dismissed L-1A Case: Restaurant Operations

MATTER OF S-4F-C- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 4, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant operator, seeks to temporarily employ the Beneficiary as the executive 
director 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)(l5)(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 Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity 
within one year of an approval of the petition. 
On appeal, the Petitioner reiterates the Beneficiary's duties and asserts that the Beneficiary would 
act in an executive capacity within one year. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving 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. Id. 
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 
1 The tenn "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(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1X3)(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. 
Matter of S-4F-C- LLC 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope 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). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
We will first analyze whether the Petitioner established that it would employ the Beneficiary in an 
executive capacity within one year of the petition's approval. The Petitioner does not assert that the 
Beneficiary would be employed in a managerial capacity within one year. Therefore, we will restrict 
our analysis to whether the Beneficiary would be employed in an executive capacity. 
The statute defines an "executive capacity" as 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. 
In order to determine whether the Petitioner established that its new office will support an executive 
position within one year, we will review the Beneficiary's proposed job duties, along with the 
Petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
the Beneficiary in the intended executive capacity. The totality of the evidence must be considered 
in analyzing whether the proposed 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(l)(3)(v)(C). 
A. Duties 
In support of the petition, the Petitioner stated that it would operate a location preparing and selling 
sushi by the pound and indicated that it had ten employees as of the date the petition was filed. The 
Petitioner stated that "in his capacity of the Executive" the Beneficiary would be tasked with some 
of the following duties: 
• "defining and directing new strategies for the restaurant's business tools to 
achieve strategic sales and marketing goals," 
• "execute the company's marketing strategy," 
• use "the services of a Market Research Analyst to search the new trends on the 
customers' tastes," 
• "oversee compliance with commercial logistics, and environmental aspects of its 
products and services," 
• "establish agreement with strategic business partners," 
• Establish "goals, policies, and procedures," 
• Direct "financial and budgetary activities," 
• "manage general activities related to providing services," 
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Matter ofS-4F-C- LLC 
• "determine areas of program improvement," 
• implement "accounting practices and financial policies," 
• "develop strategies and programs to [sic] the company's expansion plans," 
• "identify business opportunities," 
• "negotiate or approve contracts and agreements," 
• "hire and train professionals," 
• make "investment decisions" and "prepare plans of action," 
• "direct efficacy of wholesale, export, and distribution activities," 
• "direct the dissemination of marketing support service," and 
• "engage in long-range planning." 
The proposed duties submitted for the Beneficiary are overly vague and they do not effectively 
convey his actual day-to-day executive tasks. The Beneficiary's job description includes several 
generic duties that could apply to any executive acting in any business or industry; such duties do 
not provide insight into the actual nature of his role. The Petitioner provided few specifics related to 
how the Beneficiary's day-to-day duties fit specifically within the company's first year business 
plans. For instance, the Petitioner did not specify the actions the Beneficiary would take during its 
first year of operation to assure that the business would develop as necessary to support him in an 
executive capacity within one year. In fact, the Beneficiary's duty description includes few 
references to the company's intended business, the operation of a fast casual sushi restaurant. 
The Petitioner submits few examples of the strategic sales and marketing goals he would define, the 
marketing plan he would act on, compliance with commercial, logistics, and environmental aspects 
he would oversee, or goals, policies, procedures he would set. Further, the Petitioner did not 
articulate "general activities" he would manage, areas of cost reduction and program improvement 
he would focus on, accounting practices and financial policies he would implement, expansion plans 
he would develop, or contracts or agreements he would negotiate. It also did not detail 
"professionals" the Beneficiary would hire and train; in fact, the record includes no first year hiring 
plans. The record requires more detail as to the Beneficiary's specific tasks to allow an assessment 
of whether he would act primarily in an executive capacity within one year. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive in nature, otherwise 
meeting the definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, the Petitioner provides tasks for the Beneficiary that do not appear credible in light of its 
plans to operate one fast food sushi location, including him directing "efficacy of wholesale, export 
and distribution activities." The Petitioner submitted evidence of the foreign employer's operations 
indicating that it also operates a fast food sushi location in Brazil and submitted invoices reflecting 
that it purchases beverages and fresh fish for this one location. Likewise, the Petitioner's business 
plans indicate that it would operate a similar location in the United States; as such, it is not clear 
what wholesale, export, and distribution activities the Beneficiary would be engaged in. Likewise, 
the Petitioner also states that the Beneficiary "will direct dissemination of marketing support service 
in accordance with corporate marketing strategy." First, the Petitioner has not articulated a clear 
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Matter ofS-4F-C- LLC 
marketing strategy and its mention of disseminating "marketing support service" appears to bear 
little relation to its plans to open one location selling sushi and other similar food items by the 
pound. Likewise, the Petitioner stated that the Beneficiary would approve "distribution 
partnerships," but again, based on its proposed plans it is not clear what the Petitioner would be 
distributing. The Petitioner must resolve inconsistencies and ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 
591-92 (BIA 1988). 
The fact that the Beneficiary would manage the 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. Id. Even though the Beneficiary would 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 are not sufficient to establish that the 
actual duties the Beneficiary would perform within one year of the petition's approval would be 
primarily executive in nature. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd, 724 F. Supp. 1103, 1108. Here, the Petitioner provided a vague 
job description that does not adequately convey the Beneficiary's actual proposed day-to-day tasks 
or establish that he would devote his time primarily to executive duties within one year. 
