dismissed L-1A Case: Restaurant

identifyingdatadeletedto
preventclearlyUnwarranted
invasionofpersonalprivacy
PUBUC<xwY .
U.S. Department of Homeland Security
20 Mass. Ave., N,W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: SRC 06 11450642 Office: TEXAS SERVICE CENTER Date: ,""'0121111
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.c. § l10l(a)(15)(L)
ON'BEHALF OF PETITIONER:
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.
~" /
7<obert P. Wie ann, Chief
r~dministrative Appeals Office
www.uscis.gov
SRC 06 114 50642
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner, a Florida corporation, claims that it operates a franchise restaurant, the International House ­
of Pancakes. The petitioner states that it is an affiliate of the Image Group of companies, which is
composed of six companies, located in Egypt. Accordingly, the United States entity petitioned
Citizenship and Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany
transferee (L-1A) pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.c. § 1101(a)(15)(L). The petitioner was initially granted a one-year period of stay to open a new
office. The petitioner now seeks to extend the beneficiary's stay in order to continue to fill the position of
president and CEO for a three-year period.
The director denied the petition on June 20, 2006, concluding that the record contaips insufficient
evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that i~ did not appear that the beneficiary supervises a
staff of professional, managerial, or supervisory personnel who will relieve him from perfonTIing non­
qualifying duties, and thus the beneficiary will be primarily involved in perfonning the day-to-day
s~rvices essential to running a business. In addition, the director noted discrepancies between the number
of employees listed on the company's IRS Form 941, Employer's Quarterly Federal Tax Return, for the
_first quarter of 2006 and the company's bi-weekly labor report submitted by the petitioner.
Counsel for the petitioner filed the appeal on July 19, 2006. On appeal, counsel acknowledges the _
director's statements concerning the discrepancies regarding the U.S. entity's current employees.
Counsel explains that the restaurant has one assistant manager trainee and an additional assistant
manager. Counsel indicates that the assistant manager trainee is listed on the bi-weekly labor report and
the second assistant manager is listed on the document entitled "7-Day Employee Labor Cost." In
addition, counsel asserts that the "number of employees varies because there is turnover in the restaurant
industry, so the total number of employees hired over the course of the year will be higher than the
number employed at anyone particular time." Counsel also states that the beneficiary is acting in an
executive capacity as the manager of the entire organization. Counsel contends that the Service cannot
look at the company's size alone but must also take into account the reasonable needs of the organization.
Finally, counsel states that the beneficiary manages two assistant managers who relieve him of the day-to­
day duties in managing a restaurant.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a finTI, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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.
The regulation at 8 C.F.R. § 214.2(1)(3)further states that an individual petition filed on Form 1-129 shall be
accompanied by:
SRC 0611450642
Page 3
(i) Evidence that the petitioner and the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (l)(1)(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 within 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 education, training, and employment qualifies him/her to perform the
intended services 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.P.R. § 2l4.2(l)(14)(ii) also provides that a visa petition, which involved the opening
of a new office, may be extended by filing a new Porm 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (l)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(1)(ii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year and
the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(E) Evidence of the financial status of the United States operation.
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary
will be employed in a primarily managerial or executive capacity.
Section 101(a)(44)(A) ofthe Act, 8 U.S.c. § ll01(a)(44)(A), provides:
The term "managerial capacity" means an assignment within an organization in which the employee
primarily-
SRC 06114 50642
Page 4
(i) 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 ofthe 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
(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. § 1101(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization in which the employee
primarily-
(i) 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 nonimmigrant petition was filed on February 27, 2006. The Form 1-129 indicates that the beneficiary
will be employed in the position of president and CEO for the petitioner, which claimed to have 21
employees. In a support letter dated February 23, 2006, the beneficiary's proposed duties in the U.S. are
described as the following:
The Egyptian-based [foreign group] would now like to have [the beneficiary] continue
his current L-l employment with [the U.S. entity] on a temporary basis to fill the
positions of President and Chief Executive Officer. In these positions, he was
responsible for finding and opening a new business enterprise or acquiring and existing
[sic] business in the United States. [The beneficiary] has now found a promising
business enterprise; as such he will· be responsible for directing, developing and
marketing the corporation.
