dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-S-USA, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 28, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant operator, seeks to continue the Beneficiary's employment as its 
"President/CEO" under the L-1 A nonimmigrant classification for intracompany transferees. 1 See 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The 
L-1A classification allows a corporation or other legal entity (including its affiliate or subsidiary) to 
transfer a qualifying foreign employee to the United States to work temporarily in a managerial or 
executive capacity. 
The Director of the Vermont Service Center denied the new office extension petition concluding that 
the Petitioner did not establish, as required, that the Beneficiary would be employed in an executive 
capacity. 
On appeal, the Petitioner submits a brief citing to a precedent decision to support the claim that it 
provided sufficient evidence establishing that the Beneficiary will primarily perform executive job 
duties. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a capacity that is manager, executive. or involves specialized 
knowledge, for one continuous year within three 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 or executive capacity. !d. 
1 
The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
March II, 2015, through March I 0, 2016. A "new office" is an organization that has been doing business in the United 
States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. ~ 214.2(1)( I )(ii)(F). The 
regulation at 8 C. F.R. § 214.2(1)(3 )( v )(C) allows a "new office" operation one year with in the date of approval of the 
petition to support an executive or managerial position. 
Matter ofT-S-USA. LLC 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition: a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held: 
evidence of its financial status, evidence that it has been doing business for the previous year: and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in an executive capacity. 2 
The statute defines an "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization. component or function: 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives. the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USC IS) 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 101(a)(44)(C) ofthe Act. 
A. Duties 
When examining the executive capacity of the Beneficiary, we will look first to the Petitioner's 
description of the job duties. The Petitioner's description of the job duties must clearly describe the 
duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World. Inc. r. INS'. 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS. 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
2 
The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. Therefore, our analysis 
will address only whether the record contains sufficient evidence to establish that the Beneficiary's proposed 
employment would be in an executive capacity. 
2 
Matter ofT-S-U~A. LLC 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated that it operates a restaurant 
and has eight employees. The Petitioner provided a new business plan and stated that the Beneficiary"s 
job duties as president/CEO would remain unchanged, despite the fact that the company changed its 
business model from a cellular phone and service business to a fast food restaurant. It claimed that the 
Beneficiary "directs the organization and continues exercising an extraordinary amount of discretion [sic] 
authority and will make decisions on all major issues." 
The Petitioner provided a separate job description for the Beneficiary, highlighting six broad categories 
with a corresponding percentage breakdown and a list of duties and responsibilities within each category. 
summarized as follows: (1) "Legal Compliance'' (5% of the Beneficiary's time)- ensuring proper filing 
of documents and compliance with laws and regulations: (2) ""Mission, Policy. and Planning'· (I 01%) -
working with "top management" to establish company goals and ''evaluate [the Petitioner]'s relevancy 
to the community" and keeping management "fully informed on the condition of [the Petitioner]": (3) 
"Management and Administration'' (35%)- overseeing the Petitioner's proper function, program quality. 
staffing, and management personnel; (4) ""Governance" (20%) - evaluating company pertom1ance. 
establishing strategies, and managing the company's "due diligence process": (5) ·'Financing'' (I 0%) -
promoting the Petitioner's "programs and services," overseeing the Petitioner's fiscal activities, and 
ensuring that the Petitioner has ''an etTective fund development program" and ··availability of products to 
support solicitation": and (6) "Community Relations'' (20%)- advocating for the Petitioner's interests in 
the public and private sectors, hearing client and community feedback and maintaining ""cooperative 
relationships with key constituencies," and representing the Petitioner within the community. 
In response to the Director's request for a more detailed description of the Beneficiary"s duties, the 
Petitioner provided a nearly identical position description. The Petitioner also added a job summary 
in which it again highlighted the Beneficiary's discretionary authority, wide latitude in making 
discretionary decisions, and his lack of accountability to a higher authority. The Petitioner claimed 
that the Beneficiary "delegates responsibility tor management and day-to-day operations" to the 
restaurant's general manager, who then ··carries out its governance function." 
The Petitioner also did not clarify the multiple ambiguities in its original job description, which 
contained vague language that is not readily applicable within the context of the Petitioner's business 
and gives little indication as to the specific underlying tasks the Beneficiary would perform as 
president/CEO of a fast food restaurant. For example, the job description used phrases like 
"relevancy to the community" and "philanthropy and fund development" when discussing the 
Beneficiary's role with respect to the Petitioner's mission, policy, and planning. However, further 
clarity is needed to convey an understanding ofthese phrases and the Beneficiary's actual role in the 
day-to-day operation of the business. 
