dismissed L-1A Case: Restaurant

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-J-F- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : OCT. 31 , 2017 
PETITION: FORM I-29, PETITION FOR A NONIMMIGRANT WORK ER 
The Petitioner, 1 a sushi restaurant, seeks to temporarily employ the Beneficiar y as the administrativ e 
manager of its new office under the L-1 A nonimmigrant classification for intracompany transferees . 
See Immigration and Nationality Act (the Act) section 10l(a)(15)(L) , 8 U.S.C. § 110l(a)(15)(L). 
The L-1 A classification allows a corporation or other legal entit y (including its affiliat e or 
subsidiary) to transfer a qualifying foreign employee to the United States to work temporaril y 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: (1) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer; (2) the new office will be able to support a managerial or executive position 
within one year ; and (3) that the Petitioner had sufficient physical premises to commence operations 
when the petition was filed. 
On appeal, the Petitioner submits new evidence and a brief and asserts that the petition should be 
approved. 
Upon de novo review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification for a new office , a qualif ying 
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 admission into the 
United States. Section 101 (a)(lS)(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. 
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(J)(l)(ii)(F) . Ifthe Form 1-129, Petition for a Nonimmigrant 
1 On appeal, the Petitioner provides evidence that it changed its name to in October 2016 . 
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Matter of H-J-F- LLC 
Worker, indicates that the beneficiary is corning to the United States in L-1 A status to open or to be 
employed in a new office, 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 includes 
information regarding the new office's physical premises, 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). The regulation at 8 C.F.R. § 214.2(1)(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. 
II. QUALIFYING RELA TIONSHJP 
The first issue to be examined is the Petitioner's qualifying relationship with the Beneficiary's 
foreign employer. To establish a "qualifying relationship," 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 section 
101(a)(l5)(L) of the Act; see also 8 C.F.R. § 214.2(l)(l)(ii) (providing definitions of the terms 
"parent," "branch," "subsidiary ," and "affiliate "). 
The Director determined 
that the record was insufficient to establish the Beneficiary's foreign 
employer's ownership and control ofthe Petitioner. 
The Petitioner stated on the Form 1-129 that the Beneficiary's foreign employer is •· 
'' and that ' 'owns 51 percent ofthe Petitioner . The Petitioner indicated that the 
remaining 49 percent was divided between the Beneficiary and with each owning 
24.5 percent of the Petitioner. The record included the Petitioner 's articles of organization 
Petitioner's operating agreement, both dated March 23, 2015. The operating agreement noted that 
the Petitioner's capital shall be up to $100,000 and that the first contribution shall be in the amount 
of $100,000 "which shall be made within the first 300 days from the filing date of this LLC." The 
operating agreement listed the contribution of each of the Petitioner's members as: 
$51 ,000; the Beneficiary - $24,500; and · $24,500. The record did not 
include evidence that the members had contributed these sums. 
In response to the Director ' s request for evidence (RFE) on this issue, the Petitioner submitted 
copies of wire transfers from to ' in the amount of 
$97,000 on July 24, 2015, $30,000 on November 3, 2015, and $70,000 on November 10, 2015. The 
Petitioner's bank statements show that ' · deposited $26,200 on July 28, 
2015, $7,489 on November 6, 2015, and $17,530 on November 13, 2015, for a total of $51,219, into 
the Petitioner's account. The Petitioner's bank statements also show deposits from the Beneficiary , 
other entities, and various counter credits. 
The Petitioner stated in its response to the Director 's RFE, that its bank statements for the months of 
June, July, October , and November 2015 show at least $90,830 had been deposited into its account. 
