staff, and make other personnel decisions; act as the company's signatory on 
important documents; and "develop and implement the business strategy" for the Petitioner. 
Although we find that these duties indicate that the Beneficiary's "proposed employment involves 
executive or managerial authority over the new operation" as required by 8 C.F.R. 
§ 214.2(1)(3)(v)(B), several of the proposed qualifying duties described are contingent upon the 
hiring of subordinate staff to relieve the Beneficiary from performing the day-to-day operations of 
the intended restaurant business. For example, the Petitioner suggests that the Beneficiary will rely 
on subordinates to oversee the lower-level workers, to assist him with researching and implementing 
marketing strategies and campaigns, routine banking and financial transactions, monitoring 
compliance with service and quality standards, and "review[ing] quality, service and cost-effective 
management of resources." 
' For this reason, a position description alone is insufficient to establish that the Beneficiary's duties 
would be primarily in a managerial or executive capacity, particularly in the case of a new office 
petition where much is dependent on factors such as the Petitioner's business and hiring plans and 
evidence that the business will grow sufficiently to support the Beneficiary in the intended 
managerial or executive capacity. Again, a petitioner must establish that it would require the 
beneficiary to perform duties that are primarily managerial or executive in nature within 1 year. 
Accordingly, the totality of the record must be considered in analyzing whether the proposed duties 
are plausible considering a petitioner's anticipated staffing levels and stage of development within a 
1-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
The Director concluded that, while the evidence established that the Beneficiary would have the 
authority to manage the new office as its senior employee, the totality of the evidence indicated that 
he "will primarily be responsible for the tasks necessary to deliver a product or service." However, 
as noted by the Petitioner on appeal, the Director did not further address the totality of the evidence 
provided or explain how she reached this conclusion. When denying a petition, a director has an 
affirmative duty to explain the specific reasons for the denial; this duty includes informing a 
petitioner why the evidence did not to satisfy its burden of proof pursuant to section 291 of the Act. 
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(b)(6)
Matter ofS-USA, Inc. 
8 C.F.R. § 103.3(a)(1)(i). As we review appeals on a de novo basis, we will address the Petitioner's 
' proposed business and personnel plans below. 
As of the date of filing, the Petitioner had agreed to purchase the assets of an existing restaurant 
known as ' for a price of $175,000. Its business plan, financial projections and 
personnel plan are based on an assumption that it will be operating this specific restaurant. In its 
letter, the foreign entity explained that the restaurant currently derives 70 percent of its sales from 
deliveries to local hotels, and noted that current management is catering to only 30 out of 200 hotels 
in its geographic area. The Petitioner stated that it would grow the business by expanding its 
marketing efforts to target these additional hotels, which would necessitate the hiring of additional 
positions, including a manager; marketing/branding & delivery supervisor, order booking, delivery 
drivers and servers.: The Petitioner noted that the restaurant had gross sales of $410,000 in 2014 and 
$476,000 in 2015, and projected that it would grow to have 12 employees and $600,000 in sales in 
its first full year operating the restaurant in 201 7. 
The Petitioner submitted an organizational chart showing that the Beneficiary would supervise a 
manager who, in tum, would supervise a dining supervisor/chef and a marketing/branding and 
delivery supervisor. The chart shows that the dining supervisor/chef would supervise an assistant 
chef~ an assistant chef/server, a server, and a dishwasher, while the marketing/branding and delivery 
supervisor would supervise a marketing/branding assistant, an "order taking" employee, and three 
delivery drivers. The Petitioner 
provided position descriptions for each of these positions. 
The Director issued a request for evidence (RFE) requesting additional details regarding the 
Petitioner's staffing plans and financial projections to show how the company would support a 
managerial or executive position within 1 year, including a timetable for each proposed action for 
the first year. In response to the RFE, the Petitioner submitted a letter from the foreign entity 
indicating that the company planned to cqmplete the purchase and takeover the restaurant's 
operations' as of August 1, 2016, contingent upon approval of the petition. It stated that the 
Petitioner would assess and make decisions as to whether to hire or terminate the restaurant's 
existing employees within the first week, and immediately begin additional recruitment efforts. The 
foreign entity said the Petitioner will implement its marketing and promotional plan within the first 3 
months, and expected to increase revenues to the "projected rate" within 6 months. A separate 
"staffing plan" chart indicated that all staff listed on the previously provided organizational chart 
would be hired within 2 months. 1 
The Petitioner also provided a business plan with 5-year financial projections which include 
projected salary expenses. The Petitioner indicates that its payroll expenses (which appear to 
include both salaries and wages and payroll taxes) will be $142,314 in 2016 and $171,977 in 2017. 
The business plan mentions that its projections are based on the current restaurant owner's 2015 tax 
return, which has not been submitted for the record. 
1 There was one minor change to the personnel list; in response to the RFE, the Petitioner stated that itwould employ 
two servers and one assistant chef as opposed to one server, one assistant chef, and one hybrid assistant chet/server 
position. ' 
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Matter of S- USA, Inc. 
