dismissed L-1A Case: Restaurant Operations

U.S. Citizenship 
and Immigration 
Services 
In Re: 9164364 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 31, 2020 
The Petitioner, a restaurant operator, seeks to continue the Beneficiary's temporary employment as its 
"Director" under the L-lA nonimmigrant classification for intracompany transferees who are coming 
to be employed in the United States in a managerial or executive capacity. Immigration and 
Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that it would employ the Beneficiary in a managerial or executive capacity. The 
matter is before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, the Petitioner has not met this burden. 
Accordingly, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge 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)(1). 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. 8 C.F.R. 
§ 214.2(1)(3)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in an executive capacity under the extended petition. Although the Director also 
considered whether the Beneficiary would be employed in a managerial capacity as defined at section 
101(a)(44)(A) of the Act, the Petitioner has not claimed that the Beneficiary's position is managerial 
in nature. 
"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. 
To be eligible for L-1A nonimmigrant visa classification as an executive, the Petitioner must show 
that the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 101(a)(44)(B)(i)-(iv) of the Act. If the record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying executive position. If the 
Petitioner establishes that the offered position meets all elements set forth in the statutory definition, 
the Petitioner must 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). 
In determining whether a given beneficiary's duties will be primarily executive, we consider the 
petitioner's description of the job duties, the company's organizational structure, the duties of a 
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 a beneficiary's actual duties and role in a business. 
A. Job Duties 
When assessing the executive nature of an offered position, we examine a petitioner's description of 
the job's duties. See 8 C.F.R. § 214.2(1)(3)(ii) (requiring an L-1 petitioner to submit "a detailed 
description of the services to be performed"). 
The record reflects that the Petitioner has been operating a restaurant called I I· since 
2016 and seeks to continue the Beneficiary's employment as its "Director." The Petitioner explained 
at the time of filing in May 2019 that it is expanding its operations to include a second restaurant 
business called 'I I' at its existing location, expected to open in the third 
quarter of 2019, as well as a carwash and bakery to be opened by the end of 2019. 
The Petitioner stated that the Beneficiary: "is in charge of the overall operations of the company and 
each location"; makes decisions about the company's long-term operation and is "accountable of all 
results"; "is responsible for all the financial, corporate and legal aspects of the business"; and "will 
continue to be responsible for the strategic and tactical oversight of the Company" with "wide latitude" 
and "P&L responsibility." The Petitioner explained that the Beneficiary's decision-making authority 
includes areas such as budgeting, brand positioning, new equipment acquisition, staffing, expansion 
plans, new site development, and financial decisions. It also provided several examples of actions he 
had taken to date, including renegotiation of food and vendor supplier agreements, selection of 
Doordash and UberEats delivery and marketing platforms, hiring of key staff, and negotiations for 
additional locations. 
In a request for evidence (RFE), the Director advised the Petitioner that its initial description of the 
duties performed by the Beneficiary does not sufficiently explain the specific tasks he performs as part 
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of his day-to-day routine. The Director asked that the Petitioner submit a statement clearly explaining 
his typical duties and the percentage of time spent on each and indicate how his duties fall within the 
statutory definition of executive capacity at section 101(a)(44)(B) of the Act. 
In response to the RFE, the Petitioner provided an expanded job description for the Beneficiary, but 
did not clarify the amount of time he would spend on specific tasks. It stated that the Beneficiary 
meets the first prong of the statutory definition (establishing the organization's policies and goals) by 
setting a wide range of policies impacting every area of operations. Some of the listed policies 
included personnel and employee training goals and policies, inclement weather policies, raw food 
materials sourcing, ambient music selection, packaging and portion size, on-site and online order 
intake, nutritional and caloric menu guidelines, menu pricing, "fusion goals," menu item selection, 
customer complaint management and others. 
The Petitioner also stated that the Beneficiary directs the management of the organization by having 
regular meetings with the restaurant's general manager and kitchen supervisor, reviewing their verbal 
and written reports, paying on-site visits to the restaurant and vendor facilities, reviewing audit reports, 
reviewing restaurant performance metrics, and reviewing training logs for employees and contractors 
to determine if training policies are being followed. The remainder of the description focuses on the 
Beneficiary's discretionary authority, noting that he receives only general supervision from the 
Petitioner's foreign affiliate. The Petitioner stated that he will make the ultimate decision on menu 
items, ingredients and methods of preparation, decisions regarding music and lighting, and that he will 
attend trade events, pay onsite visits to competitor venues, approve pricing for special orders, review 
bank statements, and review and approve variances in training plans. The Petitioner also mentions 
his authority to determine the restaurant's operational scheduling, to hire managers and contractors 
such as accounting and legal staff, and to make decisions regarding the opening of additional 
businesses. 