SRC 06 11450642
Page 5
[The U.S. entity] has purchased/acquired that business !mows [sic] as mop
(International House of Pancakes) located at •••••••••••••••
Florida.
In addition, counsel stated in the letter of support that the U.S. company currently employs 21 full-time and
part-time employees. The petitioner stated the same on the Fonn 1-129.
In addition, the petitioner submitted a payroll li"st for the employees of the restaurant for the period of
December 12, 2005 until December 25, 2005. According to the payroll list, the restaurant employs four
managers, eight servers, six cooks, two dishwashers, and one hostess. In addition, the petitioner submitted a
"7-Day Employees Labor Cost" for the period from December 26, 2005 until January 1, 2006. The
employees listed on this document are practically identical to the first payroll document, however~ there are
nine servers rather then eight, and four cooks rather then six. In addition, one cook was promoted to assistant
·manager. In addition, the petitioner submitted Fonns W-2 for 2005 issued by the petitioner that confinned
that the u.s. entity employed 21 individuals in 2005.
The petitioner also submitted an organizational chart of the u.s. entity. The chart indicates the beneficiary as
president and CEO of the U.S. entity, who in tum supervises a vice president and one; assistant manager, who
in 1\lfl1supervises the kitchen manager and cooks, and a second assistant manager who supervises the hostess,
the lead server, and servers.
On April 9, 2006, the director determined that the petitioner did not submit sufficient evidence to process the
petition and the director requested that the petitioner submit: (1) an organizational chart of the U.S. entity,
including the names, job titles, a detailed job description and the educational background for each employee;
(2) a copy ofthe U.S. entity's 2005 U.S. Corporation Income Tax Return; (3) copies of the U.S. entity's state
quarterly tax return for the first quarter of 2006; and, (4) copies of the U.S. company's IRS Form 941,
Employer's Quarterly Federal Tax Return, for all employees for the first quarter of 2006:
In a response letter to the director's request, dated June 5, 2006, counsel for the petitioner submitted the
following description of the duties the beneficiary will perform in the position of president and CEO for the
U.S. company:
[The beneficiary] is not a first-line manager. His duties conform more closely to that of
an executive: He doesn't supervisecooks or busboys or servers, or anyone function of
the restaurant. ..
His title is that of President and CEO, and his de factor duties are also those of an
executive. A first-line manager does not make corporate decisions about expansion or
investment. To the extent [the beneficiary] is a manager, he directs the entire
organization. He alone has the power to hire and fire employees.
In addition, as President of [the U.S. entity], his interests aren't limited to this particular
mop. His U.S. company has also invested in another restaurant (Perkins) and the
company had made a $42,000 down payment on purchase of the business. The payment
SRC 06 114 50642
Page 6
of the deposit is confirmed in the 2005 company profit and loss statement. The pUrchase
contract has been signed and is pending approval by Perkins ...
In addition, [the beneficiary], in further exercise of his executive duties, signed a letter
of intent to purchase La Dolce Restaurant.... These additional two projects, currently .
on hold, are separate from the mop that his company owns. Payments made are
reflected in the financial statements and/or tax returns.
In addition, the.petitioner submitted a payroll statement from ADP Payroll Services, the company utilized by
the U.S. entity to prepare the payroll and taxes for the company. The statement by the payroll services .
. company indicated that for the first quarter of 2006, the U.S. entity employed 30 individuals. However,
according to another page of the statement, the U.S. entity employed 19 individuals in January 2006, 19
individuals in February 2006, and 21 individuals in March 2006. In addition, the petitioner submitted a bi­
weekly labor report for March 20, 2006 until April 2, 2006 and a "7-day employee labor cost" for March 27,
2006 until April 2, 2006. Since these labor reports are dated after the instant petition was filed on February
27, 2006, the AAO will not consider these documents. The petitioner must establish eligibility at the time
of filing the noninunigrant 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 N.
