dismissed L-1A Case: Restaurant Business

. RlediQing-dQ 
prevest chsly m-vmnmted 
igv- dpersanal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 07 0 10 5 1090 Office: VERMONT SERVICE CENTER 
Date:fT~ 0 1 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1101 (a)(15)(L) 
IN 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. 
obert emann, Chief 
Administrative Appeals Office 
EAC07010 51090 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of restaurant 
manager to open a new office in the United States as an L-1A nonimmigrant intracompany transferee 
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, a corporation organized under the laws of the State of Florida, is allegedly in 
the restaurant business. 
The director denied the petition concluding that the petitioner failed to establish (1) that the petitioner has 
secured sufficient physical premises to house the new office; (2) that the beneficiary was employed abroad in 
a primarily executive or managerial capacity for one continuous year in the three years preceding the filing of 
the petition; or (3) that the United States operation will support an executive or managerial position within 
one year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts (1) that the petitioner entered into a 
lease for physical premises before the director's denial of the petition; (2) that the beneficiary was performing 
qualifying duties abroad; and (3) that the beneficiary will perform qualifying duties in the United States 
within one year of petition approval. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) 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. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
EAC 07 010 51090 
Page 3 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hirn/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. 
In addition, the regulation at 8 C.F.R. 5 214.2(1)(3)(v) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been 
secured; 
(B) 
 The beneficiary has been employed for one continuous year in the 
three year period preceding the filing of the petition in an executive 
or managerial capacity and that the proposed employment involved 
executive or managerial authority over the new operation; and 
(C) The intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial 
position as defined in paragraphs (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The first issue in the present matter is whether the petitioner has established that it has secured sufficient 
physical premises to house the new office. 8 C.F.R. 5 2 14.2(1)(3)(v)(A). 
In support of the petition, the petitioner submitted no evidence that it has secured physical premises to house 
the new office. On October 25, 2006, the director requested that the petitioner submit documentary evidence 
establishing that it has secured sufficient premises. In response, counsel submitted a letter dated November 
14, 2006 in which he asserts the following: 
The Beneficiary has not yet acquired a leased premise [sic] because he is still in Chile and 
cannot take steps to secure something he has not yet seen. Unlike an E-2 visa, it is my 
understanding: of the law that the acquisition of leased premise [sic] is not required for 
the approval on an L-1A. [The beneficiary] needs approval to come to the US as an L-1A 
EAC07010 51090 
Page 4 
before he will be able to find a satisfactory location. 
 [The beneficiary] has been in 
negotiation with a Real Estate Leasing Company who has shown him at least one location 
that [the beneficiary] is interested in [citation omitted], but all good businessmen and women 
understand that there is no substitute for a personal take on the locale and building. 
On November 30, 2005, the director denied the petition. The director concluded that the petitioner failed to 
establish that it has secured sufficient physical premises to house the new office as required by 8 C.F.R. 5 
2 1 4.2(1)(3)(v)(A). 
On appeal, counsel asserts that the petitioner secured sufficient physical premises after submitting a response 
to the Request for Evidence but before the director's denial of the petition. In support, counsel submits a copy 
of a lease agreement. 
Upon review, the petitioner's assertions are not persuasive. 
As indicated above, a petition, which indicates that the beneficiary is coming to the United States to open a 
new office, must include evidence that "[slufficient physical premises to house the new office have been 
secured." As the record indicates that the petitioner has been doing business for less than one year, it is a 
"new office" for purposes of 8 C.F.R. 5 214.2(1)(3)(~). See 8 C.F.R. $6 214.2(1)(l)(ii)(F) and (H). As the 
petitioner failed to secure sufficient physical premises prior to the filing of the instant petition, the petition 
may not be approved for that reason. The petitioner's search for sufficient physical premises does not 
constitute the securing of these premises as required by the regulations. Furthermore, counsel's assertion that 
the petitioner secured physical premises after the filing of the instant petition is not relevant to this matter. 
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Accordingly, the petitioner has not established that it has secured sufficient physical premises to house the 
new office as required by 8 C.F.R. 5 214.2(1)(3)(v)(A), and the petition may not be approved for this reason. 