In the denial decision, the Director determined that the Beneficiary would be performing "the 
necessary tasks to provide a service or to produce a product." The Director highlighted several duties 
that relate to the Petitioner's menu and tasks such as visiting vendor facilities, noting that such duties 
are not typically performed by a managerial or executive employee. 
On appeal, the Petitioner objects to this characterization of the Beneficiary's duties, noting that "his 
responsibilities do not primarily involve day-to-day sales, cooking, and other non-executive 
functions." The Petitioner also emphasizes that the Beneficiary was transferred to the United States 
to lead the company's effort to set up a chain of restaurants and emphasizes that he is primarily 
concerned with overseeing its short- and long-term expansion while other staff perform the non­
executive duties. 
Although the record supports the Petitioner's claim that the Beneficiary is responsible for the 
company's policies and long-term objectives, the job descriptions provided at the time of filing and in 
response to the RFE do not provide sufficient insight into the nature of his day-to-day tasks. As such 
the Petitioner did not meet its burden to establish that the Beneficiary's actual duties would be 
primarily executive in nature. The initial description focused on the Beneficiary's overall authority 
without providing any insight into how he spends his time. For example, the Petitioner indicated that 
he is "in charge of the overall operations of the company" and is "accountable of all results" but did 
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not articulate the job duties he performs within the scope of these broad responsibilities. 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, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). 
The job description provided in response to the RFE, while lengthy, also lacked specifics regarding 
the Beneficiary's actual day-to-day duties. Instead, the Petitioner focused on explaining the scope of 
his authority. It provided a long list of policies and decisions that the Beneficiary had made, most of 
them related to the daily operation of the restaurant. However, the Petitioner had been operating the 
restaurant for three years and did not explain why it would require an executive to spend a significant 
portion of his time on policy decisions regarding, for example, its menu, ingredients, portions, 
personnel policies, customer service, lighting and ambient music selection on a regular and ongoing 
basis. Although the Petitioner also emphasized the Beneficiary's responsibility for overseeing the 
expansion of the company into additional locations, the job description offered little information about 
his duties in this regard. Reciting a beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The actual duties themselves will reveal the true nature of the employment. Fedin Bros., 724 
F. Supp. at 1108. 
Further, the Director requested a specific description of the Beneficiary's duties and the percentage of 
time he spends on specific tasks. The Petitioner did not provide this requested breakdown of his duties 
in response to the RFE and for the reasons discussed above, we agree that the provided descriptions 
of the Beneficiary's role did not clearly delineate his duties and were therefore insufficient to 
demonstrate that those duties would be primarily executive in nature. The Petitioner bears the burden 
of documenting what portion of the Beneficiary's duties will be executive and what proportion will be 
non-executive. See Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991). 
In support of the appeal, the Petitioner now submits a pie chart listing 15 tasks the Beneficiary 
performs and indicates that each requires between 3% and 11 % of his time. When, as here, the record 
shows that a petitioner was put on notice of an evidentiary deficiency and was given an opportunity to 
address that deficiency, we will not accept evidence regarding that deficiency when offered for the 
first time on appeal. See, e.g., Matter of Soriano, 19 l&N Dec. 764 (BIA 1988); Matter of Obaigbena, 
19 l&N Dec. 533 (BIA 1988). Further, this new breakdown includes only very brief descriptions of 
the Beneficiary's tasks (such as "emails," "benchmarking policy review" and "executive decisions") 
and would be insufficient to establish the nature of the Beneficiary's duties even if it had been 
submitted in response to the RFE. 
The fact that the Beneficiary occupies a top placement within the Petitioner's organizational hierarchy 
and serves as its director does not necessarily establish that the Beneficiary would be employed 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. Thus, 
while the Beneficiary may manage or direct the business and possess the requisite level of authority 
over the company's personnel, growth, vendors, and practices and procedures, his discretion over these 
business matters is not sufficient to establish that his actual duties would be primarily executive in 
nature. 
