dismissed L-1A Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 7261729 
Appeal of California Service Center Decision 
Form I-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 7, 2020 
The Petitioner seeks to temporarily employ the Beneficiary in the United States as the general manager 
of its new office I under the L-1 A nonimmigrant classification for intracompany transferees. 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 record did not 
establish that (1) the new office will support a managerial or executive position within one year after the 
approval of the petition; and (2) the Beneficiary has been employed abroad in a managerial or executive 
capacity . 
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. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification for 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(1)(3)(v)(B). 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 or executive capacity. Section 10l(a)(l5)(L) of the Act. The 
petitioner must also establish that the beneficiary's prior education, training, and employment qualify 
him or her to perform the intended services in the United States. 8 C.F.R. § 214 .2(1)(3). 
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 
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)( l )(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. 
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(1)(3)(v). 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that its new office would be able to 
support a managerial or executive position within one year of approval of the petition. On the petition, 
the Petitioner asserts that the Beneficiary will serve as the general manager of its healthy food 
restaurant chain, franchising, and digital lifestyle application (app) company. It asserted in a letter 
submitted with the petition and states on appeal that the Beneficiary will serve primarily in a 
managerial capacity. It does not allege that the Beneficiary will serve in an executive capacity. 
The Director determined that the Petitioner did not establish that the company would hire sufficient 
staff to relieve the Beneficiary from having to perform non-managerial tasks. Further, the Director 
determined that the business plan did not contain sufficient information about the size of the U.S. 
investment or the new office's first year operating expenses to establish that the company was ready 
to commence operations and likely to develop to the point where it would support the Beneficiary in 
a managerial capacity. 
On appeal, the Petitioner restates the Beneficiary's proposed duties and highlights its organizational 
chart, detailed plans for the office, and a long-term hiring plan as evidence of its eligibility. With 
respect to the size of the investment, the Petitioner states that its initial operations are not limited to 
the current remaining balance in its bank account and that it will also generate revenues to fond the 
U.S. operations in its first year of business. It farther states that the anticipated salaries for its first 
year of operations are $246,863, and that it has over $263,000 in currently available fonds that are 
sufficient to cover those wage expenses. 
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 managerial or executive 
capacity. A petitioner has the burden to establish that it would realistically develop to the point where 
it would require the beneficiary to perform duties that are primarily managerial or executive in nature 
within one year. Accordingly, the totality of the evidence must be considered in analyzing whether 
the proposed managerial or executive position is plausible considering 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). 
2 
A. Projected Staffing and Business Plan 
In its first year of operation, the Petitioner intends to operate healthy food restaurants, offer restaurant 
franchising opportunities, and introduce a lifestyle app entitled 'I I" By year three, it also 
intends operate a travel center. The initial evidence included the Petitioner's business plan. The 
business plan indicates that the foreign parent company would make an initial $510,000 investment. 
The business plan indicates that the first restaurant will be opened by the third quarter of year one, and 
that by the end of year three, the company plans to operate four additional restaurants. It states that 
by year five, it plans to expand to operate a total of seven restaurants. 
The business plan also includes a "personnel report" showing the Petitioner's staffing needs for the 
first five years of operation. The 15 listed staff for the first year include the Beneficiary as general 
manager, two restaurant managers, one shift supervisor, nine crew members, one part-time application 
developer, and one franchise consultant. The organizational chart submitted by the Petitioner also 
shows several unidentified independent contractors, including bookkeeping, human resources, and 
marketing, in year one. The business plan states that within five years, the Petitioner would require 
66 employees including the Beneficiary as general manager, six restaurant managers, seven shift 
supervisors, 40 crew members, two part-time application developers, two franchise consultants, one 
travel center manager, two team supervisors, and five service agents. The organizational chart also 
shows several unidentified independent contractors, including bookkeeping, human resources, and 
marketing, in year five. The Beneficiary is the only named prospective employee on the Petitioner's 
organizational charts. 
In the RFE, the Director acknowledged the business plan, but found it did not provide sufficient 
evidence of the Petitioner's intended business structure to support the Beneficiary's claimed 
managerial duties during the first year of operation. The Director also questioned the size of the initial 
investment and the Petitioner's ability to pay employee salaries. The Director suggested additional 
evidence to address these deficiencies. 
