dismissed L-1A Case: Restaurant Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 12916393 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 27, 2020 
The Petitioner, identifying itself as a "restaurant, food and beverages business," seeks and to 
temporarily employ the Beneficiary as "Chief Operating Officer" of its new office1 under the L-lA 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) Section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-lA classification allows a corporation 
or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to 
the United States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary was employed abroad in a managerial or executive 
capacity and that the new office would support the Beneficiary in a managerial or executive position 
within one year of the petition's approval. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because the 
Petitioner did not establish that it would support the Beneficiary in a managerial or executive capacity 
within one year of the petition's approval, as claimed. Because the identified basis for denial is 
dispositive of the appeal, we decline to reach and hereby reserve the Petitioner's arguments regarding 
the remaining ground for denial. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(I)(3)(v)(B). In addition, the beneficiary must seek 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(1)(1)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
to enter the United States temporarily to continue rendering his or her services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
Further, in the case of a new office petition, the petitioner must submit evidence to demonstrate that 
the new office will be able to support a managerial or executive position within one year. This 
evidence must establish that the petitioner secured sufficient physical premises to house its operation 
and disclose the proposed nature and scope of the entity, its organizational structure, its financial goals, 
and the size of the U.S. investment. See generally, 8 C.F.R. § 214.2(I)(3)(v). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The primary issue to be addressed in this discussion is whether the Petitioner established that its 
operation would support the Beneficiary in an executive capacity within one year of the petition's 
approval.2 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101(a)(44)(B) of the 
Act. 
In the case of a new office petition, we review the petitioner's business and hiring plans and evidence 
that the business will grow sufficiently to support a beneficiary in the intended executive capacity. 
The burden is on the Petitioner to establish that it would realistically develop to the point where it 
would require the Beneficiary to perform primarily executive duties within one year of the petition's 
approval. Accordingly, we consider the totality of the evidence in analyzing whether the proposed 
managerial or executive position is plausible based on a petitioner's anticipated staffing levels and 
stage of development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
If staffing levels are used as a factor in determining whether an individual will be acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) takes into 
account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 101(a)(44)(C) of the Act. 
In the petition form, the Petitioner claimed 11 employees and in support of the petition it provided an 
asset purchase agreement showing that it purchased a franchise restaurant in April 2019 and was 
operating a restaurant business and at the time of filing. The petition also includes a brief description 
of the Beneficiary's proposed position, which would require the Beneficiary to develop the U.S. 
market, make personnel decisions, develop training plans, networks, and contacts, and manage the 
company's performance, public relations, and investment and accounting practices. The Petitioner 
did not provide information about its projected organizational hierarchy or projected hiring plan 
disclosing which positions it sought to fill during its first year of operation. Likewise, the Petitioner 
2 The Petitioner claims that the Beneficiary will occupy an "executive position" within its organization and does not pursue 
a claim that the Beneficiary will be employed in a managerial capacity. 
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did not explain how it planned to progress beyond the initial phase of operation to a phase where it 
could support the Beneficiary in an executive capacity within one year of the petition's approval. 
In a request for evidence (RFE) the Director asked the Petitioner to provide a business plan for 
commencing the start-up of its new office and to include a timetable for each proposed action during 
its first year of operation. The Director also instructed the Petitioner to provide an organizational chart 
depicting its proposed staffing and organizational hierarchy and to summarize employee job duties. 
In response, the Petitioner provided a statement describing itself as an investment company that plans 
to invest in "various businesses" in the United States. The Petitioner stated that in addition to the 
franchise restaurant it previously purchased, it signed an agreement to acquire a second franchise 
restaurant and was also looking to purchase an interior remodeling company as well. The Petitioner 
pointed to its tax returns and financial statements, stating that these documents "show clearly" that the 
Petitioner had the financial ability to support the Beneficiary in an executive position. The Petitioner 
also stated that the Beneficiary's "primary duty" would be to "manage" these investments, but it did 
not clarify her proposed duties or establish that the duties that comprising management of the current 
and future investments would primarily be in an executive capacity within one year of this petition's 
approval. The Petitioner also did not provide the requested business plan, organizational chart, or the 
projected staffing of its operation, nor did it outline the actions it would take during its first year of 
operation to advance beyond the rudimentary phase of development. 
Because the Petitioner did not provide the evidence and information requested in the RFE, we are 
precluded from gaining a meaningful understanding of not only the Petitioner's estimated costs and 
staffing projections, but also the staffing arrangement that would be required going forward in order 
to relieve the Beneficiary from having to primarily perform non-executive job duties once the 
Petitioner moves beyond the new office phase of its operation. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(14). We further note that an employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a managerial 
or executive capacity. See, e.g., section 101(a)(44)(B) of the Act (requiring that one "primarily" 
perform the enumerated executive duties); Matter of Church Scientology lnt'I, 19 l&N Dec. 593, 604 
(Comm'r 1988). It is therefore critical for the Petitioner to outline its plan for developing its operation 
to a point at which the Beneficiary would focus primarily on executive job duties. 
