dismissed L-1A Case: Restaurant Business

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 05 091 50509 Office: CALIFORNIA SERVICE CENTER Date: H()v 0 9 zm 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1101(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. 
I 
Administrative Appeals Office 
WAC 05 091 50509 
Page 2 
DISCUSSION: The Director, California 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 California corporation, claims to be an affiliate of located in the United 
Kingdom. The petitioner states that it is in the restaurant business. Accordingly, the United States entity 
petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary as a nonirnmigrant 
intracompany transferee (L-1 A) pursuant to section 101(a)(15)(L) of the Act (the Act), 8 U.S.C. 9 
1101(a)(15)(L). The petitioner was initially granted an L-1 classification and subsequently was granted an 
extension of status. The petitioner now seeks to extend the beneficiary's status so that he may continue to 
perform the duties of president for the U.S. company. 
The director denied the petition based on the conclusion that that the petitioner has not established that the 
beneficiary will be employed in a primarily managerial or executive capacity in the United States. 
On appeal, counsel for the petitioner states that the beneficiary will in fact be employed in a managerial 
capacity and executive capacity since he will "direct the management of the businesses owned by the 
company." Counsel for the petitioner indicates that the beneficiary will oversee the management of two 
restaurants and one real estate development project. 
 Counsel for the petitioner outlines several 
investments made by the beneficiary and explains that the beneficiary will not manage a restaurant or 
supervise the restaurant's employees. Instead, the majority of the beneficiary's duties will be "primarily 
directing the management of the organization." Counsel submits a brief and additional documentation in 
support of the appeal. 
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 firm, 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. 8 214.2(1)(3) further 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 within the three years preceding the filing 
of the petition. 
'WAC 05 091 50509 
Page 3 
(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 himher 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 issue in this proceeding is whether the petitioner established that the beneficiary will be employed in 
the United States in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment withn an organization in which the employee 
primarily- 
(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 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 withn 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 withn 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-malung; and 
'WAC 05 091 50509 
Page 4 
(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 10, 2005. On the Form 1-129, the petitioner described 
the beneficiary's proposed United States duties as: "continue manage [sic], direct start up affiliate 
company." In addition, in a supporting letter dated February 8, 2005, the petitioner explained the duties 
the beneficiary has performed for the U.S. company since his entry into the United States in L status as 
the following: 
[The beneficiary] as proven to be a successful businessperson and demonstrated by the 
continuing growth and vitality of his European operations [sic]. Since his entry he has been 
instrumental obtaining all governmental licenses, permits etc. meeting [sic] with banks, real 
estate brokers in order to further expand and contribute to the growth of the U.S. company. 
The petitioner stated on Form 1-129 that the company has 6 to 15 employees, and noted that the number 
varies. The petitioner submitted its California Forms DE-6, Quarterly Wage and Withholding Report, for all 
quarters of 2004, which confirmed the employment of six employees as of December 31, 2004. The 
petitioner paid wages to only one employee from January 2004 until November 2004, when the additional 
staff was hired. Only the beneficiary and one other worker appeared to be full-time employees. 
On February 17,2005, the director requested additional evidence. Specifically, the director requested: (1) the 
total number of employees at the U.S entity; (2) an organizational chart of the U.S. entity, including the job 
titles, job description, educational level, annual salaries/wages and immigration status for all employees 
supervised by the beneficiary; (3) a detailed description of the beneficiary's job duties in the U.S., indicating 
the percentage of time spent on each job duty; and, (4) a list of all the U.S. entity's employees from the date 
of establishment to the present, including names, job titles, social security numbers, dates of employment and 
wages per week. 
In a response dated April 22, 2005, the petitioner submitted the requested information. The petitioner 
indicated that the U.S. entity hired a total of nine employees. According to the U.S. organizational chart 
submitted by the petitioner, the beneficiary will hold the position of president who will then supervise the 
manager. The manager will supervise the assistant manager who in turn supervises the bartender, head chef, 
assistant chef, lutchen prep, and two servers. 
In addition, the petitioner described the beneficiary's proposed duties in the U.S. as the following: 
Set all corporate policies and is developing the affiliate company in the U.S. Instrumental in 
obtaining governmental licenses, permits (see attached) meets with banks [sic], real estate 
brokers, accountant, issuing permits agencies. Continues to secure business premises and 
staff, negotiate contracts. Overall plan withn the framework of the organization. Staffing, 
oversee and motivate workers to achieve financial objectives and goals of company. The 
beneficiary is directing the Manager and Assistant Manager related to affiliate company. He 
directs and coordinates all activities and operation with regard to the funds under hs control 
and directed [sic]. A1 employees under the beneficiary's direction are listed on the 
organization chart. The percentage of time spent in each of the listed duties is as follows: 
'WAC 05 091 50509 
Page 5 
Percentage of time spent in listed duties above are 90% of time in the above noted duties and 
10% of time spent in marketing related to the affiliate company business. 