In response, the Petitioner provided the expected annual and total salaries for subordinate staff in year 
one: 
• general manager: $60,000 year ($60,000 total in year one) 2 
• two restaurant managers $39,000 year each ($45,500 in year one) 
• one shift supervisor $25,000 ($14,583 in year one) 
• nine crew members $17,800 (full-time) ($53,430 total in year one)/$8,900 (part-time) ($13,350 
total in year one) 
• one part-time application developer $40,000 ($30,000 in year one); and 
• one franchise consultant $40,000 ($30,000 in year one) 
It does not appear that any employees had been hired as of the date of filing the petition on February 
6, 2019, or as of its response to the RFE in March 2019. 
2 As detailed further herein, the Petitioner's Operating Agreement lists the Beneficiary and I I jointly and severally, 
as manager~titioner. The organizational chart does not include! I and the projected salaries do not include 
a salary forL___J 
3 
The Director determined that the Petitioner did not establish that the company would hire sufficient 
staff to relieve the Beneficiary from having to perform non-managerial tasks. Further, the Director 
determined that the business plan did not contain sufficient information about the size of the U.S. 
investment or the new office's first year operating expenses to establish that the company was ready 
to commence operations and likely to develop to the point where it would support the Beneficiary in 
a managerial capacity. Upon review, we agree with the Director that the Petitioner did not establish 
how it would support a managerial position within one year. The evidence submitted to the record 
does not give a complete understanding of the Petitioner's projected operations, staffing, revenue, 
costs, and the size and source of the U.S. investment. 
First, the record is inadequate to show the Petitioner's proposed operations and staffing in the United 
States. In the business plan, the Petitioner stated that it plans to operate healthy food restaurants, offer 
restaurant franchising opportunities, introduce a lifestyle app, and operate a travel center. Specifically, 
the Petitioner states that it plans to open its first restaurant in month eight of its first year, but the record 
does not establish that the Petitioner will be ready to open a restaurant within the first eight months. 
The record does not contain a complete menu 3 and pricing; a name for the restaurant; a lease/site plan 
for the proposed restaurant location; a design for the restaurant layout; the type of POS system it plans 
to use; permits and licenses necessary to operate the restaurant; or a list of its proposed food, beverage, 
and equipment suppliers. The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner's 
plan to open a restaurant within the first year is not realistic given the lack of credible evidence 
regarding its operations. 
With regard to the franchising, the business plan states that it will "offer the right to sell products 
associated with [the Petitioner's] trademark." However, the record does not establish that the 
Petitioner has any trademarked products. The Petitioner must resolve ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). The plan also states that the Petitioner will "provide franchisees with an entire business 
system, including operating instructions, marketing assistance, equipment, and recipes, as well as 
support in marketing and advertising initiatives." However, the record does not show that there are 
franchise agreements or prospective franchisees identified, or that the Petitioner has an "entire 
business system" in place. It does not appear that any franchise plans have been started. Doubt cast 
on any aspect of a petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Id. at 591-92. Further, the business plan 
indicates that the Beneficiary and a franchise consultant to be hired in month four of its first year 
would be the only two personnel responsible for the franchises in the first year, and that the Beneficiary 
will only be devoting 6% of her time to developing, revising, and implementing the franchise strategy 
and system that year. Thus, the Petitioner's staffing plan does not accommodate the franchise 
development and support necessary to get the "entire business system" in place within the first year of 
operation. The Petitioner's plan to operate franchises within the first year is not realistic given the lack 
of credible evidence regarding its staffing and operations. 
3 The business plan states generally that it plans to offer non-preservative and non-GMO organic food including 
sandwiches, panini, steak and chicken meals with vegetables, as well as coffee, tea, shakes, and juices. 
4 
Regarding the lifestyle app, the business plan states that "the app features will include online cooking 
classes, ingredients, and materials trading platform, business-to-business transactions, restaurant 
information for tourists, recommendations, and more." It states in its business plan that it plans to hire 
a part-time app developer in month four of its first year, and that the app developer will "write high­
quality source code" to create the app and create technical documents and handbooks to represent the 
design and code. However, the record does not indicate how many hours per week the developer plans 
to work, or how long it will take the developer to create the app. The record does not support the 
Petitioner's assertion that a part-time app developer would be able to create an app in less than one 
year that will earn significant revenue within that timeframe. Doubt cast on any aspect of a petitioner's 
proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Id. at 591-92. Further, it is unclear who will provide oversight of the 
development of the app, as neither the Beneficiary nor any of the other first-year employees other than 
the application developer has duties related to the app. The Petitioner's plan to operate itsl I D app within the first year is not realistic given the lack of credible evidence regarding its staffing 
and operations. 
