dismissed L-1A Case: Restaurant Management

!),
U.S.Citizenship
and Immigration
Services
Office: TEXAS SERVICE CENTER Date:File: SRC 05 13650191
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § llOl(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.
~~.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 13650191
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its general manager
as an L-l A nonimmigrant intracompany transferee pursuant to section 101(a)(IS)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101{a)(15)(L). The petitioner is a corporation organized under the laws
of the State of Florida and alleges to be in the restaurant and real estate management business. The petitioner
claims a qualifying relationship with Photocopy Center of Haiti. The beneficiary was initially granted a one­
year period of stay to open a new office in the United States, and the petitioner now seeks to extend the
beneficiary's stay.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
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, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily those of an executive or manager. In support of this assertion, the
petitioner submits a brief.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101{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. § 214.2(l){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){I){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
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
SRC 05 13650191
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same work which the alien performed abroad.
The regulation at 8 C.F.R. § 2 I4.2(1)(l4Xii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (1)(I)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing ·business as defined in
paragraph (1)(1)(ii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) Evidence of the fmancial status of the United States operation.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1l01(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;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees , or manages an essential function within the organization, or a department
or subdivision of the organization ;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised ,
functions at a senior level 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.
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Section lOl(a)(44)(B) of the Act, 8 U.S.C. § 1 101(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 is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid
"executive/manager" 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.
The petitioner described its business in a letter dated March 31, 2005 as "dedicated to Real Estate
Management, land construction, Restaurant and Bakery business, and the export of photographic and
photocopy equipment and supplies." However, the record is devoid of evidence of any business operations in
the United States other than the operation of a restaurant and bakery which allegedly employs five people,
including the beneficiary. Moreover, as the initial petition did not provide a description of the beneficiary's
duties, the director requested additional evidence on April 23, 2005 seeking a definitive statement describing
the beneficiary's duties in the United States and the staffing and organization of the petitioner.
In response, the petitioner provided a letter dated July 12, 200S further describing the beneficiary's duties and
its staffing in the United States. In that letter, the petitioner described the beneficiary as the "general
manager" of the business who "has full charge and control of the operation, and of the administration of the
business affairs of the company." His primary responsibility is described as "supervising managers and
professionals, organizing their duties, and evaluating and controlling their performance." These employees
are described as production manager, administrative manager, sales manager, and chef. The petitioner also
ascribes duties to the beneficiary such as developing plans, strategies, activities, and policies; attending fairs
and seminars; attending board meetings; keeping records; overseeing purchasing; and assisting in budgeting.
Finally, the petitioner provided a breakdown of the beneficiary's duties as follows:
Manages and supervises the professionals and other employees in his department 80%
Exercises discretion over the day to day operations of the Departments of the company 10%
Attends meetings with the Board of directors of both, [sic] the foreign parent company and
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the U.S. subsidiary
Supervises the periodical operational reports
5%
5%
The petitioner also provides short job descriptions for each of the subordinate employees and an
organizational chart. The production manager is described as being in charge of the restaurant and bakery
"production department," as having a degree in culinary arts from Haiti, and as supervising the chef. The
administrative manager is described as having a bachelor's degree and as performing a variety of duties
relating to administration, management, and marketing. The sales manager is described as managing sales
and marketing operations and the chef is described as managing the kitchen. The chef is also described in the
letter and organizational chart as managing "the cook, the baker and the helpers," although the record is
devoid of any evidence that these employees actually exist. To the contrary, the wage reports confirm that the
petitioner employed only five employees in the quarter preceding the filing of the current petition.
On August 1, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 214.2(I)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
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. § 214.2(l)(3)(ii). The petitioner's description ofthe job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As explained above, a petitioner
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary does on a day-to-day
basis. For example, the petitioner states that the beneficiary develops plans, strategies, activities, and policies.
The petitioner did not, however, specifically define what policies and strategies will be formulated. The fact
that the petitioner has given the beneficiary a managerial title and has prepared a vague job description which
SRC 05 13650191
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includes lofty duties does not establish that the beneficiary is actually performing managerial 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), cff'd, 905 F.2d 41 (2d. Cir.
