dismissed L-1A Case: Restaurant

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 03 233 5 1828 Office: NEBRASKA SERVICE CENTER Date: AUG 3 fi 20Q.. 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
/'l$obert e P. Wiemann, Dir ctor 
LIN 03 233 51828 
Page 2 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 1990 and 
claims to be a Japanese restaurant. The petitioner claims to be a subsidiary o located 
in Okayama, Japan. The petitioner seeks to extend its authorization to 
the United States as a general manager of its restaurant for three years, at a weekly salary of $4,200:00. The 
director determined that the petitioner had failed to submit sufficient evidence to establish that the beneficiary 
would be employed by the U.S. entity in a primarily managerial or executive capacity or that the entity is of 
sufficient complexity to support a managerial or executive position other than that of the presidentlgeneral 
manager. 
On appeal, counsel disagrees with the director's decision and states that the evidence is sufficient to establish 
the beneficiary will be employed by the U.S. entity in a managerial or executive capacity and that the entity is 
able to support such a position. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer, or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a fm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Fonn 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this 
section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
LIN 03 233 5 1828 
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(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 himlher 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 issue in this proceeding is whether the petitioner has established that the beneficiary will be employed by 
the U.S. entity in a primarily managerial or executive capacity and whether the entity is of sufficient 
complexity to support such a position. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee prirnarily- 
(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. 3 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i) Directs the management of the organization or a major component or 
function of the organization; 
(ii) Establishes the goals and policies of the organization, component, or 
function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
LIN 03 233 51828 
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(iv) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(C) of the Act, 8 U.S.C. 3 1 101 (a)(44)(C), provides: 
If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, the Attorney General shall take into account the reasonable 
needs of the organization, component, or function in light of the overall purpose and stage of 
development of the organization, component or function. An individual shall not be considered 
to be acting in a managerial or executive capacity (as previously defined) merely on the basis of 
the number of employees that the individual supervises or has supervised or directs or has 
directed. 
In a letter dated July 24,2003, the petitioner described the beneficiary's duties as: 
[The beneficiary] has been responsible for the day-to-day operations of the restaurant 
including making all personnel and budgeting decision[s] for the restaurant. In addition, [the 
beneficiary] will continue to determine the long range goals and objectives of the restaurant 
and company in the United States, as well as direct and coordinate the formulation of 
financial programs designed to provide funding for new or expanded operations to maximize 
return on investments and increase profitability. [The beneficiary] will continue to serve as a 
liaison between the US Company and the parent company on the running of the US 
operations. 
The director determined that the documents submitted by the petitioner were insufficient to warrant favorable 
consideration of the petition and thereafter, requested: 
Please provide a comprehensive, detailed description of the beneficiary's specific day-to-day 
duties, including a delineation of the proportion of time devoted to specific duties. Also 
discuss the duties of the beneficiary's subordinates. Provide an organizational chart which 
illustrates the structure of the organization and the beneficiary's placement within such 
organization. 
In response to the director's request for evidence on the subject, the petitioner stated that the beneficiary's 
duties are not that of a first line supervisor and that he does not prepare the food. The petitioner described the 
beneficiary's duties as: 
[The beneficiary] currently holds the position of restaurant manager for one of the 5 branch 
restaurants of the sushi chain .... In this capacity, he is the most senior manager responsible 
for the daily operations of the restaurant, including the supervision of subordinate assistant 
managers, who supervise the Sushi Chef, wait staff and kitchen staff. [The beneficiary] has 
ultimate responsibility for all personnel actions within the restaurant. As the top manager, 
[the beneficiary] is responsible for the daily financial aspects of the restaurant, including 
establishing financial goals and setting budgets; performing financial review; directing the 
subordinate assistant managers in the food preparation, menu planning and related activities, 
such as dining room and banquet operations. As a manager of the restaurant, [the 
beneficiary] is also responsible for attending general manager [sic] to report on all the overall 
LIN 03 233 51828 
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management of the restaurant under his supervision, including the meeting of financial 
targets. 