Likewise, the Petitioner claimed that the Beneficiary would further governance of the company by 
"[h ]elp[ing] the [ c ]ompany articulate its own role and accountabilities'' and that managing the 
company's finances would involve "[p]romot[ing] programs and services." Again, these general 
claims require further explanation as neither is readily understood within the context of the 
Petitioner's business. It is unclear what "role and accountabilities" the Petitioner would articulate or 
Matter of T-S- USA, LLC 
to whom it would articulate these elements. The Petitioner was equally vague in neglecting to 
specify the nature of ''programs and services'' it seeks to perform; aside from promoting the 
restaurant and the food it serves, it is unclear what other "programs and services" the Petitioner can 
offer or promote. 
In the denial decision, the Director emphasized that the Beneficiary's position description was vague 
and only identified generic job responsibilities. The Director further noted that the Petitioner did not 
list the Beneficiary's specific daily job duties or provide examples of the types of executive-level 
decisions the Beneficiary has made or would make. Based partly on these findings the Director 
concluded that the Petitioner did not establish that the Beneficiary would primarily perform 
executive duties under the extended petition. 
On appeal, the Petitioner submits a brief in which it emphasizes that it need only establish eligibility 
by the preponderance of the evidence and claims that it submitted sufficient evidence to meet this 
standard. The Petitioner compares its supporting evidence to the evidence submitted in Matter of' 
Chawathe, 25 I&N Dec. 369 (AAO 2010), where we determined that a letter from the applicant's 
employer and an SEC Form 1 0-K constituted sut1icient evidence for the purpose of establishing that 
the U.S. entity was a subsidiary of the Beneficiary's temporary employer abroad. We disagree with 
the Petitioner's argument and find that the facts and circumstances in the present matter are not 
analogous to those in Chawathe and thus the Petitioner has not established a basis for sustaining this 
appeal. Unlike in the present matter. the applicant in Chawathe was required to submit evidence to 
prove an objective fact, i.e., a parent-subsidiary relationship between the applicant's foreign and 
U.S. employers. The applicant did that by submitting a tax document and a letter from his employer. 
In light of the hardship involved in obtaining a more probative piece of evidence, such as company­
issued stock certificates, and the applicant's submission of the SEC Form 1 0-K, which included 
information that was sut1iciently probative and readily available, we determined that the Petitioner 
met the preponderance of the evidence standard. See id. 
In the present matter, the Director adequately conveyed the importance of submitting a detailed job 
description with a list of the specific tasks the Beneficiary would perform. Without this critical 
information. we cannot determine whether the primary portion of the Beneficiary's time would be 
allocated to executive tasks. The actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. II 03, 1108 (E.D.N.Y. I989), affd, 905 F.2d 41 (2d. Cir. 
1990). As fully discussed above, the Petitioner in this instance provided an inadequate job 
description that lacked a detailed discussion of the Beneficiary's job duties and instead relied on 
ambiguous terminology that was not applicable to the Beneficiary's position and could not be 
interpreted within the context of the Petitioner's business. The Petitioner was merely instructed to 
provide a more probative job description, which it could have easily done. since it already employs 
the Beneficiary in the offered position. While the Petitioner successfully conveyed an understanding 
of the Beneficiary's level of discretionary authority, the vague nature of the job description 
precludes us from understanding how the Beneficiary would use that authority and what underlying 
duties he would carry out on a daily basis as the president and CEO of a restaurant. 
4 
Matter ofT-S-USA, LLC 
Moreover, the Petitioner indicated that the Beneficiary would market the Petitioner·s products. but 
did not state specifically how much time the Beneficiary would allocate to this non-executive task. 
In addition, as discussed further below, the record does not support a finding that the Beneficiar:( s 
subordinate staff would relieve him from involvement in the many non-executive activities 
associated with the daily operation of the Petitioner's business. While no beneficiary is required to 
allocate 100% of their time to managerial-level tasks, the petitioner must establish that the non­
qualifying tasks the beneficiary would perform are only incidental to the proposed position. An 
employee who "primarily'" performs the tasks necessary to produce a product or to provide services 
is not considered to be '·primarily"" employed in a managerial or executive capacity. S'ee sections 
10l(a)(44)(A) and (B) of the Act (requiring that one "'primarily"" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology In! '1, 19 I&N Dec. 593. 604 (Comm·r 
1988). 
Where, as in this instance, the Petitioner provides a job description that does not disclose the 
Beneficiary's actual job duties, we are unable to gauge how the Beneficiary would spend the primary 
portion of his time or whether the tasks to be performed would be primarily of an executive nature. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining a beneficiary's claimed executive capacity, including the company's organizational 
structure, the duties of a beneficiary's subordinate employees. the presence of other employees to 
relieve a beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
The 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 10 I (a)( 44 )(B) of the 
Act. 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 they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
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 the owner or sole managerial 
employee. A beneficiary must also exercise ·'wide latitude in discretionary decision making·· and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." !d. 