1990). 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). '
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory or managerial employees. As explained in the organizational chart and job descriptions for the
subordinate employees, the beneficiary primarily manages a staff of four employees who appear to be
performing the tasks necessary to produce a product or to provide a service, i.e., operate a bakery and
restaurant. The petitioner alleges that this function takes up 80% of the beneficiary's time. While the
petitioner has given the subordinate employees lofty titles and has described them as having supervisory or
managerial functions, the petitioner has not established that these employees are actually engaged in
performing supervisory or managerial duties. It is simply not credible that a bakery and restaurant employing
five people would employ a subordinate staff of managers and supervisors who report to the beneficiary.
Based on the petitioner's description of its organization, each member of the petitioner's staff is responsible
for a component of the business. Inflated job titles and artificial tiers of subordinate employees are not
probative and will not establish that an organization is sufficiently complex to support a managerial position.
In view of the above, the beneficiary would appear to be primarily a first-line supervisor of non-professional
employees, the provider of actual services, or a combination of both. 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" perform the enumerated managerial or executive duties); see also Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988). A managerial or executive 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. 101(a)(44)(A)(iv) of the Act; see also Matter ofChurch Scientology
International, 19 I&N Dec. at 604.
Moreover, the petitioner has not established that the beneficiary will manage professional employees. In
evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § IIOI(a)(32), states that "[t]he 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&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.c. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
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automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary, for example, to perform the duties of the production manager or administrative manager,
who are among the beneficiary's subordinate employees. Therefore, the petitioner has not established that the
beneficiary will be employed primarily in a managerial capacity.'
Similarly, the petitioner has failed to establish that the beneficiary will act 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 will be acting primarily in an executive capacity. The job description provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day
basis. Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line
supervisor. Therefore, the petitioner has not established that the beneficiary is employed primarily in an
executive capacity.
!While the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization, the record nevertheless would not support this position even if taken. 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. § 214.2(1)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary is primarily a first-line supervisor of non-professional employees. 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 would be managerial, nor can it deduce whether the beneficiary is primarily
performing the duties of a function manager. See lKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,
24 (D.D.C. 1999).
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It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct business
in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7 , 15 (D.D.C. 2001).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason.
Beyond the decision of the director, a related issue in this proceeding is whether the petitioner has established
that the United States entity and the foreign entity are still qualifying organizations as defined in 8 C .F.R. §
2l4.2(l)(l)(ii)(G) . 8 C.F.R. § 214.2(l)(14)(iiXA). Part of the definition of "qualifying organization" requires
that petitioner establish that the foreign entity is "doing business." 8 C.F .R. § 214.2(l)(l)(ii)(G)(2). "Doing
business" is defined in part as "the regular, systematic, and continuous provision of goods and/or services by a
qualifying organization ." 8 C.F.R. § 2l4.2(l)(l)(iiXH) .
In this matter , the petitioner has not established that the foreign entity is "doing business" as defined in 8
C.F.R. § 214.2(1)(1)(ii)(H). While the petitioner did provide some evidence that the beneficiary maintains a
personal bank account and has paid some utility bills and rent in Haiti, there is no evidence of the regular ,
systematic, and continuous provision of goods and/or services. Much of the evidence provided either is dated
before the approval of the initial "new office" petition , and is thus irrelevant, or does not establish that the
foreign entity is "doing business." For example , while the petitioner provided a letter from a Haitian
accountant attesting to the foreign entity's legal existence in Haiti, this letter does notestablish that the .foreign
entity is "doing business." Accordingly, the petitioner has not established that it and the foreign entity are
qualifying organizations due to its failure to establish that the foreign entity is "doing business," and the
petition may not be approved for this additional reason.
The initial approval of an L-l A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx . 556,
2004 WL 1240482 (5th CiT. 2004). Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
subsequent petition. See section 291 of the Act, 8 U .S.C. § 1361.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Serv ice Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterpris es, Inc. v. United States , 229 F . Supp. 2d 1025 , 1043 (E.n. Cal. 2001), affd, 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 den ial. 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 .
..
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In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.
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