The second issue in the present matter is whether the petitioner has established that the beneficiary was 
employed abroad in a primarily executive or managerial position. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; a 
(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; 
EAC 07 010 51090 
Page 5 
(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. 8 1101(a)(44)(B), defines the term "executive capacity" as 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 petitioner does not clarify in the initial petition whether the beneficiary primarily performed managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary was employed as a hybrid "executivelmanager" and 
rely on partial sections of the two statutory definitions. If the petitioner is indeed representing the beneficiary 
as both an executive and a manager, it must establish that the beneficiary meets each of the four criteria set 
forth in the statutory definition for executive and the statutory definition for manager. 
Counsel to the petitioner indicated in a letter dated October 12, 2006 that the foreign employer is a restaurant. 
Counsel also described the beneficiary's job duties abroad in the letter as follows: 
[The beneficiary] has been working with [the foreign employer] since February of 2004 as 
General Manager/President of the Company. As President, [the beneficiary] continues to 
retain control over the management of the Company, he establishes goals and policies for the 
organization, and exercises wide-latitude authority in decision making. [The beneficiary] 
analyzes the financial capacity of the Company and determines financial and business 
development opportunities. He manages the overall fiscal budget as well as reviews separate 
projects and financial proposals for the Company, and he designs and formulates strategies 
leading to the discovery of economic and market opportunities for the Company. 
EAC 07 010 51090 
Page 6 
As Director and Operations Manager, 
 [sic] oversaw the start up operations of the 
Company, including all pre-incorporation business deals. He now oversees all expansion 
efforts of the Company. He analyzes the financial capacity of the Company and determines 
financial and business development opportunities, he manages the overall fiscal budget as 
well as reviews separate projects and financial proposals for the Company. He designs and 
formulates strategies leading to the discovery of economic and market opportunities for the 
Company. 
It is unclear why counsel refers to the beneficiary as " 
 ' in his letter dated October 12,2006. 
The petitioner also submitted an organizational chart for the foreign employer. 
 The chart shows the 
beneficiary at the top of the organization directly supervising a "kitchen manager," a "plant coordinator and 
first waiter," and an "account" worker. The "kitchen manager" is, in turn, portrayed as supervising a first 
kitchen assistant and the "plant coordinator and first waiter" is portrayed as supervising two wait staff. 
On October 25, 2006, the director requested additional evidence. The director requested, inter alia, job 
descriptions for the beneficiary's subordinates abroad and a more detailed organizational chart for the foreign 
employer. 
In response, counsel submitted a letter dated November 14, 2006 in which he reiterates that the beneficiary 
supervises three subordinate supervisors abroad (a "kitchen manager," a "plant coordinator and first waiter," 
and an "account" worker). Counsel describes the "kitchen manager" as follows: 
Coordinate the work of the kitchen staff and direct the preparation of meals. Determine 
serving sizes, plan menus, order food supplies, and oversee kitchen operations to ensure 
uniform quality and presentation of meals. Prepare a wider selection of dishes, cooking most 
orders individually, supplemented by short-order specialties and ready-made desserts. Head 
cook prepares all the food with the help of other kitchen workers. 
Counsel also describes the "plant coordinator" as follows: 
Coordinate waiterlwaitress scheduling, order stock supplies for general operations (cleaning, 
menu, paper, decorations, alcohol, etc[.]). 
 Manage bar (wine and beer). 
 In charge of 
timekeeping and is the first point of contact for customers. 
Counsel further explained that the "account" worker is actually a contractor who performs accounting services 
for the foreign employer. The accountant is not an employee of the foreign employer. 
Finally, counsel describes the duties of the beneficiary as the "restaurant manager" abroad. 
 As this 
description appears in the letter dated November 14, 2006, it will not be repeated here. In general, the 
beneficiary is described as being the primary operator of a single-location, six-employee restaurant operation. 
EAC 07 010 51090 
Page 7 
He is described as placing food orders with suppliers, planning for linen and cleaning services, inspecting 
quality of food, receiving food orders, motivating employees, hiring and training employees, resolving 
customer complaints, preparing payroll records, completing tax and licensing paperwork, maintaining 
records, conducting market research, and administering cash receipts. 
On November 30, 2006, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad in a primarily executive or managerial capacity. 
On appeal, the petitioner asserts that the beneficiary's duties were primarily those of an executive or manager. 
Upon review, the petitioner's assertions are not persuasive. 