The petitioner submitted a copy of the U.S. entity's organizational chart, which depicted the hierarchical 
structure of the five sister restaurants. In reference to the restaurant that employed the beneficiary, the chart 
showed that the beneficiary as restaurant manager was under the direction of the presidentlgeneral manager. 
The chart also showed that an assistantltrainee, Sushi Chef, waiterlwaitress, and kitchen helper and 
dishwasher were all under the direction of the beneficiary. The petitioner also submitted a detailed chart 
showing the daily activities of the beneficiary to be: 
DUTIES DAILY TIME % OF DAILY 
INVOLVEDEIOURS SCHEDULE 
Supervising manager-oversee store and staff 4 38.10% 
Supervising part-time staff 1 9.52% 
Sales forecasting and goal setting 1 9.52% 
Sales goals implementation/promotion 1 9.52% 
Financial review and inventory management 1.5 14.29% 
Attending board meetings 0.65 6.19% 
Employee shift management 0.20 1.90% 
Part-time employee hiring 0.05 0.48% 
Labor cost management 0.10 0.95% 
Customer service related 0.05 4.76% 
Instruction of Sushi making and fish cutting 0.05 4.76% 
The director subsequently denied the petition. The director noted that the petitioner owned a chain of 
Japanese restaurants of which the beneficiary would be general manager of one. The director also noted that 
the structure of the restaurant was not discussed by the petitioner, and that the beneficiary's duty description 
was generalized in nature. The director further noted that there was no indication as to the types of employees 
overseen by the beneficiary, or that the entity was of sufficient complexity to warrant a managerial or 
executive position. The director stated that the petitioner had failed to submit evidence describing the 
subordinate employees' duties, and the duties of the assistantitrainee to show that they were professional, 
managerial, or supervisory in nature. The director further stated that it appeared from the record that the 
beneficiary would spend the majority of his time overseeing non-professional employees, and that there was 
no evidence to demonstrate that the beneficiary would be relieved from performing non-qualifying duties. 
The director also noted that the description of the U.S. entity's organizational structure failed to indicate that 
LIN 03 233 51828 
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the entity was of sufficient complexity to support a managerial or executive position other than that of the 
presidentfgeneral manager. 
On appeal, counsel disagrees with the director's decision and asserts that based on established AAO 
precedent, a "general manager" of a specialty restaurant qualifies as "manager' under 
8 C.F.R. 3 214.2(1)(l)(ii)(B). Counsel contends that Citizenship and Immigration Services (CIS) 
rnischaracterized the beneficiary's duties, and that in actuality the evidence demonstrates that he will be 
spending the majority of his time "overseeing the running of the store and staff." Counsel further contends 
that the beneficiary does not engage in the actual preparation of the restaurant's food. Counsel also contends 
that the beneficiary's duties, including overseeing the overall running of the restaurant, supervising an 
assistant manager, performing sales forecasting, goal setting, and other financial aspects of running a 
restaurant are consistent with a "managerial" function. Counsel claims that the instant matter is consistent 
with prior AAO precedent cases (none were cited), which counsel claims have found a general manager of a 
specialty food restaurant eligible for L-IA status. 
Counsel's assertions are not persuasive. On reviewing the petition and the evidence, the petitioner has failed 
to establish that the beneficiary will be employed in a primarily managerial or executive capacity. In 
evaluating whether the beneficiary is employed in a primarily managerial capacity, the AAO will look first to 
the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 3 214.2(1)(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. Further, the petitioner must show 
that the beneficiary will perform the high-level responsibilities that are specified in the definitions, and that 
the beneficiary will primarily perform these specified responsibilities and will not spend a majority of his or 
her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 
Cir. July 30, 1991). The record shows that the beneficiary will be primarily supervising the restaurant staff 
rather than primarily performing managerial or executive duties. Consequently, there is insufficient evidence 
to show that the beneficiary will perform the high-level responsibilities as defined, or that he will primarily 
-. 
perform those duties. 
The petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
beneficiary's duties include setting goals, implementing plans, and overseeing the running of the store and 
staff. The petitioner did not, however, define the petitioner's plans and sales goals, or clarify the particular 
tasks performed by the beneficiary in running the store and staff. 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 of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972). 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 4 1 (2d. Cir. 1990). 
