dismissed L-1A Case: Restaurant Service

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-B-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 9. 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant service, seeks to temporarily employ the Beneficiary as general manager 
of its new office 1 under the L-IA nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section lOl(a)(IS)(L), 8 U.S.C. § 110l(a)(l5)(L). The 
L-IA classification allows a corporation or other legal entity (including its atliliate or subsidiary) to 
transfer a qualifYing foreign employee to the United States to work temporarily in a managerial or 
executive capacity. 
The California Service Center Director denied the petitiOn. concluding that the record did not 
establish, as required. that the Beneficiary had been employed in a qualifying managerial or 
executive for the foreign entity or would be employed in a managerial or executive capacity tor the 
Petitioner within one year. 
On appeal, the Petitioner asserts that the Director based her decision on erroneous conclusions of 
fact and misapplication of the statute and regulations pertaining to managerial employees. The 
Petitioner contends that it has established that the Beneficiary's employment for the foreign entity 
and proposed employment satisfy the criteria for L-1 A visa classification. 
Upon de novo 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 tor one 
continuous year within three years preceding the beneficiary's application tor admission into the 
United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must seck 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 I 01 (a)(15)(L) of the 
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)(1 )(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. 
Matter of L-B-, LLC 
Act. The petttwner must also establish that the beneficiary's prior education, trammg, and 
employment qualities 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 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 as 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 
IOI(a)(44)(A) ofthe Act. 
"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 
IOI(a)(44)(B) of the Act. 
These are two distinct definitions and the Petitioner must establish that the Beneficiary's duties were 
either primarily managerial duties or primarily executive duties. 2 
II. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director determined that the Petitioner had not established that the Beneficiary's three 
subordinates with managerial titles actually managed or supervised the foreign entity's other 
employees. The Director determined further that the Beneficiary's position abroad primarily 
assisted in the performance of the day-to-day non-supervisory duties of the business. 
2 The Petitioner initially described the Beneficiary's foreign duties as managerial duties. In response to the Director's 
request for evidence (RFE) the Petitioner described the Beneficiary's duties as including primarily executive duties. On 
appeal, the Petitioner claims that the Beneficiary's supervision of managers satisfied the criteria for L-1 A visa 
classification. As the Petitioner does not clearly articulate whether it is claiming that the Beneficiary primarily 
performed managerial duties or primarily performed executive duties for the foreign entity. we will address both the 
claimed executive capacity and managerial capacity. 
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Matter of L-B-, LLC 
We will address both the Petitioner's description of the Beneficiary's foreign duties as well as the 
foreign entity's staffing to determine whether the Petitioner has established this eligibility 
requirement. When reviewing staffing levels as a factor in determining whether an individual is 
acting in a managerial capacity, we must take into account the reasonable needs of the organization, 
in light of the overall purpose and stage of development of the organization. See section 
IOI(a)(44)(C) of the Act. 
A. Duties 
When examining the managerial or executive capacity of a beneficiary, we review a petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definitions of managerial and 
executive capacity have two parts. First, the petitioner must show that the beneficiary perfonned 
certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 
144470 (9th Cir. July 30, 1991 ). Second, the petitioner must prove that the beneficiary was 
primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the 
petitioner's other employees. See, e.g., Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006 ): 
Champion World, 940 F.2d at 1533. 
In its letter of support, the Petitioner stated that the foreign entity operates a Thai and French fusion 
restaurant, employed 12 persons, and earned gross revenue of $120,000 in the fiscal year ending 
December 2015. Initially, the Petitioner stated that the Beneficiary '"is responsible for managing the 
day-to-day operations of the [foreign entity's] restaurant"' and '"presid[ing] over a total of eleven (II) 
employees.'' The Petitioner listed a number of duties but did not allocate the Beneficiary's time to 
each duty. Several of the tasks, such as planning menus, managing the restaurant's financial 
activities, and leading the sales and marketing activities are duties that do not fall within the 
parameters of the definitions of executive or managerial capacity. These duties, as described, are 
non-qualifying in that the Beneficiary is the individual performing the tasks associated with the 
duties. Several other duties were so broadly-described that it could not be determined whether the 
duties were managerial, executive, or non-qualifying. 