However, the record does not include evidence of the relationship between the Beneficiary's foreign 
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Matter of H-J-F- LLC 
employer, and or any of the other entities that 
made deposits into the Petitioner's account. As ownership is a critical element of this visa 
classification, the Director may reasonably inquire beyond the limited liability company's operating 
agreement into the means by which membership was acquired. Evidence should include 
documentation of monies , property, or other consideration furnished to the entity in exchange for 
membership. Additional supporting evidence could include membership agreements , minutes of 
relevant member meetings , or other legal documents governing the acquisition of the ownership 
interest. Here, the Petitioner did not establish that the Beneficiary 's foreign employer purcha sed a 
51 percent interest in the Petitioner and in fact owns and controls the Petitioner. 
On appeal, the Petitioner states that "a new partner enjoyed the Brazilian group, what made the name 
of the Brazilian's company change from to 
since 25 September 2015" [verbatim]. The Petitioner submits evidence of the foreign entity ' s name 
change to on September 25, 2015, a month after the petition 
was filed. The Petitioner also includes evidence that the Petitioner changed its name to 
on October 20, 2016. The Petitioner for the first time on appeal submits member ship 
certificates "001" through "003"2 dated March 23, 2015, but which identify the issuing entity as 
which was not the Petitioner's name when the original member ship 
certificates would have been issued. These membership certificates , created subsequent to the date 
the petition was filed and subsequent to the Petitioner's name change , do not assist in establishing 
the Petitioner's qualifying relationship with the Beneficiary's foreign employer when the petition 
was filed. 
As general evidence of a petitioner ' s claimed qualif ying relationship , membership certificates alone 
are not sufficient evidence to determine whether stockholder member maintains ownership and 
control of a limited liability company. Even if original membership certificates had been submitted 
initially, as discussed above, the Petition er did not submit a chain of evidence demonstrating how the 
Beneficiary's foreign employer acquired its claimed interest in the Petitioner. Accordingly , the 
Petitioner has not established a qualifying relationship with the Beneficiary 's foreign employer. 
III. EMPLOYMENT IN A MANAGERIAL OR 
EXECUTIVE CAPACITY 
The Director further determined that the Petitioner had not established that the Beneficiar y would be 
employed in a managerial or executive capacity within one year. 
The term "managerial capacity" means as an assignment within an organization in which the 
employee primarily manages the organization or a department, subdivision , function, or component; 
supervises and controls the work of other supervisory, professional , or managerial employees , or 
manages an essential function; if the employee directly supervises other employees, has the authority 
to take personnel actions , or if no other employee is directly supervised , functions at a senior-level 
2 The Petitioner also included membership certificates "004" through "006" to demonstrate the transfer of a portion of 
the Beneficiar y' s and interest to another party. 
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Matter of H-J-F- LLC 
within the organization 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) ofthe Act. 
The Act defines the term "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 
thereof; 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. 
The new office regulations recognize that a designated manager or executive responsible for setting 
up operations will be engaged in a variety of low-level activities not normally performed by 
employees at the executive or managerial level and that often the full range of managerial 
responsibility cannot be performed in that first year. However , a petitioner's evidence in support of 
a new office petition should demonstrate a realistic expectation that the enterprise is prepared to 
commence business operations and rapidly expand as it moves away from the developmental stage 
to full operations, where there would be an actual need for a manager or executive who will 
primarily perform qualifying duties. The entire record must be considered to determine whether the 
proposed duties are plausible considering 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). Accordingly, we will 
review both the Beneficiary's proposed duties and the Petitioner's plans for the new office, including 
the proposed nature and scope of the entity and its anticipated organizational structure at the end of 
the first year. 
The Petitioner indicated that it planned to establish a chain of fast casual Japanese sushi-sashimi 
restaurants in Florida and Nevada and to develop the ' in the United States. The 
Petitioner estimated it would open its first restaurant in September 2016, more than a year after the 
petition was filed in August 2015. 
A. Duties 
In a supporting letter, the Petitioner provided a lengthy narrative of the Beneficiary's proposed 
duties and allocated an amount of time he would spend on the various duties. For example , the 
Petitioner stated that the Beneficiary "will manage , plan, direct and coordinate the overall operations 
of the company," and will spend 46% of his time formulating policies, developing sales objectives 
and goals, establishing financial plans, developing the Florida food market by managing marketing 
trends and product prices, and managing acquisition and maintenance of the required state licenses. 
