dismissed L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Z- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 30, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner intends to open and operate an Asian fusion-style barbeque restaurant. It seeks to 
temporarily employ the Beneficiary as the "Executive Chef' of its new office I under the L-1 A 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) section 10l(a)(l5)(L), 8 U.S.C. § 110l(a)(l5)(L). The L-lA 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 petition, concluding that the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity 
within one year of the petition's approval. The Director found that the record lacked "an actionable 
operation plan or timeline" and expressed concerns about the realistic expectation that the Petitioner 
will attain an organizational complexity to support the Beneficiary in a managerial or executive 
position. 
On appeal, the Petitioner highlights the amount of the monetary investment that was made as of the 
date it filed this petition and asserts that its intended operation has been adequately funded. The 
Petitioner also points to a previously submitted organizational chart and the Beneficiary's job duty 
breakdown as evidence of the Beneficiary's critical role within the new operation. 
Upon de nova review, we find that the Petitioner has not overcome the basis for denial. Therefore, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(])(1)(ii)(F). The regulation at 8 C.F.R. § 214.2(])(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Matter of Z- LLC 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). 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. Id. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Petitioner claims that it will employ the Beneficiary in a managerial capacity. The primary 
issue to be addressed in this discussion is whether the Petitioner provided sufficient evidence to 
establish that its operation would support the Beneficiary in a managerial capacity within one year of 
the petition's approval. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act. 
A. New Office Requirements 
In the case of a new office petition, we review the petitioner's business and hiring plans and 
evidence that the business will grow sufficiently to support a beneficiary in the intended managerial 
or executive capacity. A petitioner has the burden to establish that it would realistically develop to 
the point where it would require the beneficiary to perform duties that are primarily managerial or 
executive in nature within one year of the petition's approval. Accordingly, we consider the totality 
of the evidence in analyzing whether the proposed managerial or executive position is plausible 
based on a petitioner's anticipated staffing levels and stage of development within a one-year period. 
See 8 C.F.R. § 214.2(1)(3)(v)(C). 
The Petitioner claimed one employee and no income at the time of filing. It provided a supporting 
cover letter stating that upon arrival, the Beneficiary would make decisions about the menu, kitchen 
organization, design, and staffing. The Petitioner highlighted the funds that have been invested thus 
far to purchase an existing restaurant and described its current status as undergoing "basic 
renovations" and "in the planning phase." Although the Petitioner provided a site plan, it is unclear 
whether the plan depicts the existing restaurant structure or whether it is intended to illustrate the 
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Matter of Z- LLC 
renovations that the Petitioner seeks to make. The Petitioner also provided a business plan, which 
includes a personnel plan and a quarterly revenue projections chart; the latter shows "construction in 
progress" as the Petitioner's status during the 2016 fourth quarter and the 2017 first quarter. The 
Petitioner did not provide supporting documents, such as contracts or invoices, to show who would 
be doing the renovation, how much the renovation would cost, or the renovation timeline showing 
when it would start and how long it would take. The business plan also contains a proposed 
organizational chart, which shows the president at the top of the hierarchy overseeing three 
subordinates - an accountant, the Beneficiary in his position as executive chef with four chefs as his 
direct subordinates, and a front desk manager overseeing a cashier, a "front desk shift leader," and a 
"front desk waiter." These positions are listed in a personnel plan that discloses each position's 
anticipated yearly salary and projected date of hire. 
In a request for evidence (RFE), the Director noted that the business plan did not specify 
benchmarks or list goals that the Petitioner expected to accomplish within its first year of operation. 
The Director also found that the Petitioner did not establish that by the end of its first year of 
operation its projected organizational structure and staffing levels would be sufficient to relieve the 
Beneficiary from having to perform primarily non-managerial job duties. 
In response, the Petitioner stated that the Beneficiary would be a function manager with the 
responsibility of ensuring that the kitchen consistently produces high quality food. The Petitioner 
asserted that a subordinate staff of four chefs would be sufficient to allow the Beneficiary to focus 
on primarily managerial duties, such as creating menus and "locating top-quality resources." It 
claimed that a more detailed operation plan was not necessary because sufficient information was 
provided about its overseas multi-restaurant operation, which serves as the model for the U.S. 
operation. The Petitioner explained that its growth strategy is to first open one restaurant and then 
engage in "careful expansion" while avoiding "an overly ambitious growth plan." The Petitioner did 
not, however, elaborate on a more detailed plan as to how it would execute this vague growth 
strategy. Although the Petitioner provided additional information about its renovation, including 
detailed site plans and photographs of the premises, it did not provide evidence showing who would 
perform the work, estimates, invoices for the work to be performed, and a timeline indicating how 
long the renovation process would take. 
In the denial decision, the Director found that the Petitioner did not provide a detailed list of actions 
or benchmarks to explain how it would achieve its business goal of opening and operating a 
restaurant. In light of this finding, the Director concluded that the Petitioner did not establish that it 
would have the ability to support the Beneficiary in a managerial position within one year of the 
petition's approval. 
