dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: EAC 07 164 52892 Office: VERMONT SERVICE CENTER Date: FEB 0 3 2009 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Joh $"- . Grissom, Acting Chief 
Administrative Appeals Office 
EAC 07 164 52892 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's employment as an L-1A 
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, a Florida limited liability company, operates a 
Chinese take-out restaurant. The petitioner states that it is a subsidiary of-, located in 
Venezuela. The beneficiary was initially granted one year in L-1A status in order to open a new office in the 
United States, which was valid from October 19, 2004 until October 19, 2005. The petitioner subsequently 
filed an 1-129 petition to extend the beneficiary's status on September 7, 2005; that petition was denied on 
June 14, 2006 (SRC 05 244 50595).' The petitioner seeks to continue to employ the beneficiary as its 
president for three additional years. 
The director denied the petition concluding that the petitioner did not establish: (1) that that the U.S. company 
and the beneficiary's foreign employer have a qualifying relationship; or (2) that the beneficiary would be 
employed by the U.S. company 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, the petitioner asserts that the director placed undue 
emphasis on the size and nature of the petitioner's business, without giving due consideration to the 
beneficiary's job duties, and denied the petition, in part, based on the petitioner's failure to provide evidence 
that was never requested. With respect to the claimed qualifying relationship, the petitioner states that the 
foreign entity owns 100 percent of the petitioner's shares, although the shares have been issued in the name of 
, one of the shareholders of the foreign entity. The petitioner submits a brief and additional 
evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial 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 
1 
 The petitioner explains that it never received a copy of the Notice of Denial issued in connection with the 
previous petition, and was not informed of the denial of the previous petition until February 2, 2007, at which 
time a status inquiry revealed that the petition had been denied on June 14, 2006. The petitioner requests that 
the instant petition be approved with a validity date commencing on October 19, 2005. The petitioner states 
that it still has not received a copy of the notice of denial issued on June 14, 2006. The AAO acknowledges 
that it appears there was some complication with the issuance of a decision in the previous matter. However, 
the instant petition was filed on May 17, 2007, 19 months following the expiration of the beneficiary's L-1A 
petition, 11 months following the denial of the initial extension request, and more than 3 months after the 
petitioner claims it learned of the previous denial. The regulation at 8 C.F.R. fj 214.2(1)(14)(i) provides, in 
pertinent part, that a petition extension may be filed only if the validity of the original petition has not 
expired. Therefore, it is noted for the record that the beneficiary is ineligible for an extension of status in the 
United States. 
EAC 07 164 52892 
Page 3 
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. 9 214.2(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 (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. 
(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 himker 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 first issue to be address is whether the petitioner established that there is a qualifying relationship 
between the United States and foreign entities. To establish a "qualifying relationship" under the Act and the 
regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer 
are the same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as 
"affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R. 5 214.2(1). 
The pertinent regulations at 8 C.F.R. tj 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 QualzJjling organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
EAC 07 164 52892 
Page 4 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) AfJiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity[.] 
The petitioner filed the nonimmigrant petition on May 17, 2007. 
 The petitioner indicated on the L 
Classification Supplement to Form 1-129 that the U.S. company is a subsidiary of the beneficiary's foreign 
employer. Specifically, the petitioner stated: '. owns 100% Interest in Subsidiary and 
delegated the membership interest under her name for parent company." 
The petitioner did not submit documentary evidence of its ownership and control, such as stock certificates or 
membership certificates. However, the petitioner did submit copies of its IRS Forms 1120, U.S. Corporation 
Federal Income Tax Return, for the years 2004 through 2006. All of the tax returns indicate at Schedule K 
that owns 100 percent of the U.S. company. The petitioner also submitted a company 
- - 
registration document for the foreign entity which indicates that 
 owns 1,000 shares if the 
foreign entity's stock, and g owns 9,000 shares. 
The director found this information insufficient to establish that the two companies possess the required 
qualifying relationship. Accordingly, on May 3 1, 2007, the director issued a request for additional evidence 
(RFE), in which he requested, inter alia, documentary evidence of the ownership and control of the 
petitioning company. The director advised that such evidence may include, but is not limited to, copies of 
stock certificates, stock ledgers, articles of incorporation, etc. The director further advised that the evidence 
submitted must clearly delineate the ownership and control of the United States petitioner. The director noted 
that, based on the evidence in the record, it appears that, rather than the foreign entity, is the sole 
owner of the petitioning company. 