Dec. 248 (Reg. Comm. 1978).
The petitioner submitted evidence related to the petitioner's purchase of two additional restaurants, as
referenced in counsel's letter.
.The petitioner submitted an organizational chart of the U.S. entity that indicated 19 employees. The chart
indicated the beneficiary as the president who supervises the vice president who supervises'two assistant
managers. The first assistant manager supervises two managers on duty, one hostess and six servers. The
second assistant manager supervises the kitchen manager, 'who supervises two cooks, one cook and
storekeeper, and two busboys. The chart also indicates that the beneficiary supervises ••••••••
_restaurants that are under contract. The petitioner did not submit a job description for each position
listed on the organizational chart as requested by the director. Failure to submit requested evidence that
precludes a material line ofip.quiry shall begrounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
The director denied the petition on June 20, 2006 concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that it did not appear that the beneficiary supervises a
staff of professional, managerial, or supervisory personnel who will relieve the beneficiary from
performing non-qualifying duties, and thus the beneficiary will be primarily involved in performing ,the
day-to-day services essential to running a business. In addition, the director noted discrepancies between
the number of employees listed on the company's Employer's Quarterly Federal Tax Return for the first
quarter of2006 and the company's bi-weekly labor report submitted by the petitioner.
Counsel for the petitioner filed the appeal on July 19, 2006. On appeal, counsel for the petitioner
acknowledges the director's statements concerning the discrepancies regardirig the U.S. entity's current
employees. Counsel explains that the restaurant has one assistant manager trainee and an additional
assistant manager. Counsel indicates that the assistant manager trainee is listed on the bi-weekly labor
SRC 0611450642
Page 7
report and the second assistant manager is listed on the document entitled "7-Day Employee Labor Cost."
In addition, counsel asserts that the "number of employees varies because there is turnover in the
restaurant industry, so the total number of employees hired over the course ofthe year will be higher than
the number employed at anyone particular time." Counsel also states that,the beneficiary is acting in an
'executive capacity as the manager of the entire organization. Counsel contends that CIS cannot look at
the company's size alone but must also take into account the reasonable needs of the organization.
Counsel further states that the beneficiary manages two assistant managers who relieve him of the day~to­
day duties in managing a restaurant, and notes that given the company's employment of 17-20 individuals,
the beneficiary "is not a micromanager." Counsel emphasizes that the beneficiary, in addition to
supervising the assistant managers, is focused on "other restaurants" and company growth.
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not
established that the beneficiary will be employed in a managerial or executive capacity. When examining the
executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of
the job duties. See 8 C.F.R. § 2l4.2(l)(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 majo~ty 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).
Based on the current record, the AAO is unable to determine whether the claimed managerial duties
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non­
managerial administrative or operational duties. An employee, who "primarily" performs the tasks
necessary to produce' a product or' provide a service is not considered to be "primarily" employed in a
managerial or executive capacity. See sections 101(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 International, 19 I & N Dec. at 604.
The beneficiary's proposed job description includes vague duties such as the beneficiary will "make
corporate decisions about expansion or investment"; "directs the entire organization;" and "invested in
another restaurant (Perkins)." 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. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41
(2d. Cir. 1990). The record does not provide a clear understanding as to what duties the beneficiary
performs on a day-to-day basis, such that they could be classified as managerial or executive.
The petltlOner also stated in its response to the request for evidence that the beneficiary's
"interest are not limited to this particular mop. His U.S. company has also invested in another restaurant
(Perkins)" and "signed a letter of intent to purchase La Dolce Restaurant." Although the beneficiary is
, [
SRC 06 114 50642
Page 8
responsible for acquiring i1e~ 'restaurants, th~ petitioner has not explained the exact duties the beneficiary
will perform in order to achieve this goal, nor indicated how much of his time is allocated to such duties.