On appeal, the Petitioner emphasizes the significant monetary contributions that have been made 
toward the purchase and construction of its business premises, claiming that the location was not 
operational at the time of filing. However, we find that the Petitioner provided a deficient business 
plan and did not adequately explain the timeline for completing renovations and commencing 
business as a restaurant operation. The Petitioner must resolve any inconsistencies or ambiguities in 
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Matter of Z- LLC 
the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner provided a business plan that is internally inconsistent and contains notable 
irregularities that have not been resolved, thereby resulting in an incomplete understanding of the 
Petitioner's hiring timeline and projected costs. For instance, the previously mentioned revenue 
projections chart at section VI of the business plan indicates that the Petitioner incurred its first 
payroll expense of $21,000 in the 2016 fourth quarter; this amount more than doubles to $46,000 in 
the 2017 second quarter, despite the fact that the Petitioner claimed only one employee in August 
2017 when this petition was filed. Further, the personnel plan at section VII of the business plan 
shows that the Petitioner intended to hire its first two employees in July 2017, which falls within the 
third quarter; it is therefore unclear why the Petitioner anticipated having any payroll expenses prior 
to the 2017 third quarter when the two hires were expected to take place. The revenue projections 
chart also shows that the Petitioner's 2017 third quarterly payroll expenses totaled $96,000, which 
would exceed the president's projected annual salary by $31,000. Based on the hiring timeline in 
the Petitioner's personnel plan, it does not appear that the Petitioner was projected to have hired 
enough employees to warrant a projection of $96,000 in quarterly payroll expenses during the third 
quarter of 201 7. 
Likewise, the annual salaries in the personnel plan are inconsistent with the projected quarterly 
payroll expenses in the revenue projections chart. More specifically, we point to the personnel 
plan's annual salary projections, which show that the first two hires - the president and the 
accountant - would be paid $65,000 and $27,000, respectively; the total quarterly wages of these 
combined salaries should total $23,000, yet the revenue projections chart indicates that the 
Petitioner's payroll expenses for the 2017 second quarter were $46,000, which is twice the quarterly 
totals we derived from the personnel plan's annual salaries. The Petitioner's submissions do not 
clarify the reason for this or any of the above described anomalies, nor do they explain why the 
revenue projections chart shows that the Petitioner incurred a $46,000 payroll expense one quarter 
sooner than it anticipated hiring any employees.2 As a result of this incongruity, we question the 
validity of the business plan's hiring and personnel projections. Furthermore, the revenue projection 
chart indicates that the Petitioner anticipated that it would start generating revenue during the third 
quarter of 2017, despite anticipating that it would be staffed with only a president and an accountant 
during that quarter; given that the Petitioner was not looking to hire a kitchen and wait staff until 
April 2018, it is unclear who would actually prepare and serve the food to restaurant patrons. 
Although the personnel hiring timeline indicates that the Beneficiary and a front desk manager 
would be hired during the fourth quarter of 2017, the job duty descriptions for these positions do not 
indicate that either position would primarily cook or serve the food. 
2 As this petition was filed in August 2017 and the projections included in the business plan account for a time period 
that preceded the date of filing, it is reasonable to conclude that information pertaining to the period that precedes the 
filing of the petition was not a projection, but rather that it based on actual facts and circumstances of which the 
Petitioner was aware by the time this petition was filed. 
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Matter of Z- LLC 
We also find that the business plan contains a deficient account of the Petitioner's quarterly 
operating costs. Although the chart assigns a monetary amount for each quarter's operating costs 
starting with the third quarter of 2017, it does not itemize the elements that contribute to each 
quarterly projection, which is projected to fluctuate by as much as $112,000 from one quarter to the 
next. Lastly, the Petitioner provides insufficient information about the status of its renovation, 
thereby making it unclear when the renovation started or when it would end so that the Petitioner can 
commence doing business as a restaurant. As noted earlier, the Petitioner did not provide supporting 
evidence concerning the renovation, such as estimates of the projected construction costs or a 
timeline for completing the renovation. 
The new office regulations are premised on the understanding that a new company will progress to a 
stage of development where it will be able to support a beneficiary in a managerial or executive 
capacity. Here, the Petitioner provided a deficient business plan that contains inconsistencies 
regarding its expenses and hiring timeline and also lacks sufficient information that would allow us 
to gain a meaningful understanding of the specific benchmarks that the Petitioner intends to meet 
during its first year of operation to ensure that it will adequately develop and have the ability to 
relieve the Beneficiary from having to primarily perform its operational and administrative tasks 
within one year of this petition's approval. 