In a response dated August 24, 2007, the petitioner stated the following: 
EAC 07 164 52892 
Page 5 
Please accept the original Articles of Incorporation of Parent Company wherein it shows that 
Parent authorized the [Board of Directors] members to open subsidiaries in Venezuela and in 
any other country. In addition, please have the minutes with the authorization to - 
, to open a subsidiary in the United States under her name to prevent two circumstances; 
One, to be charged double taxation by the government of Venezuela for having a subsidiary 
in the U.S. Second, to prevent law suits or related liability complaints to our parent company 
that might be filed 
 Furthermore, the [Board of Directors] of the parent 
company authorized 
 to put under her name the total membership interest 
considering that the other stockholder in Venezuela is her brother who will manage the parent 
company; therefore, the qualifying parenusubsidiary is established. 
The petitioner submitted a letter from 
 , dated August 24, 2007, who stated that 
in his capacity as managing director 
 establish a 
division in Miami, Florida. The petitioner did not submit a copy of the "minutes" referenced in its response 
letter, nor did it submit the documentary evidence of the petitioner's ownership that was requested by the 
director. 
The director denied the petition on September 24, 2007, concluding that the petitioner failed to establish that 
the petitioner has a qualifying relationship with the foreign entity. The director acknowledged the petitioner's 
claim that the U.S. entity was not set up as a legal subsidiary due to the foreign entity's desire to prevent 
taxation by the government of Venezuela. However, the director concluded that "the fact remains that, legally, 
owns 10 percent of the foreign entity and 100 percent of the United States entity." 
On appeal, the petitioner asserts that the foreign and U.S. entities do in fact have a qualifying relationship. 
Specifically, the petitioner states: 
Parent company has a minutes issued on March 01, 2003 for by nd - 
wherein they agreed to open a subsidiary and other related reasons for the subsidiary has to 
be open[ed] under name; in addition, the Service accepted and is very clear 
when stated that - owns 10% of the parent company and 100% of Petition; in other 
word Service recognized the ownership abroad and in the U.S. belonging to similar 
shareholders; it is in records that the articles of incorporation of parent company stated that 
the only two shareholders are and [; further the business activities are 
determined to the extended of opening subsidiaries in Venezuela and in any country that not 
limit the United States. It is also normal for foreign companies that usually requires to 
organized subsidiaries [sic] or branches under one of the shareholders' name for security and 
legal issues; in addition, Parent Company designated Beneficiary as the head of the [Board of 
Directors] of the subsidiary to balance powers and decision, so that said subsidiary could be 
run steady and organized. Therefore, it is very clear that the qualifying relationship between 
Parent Company and subsidiary exists at all times. 
The petitioner submits for the first time a document titled "Minutes," apparently from a meeting between I 
and shareholders of the foreign entity, held on March 1, 2003, for the purpose to "clarify 
- - 
the Articles of Incorporation of the company Mayoristas 200 1, Inc." The meeting minutes indicated: (1) that 
is authorized to incorporate a subsidiary in Miami, elorida under her own name, representing the 
EAC 07 164 52892 
Page 6 
interest of the foreign company; and (2) that it is necessary to issue shares unde 
taxation by the Government of Venezuela, and due to liability issues, but that 
designated as the higher executive to manage the U.S. entity. 
 L 
Upon review, the petitioner has not established the requisite qualifying relationship between the U.S. and 
foreign entities. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, U. S. Citizenship and Immigration Services (USCIS) is unable to determine the elements 
of ownership and control. 
Preliminarily, the AAO notes that the record contains no membership certificates, articles of association, 
operating agreement or other documentary evidence which would definitively establish the ownership and 
control of the U.S. company, and these documents were specifically requested by the director. 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). For this reason alone, the petition cannot be approved. 
As noted by the director, and conceded by the petitioner, the limited evidence in the record indicates that 
- is the majority owner of the foreign entity and controls that entity, andowns 100 
percent of the United States entity. To establish eligibility in this case, it must be shown that the foreign 
employer and the petitioning entity share common ownership and control. Control may be "de jure" by reason 
of ownership of 51 percent of outstanding stocks of the other entity or it may be "de facto" by reason of 
control of voting shares through partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N 
Dec. 289 (Comm. 1982). 
