dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Mass. Rm. A3042,425 1 Street. N.W. 
Washington, D.C. 20529 
U.S. Citizenship 
-+?? dnjn ild&d to and Immigration 
.& . WVL..-. .lb.-, 2 Services 
invrrsioedcc- 
FILE: WAC 02 141 50094 Office: CALIFORNIA SERVICE CENTER 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
Date: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals OtXce 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. 
Q&4 1 oben P. Wiemann, Director 
v 
dministrative Appeals Ofice 
WAC 02 141 50094 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, ~alifoknia Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated in 2000 and - 
claims to be a restaurant specializing in Korean cuisine and in the trading business. The petitioner claims that 
the U.S. entity is a subsidiary of located in Daejon, Korea. The petitioner declares nine 
employees. The petitioner seeks to employ the beneficiary temporarily in the United States as operations 
manager for a period of three years, at a yearly salary of $36,000. The director determined that the petitioner 
had not submitted sufficient evidence to demonstrate that the beneficiary would be employed by the U.S. 
entity primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the evidence submitted does 
establish that the beneficiary's duties will be primarily managerial or executive in nature. 
To establish L- l eligibility under section I0 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), . 
8 U.S.C. 1 lOl(a)(lS)(L), the petitioner must demonstrate that the beneficiary, within three years preceding the 
beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization,and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 2 14.2(1)( 1 Xii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or 
her application for admission into the United States, has been employed abroad continuously 
for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to render his 
or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in 
a capacity that is managerial, executive, or involves specialized knowledge. 
'The regulation at 8 C.F.R. 5 214.2(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 with 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 
WAC 02 141 50094 
Page 3 
education, training, and employment qualifies himlher to perform the intended serves 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
The regulation at 8 C.F.R. $ 214.2(1)(3)(v) states that if the petition indicates that the beneficiary is coming to 
the United States as a manager or executive to open or to be employed in a new ofice in the United States, the 
petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new ofice have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(lXiiXB) or 
(C) of this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in the 
United States: and 
(3) The organizational structure of the foreign entity. 
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary's 
employment with the U.S. entity will be primarily managerial or executive in nature. 
Section 1 0 1 (a)(44)(A) of the Act, 8 U.S.C. $ 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(9 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 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 
WAC 02 14 1 50094 
Page 4 
(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 I 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(9 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. 
The petitioner stated in the petition that the beneficiary would be responsible for managing all financial aspects of 
the business. The petitioner also stated that the beneficiary would be responsible for directing and managing the 
kitchen and service departments, and supervising and coordinating activities of independent parking attendants. 
In a letter of support, dated March 13,200 1, the petitioner described the beneficiary's duties as: 
Responsible for hiring, training staff, supervise the purchase of food and supplies [sic]; 
managing division's managerial personnel, kitchen department and service department; 
supervise and coordinate activities of independent parking attendants; and managing all financial 
aspects of business [sic]. He will report directly to the President. 
The petitioner submitted an organizational chart depicting the U.S. entity's hierarchy. This chart demonstrated 
that the beneficiary, as operations manager, would direct independent parking attendants, kitchen staff. and front 
service departments. The beneficiary's duties were described as planning, scheduling, hiring, training, and 
controlling the daily operation of the U.S. entity. The petitioner provided a description of the subordinates' duties 
as follows: 
INDEPENDENT PARKING ATTENDANTS: 
Valet Parking 
KITCHEN DEPARTMENT: 
WAC 02 141 50094 
Page 5 
/Head Chef - Responsible for control of kitchen personnel, daily special menu, 
tory, and hiring 
hef - Serves as a cook and assistant head chef. 
FRONT SRVICE DEPARTMENT 
Sung Im OhIFloor Manager - Responsible for reservations, public relations, waiter schedule, 
customer service, and supervises waiters 
i 
loor Manager - Responsible for reservations, assigning stations, and customer 
m ead Waitress - Responsible for serving and table set-up 
waitress - Responsible for serving and table set-up 
.waiter - Responsible for serving and table set-up 
-ess - Responsible for serving and table set-up 
The director determined that additional evidence was needed by the petitioner in order for him to fully examine 
the beneficiary's eligibility for L- I A status. The director requested as follows: 
... Submit a more detailed description of the beneficiary's duties in the U.S. Be specific. List 
the education and employment qualifications for the position in the U.S. Company. Include 
evidence that the beneficiary meets the petitioner's qualifications and, if required, that the 
beneficiary has the ability to speak, read, and write English. Indicated exactly whom the 
beneficiary directs including their job title and position description. List all employees under the 
beneficiary's direction. Also, indicate [the] percentage of time spent in each of the listed duties. 
