dismissed L-1A Case: Restaurant Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 30, 2025 In Re: 35514460 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner, operating as a franchise restaurant business at the time of filing, 1 seeks to continue the 
Beneficiary's temporary employment as chief executive officer under the L-lA nonimmigrant 
classification for intracompany transferees. 2 See Immigration and Nationality Act (the Act) 
section 101(a)(15)(L), 8 U.S.C. § 110l(a)(15)(L). 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary would be employed in a managerial capacity under an approved petition. 
The Director discussed the procedural history in this matter, pointing out that a request for evidence 
(RFE) was issued in which the Petitioner was notified of evidentiary deficiencies, including lack of a 
detailed job description for the Beneficiary and lack of clarity as to whether the Beneficiary's proposed 
position would be in a managerial or executive capacity. The Director stated that although the RFE 
response clarified that the Beneficiary's proposed position would be in a managerial capacity, it did 
not include a more detailed description of the Beneficiary's job duties as requested. 
Despite acknowledging the Petitioner's submission of affidavits from the Beneficiary's subordinates 
as well as meeting minutes illustrating the Beneficiary 's oversight of three stated functions, the 
Director determined that the record contained insufficient evidence about the Beneficiary's daily job 
duties. The Director noted that the Petitioner did not state how much time the Beneficiary spends 
attending meetings and reviewing documents or provide an account of other activities the Beneficiary 
performs outside of those two functions. In addition, the Director questioned how much time the 
Beneficiary spends performing non-managerial job duties, such as conducting restaurant site visits and 
1 Public records of the California Secretary of State show the Petitioner's corporate status as "Suspended - FTB" as of 
2024, indicating that the Franchise Tax Board suspended the Petitioner 's business due to noncompliance with tax 
requirements. See https://bizfileonline.sos.ca.gov/search/business (last accessed January 30, 2025). It therefore appears 
that the Petitioner may not be doing business. See 8 C.F.R. § 214.2(1)(14)(ii)(A) (requiring evidence that the Petitioner 
continues to be a qualifying organization as defined in 8 C.F.R. § 214.2(l)(l)(ii)(G)). The Petitioner must address this 
anomaly in any future filings. 
2 The Petitioner previously filed a "new office" petition (with receipt number on the Beneficiary 's 
behalf. That petition was approved for the one-year period from December 18, 2018, until December 17, 2019. A "new 
office" is an organization that has been doing business in the United States through a parent, branch, affiliate, or subsidiary 
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 one year within the date of approval of the petition to support an executive or managerial position. 
collecting customer feedback. In sum, the Director determined that while the Petitioner adequately 
demonstrated that the Beneficiary oversees and has authority over his subordinates, it did not establish 
that the Beneficiary would be employed in a managerial capacity as it did not provide the requested 
job duty breakdown with time allocations illustrating how the Beneficiary's time would be spent. 
The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. The Petitioner bears the burden 
of proof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N 
Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo's, 
Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal. 
On appeal, the Petitioner asks us to "consider [the] Beneficiary's job duties in totality" and points to 
previously submitted company emails and meeting minutes, employee performance reviews, notarized 
statements from the Beneficiary's subordinates, and payroll evidence. The Petitioner argues that these 
documents constitute "solid evidence" that the Beneficiary's position meets the four-prong definition 
of managerial capacity. We disagree. 
Although the highlighted evidence clarifies the organization's reporting structure and underscores the 
Beneficiary's authority and control over the Petitioner's employees and key business functions, the 
record does not include a list of the Beneficiary's specific job duties, nor does it contain evidence 
establishing how the Beneficiary would allocate his time among his assigned duties in the regular 
course of business. As such, we cannot, as the Petitioner requests, "consider [the] Beneficiary's job 
duties in totality" since a list of the assigned job duties was not provided. The Director duly recognized 
and informed the Petitioner of this deficiency in an RFE, which asked the Petitioner to submit the 
Beneficiary's job duty breakdown with corresponding time allocations. The Petitioner did not comply 
with that request at the time of the response and instead submits the requested job duty breakdown on 
appeal. Where, as here, a petitioner has been put on notice of an evidentiary deficiency and given an 
opportunity to respond to that deficiency, we will not accept evidence offered for the first time on 
appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N 
Dec. 533 (BIA 1988). If the Petitioner had wanted the job duty breakdown to be considered, it should 
have submitted this evidence in response to the RFE. Id. Accordingly, under the circumstances, we 
need not and do not consider the sufficiency of the newly offered information. 
The appeal brief also acknowledges that the Beneficiary conducted site visits to the Petitioner's 
restaurants. However, the Petitioner points out that this type of direct involvement in day-to-day 
operations is permitted for a beneficiary employed within the context of a new office. We agree and 
further note that the regulations do not require a beneficiary's time to be exclusively spent in a 
managerial capacity, only that it be "primarily" in a managerial capacity, thus indicating that the 
proposed position must be comprised of primarily managerial job duties. See section 101(a)(44)(A). 
That said, determining whether the Beneficiary would primarily perform managerial job duties 
requires a detailed job description. See 8 C.F.R. § 2 l 4.2(1)(3)(ii). The Director requested such 
evidence in the previously issued RFE, but the Petitioner did not provide it, thereby precluding the 
Director from gaining a meaningful understanding of the duties that would comprise the Beneficiary's 
proposed position. As such, the Director correctly concluded that the record lacked sufficient evidence 
establishing that the Beneficiary would be employed in a managerial capacity. 
2 
We adopt and affirm the Director's decision. See Matter of Burbano, 20 T&N Dec. 872, 874 
(BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of 
adopting and affirming the decision below has been "universally accepted by every other circuit that 
has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (l st Cir. 1996) (joining eight circuit 
courts in holding that appellate adjudicators may adopt and affirm the decision below as long as they 
give "individualized consideration" to the case). 
ORDER: The appeal is dismissed. 
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