Therefore, in this matter, has "de facto" control of the United States entity based on her 
ownership of a 100 percent interest in the company, and has "de facto" control of the foreign 
entity based on his 90 percent ownership interest in that company. 
 Therefore, the petitioner has not 
established that the two entities have an affiliate relationship based on common ownership and control by the 
EAC 07 164 52892 
Page 7 
same individuals or group of individuals. The apparent sibling relationship betweendoes 
not constitute a qualifying relationship under the regulations. 
The claim that the foreign entity controls the U.S. entity, yet owns no interest in the U.S. entity, is not 
persuasive. The petitioner repeatedly emphasizes that the foreign entity's articles of incorporation establish 
that the company is authorized to establish a subsidiary in any country, including the United States. However, 
the fact that the foreign entity is authorized to establish a subsidiary does not in fact make it the parent 
company of the instant U.S. petitioner. Similarly, the minutes from the March 1, 2003 meeting, submitted for 
the first time on appeal, are not sufficient to establish the claimed parent-subsidiary relationship. While 
Venezuelan laws may have led the foreign entity to avoid establishing a U.S. subsidiary for tax purposes, the 
fact remains that the petitioner must still establish that the two companies have a qualifying relationship 
according to the U.S. statutes and regulations governing this nonimmigrant visa classification. 
 In 
immigration proceedings, the law of a foreign country is a question of fact which must be proven if the 
petitioner relies on it to establish eligibility for an immigration benefit. Matter of Annang, 14 I&N Dec. 502 
(BIA 1973). Regardless, the petitioner has not established the essential elements of common ownership and 
control. 
Furthermore, the petitioner has not submitted sufficient documentary evidence in support of its claim that 
holds the 100 percent interest in the U.S. com any as the foreign entity's representative. For example, 
there is no evidence that the foreign entity paid for b s membership interest in the U.S. company. 
The petitioner did not submit its articles of association or operating agreement, which might have elaborated 
upon who, in fact, controls the U.S. company. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N 
Dec. 1 58, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
In light of all of the omissions and deficiencies in the evidence in the record, the petitioner has not established 
that it has the claimed qualifying relationship with the foreign entity. For this reason, the appeal will be 
dismissed. 
The second issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
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 well as other personnel actions (such as 
EAC 07 164 52892 
Page 8 
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. 5 1 101(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. 
In its letter dated March 15,2007, the petitioner described the beneficiary's duties as follows: 
1. Direct the development and growth of the restaurant in the U.S. providing the appropriate 
services to the general public and institutions. As such, he will be responsible for 
directing and managing the negotiations with our providers. Furthermore, he will 
continue to supervise and control the food products and its derivatives to be used through 
the control of the kitchen manager and chef cooks; he will use the appropriate skilled 
personnel to accomplish this. As such, he is requiring the services of a marketing analyst 
to anal ze the appropriate market, setting strategic goals for growth for the new opening 
of d' restaurant #2, and when is needed to participate with agreements with third- 
party companies. As such, he will plan the other business segments like providing related 
services of promoting banquets, catering for small to medium companies. In this activity, 
he would spend about 40 percent of his time. 
2. Offer our clients the products of excellent quality and state-of-the-art services. As such, 
he will develop and implement company's policies and procedures accordingly with 
regulations to keep the high standard in order to satisfy client's expectations, and 
maintain the compromises with several companies. He would spend about 20% of his 
time on it. 
3. He will be responsible for liaison between our company, clients, and providerls, which 
currently provide support to the organization using the appropriate networks in the U.S. 
and abroad. Furthermore, he will be responsible for providing information, advice, and 
counsel to the Board of Directors in the U.S. and abroad; maintaining close contact and 
exchange of opinions to create also but not limited to policies, programs and strategic 
EAC 07 164 52892 
Page 9 
direction of the company which needs to move forward in the business areas that we are 
already into. He would spend about 30% of his time. 