In response to the Director's RFE, the foreign entity noted that the Beneficiary spent 25 percent of 
her time directing the management of the organization and 45 percent of her time exercising wide 
latitude in discretionary decision-making. The foreign entity indicated that the Beneficiary spent 20 
percent of her time establishing the organization's goals and policies and I 0 percent of her time 
managing the day-to-day operations of the organization. These duties essentially re-state the first 
three elements of the definition of executive capacity and the fourth element of managerial capacity. 
Conclusory assertions regarding the Beneficiary's employment capacity are not sufficient. Merely 
repeating the language of the statute or regulations does not satisfy the Petitioner's burden of proof. 
Fedin Bros. Co., Ltd. v. Sava. 724 F. Supp. II 03, II 08 (E.D.N.Y. 1989), af(d. 905 F. 2d 41 (2d. Cir. 
1990); Avyr Assoc.\·., Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Although the foreign entity also provided some narrative to describe the tasks involved in these 
broadly stated duties, the narrative did not provide sufficient detail to ascertain the Beneficiary's 
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Maller of L-B-. LLC 
actual tasks. For example, the foreign entity stated that the Beneficiary directed the management of 
overall operations ( 15%) and assigned and delegated tasks as required to meet corporate objectives 
(10%). The foreign entity also claimed that the Beneficiary had: discretionary authority over the 
operations of the restaurant and all duties performed by her subordinate staff (20%): ultimate 
authority over personnel matters (20%); and that she led executive meetings and made suggestions 
regarding service, goals, operational procedures, and expansion of the food lineup (5%). Again, this 
description adds no practical understanding of the specific actions the Beneficiary undertook in her 
daily routine. 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. /d. 
The foreign entity also did not explain why some duties initially listed as part of the Beneficiary's 
routine did not appear in the second iteration of the Beneficiary's duties. Neither description of the 
Beneficiary's duties for the foreign entity provided sufficient consistent evidence of the 
Beneficiary's actual daily duties to demonstrate that the Beneficiary's primary duties were in a 
managerial or executive capacity. 
On appeal, the Petitioner quotes the definition of managerial capacity but does not clarify the 
Beneficiary's foreign duties. Rather the Petitioner asserts that the Beneficiary's ''managerial level 
subordinates are first line supervisors, managing the day-to-day operational activities of [the foreign 
entity]." 
The fact that the Beneficiary managed or directed the organization or the operations of the business 
does not establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of section 101(a)(44) of the Act. By statute, eligibility for 
this classification requires that the duties of a position be "primarily'' executive or managerial in 
nature. Sections 101(A)(44)(A) and (B) ofthe Act. While the Beneficiary may have exercised some 
discretion over the foreign entity's day-to-day operations and may have possessed the requisite level 
of authority with respect to discretionary decision-making, the position descriptions alone are 
insutlicient to establish that her actual duties were primarily managerial or executive in nature. 
B. Statling 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a 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. 
4 
Malter of L-B-. LLC 
The initial record includes the foreign entity's October 2016 organizational chart depicting the 
Beneficiary as the "Director'' 3 over a general manager. A chef/kitchen manager and a floor manager 
are shown reporting to the general manager. Three cooks, a sanitation employee. and four wait staff 
are shown reporting to the chef/kitchen manager and the floor manager. 
The foreign entity described the general manager as spending 25 percent of his time supervising 
communication between the floor staff and 20 percent of his time supervising the t1oor staff and 
managing their work schedules. Similarly, the f1oor manager is described as spending 25 percent of 
his time supervising communication between the floor staff and kitchen staff and 20 percent of his 
time supervising the t1oor staff and managing their schedules. Each of these individuals also spends 
15 percent of their time conducting internal training and 15 percent of their time conferring with or 
mediating complaints of customers. The similarity in the descriptions of these two positions raises 
questions regarding their actual role in the foreign restaurant. 
The chef/kitchen manager who oversees kitchen operations, staff, and supervises shifts but who does 
not appear to primarily perform the duties of a chef: raises further questions regarding the foreign 
entity's actual organizational structure. We note that the chef/kitchen manager meets with the 
"executive chef' to brainstorm new concepts and menu changes but the organizational chart does not 
identify an "executive chef." Although one of the organizational charts identifies the Beneficiary as 
the "Director/Head Chef' the foreign entity has not detailed her duties in a "chef' role. The 
similarity of duties for different claimed "upper-lever' positions and the lack of information 
regarding who actually performs chef-related duties cast doubt on the foreign entity's actual 
structural hierarchy. 