B. Duties 
We also reviewed the job descriptions of the Beneficiary and his projected subordinates and we find 
the duty descriptions to be insufficient to establish that the Beneficiary would perform primarily 
managerial or executive job duties within one year of the petition's approval. In the supporting 
cover letter, the Petitioner stated that the Beneficiary would assume the role of a function manager, 
claiming that he would plan, direct, and coordinate "kitchen operations," which will entail "strategic 
execution of the [] business plan" and making managerial-level decisions while reporting only to the 
company's owners. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers.'' See section 101 (a)( 44 )(A) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial 
employees. The term "function manager" applies generally when a beneficiary is primarily 
responsible for managing an "essential function" within the organization. See id. If a petitioner 
claims that a beneficiary will manage an essential function, it must clearly describe the duties to be 
performed in managing the essential function. In addition, the Petitioner correctly pointed out that it 
must demonstrate that "(l) the function is a clearly defined activity; (2) the function is 'essential,' 
i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the 
function; ( 4) the beneficiary will act at a senior level within the organizational hierarchy or with 
respect to the function managed; and (5) the beneficiary will exercise discretion over the function's 
day-to-day operations." Matter ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
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Matter of Z- LLC 
Although the Petitioner claims that the Beneficiary will assume the role of a function manager, it has 
not provided sufficient evidence establishing that the Beneficiary will primarily manage an essential 
function. In its original job duty breakdown, the Petitioner indicated that the Beneficiary would 
allocate significant portions of his time to operational, rather than managerial, job duties. 
Specifically, the Petitioner stated that the Beneficiary would allocate 28% of his time to researching 
vendors and finding and ordering proper ingredients and supplies, 14% to administrative kitchen 
duties, such as tracking kitchen expenses and creating a budget, 5% to cooking, and 11 % to 
administrative tasks, such as verifying employee time sheets and payroll, communicating with 
vendors regarding menu printing, addressing customer complaints, providing recommendations to 
management, and communicating with the parent company. Further, although the Petitioner stated 
that the Beneficiary would spend 22% of his time making staffing decisions and assigning duties to 
staff "through subordinate managers," the record does not establish that the four chefs who will 
comprise the Beneficiary's subordinate staff will be supervisory, professional, or managerial 
employees. Section 101(a)(44)(A)(ii) of the Act. 
In the RFE response, the Petitioner again stated that the Beneficiary would manage an essential 
function, claiming that he would manage "the group of actions necessary for the petitioner to prepare 
high-quality and expertly crafted meals .... " The Petitioner stated that such actions would include 
monitoring the subordinate chefs, assessing their skills, and training them to improve those skills. 
The Petitioner has not established that overseeing and training a subordinate staff of non-supervisory 
and non-professional employees constitutes managing an essential function. The Petitioner also 
stated that even after its first year of operation, the Beneficiary will still be required to research 
suppliers and negotiate contracts for needed supplies. Despite the business needs and the essential 
nature of supply research and negotiation within the context of a restaurant business, the Petitioner 
has not established that this task is managerial in nature. Although the Petitioner claimed that the 
Beneficiary will have "sufficient managerial duties to occupy a majority of his time," its 
unsupported statements are of very limited weight and normally will be insufficient to carry its 
burden of proof. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Despite the Petitioner's 
expectation that it would grow during its first year in business so that the Beneficiary's duties would 
be expanded to include assessing business expansion and overseeing kitchen functions at multiple 
restaurant locations, the record contains a deficient business plan, which does not indicate that the 
Petitioner's expectations and projections are realistic. 
On appeal, the Petitioner relies heavily on the investment that enabled it to purchase and commence 
renovations of an existing restaurant. It also points to the existing foreign business operation, which 
includes multiple restaurant locations and a developed kitchen staff whom the Beneficiary oversees 
in the course of overseeing the restaurant operations. The circumstances in this matter, however, are 
different from those of the foreign entity; the Petitioner has not provided sufficient evidence 
establishing a realistic expectation for sufficient growth within its first year of operation so that the 
Beneficiary's role in the United States would be similar to the one he currently assumes within the 
context of the foreign entity's more developed organization. As discussed above, the Beneficiary's 
proposed job duties do not indicate that he would allocate his time primarily to the performance of 
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managerial functions within one year of this petition's approval. Despite the sizable monetary 
contribution the Petitioner's owners have made, this factor alone is not sufficient to demonstrate the 
likelihood that the Petitioner will undergo the necessary growth that will enable it to support the 
Beneficiary in a managerial position within one year. 
As previously noted, we review the totality of the evidence when examining the Beneficiary's 
claimed managerial capacity, including his job description, the company's proposed organizational 
structure, the presence of other employees to relieve the Beneficiary from performing operational 
duties, the nature of the business, and any other factors that may contribute to an understanding of 
the Beneficiary's actual duties and role in the business. Here, the Beneficiary's job duty breakdown 
indicates that a considerable portion of his time would be allocated to non-managerial functions. 
Furthermore, the Petitioner's supporting evidence includes a deficient business plan that contains 
unexplained irregularities that preclude a finding that the projected support staff will relieve the 
Beneficiary from having to allocate his time primarily to performing non-managerial job duties 
beyond the first year of operation. 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in a managerial capacity within one year of the petition's approval. 
ORDER: The appeal is dismissed. 
Cite as Matter of Z- LLC, ID# 1744865 (AAO Nov. 30, 2018)