4. He will contribute to our company's' knowledge and experience in the variety of 
business activities such research, management, providing the appropriate employment 
opportunities within the company's zone of influence, and contribute to strengthening the 
economic conditions in this area. As such he will continue directing and coordinating 
programs to provide new or continuing operations to maximize returns and to increase 
productivity. He would spend 10% of his time. 
The petitioner submitted an organizational 
 as executive directorlpresident. The 
chart indicates that the beneficiary supervises 
 , manager, who in turn supervises two chefs, 
one cleaning person, and one "assistant." The chart also depicts an accountant and an attorney who report to 
the beneficiary. The petitioner also provided copies of its Florida Forms UCT-6, Employer's Quarterly 
Report, for each quarter of 2005 and 2006. The petitioner's records show that it employed the same three 
employees at the same salaries for this entire two-year period. The beneficiary earned a monthly salary of 
$2,500, the manager earned a monthly salary of $1,200, and the chef, , earned a monthly salary 
of $1,000. The petitioner paid $1,400 in "professional fees" in 2006, but its detailed income statement showed 
no additional employee or contractor expenses. 
In the RFE issued on May 3 1, 2007, the director instructed the petitioner to provide a detailed description of 
the beneficiary's typical workweek. The director advised the petitioner that although it indicated on Form I- 
129 that it has seven employees, the evidence submitted documented the employment of only three workers. 
The director therefore requested that the petitioner submit a list of current employees which identifies each 
employee by name and position title, and a complete position description for each employee. The director also 
requested evidence documenting the number of contractors used by the petitioning company, if any, and 
evidence of wages paid to them. 
In its response dated August 24, 2007, the petitioner indicated that the beneficiary will perform the following 
duties under the extended petition: 
Direct, growth and managing the restaurant in addition to control and managing the 
negotiations involved in the business, plus supervise and control the food products and its 
derivatives to be use[d] through control the kitchen manager and chef cooks. [The 
beneficiary] also is guiding the business to the promoting banquets, catering for small and 
medium businesses. Furthermore, he will continue implementing and developing Petitioner's 
policies and procedures accordingly with regulations to keep high standards. He will continue 
to be the liaison with providers, companies, and with the [Board of Directors] abroad. Will 
also do research for new target markets, general management to pursue company's zone of 
influence and strengthening the economic conditions in this area. He coordinated with kitchen 
manager assignments of cooking personnel to ensure economical use of food and timely 
preparation in addition to keep records required by government agencies regarding sanitation, 
and food subsidies where appropriate. He also participated in establishing standards for 
personnel performance and customer service. He monitored food preparation methods, 
portion sizes, and garnishing and presentation of food to ensure that food is prepared and 
presented in an acceptable manner. He also monitored budgets and payroll records, and 
EAC 07 164 52892 
Page 10 
reviewed financial transactions to ensure that expenditures are authorized in accordance with 
annual budget. He also coordinate schedule of staff hours and assigned appropriate duties 
monitoring conveniently as per company policy created by Beneficiary; He monitored 
compliance with health and fire regulations regarding food preparation and serving, and 
building maintenance in lodging and dining facilities. 
The petitioner also described the beneficiary's "daily work," which incorporated many of the above-described 
duties. As this description was recited in fill in the director's decision, it will not be repeated here. 
The petitioner also provided a statement of staffing, indicating that it employs the beneficiary, the 
managerlkitchen manager, a head chef, a cook, a part-time cook assistant, and two independent contractors 
(an accountant and an attorney), who each earn approximately $350 per month. The petitioner did not 
provide the requested position descriptions for the beneficiary's claimed subordinates. The petitioner 
resubmitted evidence of wages paid to three employees during the last quarter of 2006, but did not address the 
director's observation that there was a discrepancy between the number of employees claimed and the number 
of employees who actually received wages. 
The director denied the petition on September 24, 2007, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. In denying the petition, the director noted that the only salaried employees through 2006 were the 
beneficiary, the manager and a chef, and that, although requested, the petitioner had failed to provide a 
position description for any of the beneficiary's claimed subordinates. The director therefore concluded that 
the beneficiary would not be supervising a subordinate staff of professional, managerial or supervisory 
personnel who would relieve him from performing non-qualifying duties. The director also noted that a 
business the nature and size of the petitioning company would not appear to support a bona fide managerial or 
executive position. 