B. Business Plan and Projected Staffing 
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 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 executive in nature within 
one year of the petition's approval. Accordingly, we consider the totality of the evidence in 
analyzing whether the proposed executive position is plausible based on 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). 
As discussed, the Petitioner indicated in the Form 1-129 that it employed ten individuals as of the 
date the petition was filed. The Petitioner submitted an organizational chart indicating that the 
Beneficiary would oversee an operational manager who would supervise three cashiers and a chef. 
The chef was shown to oversee two cooks, two "sushiman," and a "novice." The chart also reflected 
that the company would engage contractors, including an accountant, an "IT supplier," 
"maintenance," and "marketing." 
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 10l(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 managers for a beneficiary to direct and they must primarily focus on the broad 
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Matter of S-4F-C- LLC 
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. A 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. 
The Petitioner did not submit a sufficient duty description for the Beneficiary's asserted managerial 
subordinate. The Petitioner submitted a brief and vague duty description for the Beneficiary's lone 
subordinate, the operations manager, which does not demonstrate that he would act as a subordinate 
manager. For instance, the Petitioner stated that the operational manager would be tasked with 
overseeing "the operation and profitability of the company," ensure "rapid response and high client 
level satisfaction," manage "company staff and resources," "locate, select, and procure merchandise 
for resale," and "represent management in purchase negotiations." This vague duty description does 
not demonstrate how the Beneficiary's lone subordinate will primarily relieve him from the non­
qualifying operational aspects of the business. The Petitioner indicated that the Beneficiary would 
delegate duties to his operational manager, but did not detail what duties these would be within the 
first year. Further, given the Petitioner's proposed plans to operate one sushi location and the 
Beneficiary's asserted duties, it does not appear credible that the Petitioner would require two 
managerial level employees, namely the Beneficiary and an operational manager, to focus on the 
company's procurement of goods for sale. 
As such, the Petitioner's asserted organizational structure as of the date of the petition was filed does 
not reflect that the Beneficiary would oversee a subordinate level of managers where he would be 
primarily relieved from performing non-qualifying operational duties. Beyond this, the Petitioner 
did not articulate any additional hiring plans during the first year, despite stating in the the 
Beneficiary's duty description that he would "hire and train professionals to work in the company 
and establish their duties and responsibilities." 
Furthermore, the Petitioner did not sufficiently articulate its first year business plans as necessary to 
demonstrate that it would likely develop sufficiently during the first year to support the Beneficiary 
in an executive capacity. As discussed, in the case of a new office petition, the 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 executive in nature within one year of the petition's 
approval. The Petitioner's business plan indicated that the "set and startup operation of [the 
Petitioner would be] for the period between 20 I 7 and 2020." The Petitioner also stated that "the 
company expects to reach six figure sales levels by the fifth year," but in apparent contradiction, 
elsewhere listed in financial projections in the same business plan that it would earn over $660,000 
in revenue during the first year. In addition, despite the direct request of the Director, the Petitioner 
provided no detailed action items, timetables, or business benchmarks that would need to be 
completed and reached during the first year to effectively develop the business. Further, as noted, 
the Petitioner did not specify any additional hiring plans during the first year. 
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Matter ofS-4F-C- LLC 
We acknowledge that the Petitioner also vaguely listed various contractors in its organizational 
chart, including an accountant, an "IT supplier," "maintenance," and "marketing." However, the 
Petitioner did not clearly describe these contractors, how they would support its functioning and 
growth, or how they could be considered a part of its organizational chart within one year. In 
response to the RFE, the Petitioner submitted a "Corporate Record, Accounting, and Tax Service 
Agreement" it executed with a contractor; however, it did not describe the services this contractor 
would provide or how often they would be engaged within the first year. In sum, the Petitioner has 
provided little detail regarding its first year business plans and not sufficiently demonstrated how it 
will grow as necessary to support the Beneficiary in an executive capacity within one year. 
The Petitioner has also not sufficiently established the size of the investment in the new office. See 
8 C.F.R. § 214.2(1)(3)(v)(C)(2). In the submitted business plan, the Petitioner stated that it required 
an initial investment of $130,000; however, it did not submit supporting documentation to 
substantiate this investment. In fact, the Petitioner's most recent bank account statement reflected 
that it had a little more than $3,000 in its bank account. Further, even if the Petitioner had 
demonstrated that it has secured the initial investment, it also did not clearly articulate how this 
initial investment would be used during the first year to launch the business, nor did it tie this 
investment to actions, milestones, and timelines to clearly establish how it would develop 
sufficiently during the first year to support the Beneficiary in an executive capacity. 
The Petitioner has not demonstrated that the Beneficiary would likely act in an executive capacity 
within the first year. As we have discussed, it has submitted a vague duty description for the 
Beneficiary that does not sufficiently detail the executive-level duties he would perform within one 
year. The Petitioner also has not credibly articulated and documented how its sushi location would 
support the Beneficiary in an executive capacity within one year. The Petitioner's business plans do 
not adequately detail the first year actions it will undertake to successfully launch the business such 
that it would support the Beneficiary in an executive capacity within one year. Further, the 
Petitioner has not submitted sufficient evidence to substantiate its first year investment in the new 
business. 
For the aforementioned reasons, the Petitioner has not established that the Beneficiary would act in 
an executive capacity within one year of an approval of the petition. 
III. CONCLUSION 
The appeal will be dismissed because the record does not include sufficient evidence to establish that 
the Beneficiary would be employed in an executive capacity within one year of an approval of the 
petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-4F-C- LLC, ID# 1400927 (AAO Oct. 4, 2018) 
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