The Petitioner further indicated that the Beneficiary: "will supervise and control the work of the 
company's operations manager and assistant manager," for 7% of the time; "will function at a senior 
level within the organization by exercising ultimate authority to hire, fire, and/or recommend [the 
Petitioner's] personnel decisions" for 9% of the time ; and, "will manage the daily operations tor the 
organization" for 38% of the time. The description provided, while lengthy, does not convey an 
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Matter of H-J-F- LLC 
understanding of what the Beneficiary is expected to actually do on a daily basis to develop the 
Petitioner's brand and to open up a fast casual restaurant. 
In the Petitioner's business plan, submitted in response to the Director's RFE, the Petitioner stated 
that the Beneficiary in the position of administrative manager "will administer [the Petitioner], 
supervise and control ... the company's operation managers and supervisors/managers and function 
at a senior level in the US branch." The Petitioner continued the description by essentially re-stating 
the elements of the statutory definition of executive capacity. Specifics, however, 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, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). 
On appeal, the Petitioner notes the Beneficiary has made several decisions, after ownership changes 
were made at the foreign entity, including finding another location for the first U.S. restaurant, 
researching, and studying the target public, adapting the company's branding after market studies, 
and constructing all aspects of the new brand. The Petitioner also changes the title of the proposed 
position by stating that the Beneficiary's position will be chief executive officer. The Petitioner 
stated that in this position, the Beneficiary will develop strategies and programs, direct market 
research and goals, identify business opportunities, analyze reports, decide investment risk, budget, 
and allocation of resources, develop the culture and branding of the ' chain," as well as 
maintain the company's secret sauce recipes, evaluate results of each unit, and report to the parent 
company in Brazil. These duties are also insufficiently described to determine whether the 
Petitioner expects the Beneficiary to perform in a managerial or executive capacity. Moreover, some 
of the duties may include non-qualifying duties, such as identifying business opportunities, deciding 
investment risk, budget, and allocation of resources, as well as developing the culture and branding 
of the proposed chain. These duties are not sufficiently detailed to determine whether the 
Beneficiary would perform tasks related to these duties or manage others who would relieve the 
Beneficiary from performing these tasks. We note, however, that the Petitioner does not indicate 
that it plans to employ individuals in a financial or business development capacity. 
The totality of the record does not include sufficient, consistent evidence establishing the 
Beneficiary's proposed executive or managerial role at the Petitioner. The fact that the Beneficiary 
will manage or direct a business does not necessarily establish eligibility for classification as an 
intracompany transferee in a managerial or executive capacity within the meaning of section 
101(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" executive or managerial in nature. Sections 101(A)(44)(A) and (B) of the 
Act. 
Although the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
possess the requisite level of authority with respect to discretionary decision-making, the position 
descriptions alone are insufficient to establish that his actual duties would be primarily managerial or 
executive in nature after the Petitioner's initial year of operations. We are unable to determine that 
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Matter of H-J-F- LLC 
the proposed position, as generally described, is plausible considering the Petitioner's anticipated 
staffing levels and stage of development within one year. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
B. Proposed Staffing 
As noted, the position description alone is insufficient to establish that a beneficiary's duties would 
be primarily in a managerial or executive capacity, particularly in the case of a new office petition 
where much is dependent on factors such as a petitioner's business and hiring plans and evidence 
that the business will grow sufficiently to support a beneficiary in the proposed managerial or 
executive position. 