In addition, the petitioner submitted a brief job description for all of the employees hired by the U.S. entity. 
The petitioner further described the duties performed by the president as follows: 
President, Directing all financial aspects of organization, establishes goals and policies of 
organization: Exercise wide latitude of discretionary-malung. Meet with corporate 
accountants, bank manage[r]s, meet with all governmental agencies for permits licenses, set 
up and meet with entertainment companies [sic] discuss contracts, determine required 
security, enter into contracts, etc. 
The director denied the petition on May 9, 2005 on the ground that the petitioner did not establish that the 
beneficiary will be employed in a primarily managerial or executive capacity. The director observed that 
based upon the nature of the business, the description of the duties, and the organizational structure, it did 
not appear that the beneficiary would be employed in a primarily managerial capacity. 
On appeal, counsel for the petitioner outlines several investments the beneficiary made in restaurants and 
construction projects. Counsel for the petitioner further states that the petitioner has hired nine employees at 
the DENJ restaurant, of which only two are hll-time employees, as well as six to nine independent 
contractors and one architect and one engneer. In addition, counsel for the petitioner mher states the duties 
performed by the beneficiary as the following: 
[The beneficiary] holds the title of President of [the petitioner] and directs the management 
of the businesses owned by the company. These businesses consist of two restaurant [sic] 
and one real estate development project. He establishes the company's goals and policies, 
oversees the development and expansion of the businesses as he did with the Central 
property and DENJ, located new properties as they become available on the market as he did 
with DENK and Kebob Express, perfoms initial profitability analyses, negotiates the 
acquisition or lease of real estate, negotiates with major subcontractors for the refurbishing 
of the properties. 
[The beneficiary] does not manage the restaurant, be it The Flames, QQ, or DENJ nor their 
day to day operations.. .[The beneficiary] does NOT perform the tasks necessary to produce 
any goods or services. 
Beneficiary is now loolung for other restaurant and investment opportunities and 
concentrating on the development of the Central property into a high rise. Clearly, the 
business of the petitioning entity possesses the complexity to warrant having an executive or 
someone with "managerial capacity" to run it. 
Counsel's assertions are not persuasive. 
 Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of 
' WAC 05 09 1 50509 
Page 6 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would 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. tj 
214.2(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). 
The beneficiary's position description is too general and broad to establish that the preponderance of his 
duties is managerial or executive in nature. The beneficiary's job description includes vague duties such 
as: "set all corporate policies and is developing the affiliate company in the U.S."; oversee the "overall plan 
within the framework of the organization"; "directs and coordinates all activities and operation with regard to 
the funds under his control and directed [sic]"; and, "exercise wide latitude of discretionary-making [sic]." 
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), afd, 905 F.2d 41 (2d. Cir. 1990). The petitioner's 
descriptions of the beneficiary's position do not identify the actual duties to be performed, such that they 
could be classified as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary will be 
"instrumental in obtaining governmental licenses, permits (see attached) meets with banks [sic], real 
estate brokers, accountant, issuing permits agencies," "continues to secure business premises and staff, 
negotiate contracts," will manage the "marketing related to the affiliate company business," and the 
beneficiary "will set up and meet with entertainment companies [sic] discuss contracts, determine 
required security, enter into contracts, etc." It appears that the beneficiary will be providing the services 
of the business rather then directing such activities through subordinate employees. 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 ofChurch Scientology International, 19 i & N Dec. 593,604 (Comrn. 1988). 
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. Although specifically requested by the director, the 
petitioner's description of the beneficiary's job duties does not establish what proportion of the 
beneficiary's duties are managerial in nature, and what proportion are actually non-managerial. See 
' WAC 05 091 50509 
Page 7 
Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. tj 103.2(b)(14). 
The petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for 
the record before the visa petition was adjudicated. 
In the response to the director's request for evidence, dated April 22, 2005, the petitioner indicated that 
the beneficiary will supervise nine employees, including the manager who supervises the assistant manager 
who in turn supervises the bartender, head chef, assistant chef, kitchen prep worker, and two servers. In 
addition, the petitioner submitted documentation of the U.S. entity doing business which consisted of 
documents for the restaurant, Denj, owned by the petitioner. However, on appeal, the counsel for the 
petitioner now states that the beneficiary will not manage the restaurant, Denj, and will not supervise the 
employees of that restaurant. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In addition, the record contains several inconsistencies regarding the staffing of the U.S. entity. In 
response to the director's request for evidence, the petitioner submitted a detailed list of all employees 
hired by the U.S. entity since it commenced its operations. Moreover, the petitioner submitted the 
company's California Form DE-6, Quarterly Wage and Withholding Report, for the quarter ended on 
December 3 1, 2004. According to the master employer list, the U.S. entity employed nine employees, as 
of the date of filing. However, three individuals are not listed on the most recent Form DE-6 submitted 
by the petitioner. The quarterly wage report confirms the employment of six employees, including the 
beneficiary, a full-time chef, a part-time manager, and three part-timer servers, as of December 3 1, 2004. 