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. $8 214.2(1)(3)(ii) and (iv). The petitioner's description 
of the job duties must clearly describe the duties performed by the beneficiary and indicate whether such 
duties were either in an executive or managerial capacity. Id. 
As a threshold issue, the AAO notes that, as counsel failed to corroborate his descriptions of the duties of both 
the beneficiary and his subordinates in the letters dated October 12, 2006 and November 14, 2006 with 
evidence, these assertions have no evidentiary value. Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of 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 of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). Furthermore, given 
that counsel referred to the beneficiary as "Mr. Sun" in the letter dated October 12,2006, it is more likely than 
not that this job description does not apply to either the beneficiary or the foreign employer. In view of the 
above, as the petition is devoid of evidence establishing the job duties of either the beneficiary or his 
subordinates abroad, the petition may not be approved. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Regardless, in this matter, counsel's descriptions of the beneficiary's job duties fail to establish that the 
beneficiary acted in a "managerial" or "executive" capacity. In support of the petition, counsel submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary did on a day- 
to-day basis. For example, counsel states that the beneficiary established goals and policies, determined 
financial and business development opportunities, reviewed projects and financial proposals, and formulated 
strategies "leading to the discovery of economic and market opportunities." However, the petitioner did not 
specifically define these goals, policies, opportunities, projects, proposals, or strategies, or how they relate to 
his operation of a six-employee, single-location restaurant. The fact that the petitioner has given the 
beneficiary a managerial or executive title and has prepared a vague job description which includes inflated 
job duties does not establish that the beneficiary actually performed managerial or executive 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. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 4 1 (2d. Cir. 1990). Once again, going 
EAC 07 010 51090 
Page 8 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190. 
Likewise, most of the duties ascribed to the beneficiary appear to be non-qualifying administrative or 
operational tasks which do not rise to the level of being managerial or executive in nature. The beneficiary is 
generally described as being the primary operator of a six-employee, single-location restaurant. Counsel 
describes the beneficiary as placing food orders, planning for linen and cleaning services, inspecting quality 
of food, receiving food orders, motivating employees, hiring and training employees, resolving customer 
complaints, preparing payroll and completing tax and licensing paperwork, maintaining records, conducting 
market research, and administering cash receipts. However, such duties are non-qualifying administrative or 
operational tasks. Furthermore, as the petitioner has failed to establish that the subordinate workers were 
supervisory, managerial, or professional employees (see infra), the supervisory functions ascribed to the 
beneficiary would also be non-qualifying, first-line supervisory tasks. As the petitioner has not established 
how much time the beneficiary devoted to such non-qualifying tasks, it cannot be concluded that he was 
"primarily" employed as a manager or an executive. 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 sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perfom the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. As 
alleged in the organizational chart and counsel's job descriptions, the beneficiary directly supervised a 
"kitchen manager" and a "plant coordinator and first waiter" and, indirectly, a kitchen assistant and two wait 
staff workers. Despite their managerial titles, the petitioner has failed to persuasively establish that the 
"kitchen manager" and the "plant coordinator and first waiter" were truly supervisory or managerial 
employees. To the contrary, it appears that these restaurant workers performed primarily tasks necessary to 
the provision of a service or the production of a product, i.e., cooking, greeting customers, and waiting on 
tables. An employee will not be considered to be a supervisor simply because of a job title or because he or 
she supervises daily work activities and assignments. Rather, the employee must be shown to possess some 
significant degree of control or authority over the employment of subordinates. See generally Browne v. 
Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas, 
Inc., 2007 WL 128287 at * 16 (E.D. Tex. Jan. 1 1, 2007)). Artificial tiers of subordinate employees and 
inflated job titles are not probative and will not establish that an organization is sufficiently complex to 
support an executive or managerial position. The petitioner has not established thatthe reasonable needs of 
the foreign employer compelled the employment of a managerial or executive employee to oversee one or 
more subordinate supervisors. It is more likely than not that both the beneficiary and his staff all primarily 
performed non-qualifying tasks related to the daily operation of a single-location restaurant. See generally 
Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 13 13 (9th Cir. 2006).' 
