dismissed L-1A Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-H-US, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 14, 2019 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant management company, seeks to continue the Beneficiary's temporary 
employment as its "managing director" under the L-lA nonirnrnigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. 
§ 11 0l(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 Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary was employed abroad and would be employed in the United 
States in a managerial or executive capacity. 
On appeal, the Petitioner contends that the Beneficiary was employed abroad in a managerial capacity 1 
and would be employed in an executive capacity in his proposed position with the U.S. entity. 
Upon de nova review, we will dismiss the appeal because the Petitioner has not established that the 
Beneficiary will be employed in the United States in an executive capacity. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(l5)(L) of the Act. 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. Id. 
II. EXECUTIVE CAPACITY IN THE UNITED STATES 
The Petitioner claims that the Beneficiary's proposed U.S. employment will be in an executive 
capacity. As the Petitioner does not claim that the Beneficiary would be employed in a managerial 
1 Prior to filing the appeal, the Petitioner claimed that the Beneficiary was employed abroad in an executive capacity. 
Matter of M-H-US, LLC 
capacity, we will only address the Petitioner's claim and will not discuss whether the Beneficiary's 
U.S. employment will be in a managerial capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
Based on the statutory definition of executive 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). The Petitioner must also prove that the Beneficiary 
will be primarily engaged in executive 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 1533. 
The description of the job duties must clearly describe the duties to be performed by the Beneficiary 
and indicate whether such duties are in an executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond 
the required description of the job duties, we examine the company's organizational structure, the 
duties of the Beneficiary's subordinate employees, the presence of other employees to relieve the 
Beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the Beneficiary's actual duties and role in a business. Accordingly, 
we will discuss evidence regarding the Beneficiary's job duties along with evidence of the nature of 
the Petitioner's business and its staffing levels. 
A. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization in light of the overall purpose 
and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
In the petition form the Petitioner claimed 1 7 employees. Although a supporting statement was 
provided, it did not list any of the position titles or discuss the duties performed by these claimed 
employees. 
The Director determined that the Petitioner did not adequately support its claim and issued a request 
for evidence (RFE). The Director instructed the Petitioner to provide its organizational chart showing 
its staffing and organizational structure, listing employee names and position titles, and briefly 
describing their respective job duties. The Director also asked the Petitioner to provide its quarterly 
wage reports for 2017 as well as its payroll summary and IRS Form W-2s issued to employees that 
are under the Beneficiary's direction. 
Although the Petitioner responded to portions of the RFE, it did not provide its organizational chart or 
supplement the record with information about its employees and their duties. The Petitioner also 
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Matter of M-H-US, LLC 
neglected to provide the requested wage evidence pertaining to its own staffing. Instead, it provided 
several 2017 federal quarterly tax returns and corresponding state wage and withholding reports for a 
separate entity .__ _____ ___, - claiming that this entity is its subsidiary. The Petitioner did not, 
however, provide evidence of the claimed parent-subsidiary relationship or explain how the submitted 
wage evidence is relevant to the Beneficiary's proposed position with the petitioning entity. 
The Director denied the petition noting that the Petitioner did not comply with the RFE regarding 
employee wages and provided a 2018 quarterly tax return showing that it had six employees, a number 
that is inconsistent with the petition form where the Petitioner claimed that it had 1 7 employees at the 
time of filing. 2 The Director also found that the Petitioner did not provide an adequate description of 
its support staff and concluded that the Petitioner did not establish that it had the ability to relieve the 
Beneficiary from having to perform primarily non-executive job duties at the time of filing. 
On appeal, the Petitioner contends that some of the requested wage evidence was unavailable at the 
time of its response to the RFE and provides 16 Form W-2s issued b~ I in 2017 and four 
Form W-2s issued by the Petitioner itself to employees in 2017, thereby indicating that it had four 
employees in 2017. However, the Petitioner did not explain how the 16 Form W-2s that pertain to a 
separate entity are relevant to the Beneficiary's proposed employment with the petitioning entity. 
Furthermore, the Petitioner did not explain why it provided wage reports and quarterly tax returns for 
its claimed subsidiary, yet neglected to provide the same documents with regard to its own 
organization, even though the RFE stated that this evidence is directly relevant to an analysis of the 
Petitioner's eligibility. As noted in the denial, failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F .R. § 103 .2(b )(14 ). Likewise, 
the Petitioner did not provide its own organizational chart, despite the RFE's specific request for this 
evidence. As such, it is unclear what role, if any, the employees of a separate entity would have in 
supporting the Beneficiary in his proposed executive position with the Petitioner, even if there is a 
parent-subsidiary relationship between it and the separate U.S. entity, as claimed. 