On appeal, the Petitioner acknowledges that the t1oor manager and the general manager's duties 
"seemingly overlap," but does not offer an explanation of the differences between the two positions. 
The Petitioner asserts that the kitchen manager spends the majority of his time on hiring. 
promotions, overseeing the culinary operation, and training subordinates, which leaves him little 
time to perform the duties of the chef. The Petitioner when trying to establish that at least three of 
the Beneficiary's subordinates are managers or supervisors does not offer a credible and reasonable 
description of the positions and their duties at the foreign entity's restaurant. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(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. Contrary to the common understanding of the word "manager," the statute 
plainly states that 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." Section 10l(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
The foreign entity's organizational chart for 2016 submitted m response to the Director's RFE. identifies the 
Beneficiary as the ''Director/Head Chef.'' 
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Maller of L-8-, LLC 
employees, the beneficiary must also have the authority to hire and fire those employees. or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 2 I 4.2(1)(1 )(ii)(B)(J). 
The evidence here does not substantiate that the duties of the Beneficiary and her subordinates 
correspond to their placement in the foreign entity's structural hierarchy. Artificial tiers of 
subordinate employees and inflated job titles are not probative and will not establish that an 
organization is sufficiently complex to support an executive or manager position. The descriptions 
of duties do not support the placement of the Beneficiary and the foreign entity's ''management'' on 
the organizational charts submitted. The record does not include probative, consistent evidence 
establishing that the Beneficiary was primarily a personnel manager. 
The Petitioner also has not articulated a specific function that the Beneficiary managed for the 
foreign entity. 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 I 0 I (a)( 44)(A)(ii) of the Act. If a 
petitioner claims that a beneficiary will manage an essential function, it must clearly describe the 
duties to be performed in managing the essential function. In addition, the petitioner must 
demonstrate that "(1) the function is a clearly defined activity; (2) the function is 'essential,' i.e., 
core to the organization; (3) the beneficiary will primarily manaKe. as opposed to per(i>rm. the 
function; ( 4) the beneficiary will act at a senior level within the organizational hierarchy or with 
respect to the function managed; and (5) the beneficiary will exercise discretion over the function's 
day-to-day operations." Matter o(G- Inc., Adopted Decision 2017-05 (AAO Nov. 8. 2017). In this 
matter, the Petitioner has not described or provided evidence satisfying the above requirements. The 
Petitioner has not established that the Beneficiary managed an essential function. 
The Petitioner also has not established that the Beneficiary was primarily an executive. 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 managerial employees for a beneficiary to direct and they 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. 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." Jd. As discussed above, the foreign entity's position descriptions for the 
Beneficiary's subordinates do not include credible, probative evidence establishing that the duties of 
the subordinates are primarily managerial. 
In this matter. the record does not include sufficient consistent evidence so that we may consider the 
reasonable needs of the foreign entity in light of its overall purpose and stage of development of the 
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Matter of L-B-, LLC 
organization. Although the foreign entity was established more than eight years ago, it has not 
provided consistent, credible evidence of the Beneficiary and her claimed subordinates' actual 
duties. The record does not establish that the Beneficiary performed primarily executive or 
managerial duties for the foreign entity. 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner was organized in March 2016 and this petition was filed October 2016. Thus, the 
Petitioner had not been doing business for a full-year prior to tiling the petition and falls under the 
new office criteria. 
If a petitioner indicates that a beneficiary is coming to the United States to open a "new office.·· it 
must show that it is prepared to commence doing business immediately upon approval so that it will 
support a manager or executive within a one-year timeframe. This evidence should demonstrate a 
realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager or 
executive who will primarily perform qualifying duties. See generally 8 C.F.R. § 214.2(1)(3)(v). 
The Director determined that the record did not support the Petitioner's claim that the Beneficiary 
would manage a subordinate staff of managerial or supervisory personnel. The Director concluded 
that the record did not establish that the Petitioner would have an organizational structure sufficient 
to elevate the Beneficiary's position to a primarily managerial position within one year. 