'It is further noted that the petitioner's purported supervision of an independent contractor, an accountant, will 
not qualify him as a managerial employee. First, it has not been established that the beneficiary devoted a 
majority of his time to this duty. Second, it has not been established that this individual is a professional (see 
EAC 07 010 51090 
Page 9 
In view of the above, it appears that the beneficiary was primarily a first-line supervisor of non-professional 
employees, the provider of actual services, or a combination of both. A managerial 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. 
 tj 101(a)(44)(A)(iv) of the Act; see alio Matter of Church 
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills 
required to perform the duties of the subordinate positions, the petitioner has not established that the 
beneficiary managed professional employees.2 Therefore, the petitioner has not established that the 
beneficiary was employed primarily in a managerial capacity.3 
infra). Third, the supervision of an independent contractor will not permit a beneficiary to be classified as a 
managerial employee as a matter of law. See section 101(a)(44)(A)(ii) of the Act; 8 C.F.R. tj 
214.2(1)(1)(ii)(B)(2). The Act is quite clear that a managerial employee must manage employees, not 
independent contractors, in order to qualify in part under section 10 1 (a)(44)(A) of the Act. 
2 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the 
subordinate positions required a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. tj 1 101(a)(32), states that "[tlhe 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 of Sea, 19 I&NeDec. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
3 
The petitioner has also not established that the beneficiary managed an essential function of the organization. 
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. 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. $8 
214.2(1)(3)(ii) and (iv). 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. 
In this matter, the petitioner has not provided evidence that the beneficiary managed an essential function. 
The petitioner's vague job description fails to document what proportion of the beneficiary's duties were 
managerial, if any, and what proportion were non-managerial. Also, as explained above, the record 
establishes that the beneficiary was primarily a first-line supervisor of non-professional employees and/or was 
engaged in performing non-qualifying operational or administrative tasks. Absent a clear and credible 
breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine what 
proportion of his duties were managerial, nor can it deduce whether the beneficiary was primarily performing 
the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
EAC0701051090 
Page 10 
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" 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. 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 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-day 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. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary acted primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary was primarily employed as a first-line 
supervisor in the operation of a single-location restaurant and was performing the tasks necessary to produce a 
product or to provide a service. Therefore, the petitioner has not established that the beneficiary was 
employed primarily in an executive capacity. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See $ lOl(a)(44)(C) of the Act. However, in reviewing the relevance of the number of employees an 
employer has, federal courts have generally agreed that Citizenship and Immigration Services (CIS) "may 
properly consider an organization's small size as one factor in assessing whether its operations are substantial 
enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d at 13 16 
(citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003). Furthermore, the reasonable needs of the petitioner will not supersede the requirement that 
the beneficiary have been "primarily" employed in a managerial or executive capacity as required by the 
statute. See sections 101 (a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 101 (a)(44). Accordingly, in this matter, 
the petitioner has failed to establish that the beneficiary primarily performed managerial or executive duties, 
and the petition may not be approved for that reason. 
The third issue in the present matter is whether the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position. 
Counsel explained in his letter dated October 12, 2006 that the petitioner plans to open and operate a 
restaurant in Jacksonville, Florida. As the record is devoid of details regarding the proposed business 
operation, the director requested additional evidence on October 25, 2006. The director requested, inter alia, 
a copy of the petitioner's business plan and evidence that the United States operation will grow to a sufficient 
size to support a managerial or executive position within one year. 
EAC 07 010 51090 
Page 11 
In response, counsel submitted a "business plan" on his law firm's letterhead summarizing the United States 
operation's projected growth and development during its first year in operation. Counsel did not support the 
"business plan" with any evidence. Generally, counsel asserts that the petitioner plans to find a suitable 
location for its restaurant, open the restaurant for business approximately three months after petition approval, 
and hire between five and seven workers to assist the beneficiary in the restaurant's operation. 
On November 30, 2006, the director denied the petition. The director concluded that the petitioner failed to 
establish that, within one year, the beneficiary would perform primarily qualifying duties. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. 
Upon review, the petitioner's assertions are not persuasive. 
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 the petitioner to disclose the business plans and the size of 
the United States investment, and thereby 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. 5 2 14.2(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 contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 2 13 (Assoc. Cornrn. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target marketlprospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
EAC 07 010 51090 
Page 12 
Id. 