In response to the director's request for additional evidence, counsel for the petitioner describes the beneficiary's 
proposed duties as being the same as duties performed by the beneficiary for the foreign entity. Counsel lists the 
duties as follows: 
Confer with executives for planning, budgeting and banking.. ..................... 15% 
Meeting with departments' managers for planning and 
Discussing, analyzing service improvement ......................................... .15% 
Reviewing and examining daily reports of A/R, AP, 
Reviewing and examining bank statements, 
Reviewing advertisement activities and costs.. ....................................... .25% 
Reviewing and analyzing reports of inventories and purchasing orders; 
Approve pre-purchasing orders.. ...................................................... -10% 
Reviewing employment records and prepare commendation/reprimands 
Hire and fire employees and other managing staff.. ................................. .15% 
Reviewing and oversee preparation of payroll.. ....................................... 10% 
WAC 02 14 1 50094 
Page 6 
Direct customer relations procedures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .lo% 
The director determined that the petitioner had not submitted sufficient evidence to establish that the beneficiary 
would be employed primarily in a managerial or executive capacity. The director stated that there had been no 
evidence submitted to show that there was a subordinate staff that could relieve the beneficiary from performing 
the day-to-day operations of the U.S. entity. The director also stated that the record demonstrated that a 
preponderance of the beneficiary's duties would consist of providing the services of the business. The director 
noted that there was no indication in the record that the beneficiary would exercise significant authority over 
generalized policy or that the beneficiary's duties would be primarily managerial or executive in nature. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence demonstrates that the 
beneficiary will primarily perform managerial duties as an operations manager. Counsel also states that the 
beneficiary manages the entire organization, not just a hnction, subdivision, or component of the U.S. entity. 
Counsel reiterated the beneficiary's proposed duties. Counsel further contends the beneficiary's job duties, as 
described, fulfill all requirements of the regulations. Counsel asserts: 
The Operations Manager "...manages the organization ... supervises and controls the work of 
other managerial employees.. .(IE: 2 restaurant managers -kitchen and front house); has the 
authority to hire, fire, or. . . .other personnel actions.. .Exercises discretion over the day-to-day 
operations of the activity of function which the employee has the authority.. . ." 
The record as presently constituted is not persuasive in demonstrating that the beneficiary will be employed in 
a primarily managerial or executive capacity. When examining the managerial or executive capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the beneficiary's job duties. See 
8 C.F.R. 9 2 14.2(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. The definitions of executive and managerial capacity have two parts. First, the petitioner must 
show that the beneficiary performs the high level responsibilities that are specified in the definitions. Second, 
the petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). In this matter, the petitioner contends that the beneficiary 
is employed by the U.S. entity in a managerial capacity, in that he manages the organization, supervises and 
controls the work of other managerial employees, and exercises discretion over the day-to-day operations of 
the functions of the organization. However, a review of the record demonstrates that the beneficiary primarilj 
performs the day-to-day functions of the organization and supervises non-managerial, non-professions! 
employees. Consequently, there is insufficient evidence to show that the beneficiary will perform the high 
level responsibilities as defined, or that he will primarily perform those duties rather than spending the 
majority of his time performing day-to-day functions of the organization. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include: "discussing, analyzing service improvement ... reviewing and examining 
advertising activities and costs.. . customer relations . . ." Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. -Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
WAC 02 14 1 50094 
Page 7 
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Further, there is insufficient detail regarding the actual duties of the assignment to overcome the director's 
concerns. The petitioner claims that the beneficiary directs and manages all the financial aspects of the 
petitioner's business and its' overall business operations, however, there has been no evidence submitted to 
demonstrate that any of its employees, other than the beneficiary, are responsible for carrying out the duties 
associated with the functions. In the instant matter, the organizational chart for the U.S. entity depicts a head 
chef, a chef, two floor managers, a headwaiter, two waitresses, and a waiter, all under the direction of the 
beneficiary. There is no evidence to show that there is an administrative, sales, or accounting department that is 
able to perform non-managerial functions of the organization sufficient to relieve the beneficiary from performing 
such tasks. Thus, either the beneficiary himself is performing the financial, administrative, sales, or 
marketing functions or he does not actually manage the functions as claimed by the petitioner. In either case, 
the AAO is left to question the validity of the petitioner's claim and the remainder of the beneficiary's claimed 
duties. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 
I&N Dec. 582, 591 (BIA 1988). It appears from the record that the beneficiary is and will be performing the 
functions of the organization rather than managing the same. The AAO notes that an employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church of Scientology International, supra. In 
this matter, the petitioner claims to employ nine individuals. 
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. 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 101(a)(44)(A)(iv) of the Act. In that there is no independent documentary evidence to 
substantiate the petitioner's claim that the subordinates who report to the beneficiary are performing in a 
professional capacity, the beneficiary cannot he deemed to be primarily acting in a managerial capacity. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. $ 110l(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 1&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. 'The petitioner has not, in fact, established that an advanced degree is actually necessary, for 
example, to prepare food, park automobiles, make reservations, or supervise waiters and waitresses. 
In review, the petitioner has failed to demonstrate that the beneficiary will be employed primarily in a 
qualifying managerial or executive capacity. It appears from the record that the beneficiary has been and will 
WAC 02 14 1 50094 
Page 8 
be primarily performing the day-to-day functions of the business and supervising non-professional 
employees. 
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. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.