·Specifics 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, 724F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d.
Cir. 1990). Based on the·currentrecord,.the AAO is .unable to determine whether the claimed managerial
duties constitute the.majority of the beneficiary's duties, or whether the beneficiary primarily performs
non-managerial administrative or operational duties.' The petitioner's description of the beneficiary's job
·duties does not establish what proportion of the benefiCiary's duties is managerial in nature, and what
. 'proportion is actually non-m·anagerial. See Republic of Transkei v. INS, 923 F.2dI75, 177 (D.C. Cir.
1991).
As noted above, according to the petitioner's statement on Form 1-129,the U.S. company has 21 employees.
In addition, the organizational chart of the U.S. entity indicated that the beneficiary will superVise one vice­
president and two assistant managers. In the decision, tqe director stated that the U.S. entity's payroll
documents on,ly include one assistant manager trainee, and does not include an assistant manager. On appeal,
counsel for the petitioner explains that one assistant manager is listed on one document and the second
assistant manager is listed on another document because one is paid hourly and the other individual is paid on
· a salary. ·1J1e AAO reviewed the documentation and .~onfirms that. the U.S entity employs one assistant
manager trainee and one assistant manager as claimed by the petitioner. The AAO will withdraw this part of
the decision. .
Counsel correctly observes that a company's size alone may not be the determining factor in denying a
·visa to a multinational manager or executive. Pursuantto section HH(a)(44)(C) of the Act, 8 V.S.c. §
1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a
managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in
light of the overall' purpose and stage of development of the organization. In the present matter, however,
the regulations provide strict evidentiary requirements for the extension of a "new office" petition and
require CIS to examine the organizational structure and staffing levels of the petitioner. See 8 C.F.R. § .
214.2(l)(l4)(ii)(D). The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one
year within the date of approval of the petition to support an executive or managerial position. Again,
there is no provision in CIS regulations that allows for an extension of this ohe~year period.
Furthermore,it is appropriate for CIS 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 n<;>n-managerialor non~executive operations of the company, or a "shell company" that does
not conduct business in a regular arid continuous mahner. See, e.g. Systronics Corp. v. INS, 153 F. Supp.
2d7, 15 (D.D.C. 2001),. The size ora company maybe especially relevant when CIS' notes discrepancies
in the record and fails to believe that the facts asserted are true. Id.
'. .' . ". .
. At the time of filing, the petitioner managed a restaurant and employed ~ne vice president, one assistant
manager trainee, oneassi~tant manager, nine servet;s, four cooks, two dishwashers and one hostess. Since
the petitionerfaiied to submit job descriptions fOf these positions; a's 'requested by the dire'ctor, it is
impossible to determine the duties performed b~ each employee. .Failure to submit reqllested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. '§ 103.2(b)(l4)., -, . .
,'.
SRC 06 11450642
Page 9
Without this information, the AAO cannot determine if the U.S. entity's employees would relieve the
beneficiary from performing the non-managerial or non-executive operations of the company..
In addition, based on the organizational chart, it appears that the assistant manager trainee supervises the
hostess, the lead server and the servers, and the assistant manager supervises the kitchen manager and the
cooks. Based on the evidence submitted, it is not clear who will be performing many of the various
operational tasks inherent in operating the restaurant on a daily basis, such as acquiring· supplies,
equipment and inventory, obtaining contracts with suppliers and service providers, marketing and
promotion, budgeting, bookkeeping, preparing reports for 'the franchiser, paying bills, and personnel
functions, and other administrative tasks inherent to operating a large restaurant. Since the assistant
managers are supervising the kitchen and the restaurant's front-end operations, and the vice president's
duties are not explained, it is very possible that the beneficiary is performing several of the above­
mentioned duties and thus the beneficiary's job duties are principally composed of non-qualifying duties
that preclude him from functioning in a primarily managerial or executive role. '
Further, it is not clear that two assistant managers are sufficient to fulfill the petitioner's reasonable needs
for supervision of the floor and kitchen staff. Based on an employee schedule submitted by the petitioner,
it appears that the petitioner's restaurant is open daily at 6:00 a.m. or 7:00 a.m., and closes at 9:00 p.m. or
10:00 p.m., while each manager works forty hours or less per week. .Therefore, the record does not
establish who supervises the routine operations and duties of the lower-level staff during the many
operating hours in which the assistant managers are off-duty. In addition, one of the assistant managers is
a trainee, thus it can be assumed that as a train'ee, he/she is supervised and assisted by another individual.
