dismissed L-1A Case: Restaurant

ldantifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdrninistrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
File: EAC 08 049 50758 Office: VERMONT SERVICE CENTER Date: 
 APR 2 8 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 1 Ol(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 1 Ol(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. 5 103.5 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, as required by 8 C.F.R. 103.5(a)(l)(i). 
Appeals Office 
wutw IICF~C onv 
EAC 08 049 50758 
, Page 2 
DISCUSSION: The Acting Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its chief executive officer 
as an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(L). The petitioner, a Georgia limited liability company, 
operates a restaurant. The beneficiary has been employed as the petitioner's president in L-1A status since 
December 2002, and the petitioner now seeks to extend his status for two additional years. 
The director denied the petition on August 5, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity under the extended petition. In 
denying the petition, the director observed that the petitioner failed to provide a detailed description of the 
beneficiary's duties sufficient to establish that his actual duties would be primarily managerial or executive in 
nature. The director also emphasized that the petitioner appears to employ only a few part-time workers in 
addition to the beneficiary, and failed to clearly document the names, job titles and job duties of the 
beneficiary's subordinates. The director concluded that the petitioner failed to establish that the beneficiary 
would be relieved from primarily performing non-managerial duties associated with operating the petitioner's 
restaurant. 
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 submits: (1) the U.S. company's year- 
to-date payroll ledger for the first six months of 2008; (2) its state quarterly wage report for the first quarter of 
2008; (3) a 2008 organizational chart that is identical to the 2007 organizational chart previously submitted; 
and (4) brief job descriptions for the positions of chief executive officer, operations and shift manager, cook, 
waiters, kitchen helpers and administration, which were also previously submitted. The petitioner indicates on 
Form I-290B, Notice of Appeal or Motion, that the supporting documents are "evidence of employment 
structure of the company, including names of the employees, their duties and wages." 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(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 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
Regulations at 8 C.F.R. 8 103,3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of 
fact for the appeal. 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. On appeal, 
the petitioner has not identified an erroneous conclusion of law or statement of fact on the part of the director. 
Nor has the petitioner specifically addressed the deficiencies that were discussed at length in the director's 
EAC 08 049 50758 
Page 3 
decision, namely, the petitioner's failure to provide a detailed description of the beneficiary's duties, and its 
failure to describe with specificity the staffing structure in place at the time the petition was filed. Rather, the 
petitioner re-submits evidence that was previously submitted and already found to be deficient, as well as 
evidence of wages paid to employees subsequent to the filing of the petition. The petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future 
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Moreover, although the new evidence shows that the petitioner 
paid a total of seven employees during the first quarter of 2008, it also demonstrates that the beneficiary was 
the sole employee paid by the petitioner during the second quarter of 2008. The petitioner provides no 
explanation for the dramatic decrease in its staffing levels between March and April 2008. 
The AAO concurs with the director's conclusion that the petitioner did not provide an adequate description of 
the beneficiary's duties. The petitioner indicates that the beneficiary will devote 30 percent of his time to 
"control and direct the management of the company," 20 percent of his time to "control the execution of the 
business plans," and 15 percent of his time to "control the major functions of the company." These broad 
statements provide no insight into the specific tasks the beneficiary performs on a day-to-day basis within the 
context of the petitioner's business. 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 41 (2d. Cir. 1990). The 
petitioner has not sought to clarify the beneficiary's responsibilities on appeal. 
Furthermore, the AAO concurs with the director's conclusion that the petitioner has not adequately 
documented its staffing levels and organizational structure as of the date of filing. The petitioner submitted an 
organizational chart depicting the beneficiary as chief executive officer, an operations and shift manager who 
reports to the beneficiary, and three to four wait staff and contracted "kitchen helpers" who report to the 
operations and shift manager. The petitioner also submitted position descriptions for the position of 
operations and shift manager, cook, waiters, kitchen helpers and administration, although two of these 
positions, the cook and the administrative employee, were not depicted on the organizational chart. The 
petitioner did not identify the names of any individual employees on the organizational chart. Thus, while it 
appears that the petitioner employed a total of five employees at some point during the last quarter of 2007, it 
is impossible to determine which positions were actually filled. Moreover, as noted by the director, none of 
the company's employees earned wages consistent with full-time employment. The highest paid employee in 
the company, other than the beneficiary, earned only $3,741 in 2007. 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. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
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. See tj 101(a)(44)(C) of the Act, 
8 U.S.C. tj 1101(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 Zmmigration 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 
kAC 08 049 50758 
. Page 4 
(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). 
At the time of filing, the petitioner was a six-year-old company engaged in the operation of a full-service 
restaurant. The firm employed the beneficiary as chief executive officer, plus up to four part-time employees 
whose job titles and duties have not been clarified. The petitioner has a reasonable need for employees to 
purchase inventory and supplies, prepare and cook food, greet customers, wait on tables, clear tables, operate 
a cash register, clean the kitchen and dining areas, and handle day-to-day finance and administrative 
functions, such as payroll and bookkeeping. The petitioner has not established how four part-time employees 
could relieve the beneficiary from participating in the day-to-day, non-managerial functions of the restaurant. 
Rather, it is evident that the petitioner would require the beneficiary's regular participation in such functions 
in order for the business to remain operational. Based on the petitioner's organizational chart, it does not 
appear that the restaurant even employs a cook, and the record is void of any evidence paid to the claimed 
"contractors" who work in the kitchen. The petitioner has not established that it has a reasonable need for the 
beneficiary, its only full-time employee, to be primarily engaged in managerial or executive duties. 
The petitioner must 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. 
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. Inasmuch as the petitioner has not identified specifically 
an erroneous conclusion of law or statement of fact in support of the appeal, the appeal must be summarily 
dismissed. 
ORDER: 
 The appeal is summarily dismissed.