The Petitioner has also not identified staff to perform the office's administrative functions. It states 
that it will use the services of independent contractors for bookkeeping, human resources, and 
marketing, but it does not identify anyone to assist the Beneficiary with day-to-day office 
administrative duties such as answering phones, handling mail, filing, scheduling appointments, and 
buying office supplies. The record is inadequate to show the Petitioner's proposed operations and 
staffing in the United States. 
Next, the record does not sufficiently demonstrate how the Petitioner would achieve its projected 
income, support its projected workers, and cover its other expenses during its first year of operations. 
The Petitioner expects to achieve sales of $929,000 and a net profit of $36,111 during the first year of 
operations, including income from its restaurants, its lifestyle app, and franchising. However, the 
income projections for the restaurant, app, and franchise in the first year of operations are not realistic 
and are not supported by the record. The business plan indicates that the Petitioner expects to generate 
restaurant sales of $700,000 in the first year of operations, but given that it does not plan to open its 
doors until month eight of the first year, and the unlikely event that it will open in that timeframe as 
detailed above, the projected sales figures are not realistic. Further, the business plan lists $0 in 
projected "expenses related to new establishments" in year one and does not appear to contemplate 
expenses for furnishings, equipment, or inventory necessary to open the first restaurant. Thus, the 
expenses related to the restaurants are not credible. Doubt cast on any aspect of a petitioner's proof 
may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Id. 
The business plan states that the Petitioner expects to generate $49,000 in franchising revenue in the 
first year, but as set forth above, the record does not indicate that the Petitioner will have adequate 
staffing or have a sufficient franchise system in place to generate franchise income in the first year. 
Further, the Petitioner states in its business plan that it plans to generate $180,000 in sales from its 
I lapp by the end of the first year. However, as set forth above, the record does not support 
the Petitioner's assertion that the part-time app developer would be able to create an app in less than 
one year that will earn $180,000 within that timeframe. Further, although the plan states that mobile 
apps typically generate revenues via app stores and in-app advertising, it is not clear how the Petitioner 
5 
specifically plans to generate revenue via itsl I app. If it is through app stores and in-app 
advertising, the record is not clear who will handle those duties on behalf of the Petitioner. The plan 
also mentions business-to-business transactions, but it does not detail what those transactions entail. 
Additionally, the income projections do not provide sufficient detail as to how they were calculated. 
For example, the sales projections include income from franchise locations, but the record does not 
provide any detail about whether that income will come from franchise fees, sales at franchise 
locations, or elsewhere. Further, as noted above, it is not clear how the app will generate revenue, 
whether through app stores, in-app advertising, business-to-business transactions, or otherwise. 
The Petitioner identified $657,612 in total first year operating (indirect) expenses, including payroll, 
marketing, depreciation, rent, utilities, bank charges, administration, travel, insurance, payroll taxes, 
and "other." As noted above, it listed $0 in "expenses related to new establishments" in year one, 
despite planning to open a restaurant that year. The Petitioner submitted a lease for its administrative 
office showing annual rent and maintenance charges, but it did not submit a lease for the restaurant 
location, so it is unclear if the $110,800 projected in rent costs for the first year is sufficient to cover 
the combined cost of the administrative office and the restaurant. Since the Petitioner expects to incur 
income from a restaurant in its first year, the associated costs of opening and operating that restaurant 
must be considered, but were not adequately listed in the Petitioner's expense calculation. 