Upon review, the evidence submitted is insufficient to establish: (1) that the Petitioner can feasibly 
employ 13 workers (including the Beneficiary) based on the projected payroll expenses; and (2) that 
the projected staffing would be sufficient to relieve the Beneficiary from significant involvement in 
the day-to-day operations of the restaurant The Petitioner indicates that it may retain some o,f the 
restaurant's existing employees, but has not provided any information regarding the restaurant's 
current employees or the restaurant's current salary expenses. Further, it has not provided the 
anticipated salary expenses for individual employees or indicated whether all employees will be full­
time workers. A petitioner's unsupported statements are ofvery limited weight and normally will be 
insufficient to carry its burden of proof. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'! Comm'r 1972)); see also 
Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions 
with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
Therefore, we cannot determine whether the amount to be paid in payroll expenses during the first 
year of operations (which would fall between $142,314 and $171,977 given the Petitioner's plan to 
take over the business in the third quarter of 20 16), would reasonably cover the salaries of 13 
workers. The Beneficiary's offered salary is $40,000 which would leave approximately $100,000 to 
$130,000 to be divided among 12 employees. A business with 12 full-time (40 hours per week) 
workers earning minimum wage would need to budget $200,928 annually for wages alone, not 
including payroll taxes, and the Petitioner anticipates paying significantly less than this amount in 
total payroll expenses. Further, we assume that the manager and supervisors will not be paid 
minimum wage based on the stated requirements for these positions. 
We must also consider the nature of the business and the fact that, as a restaurant, it would not be 
operating with a 40-hour workweek. The Petitioner submitted a photograph of the restaurant's 
storefront and it has a sign in its window indicating that it is "open till 4 AM." The Petitioner has 
not mentioned any proposed reduction in ,operating hours in its plans to expand the business. It is 
reasonable to assume that the restaurant opens at 11 :00 a.m. daily for lunch and may be open as 
many as 119 hours per week if 4:00a.m. is its standard closing time. 
Even if the evidence showed that the Petitioner intends to hire only full-time workers, the record 
would not support a finding that the restaurant would be sufficiently staffed for over 1 00 hours per 
week. For example, the Petitioner intends to hire only one chef (who is described as having has 
limited food preparation responsibilities because he/she would also serve as the dining supervisor), 
and one assistant chef. The Petitioner has not explained how these two employees would handle the 
food preparation responsibilities of this restaurant Similarly, the Petitioner plans to employ only 
two servers and three drivers, and only one person to handle incoming orders, while claiming that it 
expects to significantly expand its delivery services. Finally, while the record indicates that the 
manager would handle much of the day-to-day oversight of the restaurant, operational tasks such as 
food and supply orders and deliveries, and administrative matters when he/she is on duty, it is 
unclear who would be available to perform these non-qualifying duties during the up to 80 hours per 
week when the manager is not available. Similarly, any supervisory duties performing by the dining 
supervisor would be left unfulfilled during the many hours per week when this employee would be 
unavailable. With so many non-qualifying functions of the restaurant left unattributed, we cannot 
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(b)(6)
Matter ofS-USA, Inc. 
conclude that the Beneficiary would be sufficiently relieved from involvement in non-executive 
activities within 1 year. 
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, 8 U.S.C. § 1101(a)(44)(B). 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 managerial employees for a beneficiary to direct 
and a beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations ofthe 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 an 
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." ld. 
Here, while we do not doubt that the Beneficiary would have the appropriate level of authority and 
would allocate some of his time to qualifying duties, the record does not support a finding that he 
would be primarily focused on the broad goals and policies of the company or that he would be 
sufficiently relieved from involvement in the day-to-day operations of the company within 1 year. 
The Petitioner's projected hiring plans, organizational structure and payroll expenses do not support 
a finding that the company will employ sufficient staff to perform the day-to-day, non-qualifying 
duties associated with the restaurant within '1 year. Accordingly, the Petitioner has not established 
that the Beneficiary would be employed in an executive capacity. 
Finally, we note that there is some question as to whether the ' restaurant 
remained available for purchase following the denial of the petition. The Petitioner provided a copy 
of a "Standard Asset Purchase Contract and Receipt" relating to its planned purchase, which 
indicates that it was to pay the seJter a $10,000 escrow deposit by May 4, 2016, $15,000 to 
reimburse the seller for its payment of a security deposit on the restaurant's lease, and would pay the 
remaining $165,000 by wire transfer on the closing date on July 1, 2016. The terms of the contract 
indicate that "Any extension of this Closing Date must be in writing and signed by Buyer and 
Seller." Further, item 45 of the contract states: "This offer is contingent upon Buyer receiving Ll 
Visa .... Should the Buyer not be awarded an L 1 Visa, the contract shall be null and void and the 
Buyer will receive a full refund of the Escrow Deposit." 
The record contains the Petitioner's April 2016 bank statement for its checking account showing a 
balance of $170,000. The Petitioner did not provide evidence that it actually paid the $10,000 
escrow deposit or the $15,000 security deposit reimbursement in May 2016, such as canceled checks 
or evidence of wire transfers to the seller's account. Further, the Petitioner filed the Form 1-129 on 
June 6, 2016; however, the July 1 closing date had passed by the time the Petitioner submitted its 
response to the Director's request for evidence (RFE) on July 15, 2016, and it did not provide 
evidence that the parties had agreed, in writing, to extend the closing date. In addition, it appears 
that the Director's denial of the petition may have nullified the purchase contract for this restaurant 
(b)(6)
Matter ofS-USA, Inc. 
and it is unclear whether it remained available for the Petitioner to purchase after July 1, 2016, and 
whether it is still available to purchase. If t!Ie Petitioner pursues this matter further, it should be 
prepared to address the current status of its purchase agreement for the 
restaurant. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition and must continue to be eligible for the benefit through adjudication. 8 C.F.R. 
§ 103.2(b)(1). 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
would be employed in an executive capacity within 1 year of approval of the petition. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. 
Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fS-USA, Inc., ID# 158130 (AAO Jan. 17, 2017) 
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