The petitioner has not explained how one assistant manager trainee, one assistant manager, and one vice­
president are able to perform most or all of the day-to-day functions of ordering merchandise and
supplies, dealing with fo~d vendors, handling the restaurant inventory, managing the staff schedules,
managing the restaurant staff and many other routine duties associated with operating a restaurant. Given
the· absence of employees who would perform the non-managerial or non-executive operations of the
company, it is reasonable to conclude that the beneficiary would need to spend a significant portion of his
time directly providing the services of the company or directly supervising employees performing cashier
duties. See Matter ofSoffici, 22 I&N Dec. at 165.
Therefore, based on the above, it does not appear that the reasonable needs of the petitioning company
might plausibly be met by the services of the beneficiary as the president and one vice president, one
assistant manager and one assistant manager trainee and the restaurant staff. Regardless, the reasonable
needs ofthe petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the
claimed managerial or executive duties. The petitioner must still 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 ofeligibility.
In addition, although the beneficiary is not required to supervise personnel, if it is claimed that his duties
involve supervising employees, the petitioner must establish that the subordinate employees are
supervisory, professional, or :rp.anagerial.See § 101(a)(44)(A)(ii) of the Act.
SRC 0611450642
Page 10
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. § 1101(a)(32), states that "[t]he 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 ofSea, 19 I&N Dec. 817 (Comm. 1988);
Matter ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter of ~hin, 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 instant casc, the petitioner claims that the beneficiary will supervise the vice­
president, two assistant managers, two managers on duty, and one kitchen manager. The petitioner did
not submit the job duties for these employees, thus the AAO cannot determine if the managers obviate the
beneficiary from performing primarily non-managerial andnon-executive duties. The petitioner has not,
in fact, established that a bachelor's degree is actually necessary to perform the service functions and
restaurant management functions of the subordinates supervised by the beneficiary. Rather, based on the
type of business operated by the petitioner and its staffing levels, the assistant managers, the managers on
duty and the kitchen manager would necessarily be involved in the routine tasks associated with operating
a restaurant; which can not be considered professional or managerial in nature.
Furthermore, on appeal, counsel asserts that the position offered to the beneficiary is executive in
capacity. 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 101(a)(44)(B) of the Act, 8 U.S.c. §
1101(a)(44)(B). 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 the beneficiary to direct and the beneficiary must
primarily focus on the broad goals and policies of the organization rather than the day-to-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. The
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." Id. A managerial or executive employee must have authority over day-to-day operations
beyond the level normally vested in a first-line supervisor, unless the supervised employees are
professIonals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). As
the petitioner has failed to provide a detailed description of the duties performed by the beneficiary and
all of the individuals employed by the U.S. entity, the petitioner has not established the hierarchy and
complexity of the cxganization which would elevate the beneficiary to a position of executive capacity.
As discussed above, the beneficiary's job description ,was not sufficient to establish that he would be,
employed in a primarily managerial or executive capacity, and the petitioner has not identifi~d sufficient
employees within the petitioner's organization, subordinate to the beneficiary, who would relieve the
SRC 06 114 50642
-Page 11
. beneficiary from performing .routine duties inherent to operating the business. The fact that the
beneficiary has been given a managerial job title and general oversight authority over the business is
insufficient to elevate his position to that of an executive or manager as contemplated by the governing
statute and regulations.