Further, the Petitioner projected that it would hire 15 employees in year one, and indicated that its 
payroll costs would total $246,863 that year. It also indicated that it would hire several independent 
contractors, but the projected operating expenses listed in the business plan do not clearly indicate that 
costs for bookkeeping, human resources, and marketing contractors are included. For example, 
although marketing costs are projected in the Petitioner's operating expenses for the first year, the 
record is not clear whether that projection includes costs of a marketing professional. The business 
plan states that the Petitioner will create a website and engage in a digital marketing campaign. It also 
states that it will create and maintain Facebook and Instagram pages, a Y ouTube channel, and that it 
plans to be listed on Yelp, FourSquare and TripAdvisor. It states that it will develop flyers, booklets, 
catalogs, and brochures as part of its marketing campaign, together with a subscription and newsletter 
pursuant to which it will send emails with special offers to clients. Although the Petitioner projected 
$150,000 in marketing costs in the first year of operations, it is not clear whether any of those funds 
will be used to pay the outside marketing professional, or whether those costs are related to the other 
marketing campaign expenses listed above. Further, there are no operating expenses listed on the pro 
forma profit and loss table that specifically identify that they include costs for bookkeeping and human 
resources services. We also note that the salary cost does not include the Petitioner's co-managerD 
c=J 
In response to the Director's concerns regarding the size of the investment, the Petitioner asserted that 
the funds in its bank account, together with anticipated first year revenues, would be sufficient to cover 
its operating expenses in the first year of operations. The business plan indicates that the foreign 
parent company would make an initial $510,000 investment, but the Petitioner's bank statements do 
not indicate that the full investment has been made. The record contains the Petitioner's bank 
statement for February 2019, which showed that it had $4,000 in its checking account and $263,152.66 
in its money market savings account at the end of February 2019. A large portion of those money 
market funds - $200,000 - was deposited into the Petitioner's account on February 22, 2019, after the 
6 
petition was filed. The funds came from a separate U.S. company,! I and not the 
Petitioner's foreign parent.4 The Petitioner asserted that the same owners ownl I 
and the Petitioner, but it provided no evidence to support that claim. A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of 
proof The Petitioner must support its assertions with relevant, probative, and credible evidence. See 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The record does not establish a connection 
between the Petitioner, its parent company, and~-------~ Further, the Petitioner 
submitted a remittance report and wire transfers that purportedly show wire transfers from the 
Beneficiary that represent an investment into the Petitioner. However, the wire transfers do not show 
the intended use of the funds or indicate that the funds were placed into an account controlled by the 
Petitioner. Based on the foregoing deficiencies, the record does not sufficiently demonstrate the size 
and source of the foreign entity's U.S. investment. 
The new office regulations are premised on the understanding that a new company will progress to a 
stage of development where it will be able to support a beneficiary in a managerial or executive 
capacity. Here, evidence of the Petitioner's proposed operations is inadequate, and the record does 
not sufficiently demonstrate how the Petitioner would achieve its projected income, support its 
projected workers, and cover its other expenses during its first year of operations. The record also 
does not sufficiently demonstrate the size and source of the U.S. investment. Without this evidence, 
the Petitioner has not supported a claim that the organization will grow to the point where it can support 
a managerial or executive position within its first year of operations. 
B. Duties 
Based on the definition of managerial capacity, the Petitioner must first show that the Beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be 
primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the 
Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d at 1533. 
In a letter submitted with the petition, the Petitioner explained that the Beneficiary will serve as general 
manager of the Petitioner, responsible for managing the company; supervising the work of subordinate 
employees; having the authority to make personnel decisions; and exercising her best judgment to 
positon the business for growth. It stated that she "will only report to the Board of Directors." 
In its supporting letter, the Petitioner further described the Beneficiary's duties as percentages of time 
devoted to these duties as follows: 
• Create strategic business plan and oversee the restaurant managers in implementing various 
plans to increase revenue - 11 % 
• Review financial statements and communicate changes to restaurant managers - 12% 
• Evaluate opportunities for additional growth - 11 % 
4 AN ovember 2018 bank statement for~-----~ shows that the funds were wired from the Beneficiary to D I ~hat month. 
7 
• Establish policies and procedures relation to restaurant operations and employee conduct; hire, 
promote, demote, discipline, or fire employees; supervise restaurant managers - 8% 
• Establish policies and procedures to promote efficiency and standardization in food preparation 
and sales - 12% 
• Develop, revise, and implement the franchise strategy and system - 6% 
• Oversee marketing through social media- 7% 
• Oversee preparation for and development of company's growth in its second year-14% 
• Develop and implement a marketing and advertising strategy to increase sales, and direct 
marketing staff to implement the strategy-9% 
• Negotiate and sign contracts with suppliers- I 0% 
In the Petitioner's business plan, the Beneficiary's duties listed above are shown as her duties in year 
1, while her duties in year 5 are shown as follows: 
• Oversee the implementation of marketing, advertising, and communication strategies - 11 % 
• Oversee and improving standard operating procedures together with Restaurant Managers -
11% 
• Review strategic and annual forecasts and budgets - 10% 
• Oversee hiring process and oversee the training of new personnel - 11 % 
• Oversee the performance of the Restaurant Managers and contracted CPA to ensure the 
Company meets financial objectives and overseeing financial control procedures-I 0% 
• Oversee the control of purchases and inventory and negotiation of prices and contracts, and 
review reports- I I% 
• Oversee the development of the Company's franchise system- 10% 
• Oversee the development of the travel center- 5% 
• Supervise compliance with health and safety regulations - 13% 
• Improve incentives and benefit programs for employees together with restaurant managers -
8% 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
Section 10l(a)(44)(A)(iv) of the Act. The term "function manager" applies generally when a 
beneficiary is primarily responsible for managing an "essential function" within the organization. See 
id. The Petitioner does not claim that the Beneficiary would be a function manager, but it does 
indicate that she is authorized to hire, fire, and make other personnel decisions and that she would 
supervise subordinates with managerial job titles. However, the record does not support a finding that 
the Beneficiary will primarily perform managerial duties. 