The Petitioner provided an organizational chart, which shows that the Beneficiary directly supervises 
a general manager who, in turn, supervises three cooks and three cashiers. The Petitioner also 
provided an employee list which included each employee"s name. title. and annual salary and 
suggested that all employees were working full-time or close to full-time. The request for evidence 
notified the Petitioner that this evidence was insufficient to establish that it has sut1icient stafling 
Matter of T-S- USA, LLC 
levels to support the Beneficiary in an executive position. The Petitioner was also notified that the 
record lacked a discussion of the support staff and their assigned job duties. 
In response, the Petitioner did not provide the requested job descriptions for its support staff and 
instead resubmitted the original organizational chart and employee list, accompanied by wage and 
tax documents for 2016 and a 2016 payroll register. While Petitioner's wage report for the 2016 first 
quarter indicates that it had 11 employees in March 2016 during which the petition was filed. the 
payroll register supports the information claimed in the Petitioner's Form I-129. That said, the 
payroll register indicates that most of the Petitioner's employees worked on a part-time basis and 
indicates that two of the three cooks who were named on the organizational chart did not work for 
the Petitioner at all in March 2016 when the petition was filed. One other employee. a cashier, 
worked only four and a half hours during the two-week time period that includes the date of 
petition's filing. Thus, while the payroll register supports the claim that the Petitioner had at least 
eight employees at the time the petition was filed, it is unclear whether the Petitioner's staffing was 
sufficient to relieve the Beneficiary from having to engage in the various non-executive tasks 
involved in working in and running a restaurant as most of the employees are shown to have 
received wages commensurate with part-time employees and three of the employees were not listed 
in the organizational chart, thereby making it impossible to determine what positions these 
employees held. 
In denying the petition, the Director noted the absence of employee job descriptions and educational 
credentials and concluded that the record lacked sufficient evidence to establish that the Petitioner 
would be able to relieve the Beneficiary from having to primarily perform its non-executive 
functions. 
On appeal, the Petitioner submits job descriptions for all of the positions within its organization, 
indicating that aside from employee scheduling, training, and general oversight the general manager 
performs many of the restaurant's daily operational tasks and customer service functions. Further. 
the payroll register indicates that the general manager was actually paid a salary of only $700 bi­
weekly, which is considerably less than her claimed $30,000 annual salary. This wage discrepancy 
indicates that the general manager may not have been working on a full-time basis, thus raising the 
question of who, if not the Beneficiary, would assume the general manager's non-qualifying 
operational and first-line supervisory duties when she is not available to carry out those tasks. In 
fact, even if the general manager was working on a full-time basis at the time of filing, it is doubtful 
that she was available to work during all of the restaurant's hours of operation. which would 
reasonably exceed 40 hours per week. It is unclear who, if not the Beneficiary. would take over the 
general manager's non-executive tasks when she is not on duty. 
We must take into account the reasonable needs of the organization and that a company's size alone 
may not be the only factor in denying a visa petition for classification as a multinational manager or 
executive. See section 10l(a)(44)(C) of the Act. However, it is appropriate for USCIS to consider 
the size of the petitioning company in conjunction with other relevant factors, such as the absence of 
employees who would perform the non-managerial or non-executive operations of the company. 
.
Matter of T-S- USA, LLC 
Family inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS', 153 F. Supp. 2d 7, 15 
(D.D.C. 2001 ). Here, the Petitioner did not establish that the subordinate staff in place at the time of 
tiling would be sunicient to relieve the Beneficiary from significant involvement in the day-to-day 
operations of its restaurant, and thus it has not supported its claim that he performs primarily 
executive duties or that it has a reasonable need for an executive employee who would spend his 
time primarily focused on the broad policies and goals of the organization. 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary 
would be employed in an executive capacity under the extended petition. 
III. DOING BUSINESS 
Finally, while not addressed in the Director's decision, we find that the Petitioner did not establish, 
as required, that it had been doing business for the previous year. See 8 C.F.R. ~ 214.2(l)(l4)(ii)(B). 
The phrase "doing business" is defined as the regular, systematic, and continuous provision of goods 
or services and does not include the mere presence of an agent or onice. 
The Petitioner's initial new office petition was approved in March 2015. At the time of tiling this 
petition, the Petitioner did not disclose the prior year's gross or net income on the Form I-129. The 
Petitioner stated in its supporting cover letter 
that its original intent was to operate a sales 
and service outfit, which it claimed it was forced to close. The Petitioner did not provide supporting 
evidence to show that it actually operated a store or that it was doing business at any 
time in 2015. The record shows that the Petitioner started operating its restaurant business no earlier 
than January 2016, approximately two months prior to tiling this petition. 
In light of the above, the Petitioner has not provided sufficient evidence to show that it was doing 
business for the previous year. For this additional reason, the petition cannot be approved. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial capacity under the extended petition or that it was doing business for the previous 
year. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-S-USA, LLC, ID# 765103 (AAO Sept. 28, 2017)