Furthermore, the Petitioner has neither discussed nor provided evidence to resolve the inconsistency 
between the four Form W-2s it provided, which indicate that it had only four subordinate employees 
to support the Beneficiary's position, and information provided in the petition form, which indicates 
that the Petitioner originally claimed 1 7 employees at the time of filing. The Petitioner must resolve 
this discrepancy 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). 
Not only has the Petitioner declined to provide a copy of its organizational chart, but it has also 
neglected to submit the requested wage evidence, such as a payroll summary and/or state wage reports, 
showing whom it employed at the time of filing. As the Petitioner has not submitted this relevant 
evidence, we cannot assess its staffing composition or the Beneficiary's placement within the 
organizational structure, nor can we gauge the likelihood that the Petitioner had the personnel 
necessary to support the Beneficiary in a primarily executive position within its organization. 
2 The Director incorrectly noted that the RFE included a request for the Petitioner's current tax return. Although the RFE 
included general instructions for the submission of a U.S. tax return, it did not specifically request a current tax return. 
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Matter of M-H-US, LLC 
B. Duties 
Next, we will address the Petitioner's description of the Beneficiary's job duties in his proposed 
position. See 8 C.F.R. § 214.2(1)(3)(ii). 
In support of the petition, the Petitioner provided a document titled "CEO Time Sheet," which included 
a daily schedule of the Beneficiary's activities during a typical work week. The schedule indicates 
that the Beneficiary would allocate considerable portions of his time to non-executive activities, such 
as reviewing supplier invoices and issuing checks to suppliers, conducting sales and restaurant visits 
as well as engaging in "other outside visits," and managing restaurant staff at three different restaurants 
during the managers' respective days off on Wednesdays, Thursdays, and Fridays during each work 
week. According to this daily schedule, the Beneficiary would allocate the majority of his time to 
these non-executive job duties. 
In response to the RFE, the Petitioner provided a supplemental job duty breakdown. However, it did 
not follow the RFE instructions, which asked that the Petitioner indicate the percentage of time that 
the Beneficiary would allocate to each duty. As with the previously provided time sheet, the new job 
description also included non-executive job duties in addition to setting performance goals, overseeing 
the Petitioner's finances, and making discretionary decisions regarding business operations and 
staffing. Namely, the Petitioner stated that the Beneficiary would also prepare financial and 
performance reports, purchase equipment and "small wares," and perform human resource tasks like 
hiring employees. As the Petitioner did not provide the requested time allocations, it is unclear how 
much time the Beneficiary would devote to these administrative and operational tasks. 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 
10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); Matter of Church Scientology Int'!, 19 I&N Dec. 593, 604 (Comm'r 1988). 
Furthermore, the job duty breakdown included several broadly stated job responsibilities that focused 
on the Beneficiary's discretionary authority to implement investment plans, lead daily operations, "set 
the company strategic goals," and maintain responsibility "for achieving the approved annual budget 
and to meet [sic] the approved 5 years [sic] plan." 
In the denial decision, the Director determined that the Petitioner provided a deficient job description 
that did not delineate the Beneficiary's actual daily tasks. 
On appeal, the Petitioner disputes the Director's determination contending that it provided "the most 
specific summary" possible with the understanding that the Beneficiary's duties "tend to change on a 
daily basis" based on the operational needs of a holding company that manages multiple restaurants. 
Although we recognize that the Beneficiary's job duties vary depending on the Petitioner's operational 
needs, as we noted above, the daily schedule that the Petitioner references on appeal indicates that the 
Beneficiary would allocate significant blocks of time to non-executive functions and therefore would 
not be primarily employed in an executive capacity. Notwithstanding the Beneficiary's discretionary 
authority over finances and business functions, the fact that the Beneficiary will manage or direct a 
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business does not necessarily establish eligibility for classification as an intracompany transferee in 
an executive capacity within the meaning of section 101(a)(44)(B) of the Act. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" executive in nature. Section 
10l(A)(44)(B) of the Act. While the Beneficiary may exercise discretion over the Petitioner's day­
to-day operations and possess the requisite level of authority with respect to discretionary decision­
making, these elements alone are not sufficient to establish that his actual duties would be primarily 
executive in nature. 
Given the Beneficiary's deficient job description and the lack of sufficient information regarding the 
support staff the Petitioner had available to carry out its non-executive functions at the time of filing, 
the record does not indicate that the Beneficiary would be employed in an executive capacity under 
an approved petition. 