First, the Beneficiary's proposed job duties do not appear to reflect her actual position with the 
Petitioner. With the petition, the Petitioner submitted its Operating Agreement dated December 20, 
2018. Section 4.1 of the Agreement states that "the business of the Compan] shall be managed by the 
Manager or Managing Member," and it lists the Beneficiary and I jointly and severally, as 
Manager or Managing Member of the Petitioner. The Agreement states that that they will jointly serve 
as Manager or Managing Member for first five years, and that they shall automatically be re-elected 
for an additional five years unless a majority of the members call a formal meeting to elect new 
8 
Managers. I I is not listed on the Petitioner's organizational chart. Further, the Petitioner did 
not list j l's duties or detail how the Beneficiary andl ts would jointly serve as manager. 
Further, in its initial support letter, the Petitioner stated that the Beneficiary "will only report to the 
Board of Directors." However, the Petitioner is organized as a limited liability company and according 
to its Operating Agreement, it does not have a Board of Directors. The record does not resolve the 
discrepancies between the Operating Agreement and the Petitioner's characterization of the 
Beneficiary's position and her duties in the record. The Petitioner must resolve inconsistencies in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. at 591-92. Doubt cast on any aspect of a 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. Id. 
Next, given the inadequate descriptions of the proposed operations in the United States detailed above, 
it is unclear whether the Beneficiary's proposed duty descriptions are accurate. For example, in the 
first year, the Beneficiary will oversee the restaurant managers in implementing various plans to 
increase revenue and supervise restaurant managers. However, as detailed above, it is not realistic 
that the Petitioner will open a restaurant in the first year and therefore, her purported management of 
income-producing restaurants and restaurant staff within the first year is unclear. Further, she will 
negotiate and sign contracts with suppliers, but due to the uncertainty surrounding the Petitioner's 
operations described above, it is not clear that the Petitioner will require suppliers for its restaurant 
within the first year. See id. 
Next, the Petitioner did not establish that it would hire lower-level staff to assist with administrative 
or other non-qualifying functions during the first year of operations. As noted earlier, the record does 
not indicate that the Petitioner plans to hire an administrative assistant, so it is not clear who will 
handle administrative office duties. The record is inadequate to show that the Beneficiary will be 
relieved from primarily performing administrative duties within one year of the approval of the 
petition. Further, the Beneficiary's duties include developing and implementing a franchise system 
and implementing marketing and advertising strategies, but it has not established that these duties are 
primarily managerial. 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., sections 101 (a)( 44)(A) and (B) of the Act (requiring that one "primarily" 
perform the enumerated managerial or executive duties); Matter o_f Church Scientology Int 'l, 19 I&N 
Dec. 593, 604 (Comm'r 1988). Further, the description indicates that the Beneficiary will also direct 
marketing staff to implement the strategy, but the Petitioner did not establish that it had sufficient 
funds to pay marketing staff during the first year of operations. The Petitioner has not established that 
it will employ staff that will relieve the Beneficiary from performing non-qualifying duties. 
Further, some of the duties of the Beneficiary and the proposed employees overlap. For example, the 
Petitioner stated that the Beneficiary will oversee the development of the Company's franchise system 
However, the franchise consultant will also develop franchise support procedures. The Petitioner 
plans to hire an independent contractor for marketing, but the Beneficiary will also oversee marketing 
through social media and develop and implement a marketing and advertising strategy. The Petitioner 
must resolve these inconsistencies in the record with independent, objective evidence pointing to 
where the truth lies. Matter o_f Ho, 19 I&N Dec. at 591-92. The Petitioner has not established that the 
Beneficiary would act primarily as a personnel manager within one year. 
9 
As previously noted, 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 foll 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 foll operations, where there would be an actual need for a manager or executive 
who will primarily perform qualifying duties. For the reasons discussed above, the Petitioner has not 
established that the new office will support a managerial position within one year after approval of the 
petition. 
III. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also determined that the Petitioner did not establish that the Beneficiary is employed 
abroad in a managerial or executive capacity. However, because the Beneficiary's lack of qualifying 
managerial employment in the United States is dispositive in this case, we need not reach the issue of 
the Beneficiary's employment abroad in a managerial or executive capacity and therefore reserve it. 
ORDER: The appeal is dismissed. 
10