dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Room A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: SRC 03 185 53621 Office: TEXAS SERVICE CENTER 1 late: 
Petit~on: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 03 185 53621 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimrnigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimrnigrant petition seeking to extend the employment of its executive chef as an 
L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U,S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Florida that operates as a restaurant. The petitioner claims that it is the affiliate of ., located 
in Bangkok, Thailand. The beneficiary was initially granted a one-year period of stay to open a new office in 
the United States and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director's 
decision is in error. Jn support of this assertion, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)Q of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying manageria1 or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. $ 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)( l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
howledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hider to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
SRC 03 185 53621 
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The regulation at 8 C.F.R. $ 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United 'States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
@) A statement describing the staffmg of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
At issue in the present matter is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as we11 as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level withn 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. 
SRC 03 185 53621 
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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; 
(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. 
On the L Supplement to Form 1-129, Petition for Nonirnrnigrant Worker, the petitioner described the 
beneficiary's job duties as: "Operate and supervise all necessary functions in running the U.S. Thai 
restaurant." There was no other description of the beneficiary's duties submitted with the initial petition. 
On July 24, 2003, the director requested additional evidence. Specifically, the director requested (1) an 
organizational chart of the U.S. entity, speciflmg the beneficiary's position within the hierarchy, as well as the 
names, job titles and duties of the employees the beneficiary supervises; (2) copies of the petitioner's state 
Employer's Quarterly Tax Returns for 2002 to the present; and (3) copies of the Quarterly Wages Reports for 
all employees from 2002 to the present. 
In response, the petitioner submitted an organizational chart showing the beneficiary under the supervision of 
the vice president of operations. The beneficiary in turn is shown supervising eight employees - a cook, a 
cashier, four servers, a dishwasher, and a "prep." The petitioner also submitted (1) job descriptions for the 
employees under the beneficiary's supervision; (2) copies of the petitioner's quarterly statement of deposits & 
filings filed with the State of Florida for the last three quarters of 2002 and the first quarter of 2003; and (3) 
copies of the petitioner's Employer's Quarterly State Report of Wages for the quarters from September 30, 
2002 through June 30,2003. 
On October 1, 2003, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary would be employed in the United States in a primarily managerial or executive 
capacity. The director observed that while the beneficiary exercises discretion over the day-to-day operations 
of the U.S. entity, the beneficiary also performs much of the day-to-day activities of the U.S. entity. The 
director found that the petitioner has not demonstrated that the beneficiary's primary assignment has been or 
will be directing the management of the organization, or that the beneficiary has been or will be primariIy 
directing or supervising a subordinate staff of professional, managerial or supervisory employees who will 
relieve him from performing non-qualifymg duties. 
On appeal, counsel for the petitioner asserts that the director has erred in her decision. Counsel claims that 
the evidence demonstrates that the beneficiary exercises discretion over the day-to-day operations of the 
SRC 03 185 53621 
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business and is by training, experience, and actual job performance a managerial level employee. In support 
of this claim, counsel submits additional evidence, including the following job description for the 
beneficiary's position: 
Job Title: Executive Chef 
Job Summary: To operate and supervise all necessary function in running the U.S. Thai 
restaurant by: 
Directing and coordinating the activities of the organization such as the daily operations and 
administration of policies pertaining to the activities of the restaurant as evidenced by (but 
not limited to) performing essential functions such as setting the menu according to current 
demands and trends including the adaptation of traditional ethnic Thai cuisine to the 
American audience, management of inventory control and documenting compliance with 
State and Federal Health and Safety Regulations. 
Reporting to the Vice President and providing guidance in formulation and administration of 
the organization's policies (in a position of Senior-Level Decision Maker) in the development 
of long-range goals and objectives. 
Reviewing and analyzing activities, operating costs, operations and forecasting trends/data in 
the determination of progress towards stated goals and objectives. 
Conferring with the Vice Resident and owners to review achievements and identification of 
necessary changes in goals and objectives resulting from fluctuation in current market trends. 
Establishing goals and defining policies that both indicate and determine success. 
Performing duties in an independent and autonomous fashion with minimal supervision using 
desired characteristics of: 'vision' to foresee market trends, 'foresight' to predict changes and 
fluctuations in the market and 'anticipation' to adapt to necessary changes and develop 
strategies to cope with changes In the directions of the organization. 
Counsel asserts that the beneficiary is a "functional manager." Counsel also asserts that the initial application 
was approved and the extension should also be approved. Finally, counsel claims that in addition to 
qualifying in a managerial or executive capacity, the beneficiary also possesses "specialized knowledge" in 
connection with the petitioner's restaurant business. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2)(3() The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
SRC 03 185 53621 
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executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and reIy on partial sections of the two statutory definitions. 
In the instant petition, the only description of the beneficiary's job duties that the petitioner provided in the 
record before the director was the statement on the L Supplement to Form 1-129 that the beneficiary 
"operate[s] and supervise[s] all necessary functions in running the U.S. Thai restaurant." Such a conclusory 
statement regarding the beneficiary's employment capacity is not sufficient to meet the applicable regulatory 
requirements. See 8 C.F.R. 8 214.2(1)(3)(ii). 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), @d, 905 F.2d41 (2d. Cir. 1990). 
The AAO notes that counsel submits a more detailed description of the beneficiary's job duties on appeal. 