For several reasons, the petitioner in this matter has failed to establish that the United States operation 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. The 
petitioner (1) has failed to establish that the beneficiary will perform primarily qualifying duties after the 
petitioner's first year in operation; and (2) has failed to sufficiently describe the nature, scope, organizational 
structure, investment, and financial goals of the new office. 8 C.F.R. Ej 214.2(1)(3)(~)(~).~ 
First, as correctly noted by the director, the petitioner has failed to establish that the beneficiary will be 
performing primarily "managerial" or "executive" duties after the petitioner's first year in operation. As 
explained in counsel's business plan and other correspondence, the petitioner plans to open a single-location 
restaurant in Florida and, within one year, hire between five and seven employees to assist in its operation. 
However, neither counsel nor the petitioner described the duties of these proposed employees. Absent 
specific job descriptions for these prospective workers, it is impossible to confirm whether the beneficiary 
will likely be relieved of the need to perform non-qualifying tasks within one year, or whether the beneficiary 
will likely supervise and control the work of other supervisory, managerial, or professional employees, or will 
manage an essential function of the organization. Furthermore, neither counsel nor the petitioner specifically 
described the beneficiary's proposed duties after the first year in operation. Specifics are clearly an important 
indication of whether a beneficiary's duties will be 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, 
724 F. Supp. 1103, afd, 905 F.2d 41. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190. 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope, 
organizational structure, investment, and financial goals of the new office. 8 C.F.R. $5 214.2(1)(3)(v)(C)(l)- 
(2). As explained above, counsel's "business plan" vaguely describes the United States operation as a 
proposed South American themed restaurant. However, the plan fails to specifically describe the petitioner's 
proposed location, seating capacity, investment needs, existing capital, marketing strategy, or potential 
4 
As a threshold issue, the AAO notes that, as counsel failed to corroborate facts asserted in his "business plan" 
dated November 14, 2006, this plan has no evidentiary value. Once again, without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 534; Matter of 
Laureano, 19 I&N Dec. 1; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. In view of the above, as the 
petition is devoid of evidence describing the scope or proposed organization of the United States operation, 
the petition may not be approved for this reason alone. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190. Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. Ej 103.2(b)(14). 
EAC 07 010 51090 
Page 13 
competitors. The plan also fails to project revenue, income, or expenses, or to set financial goals. The record 
does not contain any independent analysis or data. Once again, failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). Absent 
a detailed, credible description of the petitioner's proposed United States business operation addressing the 
petitioner's marketing plan, location, investment, and incomelexpense projections, it is impossible to 
determine whether the proposed 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. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. 5 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 5 214.2(1)(3)(vii). 
In this matter, the petitioner claims that it and the foreign employer are owned and controlled by the 
beneficiary. As a purported owner of the petitioner, the petitioner is obligated to establish that the 
beneficiary's services will be used for a temporary period and that he will be transfen-ed to an assignment 
abroad upon completion of the assignment. Id. However, the record is devoid of any evidence establishing 
that the beneficiary's services will be used temporarily. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Calijiornia, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that it is a qualifying organization. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
101(a)(15)(L) of the Act; 8 C.F.R. 9 214.2(1). If one individual owns a majority interest in the petitioner and 
the foreign employer, and controls those entities, then the entities will be deemed to be "affiliates" under the 
definition. 8 C.F.R. 5 214.2(1)(l)(ii)(L). It must also be established that a qualifying organization "is or will 
be doing business." 8 C.F.R. 5 214.2(1)(1)(ii)(G)(2). "Doing business" is defined in pertinent part as "the 
regular, systematic, and continuous provision of good andlor services." 8 C.F.R. 5 2 14.2(1)(l)(ii)(H). 
In this matter, the record indicates that the petitioner has failed to secure sufficient premises to house the 
proposed restaurant. See supra. Counsel also indicates in the "business plan" that the petitioner does not plan 
to open for business for at least three months after petition approval. If view of these assertions, it has not 
EAC 07 010 51090 
Page 14 
been established that the petitioner will be "doing business" in the United States and, thus, it has not been 
established that the petitioner is a qualifying organization. As of the date of the filing of the petition, the 
operation of the United States enterprise is entirely speculative. A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 
45,49 (Cornrn. 1971). 
Accordingly, the petitioner has failed to establish that it is a qualifying organization, and the petition may not 
be approved for this additional reason. 
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 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 denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.