On appeal, the petitioner asserts that the director placed undue emphasis on the size and nature of the U.S. 
company in determining that the beneficiary would not be employed in a qualifying managerial or executive 
capacity. The petitioner asserts that the director did not specifically observe or object to the beneficiary's 
duties, and instead only focused on the size of the company. The petitioner also contends that the director did 
not request position descriptions for the beneficiary's subordinates, and that is why such descriptions were not 
provided. The petitioner reiterates that the initial organizational chart submitted depicts the petitioner's actual 
staffing levels, and that the kitchen manager, two chefs, helper/cleaner and assistant relieve the beneficiary 
from performing the non-qualifying duties. The petitioner further asserts that it has shown its ability to 
support a managerial position, as the beneficiary has been on its payroll since 2004. 
Upon review of the petition and the evidence, the petitioner failed to establish that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
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. 8 214.2(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. 
EAC 07 164 52892 
Page 11 
While the petitioner submitted several lengthy descriptions of the beneficiary's position as president, the 
submitted descriptions fail to establish that he performs primarily managerial or executive duties. The 
petitioner indicated that the beneficiary devotes 40 percent of his time to "directing the development and 
growth of the restaurant," and noted that these duties include: "managing the negotiations with providers"; 
supervising and controlling food products though the kitchen manager and chefs; and planning the opening of 
a second restaurant and additional business segments such as banquets and catering. Although the petitioner 
has given these duties the managerial connation of "directing development and growth," the actual duties 
associated with this responsibility have not been shown to be managerial in nature. The petitioner did not 
indicate with whom the beneficiary would be negotiating, nor did it submit any documentary evidence to 
establish that the petitioner is in the process of opening a second restaurant or expanding its services. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofjci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner also has not clarified that the beneficiary's duties associated with food production are in a 
managerial capacity, as it later stated that the beneficiary himself monitors such routine kitchen tasks as food 
preparation methods, portion control and food presentation. A managerial or executive employee must have 
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the 
supervised employees are professionals. See Matter of Church Scientoloay International, 19 I&N Dec. 593, 
604 (Comm. 1988). Overall, the time the beneficiary devotes to "directing the development and growth of the 
restaurant,"cannot be considered primarily managerial in nature. 
The petitioner indicated that the beneficiary devotes an additional 20 percent of his time to offering clients 
high quality products and services, and indicated that he would "develop and implement company's policies 
and procedures accordingly." However, this statement offers little insight as to what the beneficiary primarily 
does on a day-to-day basis to develop and implement policies for the petitioner's Chinese take-out restaurant. 
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. 1 103 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 
1990). 
The petitioner stated that the beneficiary allocates 30 percent of his time to "liaison between our company, 
clients, and providers." Again, these duties have not been defined. Considering that the petitioner's "clients" 
are retail fast food customers, it is not clear what type of "liaison" the beneficiary would have with them that 
is not sales or customer-service related. Similarly, it is unclear what "providers" the beneficiary would be 
liaising with on a day-to-day basis. These duties have also not been demonstrated to be primarily managerial 
or executive in nature. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
provide any detail or explanation of the beneficiary's activities in the course of his daily routine. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Cir. 1990). 
EAC 07 164 52892 
Page 12 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to sufficiently document what proportion of the beneficiary's duties 
would be managerial functions and what proportion would be non-managerial. As noted above, the general 
breakdown provided by the petitioner is of little probative value as it does not clearly specify what he does on 
a day-to-day basis within the context of the petitioner's business. Although the director specifically requested 
a description of the beneficiary's "typical workweek," the petitioner's response to the request for evidence 
was no more lucid than that provided at the time of filing, and failed to establish that the beneficiary's duties 
are primarily managerial or executive. 
Upon review of the initial evidence, the director specifically requested additional evidence regarding the 
management and personnel structure of the foreign entity, including an explanation for the discrepancy 
between the number of claimed employees and the number of employees reported on the petitioner's quarterly 
wage reports, an employee list, a complete position description for each employee, and evidence of payments 
made to contractors. In response, the petitioner submitted an employee list consisting of five employees and 
two contractors, but failed to provide any evidence of wages paid to anyone other than the beneficiary, the 
manager, and the chef. The petitioner did not acknowledge the director's request for a complete description of 
duties for all employees in the company. The failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). 