However, the regulations clearly require "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," and the petitioner was given a reasonable opportunity to provide the required evidence for the 
record before the visa petition was adjudicated. 8 C.F.R. 5 214.2(1)(3)(ii) (emphasis added). The petitioner 
failed to submit the required evidence earlier and now submits it on appeal. Under the circumstances, the 
AAO need not and does not consider the sufficiency of the evidence submitted on appeal. See Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will 
be adjudicated based on the record of proceeding before the director. 
The AAO further concurs with the director's conclusion that the petitioner has not demonstrated that the 
beneficiary has been or will be primarily directing or supervising a subordinate staff of professional, 
managerial or supervisory employees who will relieve him from performing non-qualifjmg duties. Although 
the beneficiary is not required to supervise personnel, if it is claimed that his duties involve supervising 
employees, the petitioner must establish that the subordinate employees are supervisory, professional, or 
managerial. See section IOl(a)(#)(A)(ii) of the Act, 8 U.S.C. 8 1101(a)(44)(A)(ii). Here, 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. Based on their job 
descriptions, the beneficiary's subordinates do not appear to have any supervisory or managerial roles. As a 
first-line supervisor, the beneficiary would 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, 8 U. S.C. 5 1 1 01(a)(44)(A)(iv). Moreover, the petitioner has not established that 
these subordinate employees possess, or that their positions require, an advanced degree, such that they could 
be classified as professionals. Since the beneficiary is primarily supervising a staff of non-professional, non- 
supervisory employees, the beneficiary cannot be deemed to be primarily acting in a managerial capacity. 
Counsel claims on appeal that the beneficiary "will continue directing the daily operations and performing 
essential administrative functions, such as menu selection, licensing compliance, inventory control, 
development and evaluation of long-range goals and objectives, managing activities, costs, trends, goals and 
evaluating and reporting the restaurant's success in each area," and as such, the beneficiary qualifies as a 
"functional manager." The term "function manager" applies generally when a beneficiary does not supervise 
SRC 03 185 53621 
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or control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 10 l(a)(44)(A)(ii) of the Act, 8 U. S.C. $ 1 10 l(a)(44)(A)(ii). If 
the 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 estabIish 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 hction. In this matter, the 
record does not contain evidence that the beneficiary manages rather than performs the duties relating to the 
"essential ahnistrative functions" identified by counsel. 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, 19 I&N Dec. 593, 604 (Cornm. 1988). 
Accordingly, counsel's assertion that the beneficiary qualifies as a functional manager is not persuasive. 
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has not 
established that the beneficiary will be employed in a primarily or managerial capacity, as required by 
8 C.F.R. 5 2 14.2(1)(3). 
The AAO also does not find persuasive counsel's assertion that since the Citizenship and Immigration 
Services (CIS) approved the previous petition filed on behalf of the beneficiary, the petition for extension 
should also be approved. The director's decision does not indicate whether he reviewed the prior approval. If 
the previous nonimmigrant petition were approved based on the same unsupported and contradictory 
assertions that are contained in the current record, the approval would constitute material and gross error on 
the part of the director. The AAO is not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church ScientoZogy International, 19 I&N Dec. at 597. It would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084,1090 
(6th Cir. 19871, cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). In addition, approval of a prior petition does not preclude CIS from 
denying an extension of the original visa based on reassessment of petitioner's qualifications. Texas AM 
Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). 
Finally, with respect to counsel's assertion on appeal that the beneficiary possesses "speciaIized knowledge" 
in connection with the petitioner's restaurant business, the AAO notes that the petitioner is requesting 
classification as an L-I A nonimmigrant intracompany transferee, based on employment in a managerial or 
executive capacity, rather than an L-1B classification, based on employment involving specialized 
knowledge. See section IOl(a)(lS)(L) of the Act. In filing the petition, the petitioner did not request 
consideration based on the beneficiary's specialized knowledge, nor did the petitioner submit any evidence 
relevant thereto. The assertions of counsel on appeal do not constitute evidence. Matter of Obaigbena, 19 
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I&N Dec. at 534; Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503,506 (BIA 1980). 
Beyond the decision of the director, the evidence does not establish that the foreign entity employed the 
beneficiary in a primarily managerial or executive capacity. On the L Supplement to Form 1-129, the 
petitioner lists the employer abroad a- Bangkok, Thailand, but the petitioner did not 
specify the dates of the beneficiary's employment, or describe the beneficiary's duties, with that employer.' 
The petitioner did submit a letter from n Bangkok, Thailand, certifjmg that the 
beneficiary was employed as a chef in the main kitchen of that restaurant from February 2001 through March 
2002. However, there is no evidence indicating that in any way affiliated 
with the entity named as the foreign employer on the light of the foregoing, 
the AAO must conclude that the evidence does not establish that the foreign entity employed the beneficiary 
in a primarily managerial or executive capacity. The petition will be denied for that additional reason. 
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. lizc. v. United States, 229 F. Supp. 26 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. NS, 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 elig~bility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed. 
1 In response to a question on the L Supplement to Form 1-129 asking for the dates of the beneficiary's 
employment with the foreign employer, the petitioner stated, "Employed in the United States as L1A manager 
since 9-12-2002." The petitioner also indicated on that form that a description of the beneficiary's duties was 
attached. However, the AAO finds no document in the record that contains a description of the beneficiary's 
duties for the previous be years.