In response to the Director's RFE, the foreign entity asserted that it intended to open tive restaurants 
by the end of 2020, that each restaurant location would have a "twelve (11 )" member staff, and that 
its corporate offices would operate with no less than four employees. The Petitioner also submitted 
its business plan indicating that the corporate staff would include the Beneficiary's position of 
administrative director, and a director of operations position held by an individual with an interest in 
the Petitioner and with duties similar to those of the administrative director. The remaining 
corporate staff included an operations supervisor to be hired in 2019, and an administrative assistant 
to be hired one month before operations begin. The Petitioner noted that it planned to outsource 
accounting, IT, marketing, and merchant services. The Petitioner identified the proposed restaurant 
staff as including a restaurant manager, a head chef, a line cook, a "sushi man," a cashier, and a 
busboy, all to be hired one month before operations begin, estimated to be in September 2016. The 
Petitioner indicated further that it planned to add to these positions in 2018 and 2019. 
The Petitioner's business plan is insufficient to establish that the Beneficiary would be employed in 
a managerial or executive capacity within one year. The business plan does not indicate that the 
Petitioner intended to open an operational restaurant within the coming year but in September 2016, 
more than a year after filing the petition. The Petitioner also does not sufficiently explain in its 
business plan or elsewhere, how the director of operations and administrative assistant, the only 
projected employees for the first year, would relieve the Beneficiary from the operational and 
administrative duties of opening the restaurant. Thus, the record does not establish that the 
Beneficiary will be able to primarily perform executive duties or that he would be primarily 
supervising subordinate managerial, supervisory, or professional personnel within one year. 
On appeal, the Petitioner asserts that it currently employs an operational manager, a chef, two cooks, 
three cashiers, two "sushi men," and a "novice" as of May 2017. The Petitioner provides brief 
descriptions for these positions and submits evidence that it first hired staff in December 2016, for 
the Petitioner's subsidiary, not the Petitioner. The Petitioner's creation of a subsidiary to employ the 
Beneficiary and restaurant workers introduces a material change to the new office petition. Further, 
the evidence submitted on appeal shows that it took the company approximately 16 months to hire 
staff and indicates that it did not carry out the hiring plans outlined in its original business plan 
within the projected timeframe. Therefore, this evidence does not support a finding that the 
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Matter of H-J-F- LLC 
Petitioner was prepared to support a managerial or executive position within one year at the time it 
filed the petition. 
IV. SUFFICIENT PHYSICAL PREMISES 
The Director also found that the Petitioner had not established that it had secured sufficient physical 
premises to begin doing business as required by the regulation at 8 C.F.R. § 214.2(1)(3)(v)(A). 
The Petitioner stated on the Form 1-129 that its mailing address is 
in Florida, and indicated that the Beneficiary would be employed at this location. 
The record before the Director included several different leases with different locations and for 
different time frames. The Director notified the Petitioner of the deficiencies in regard to each lease 
and concluded that the Petitioner did not establish that sufficient physical premises to house the new 
office had been secured. 
The Petitioner does not address the deficiencies cited by the Director on appeal , but asserts that it has 
now leased a different office for its headquarters. The record does not include a copy of that lease. 
The Petitioner provides a copy of a restaurant lease entered into in October 2016 for a sushi 
restaurant in , Florida. However, the Petitioner must establish that all eligibility 
requirements for the immigrant benefit have been satisfied from the time of the filing and continuing 
through adjudication. 8 C.F .R. § 103 .2(b )(1 ). As the Petitioner does not address the deficiencies 
cited by the Director in regard to the various leases previously submitted and the Petitioner's 
subsequent leases do not establish eligibility when the petition was filed, we find the Petitioner has 
not overcome the Director's decision on this issue. The Director's decision on this issue is affirmed. 
V. CONCLUSION 
The appeal will be dismissed because the record does not include sufficient evidence to establish that 
the Petitioner has a qualifying relationship with the Beneficiary's foreign employer, that the 
Petitioner will support the Beneficiary in a managerial or executive capacity within one year, and 
that the Petitioner had sufficient physical premises to commence operations when it filed the 
petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-J-F- LLC, ID# 705688 (AAO Oct. 31, 20 17)