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As noted, we also must consider the submitted position descriptions within the context of the 
Petitioner's business, which requires a review of the nature of the business, its structure, and its staffing 
levels. For the reasons discussed below, the Petitioner has not established that the staff in place at the 
time of filing were able to support the Beneficiary in a position in which he would be required to 
perform primarily executive-level duties. 
B. Staffing and Organizational Structure 
The record reflects that the Petitioner operates the~-----~ which is described in the 
submitted documentation as a 2,250 square foot restaurant, with seating capacity for 56 patrons. The 
Petitioner indicated on the Form 1-129, Petition for a Nonimmigrant Worker, that it had seven 
employees when the petition was filed. 
According to the Petitioner's organizational chart and supporting payroll evidence, thel I D had only six employees at the time of filing: the Beneficiary, a general manager, a kitchen 
supervisor/chef, an executive assistant, one cook and one server. The organizational chart also shows 
vacancies for a second cook position and a second server position that remained unfilled at the time 
of the appeal. 
In addition, the organizational chart depicts the proposed employees of a second restaurant called D I I' which the Petitioner indicates it intends to operate from its existing 
location beginning in the third quarter of 2019. The Petitioner provided evidence that its current space 
was being remodeled to accommodate a separate dining room with its own entrance and noted that the 
two restaurants would share a kitchen and prep area. Although the Petitioner signed the remodeling 
contract and included projections regarding the new restaurant's staffing and revenue in its 2019 
business plan, we note that the submitted Florida fictitious name registration for,___ ____ ____, 
I I indicates that this new business is owned by five individuals (the Beneficiary and four 
others); it was not registered as a fictitious name for the petitioning company. 
The Petitioner indicated that the second restaurant would have the same staffing structure as thel 
I I with a general manager, executive assistant, kitchen supervisor/chef, cook and serv,__e-r.~lt 
submitted copies of partially completed Forms 1-9, Employment Eligibility Verification, for the six 
individuals identified on the proposed organizational chart. Forms 1-9 verify that a business has made 
an effort to ascertain whether particular individuals are authorized to work, but they do not verify that 
those individuals have actually begun working. See Matter of Ho, 22 l&N Dec. 206, 212 (Assoc. 
Comm'r 1998). Here, we note that the second restaurant was not staffed or operational when the 
petition was filed and the renovation appears to have been ongoing at the time of the appeal. 
The Petitioner also provided evidence related to a car wash and bakery business and stated that it is 
acquiring this business through a separate entity called! I According to a 
submitted shareholder agreement, the Petitioner owns a 49% interest in this entity, although we note 
the investment funds for the business purchase were provided by the Beneficiary from his personal 
account. Additional evidence would be needed to establish that this entity is a qualifying subsidiary 
or affiliate of the Petitioner as defined at 8 C.F.R. § 214.2(I)(1)(ii)(K) or (L). Nevertheless, the record 
reflects that the Petitioner anticipated that this business would be operational no earlier than the fourth 
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quarter of 2019 and the Petitioner did not identify the projected staffing of this separate entity in its 
organizational chart. 
The Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(1). 
Therefore, our review of the Petitioner's staffing will be limited to the structure that was in place at 
the time of filing, which included only the staff of th~ I 
The Petitioner provided position descriptions for all staff, noting that the general manager works 40 
hours per week, supervises the kitchen supervisor/chef, and spends most of his time (85%) on (1) 
reviewing weekly sales reports, updating business plans and forecasts, and reviewing supply 
agreements; (2) developing pricing strategies; (3) developing and implementing operating methods 
and procedures; and (4) implementing internal audit procedures and quality standards policies. The 
Petitioner states that he spends the remainder of his time on managing the budget, hiring and training 
staff, and "constantly" negotiating contracts and supply agreements. 
The Petitioner indicated that its kitchen supervisor/chef works 40 hours per week, supervises one cook, 
and performs the following duties: (1) manages overall functions and oversees the operation of the 
restaurant by arranging equipment maintenance and services, reviewing weekly purchases, and 
implementing sales policies; (2) reconciling monthly activity, generating year-end reports, and 
fulfilling tax related requirements; (3) managing supplier contracts; (4) establishing policies, 
procedures, employee schedules and meeting schedules; (5) managing the budget; (6) contributing to 
short-and long-term organizational planning and strategy; and (7) establishing standards for personnel 
performance, mentoring and developing staff and maintaining operational records. Despite the 
inclusion of "chef" in this employee's job title, the Petitioner does not indicate that he performs any 
duties related to the restaurant's menu or food preparation tasks. 