In the denial, the Director pointed to the lack of information about the Beneficiary's job duties, 
highlighting that the Petitioner did not distinguish between the job duties the Beneficiary would 
perform during and after the new office phase of its operation. The Director also noted that the 
Petitioner did not provide evidence demonstrating that its corporate structure and scope of business 
activities will adequately develop so that it can support the Beneficiary in a managerial or executive 
position within one year of the petition's approval. 
On appeal, the Petitioner reiterates its goal to operate as an investment company and points to funds it 
invested so far and the "millions of dollars" it expects to invest into its business activities in the United 
States. The Petitioner also restates the job description offered in the petition form and contends that 
it will support the Beneficiary in an executive position within one year of the petition's approval. 
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As a preliminary matter, we note that the Petitioner must support its assertions with relevant, probative, 
and credible evidence. See Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). A petitioner's 
unsupported statements are of very limited weight and normally will be insufficient to carry its burden 
of proof. Here, the Petitioner merely reiterates its original claims, yet offers no evidence to support 
them, thereby leaving us to question how it plans to staff its operation to ensure that it has the ability 
to relieve the Beneficiary from having to perform primarily non-executive tasks beyond the 
Petitioner's first year of operation. 
Further, when a new business is established and commences operations, the regulations recognize that 
a designated manager or executive responsible for setting up operations will be engaged in a variety 
of activities not normally performed by employees at the executive or managerial level and that often 
the full range of managerial responsibility cannot be performed. In order to qualify for L-1 
nonimmigrant classification during the first year of operations, the regulations require a petitioner to 
disclose the proposed nature of the business and the size of the U.S. investment, and establish that the 
proposed enterprise will support an executive or managerial position within one year of the approval 
of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic 
expectation that the enterprise will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager or executive 
who will primarily perform qualifying duties. 
As noted above, the Petitioner has not supplemented the record with critical evidence about the scope 
of its operation and its staffing needs to explain how the Petitioner will progress to the next 
developmental phase where the Beneficiary's primary focus will be to direct the management of the 
organization by establishing its goals and policies. See section 101(a)(44)(B) of the Act. Although 
the Petitioner claims that it will operate as an investment enterprise, it has not clarified which job 
duties the Beneficiary will perform or the staffing composition that will be required to support an 
investment business and to relieve the Beneficiary from having to perform primarily non-executive 
job duties within one year of the petition's approval. We further note that the Petitioner has not 
described the actions the Beneficiary plans to take during the first year of operation to explain how 
the Petitioner will transition beyond the new office phase within one year of the petition's approval. 
Without this critical information, much of which was requested in the RFE, we cannot conclude that 
the Petitioner would have the capacity to employ the Beneficiary in an executive capacity within the 
allowed timeframe. As noted earlier, the Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Chawathe, 25 l&N Dec. at 376. 
The evidentiary deficiencies described above preclude us from gauging how and when the 
Beneficiary's role would shift from one that involves primarily carrying out the Petitioner's 
operational tasks to one that involves primarily executive job duties within the scope of an investment 
enterprise. Therefore, we cannot conclude that the Petitioner will employ the Beneficiary in an 
executive position within one year of the petition's approval. 
Ill. EMPLOYMENT ABROAD 
Finally, although the Petitioner responded to a previously issued notice of intent to deny (NOID), it 
did not provide sufficient evidence addressing the Director's adverse findings regarding the 
Beneficiary's employment abroad. The NOID focused in part on a 2016 nonimmigrant visa (NIV) 
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~ication in which the Beneficiary listed her employer a 
LJ and stated that she held the position of "Financial Director" with that employer. The Director 
determined that this information is inconsistent with the Petitioner's claim that the Beneficiary has 
been employed in the position of "General Manager" by the Petitioner's affiliate, I I I I, and that the Beneficiary's period of employment with the 
foreign affiliate has been "uninterrupted" from November 2010 through the date this petition was filed. 
In response to the NOi D, the Petitioner claimed that the Beneficiary worked part-time for the unrelated 
foreign entity and that such employment ended in June 2016, prior to commencement of the relevant 
three-year period during which the Petitioner is required to demonstrate the Beneficiary's one year of 
employment with a related foreign entity. The Petitioner stated that the Beneficiary commenced full­
time employment with the Petitioner's foreign affiliate on June 10, 2016, immediately after her 
employment with the unrelated foreign entity ended, and claimed that the Beneficiary provided 
"updated information about the termination of her employment withl I in a "subsequent" 2017 
N IV application. As the Petitioner has not provided independent objective evidence corroborating the 
claim that the Beneficiary filed a NIV application in 2017 and that the application contains new 
information about the Beneficiary's foreign employment, the inconsistency regarding her employment 
abroad has not been resolved. See Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
While we are not making an adverse finding based on the adverse information pertaining to the 
Beneficiary's foreign employment, the Petitioner may need to further address the listed discrepancy 
in any future filing where the issue of foreign employment is material to eligibility. As stated earlier, 
the appeal will be dismissed based on the determination that the Petitioner did not provide sufficient 
evidence demonstrating the likelihood that it would be able to employ the Beneficiary in an executive 
capacity within one year of this petition's approval. 
ORDER: The appeal will be dismissed. 
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