On appeal, the petitioner incorrectly asserts that the director did not request position descriptions for the 
beneficiary's subordinates. Furthermore, the petitioner still has not provided the requested job descriptions, 
nor has it provided evidence to resolve the discrepancy between the number of employees reported on the 
petitioner's quarterly wage records and the number of employees claimed. Contrary to the petitioner's 
assertions, the company's self-prepared organizational chart is insufficient to establish the petitioner's actual 
staffing levels. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). The evidence of record does not establish that the petitioner employs anyone other 
than the beneficiary, the manager and the chef. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the 
petitioner's business, the employment and remuneration of employees, and any other facts contributing to a 
complete understanding of a beneficiary's actual role in a business. The evidence must substantiate that the 
duties of the beneficiary and his or her subordinates correspond to their placement in an organization's 
structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not probative and will 
not establish that an organization is sufficiently complex to support an executive or manager position. An 
individual whose primary duties are those of 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 1 0 1 (a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. Instead, the record indicates that the beneficiary's 
two subordinates perform the actual day-to-day tasks of operating the petitioner's Chinese take-out restaurant. 
EAC 07 164 52892 
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The petitioner has not provided evidence of an organizational structure sufficient to elevate the beneficiary to 
a supervisory position that is higher than a first-line supervisor of non-professional employees. Pursuant to 
section 101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial or 
executive under the statutory definitions. 
On appeal, the petitioner argues that the director placed undue emphasis on the size and nature of the 
petitioner's business in determining that the beneficiary would not be employed in a primarily managerial or 
executive capacity. A company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
Section 101 (a)(44)(C) of the Act, 8 U.S.C. 5 1 101(a)(44)(C). However, in reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that USCIS "may properly 
consider an organization's small size as one factor in assessing whether its operations are substantial enough 
to support a manager." Family Inc. v. US. Citizenship and Immigration Services, 469 F. 3d 13 13, 13 16 (9th 
Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. 
Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 
29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to consider the size of the petitioning company 
in conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The petitioner operates a take-out Chinese restaurant. Based on the photographs submitted of the petitioner's 
business premises, the petitioner also offers delivery services. The petitioner employs the beneficiary as its 
president, a managerlkitchen manager whose duties have not been described, and one chef. It has not been 
established, based on the evidence of record, that a manager and a chef would perform the majority of the 
non-qualifying duties associated with operating the business, such as purchasing food and supplies, preparing 
food, receiving deliveries from suppliers, taking delivery orders by phone, operating a cash register, 
delivering orders to customers, cleaning and maintenance activities, as well as the daily administrative tasks 
associated with operating any business. The company's operating hours have not been provided, but it is 
reasonable to assume that the business is open daily or at least six days per week, and it is unclear how the 
company would be able to operate without the beneficiary's participation in the day-to-day operations. Based 
on the petitioner's representations, it does not appear that the reasonable needs of the petitioning company 
might plausibly be met by the services of the beneficiary as president, one manager, and one chef. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this 
essential element of eligibility. 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium- 
size businesses. However, the AAO has consistently required the petitioner to establish that the beneficiary's 
position consists of primarily managerial or executive duties and that the petitioner will have sufficient 
personnel to relieve the beneficiary from performing operational and/or administrative tasks. The AAO's 
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holding is based on the conclusion that the petitioner failed to establish that the beneficiary is primarily 
performing managerial duties, rather than on the size of the petitioning entity. 
The beneficiary will not be considered to be employed in a managerial capacity simply because he has been 
given a managerial job title and placed at a senior level in the petitioner's organizational chart. The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108. Based on the petitioner's failure to provide a clear and credible account of the beneficiary's current job 
title, duties and the amount of time he devotes to his duties, and its failure to provide the requested 
information regarding the beneficiary's subordinate staff, the AAO cannot discern with any degree of 
certainty what the beneficiary primarily does on a day-to-day basis, nor can it find that the two subordinate 
employees documented by the petitioner would reasonably relieve him from performing non-qualifying 
duties. 
Therefore, the petitioner has failed to establish that the beneficiary will perform primarily managerial or 
executive duties under the extended petition. The petitioner has not submitted additional evidence on appeal 
to overcome the director's determination. Accordingly, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.