An assistant manager, a bartender and an assistant employee, listed on the master employee list, are not 
included in the most recent Form DE-6 submitted by the petitioner. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Furthermore, it 
appears that the dates of certain individuals listed on the master list of employees are inaccurate. 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). 
As noted above, the U.S. company's Form DE-6 for the last quarter of 2004 confirms that the U.S. entity 
hired the beneficiary, a full-time chef, a part-time manager and three part-time servers. Thus, it appears 
that the only individual in charge of running the business and managing the administrative tasks, 
marketing, clerical, bookkeeping, customer service and finance operations is the beneficiary himself since 
the petitioner has not indicated in the job descriptions for the staff that they will relieve the beneficiary 
from performing these operational and administrative tasks. Thus, the beneficiary is the only employee 
who will perform the majority of the operational tasks required in running a business. Accordingly, the 
director reasonably concluded that the beneficiary as the petitioner's only managerial employee will be 
performing the day-to-day operations and directly be providing the services of the business rather than 
directing such activities through subordinate employees. An employee who "primarily" performs the 
tasks necessary to produce a product or provide services is not considered to be "primarily" employed in a 
' WAC 05 09 1 50509 
Page 8 
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. 
Furthermore, counsel for the petitioner indicates on appeal that the beneficiary manages the operations of the 
company rather than the operations of the restaurant. In addition, counsel for the petitioner states that the 
beneficiary is "now looking for other restaurant and investment opportunities and concentrating on the 
development of the Central property into a high rise." On appeal, a petitioner cannot offer a new position to 
the beneficiary, or materially change a position's title, its level of authority within the organizational 
hierarchy, or the associated job responsibilities. The petitioner must establish that the position offered to 
the beneficiary when the petition was filed merits classification as a managerial or executive position. 
Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
On appeal, counsel for the petitioner indicated that the beneficiary will not supervise any subordinate 
employees. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101 (a)(44)(A)(ii) of the Act, 8 U.S.C. €J 1 101 (a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that clearly 
describes the duties to be performed in managing the essential function, i.e. identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. See 8 C.F.R. €J 214.2(1)(3)(ii). In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. 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. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this 
matter, the petitioner has not provided evidence that the beneficiary manages an essential function. The 
petitioner's description of the beneficiary's daily duties must clearly demonstrate that the beneficiary 
primarily manages the function rather then performs the duties related to the function. 
Beyond the required description of the job duties, CIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to 
relieve the beneficiary from performing operations duties, the nature of the petitioner's business, and any 
other factors that will contribute to a complete understanding of a beneficiary's actual duties and role in a 
business. In the case of a function manager, where no subordinates are directly supervised, these other 
factors may include the beneficiary's position with in the organizational hierarchy, the depth of the 
petitioner's operations, the indirect supervising of employees within the scope of the function managed, 
and the value of the budgets, products, or services that the beneficiary manages. 
As discussed above, the beneficiary's job description appears to include non-qualifying operational and 
administrative duties associated with the petitioner's finance, development and marketing functions, and 
' WAC 05 091 50509 
Page 9 
the petitioner has not identified any other employees within the petitioner's organization, subordinate to 
the beneficiary, who would relieve the beneficiary from perform routine duties inherent to these 
functions. The fact that the beneficiary has been given a managerial job title and its not clear if any other 
employees will perform the non-qualifying duties in the sales and marketing function is insufficient to 
elevate his position to that of a "function manager" as contemplated by the governing statute and 
regulations. 
The petitioner has not shown that the beneficiary will perform primarily managerial duties, nor has it been 
established that he would function at a senior level within an organizational hierarchy, other than in 
position title. Thus, the evidence is insufficient to establish that the beneficiary is a senior level manager 
for the petitioner. Accordingly, the petitioner has not established that the beneficiary will be employed 
primarily as a manager of an essential function. 
On appeal, counsel for the petitioner asserts that the beneficiary will perform duties that are executive in 
nature. 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. Based on the foregoing discussion, the petitioner has not established that the 
beneficiary will be employed in a primarily executive capacity. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed 
in a primarily managerial or executive capacity. For this reason, the appeal will be dismissed. 
Furthermore, beyond the decision of the director, the petition indicates that the beneficiary own 100 
percent of the foreign entity, and thereby of the petitioning company. The regulation at 8 C.F.R. fj 
214.2(1)(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 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. In addition, the fact that the owner of the original foreign corporation 
resides in the United States raises the question of whether the parent organization is still doing business so 
that a qualifying relationship exists pursuant to 8 C.F.R. $ 214.2(1)(l)(ii)(G). For these additional 
reasons, the appeal will 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 
' WAC 05 091 50509 
Page 10 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afyd. 345 F.3d 683 (9th Cir. 2003); 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 eligbility 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.