Further, the petitioner has failed to overcome the objections made by the director. In the request for evidence, 
the director requested that the petitioner discuss the duties of the beneficiary's subordinates. The petitioner 
failed to submit such evidence in response. This evidence is critical, as it would have established the number 
of subordinates employed by the petitioning restaurant as well as their duties and responsibilities. The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
LIN 03 233 5 1828 
Page 7 
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. The beneficiary's immediate subordinate is characterized in the entity's 
organizational chart as "assistant/trainee." In the response to the director's request for evidence the 
immediate subordinate is described as "subordinate assistant manager." The petitioner failed to describe the 
subordinate's duties as requested by the director. 
There is no evidence to show that the subordinate staff is employed in a professional or supervisory capacity, 
nor is there any evidence in the record to demonstrate that the staff is employed on a full-time basis. It is 
noted by the AAO that the petitioner indicated that the beneficiary is responsible for "supervising part-time 
staff' and "part-time employee hiring." It appears from the record that the beneficiary will primarily be 
engaged in the day-to-day activities of the business and supervising non-professional subordinate staff. A 
first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
Because the beneficiary is primarily supervising a staff of non-professional employees, the beneficiary cannot 
be deemed to be primarily acting in a managerial capacity. 
On appeal, counsel refers to an unpublished decision. Counsel asserts that in this matter, the AAO found that 
"the General Manager supervised a subordinate staff, oversaw the general running of the restaurant, and did 
not engage in the actual preparation of the food." The record does not support counsel's claim, as counsel has 
not provided a copy of the decision. The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). Furthermore, while 8 C.F.R. $ 103.3(c) provides that AAO precedent decisions are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Although the petitioner claims that the beneficiary directs and manages the petitioner's sales and 
accounting/financial activities, it does not claim to have anyone on its staff to actually perform the sales and 
accountinglfinancial functions. Thus, it appears that the beneficiary himself is performing the sales and 
accountinglfinancial functions. If the beneficiary is performing the sales and accountinglfinancial functions, 
the AAO notes that an employee who primarily perfom the tasks necessary to produce a product or to 
provide services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593,604 (Cornrn. 1988). 
Counsel contends that the beneficiary is a function manager in that he oversees the overall running of the 
restaurant, supervises an assistant manager, performs sales forecasting, sets goals, and performs other 
financial aspects of running a restaurant. Contrary to counsel's contention, the evidence of record fails to 
demonstrate that the beneficiary is employed by the U.S. entity in a function manager position. 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, 8 U.S.C. 5 1 101 (a)(44)(A)(ii). If a petitioner claims 
that the beneficiary is managing an essential function, the petitioner must 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. In addition, the petitioner must provide a 
comprehensive and detailed description of the beneficiary's daily duties demonstrating that the beneficiary 
manages the function rather than performs the duties relating to the function. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, supra. In this matter, the 
LIN 03 233 51828 
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petitioner has not provided evidence that the beneficiary manages an essential function. 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 of California, supra. Based upon a review of the record, it 
appears that the beneficiary will be responsible for the day-to-day activities of the organization and for 
supervising non-professional restaurant employees. Therefore, the petitioner has failed to demonstrate that 
the restaurant is of sufficient complexity to support an executive or managerial position. Accordingly, the 
appeal will be dismissed. 
Beyond the decision of the director, the minimal documentation of the parent company's business operations 
raises the issue of whether there is a qualifying relationship between the U.S. entity and a foreign entity 
pursuant to 8 C.F.R. 3 214.2(1)(l)(ii)(G). In addition, there is insufficient evidence contained in the record to 
demonstrate that the foreign entity will continue doing business pursuant to the regulation at 
8 C.F.R. 5 214.2(1)(l)(ii)(H). The record fails to show that the foreign entity will be engaged in the regular, 
systematic, and continuous provision of goods andlor services during the beneficiary's temporary stay in the 
United States. For these additional reasons, the petition may not be approved. 
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.SU~~.~"~ 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9" 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). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.