As noted above, the petitioner explained that the beneficiary will assist in the expansion of the U.S. entity
through the purchase of two additional restaurants. The petitioner stated that the U.S. entity has made a
"doWn payment" on one restaurant, and "signed a letter of intent to purchase" the other restaurant. Thus,
the U.S. entity has not yet acquired the two new restaurants and the beneficiary is not supervising staff in .
the new restaurants. 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
Based on the foregoing discussion, the appeal is dismissed.
Beyond the decision of the director, the petitioner has not submitted evidence that the United States entity .
. . has been doing business for the previous year as defined in 8 C.F.R. § 214:2(l)(1)(ii)(H). If a petition
indicates that a beneficiary is coming to the United States to open a "new office," it must show that it is
ready to commence doing business immediately upon approval. At the time of filing the petition to open
, a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical .
. premises to commence business, that it 4as the financial ability to commence doing business in the United
States, and that it will support the beneficiary in a managerial or eXt?cutiveposition within one year of
approval. See generally,. 8 C.F.R. § 2l4.2(l)(3)(v). If approved, the beneficiary is granted a one-year
period of stay to open the "new office." 8 C.F.R. § 2l4.2(l)(7)(i)(A)(3). At the end ofthe one-year
period, when the petitioner seeks an extension of the "new office" petition, the regulation at 8 C.F.R.
§ 214.2(l)(i4)(ii)(B) requires the petitioner to demonstrate that it has been doing business "for the
previous year" through the regular, systematic, and continuous provision of good~ or services. See 8
C.F.R. § 2l4.2(l)(1)(ii)(H) (d~fining the term "doing business").· The mere presence ofan agent or office
ofthe quali.fying organization will not suffice. !d.
In the instant matter,.the petitioner indicated that .the U.S. entity acquired the IHOP restaurant on
December 9, 2005, nearly a year after the beneficiary entered the United States in order to commence
operations ofthe·U.S. entity. The petitioner did not provide any documentation that the U.S.entity was
doingbusiness prior to the purchase of the mop restaurant in December 2005. The petitioner submitted
Form 1120, U.S. Corporation Income Tax Return, for 2005 that indicated gross sales of $58,797. In
addition, the tax return indicated that the U.S. entity did not pay any wage or salaries, and paid $1500 for
the compensation of officers. The petitioner failed to provide any documentation to establish that the
U.S. entity was doing business for the previous year, and prior to the purchase of the mop restaurant in
December 2005,· nor did it explain the lengthy delay in commencing operations. For this additional
r~ason, the appeal will be dismissed.
Beyond the decision of the director, the petition indicates that the beneficiary owns 80 percent of the
foreign entity, and thereby ofthe'petitioning company. The regulation at 8 C.F.R. § 214.2(l)(3)(vii) states
that if the beneficiary is an owner or major stockholder of the company, the petition must be accompanied
by evidence that the beneficiary's services are to be used for a temporary period and that the beneficiary
will be transferred to an assignment abroad upon the completion of the temporary serVices in the United
SRC 0611450642 .
Page 12
States. 'In this matter, the petitioner has not furnished evidence that the beneficiary's serVices are for a
temporary period and that the beneficiary will be transferred abroad upon completion of the assignment.
For this additional reason, the appeal must be dismissed and the petition denied.
An application or petition that fails to comply with the technical requirements of the law may be denied
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial
decision. See Spencer Enterprises, Inc. v. United Statq, 229 F. Supp. 2d 1025, 1043 (E.D.Cal. 2001),
affd. 345 F.3d 683 (9th Cir. 200~); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting
that the AAO reviews appeals on a de novo basis).
The petition will be denied for the above. stated reasons, with each considered as an independent and
alternative basis for the decision. 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. § 1361. Here, that
burden has not been met. Accordingly, the appeal will be dismissed.
ORDER: The appeal-is dismissed.