Lastly, the Petitioner notes that USCIS approved other petitions that had been previously filed on 
behalf of the beneficiary. The decision does not indicate whether the Director reviewed the prior 
approvals of the other nonimmigrant petitions, one of which was a new office petition and was 
therefore subject to a different set ofregulatory requirements than an extension petition. See generally, 
8 C.F.R. § 214.2(1)(3)(v). If the previous nonimmigrant extension petition was approved based on the 
same evidence contained in the current record, the approval would constitute an error on the part of 
the Director. We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. Matter of Church 
Scientology lnt'I, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be unreasonable for USCIS or any 
agency to treat acknowledged errors as binding precedent. Sussex Eng'g, Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Further, USCIS has clarified that "an adjudicator's fact-finding authority ... should not be constrained 
by any prior petition approval, but instead should be based on the merits of each case." USCIS Policy 
Memorandum, PM-602-0151, Rescission of Guidance Regarding Deference to Prior Determinations 
of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status (Oct. 23, 
201 7), https ://www .uscis.gov/ sites/ default/files/USCIS/Laws/Memoranda/2017/2017-10-
23Rescission-of-Deference-PM6020 l 51. pdf The memorandum also emphasized that "the burden of 
proofremains on the petitioner, even where an extension of nonimmigrant status is sought." Id. 
As discussed above, the Petitioner has not provided sufficient evidence to establish that it would 
employ the Beneficiary in an executive capacity. 
III. REMAINING ISSUES 
In addition, although not addressed in the Director's decision, we find that the Petitioner has not 
provided sufficient reliable evidence to establish that it has a qualifying relationship with the 
Beneficiary's foreign employer. The petition shall remain denied and the appeal dismissed for this 
additional reason. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show that 
the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., one 
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Matter of M-H-US, LLC 
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. § 214.2(1). The Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. at 376. 
In the present matter, the Petitioner claims that it and the Beneficiary's foreign employer have a parent­
subsidiary relationship because the foreign entity owns the majority of the U.S. Petitioner. See 
8 C.F.R. § 214.2(1)(1)(ii)(K) (for definition of subsidiary). 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Church Scientology Int'!, 19 I&N Dec. 593; Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). Ownership refers to the direct 
or indirect legal right of possession of the assets of an entity with foll power and authority to control; 
control means the direct or indirect legal right and authority to direct the establishment, management, 
and operations of an entity. Matter of Church Scientology Int'!, 19 I&N Dec. at 595. 
We find that the record contains inconsistent evidence pertaining to the Petitioner's ownership. 
Namely, although the Petitioner provided an operating agreement, a stock ledger, and a stock 
certificate listing the foreign entity as its sole owner, it also provided two 2016 federal tax returns that 
are inconsistent with these ownership documents and with one another. First, although both tax returns 
are dated 2016 and list the Petitioner as the filing entity, each contains a different federal tax 
identification number and lists a different principal business activity and principal business or service. 
As the record does not contain state-issued documents listing the Petitioner's federal tax identification 
number, we cannot determine which tax return, if any, actually pertains to the Petitioner. Regardless, 
neither tax return contains ownership information that is consistent with the information contained in 
the operating agreement and stock ledger. While one tax return states that the filing entity is a holding 
company that engages in "business acquisition" and is 99% owned by the foreign entity and 1 % by 
the Beneficiary, the other return states that the filing entity is a wholesale foods company that sells 
food products and is 50/50 owned by the Beneficiary and the U.S. Petitioner. Although it appears that 
the latter tax return may pertain to an entity other than the Petitioner, we cannot make that 
determination with any degree of certainty because the Petitioner is listed as the filing entity in that 
return. As noted earlier, the Petitioner must resolve this incongruity in the record with independent, 
objective evidence pointing to where the truth lies. Ho, 19 I&N Dec. at 591-92. Given the inconsistent 
evidence regarding the Petitioner's ownership, we cannot conclude that the Petitioner has provided 
sufficient evidence to support its claimed parent-subsidiary relationship with the foreign entity. 
Based on the dispositive effect of our findings regarding the Beneficiary's proposed employment in 
an executive capacity and the inconsistent evidence regarding the Petitioner's ownership, the appeal 
will be dismissed and we will reserve the issue regarding the Beneficiary's employment abroad in a 
managerial or executive capacity. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
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Matter of M-H-US, LLC 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-H-US, LLC, ID# 3795289 (AAO June 14, 2019) 
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