The submitted job description for the cook indicates that she works 40 hours per week, has no 
subordinates, and spends 60% of her time "supervis[ing] the operation of the establishment" by 
monitoring food handling and preparation procedures, training staff in these procedures, monitoring 
staff for correct handling of cash and other payment methods, and monitoring the quality of customer 
service. Her remaining duties are divided between performing opening and closing activities; 
monitoring inventory levels and submitting order requests; assigning staff studies; and implementing 
the site's budget by monitoring equipment and ingredient use. The Petitioner does not indicate that 
she is involved in preparing food despite her "cook" job title and we observe that the job description 
focuses almost entirely on supervisory duties despite her lack of subordinates. 
Finally, the Petitioner stated that its server works 40 hours per week, prepares tables, and attends to 
customers' food orders and collects payments, while the full-time executive assistant prepares various 
types of correspondence and reports, "collects and analyzes information," "produces information," 
orders office supplies, ensures "proper presentation of the reception area and showroom," and 
"manages multiple tasks that have been assigned to be completed before their deadlines." 
On appeal, the Petitioner asserts that the Director placed undue emphasis on the number of staff 
working in the restaurant but "did not address the Petitioner's substantial evidence relating to the 
support provided by the staff." The Petitioner correctly observes that we must take into account the 
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reasonable needs of the organization and that a company's size alone may not be the only factor in 
determining whether the Beneficiary is or would be employed in a managerial or executive capacity. 
See section 101(a)(44)(C) of the Act. However, it is appropriate for USCIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as the absence of employees who 
would perform the non-managerial or non-executive operations of the company. Family Inc. v. 
USCIS, 469 F.3d 1313 (9th Cir. 2006). 
The Petitioner states that it operates a restaurant that is open Monday through Saturday, for a total of 
69 hours per week. It claims that the Director, general manager, kitchen supervisor/chef and even the 
cook are engaged in managing or supervising the restaurant's operations but does not indicate that any 
of its staff are tasked with preparing food for customers. The evidence must substantiate that the duties 
of a beneficiary and his or her subordinates correspond to their placement in an organization's 
structural hierarchy; submitting an organizational chart with tiers of subordinate employees is not 
sufficient to establish that an organization is sufficiently complex to support an executive position. 
Here, the Petitioner's chart is accompanied by staff duty descriptions; however, several of those duty 
descriptions, particularly those of the kitchen staff, are not credible given that the restaurant clearly 
has a reasonable need for personnel who prepare food. Rather, it is more likely than not that both 
kitchen staff (the cook and the kitchen supervisor/chef) are primarily responsible for preparing food 
rather than performing the supervisory, budget management, purchasing, reporting and policy-related 
tasks attributed to them. 
Further, the record does not establish how the kitchen and serving personnel are able to relieve the 
higher-level staff from performing the basic tasks needed to operate the restaurant during its operating 
hours. As noted, the Petitioner has one server who works for 40 hours per week; it does not explain 
who performs the duties of this position during the remaining 29 operating hours. With respect to the 
kitchen staff, the Petitioner indicates that it has a vacancy for a cook that remains unfilled and has not 
explained how one cook could singlehandedly staff the kitchen for 69 hours per week. In fact, on 
appeal, the Petitioner describes the preparation of its menu items as being "very labor intensive" 
suggesting that it reasonably requires more than one person engaged in food preparation activities 
during busier hours. 
Overall, the record does not clearly illustrate how the non-executive, day-to-day operational tasks of 
the restaurant are distributed among the Petitioner's six-person staff. For the reasons discussed, the 
Petitioner has not established that the subordinate staff sufficiently relieve the Beneficiary from 
significant involvement in those non-executive tasks required to operate the restaurant. Despite the 
Petitioner's senior placement in the hierarchy, decision-making authority, and responsibility for the 
company's upcoming expansion, we cannot overlook the Petitioner's lack of support personnel to 
relieve the Beneficiary from having to take an active role in the existing restaurant business. 
In light of the deficiencies discussed above, we conclude that the Petitioner did not establish that the 
Beneficiary will be employed in an executive capacity. 
ORDER: The appeal is dismissed. 
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