The Petitioner's business plan indicated that from June to September 2016, the three months prior to 
filing the petition, the Petitioner would perform market research. research suppliers and vendors, and 
plan advertising. In the second phase, October to December 2016, the Petitioner would launch ' 
' its bar/restaurant. During the second phase, the Petitioner planned to hire a manager, a 
chef, two kitchen staff, and two restaurant servers and to have the grand opening of the restaurant. 
The Petitioner projected $100,000 in revenue for fiscal year 2016. The next phase of the business 
plan, from January to June 2017, shows the restaurant at full operation and the addition of a 
manager, a chef: and three restaurant servers. The remaining six months of 2017 is devoted to 
increased advertising, marketing , and looking for additional opportunities to expand and does not 
include any additional hires for the second six months of 2017. The business plan estimates the 
Petitioner's revenue will increase to $690,000 for fiscal year 2017. 
The Petitioner's organizational chart showed the Beneficiary in the position of general 
manager/executive chef, reporting to a director. The chart also depicted a kitchen manager 
and an unnamed front house manager, reporting to the Beneficiary. The chart also shows two chefs, 
two kitchen staft~ four waiters , and one waiter/delivery person reporting to the kitchen manager and 
front house manager. 
The Petitioner also included a document with the business plan showing the restaurant's monthly 
overhead including payroll totaling approximately $31 ,500. The breakout for the approximate 
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Matter of L-B-, LLC 
$6,500 in weekly payroll costs covers the positions of bartender, barback /porter , two kitchen cooks. 
security, a DJ, a delivery person , and two named individuals and This document docs 
not correspond with the positions outlined in the Petitioner's business plan and does not include the 
Beneficiary's $50,000 yearly salary. 4 
The Director issued an RFE in February 2017 and notified the Petitioner it had until May 2017 to 
provide its response. In the RFE, the Director requested that the Petitioner provide state quarterly 
wage reports for the third and fourth quarter of 2016. The Petitioner's May 2017 response did not 
include these reports or any evidence that the Petitioner had begun operations. An Internet sea rch 
for ' at the Petitioner's address resulted in information indicating that this 
bar/restaurant opened in January 2017. See http :/, 
(last visited Dec. 21, 20 17). When the Petitioner responded to the 
Director ' s RFE , it would have been open for at least five months. However , the record does not 
include any information regarding its opening, the employees actually hired . or evidence that the 
Petitioner is implementing its business plan. As the Petitioner actually opened a bar/restaurant and 
began operations, it is reasonable to expect that the Petitioner would provide corroborating evidence 
of its actual employees and revenue when attempting to establish that the Beneficiary will be 
performing in a managerial or executive capacity within one year. 
On appeal, the Petitioner relies on the previously submitted descriptions of the propos ed kitchen 
manager and front house manager and asserts that the description s provided show that the kitchen 
manager and front house manager will be handling fundamental functions of the restaurant. The 
Petitioner claims that "the propo sed organizational structure is sufficiently complex to establish that 
[the B]eneficiary will be relieved from primarily performing non-managerial duties ." 
As noted above, the Petitioner's weekly payroll for its bar/restaurant employees does not correspond 
to the positions outlined in the business plan and reiterated on appeal. For example, the estimated 
weekly payroll does not include the Beneficiary's position of gene ral manager/executiv e chef. The 
record also does not corroborate that the Petitioner employs a kitchen manager and a front house 
manager. The record does not establish that the Petitioner will actually employ the Beneficiary in 
the proposed general manager/exec utive chef position. The Petitioner must resolve this ambiguity in 
the record with independent , objective evidence pointing to where the truth lies. Maller (~l Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material ambiguities and inconsistencie s may 
lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. !d. Here, the record does not include sutlicient consistent evidence 
to demonstrate a realistic expectation that the Petitioner will succeed and rapidly expand as it moves 
away from the developmental stage to full operations , where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
4 
The breakout for the weekly payroll include s $2,040 for two cooks . This amount could cover the Beneficiar y's salary 
if she performed the duties of one of the cooks. 
8 
Matter of L-B-. LLC 
We have also reviewed the evidence showing that the Beneficiary's spouse transferred $50,000 to 
the Petitioner as the foreign entity's capital contribution. 5 The record also includes a 2015 table 
showing the foreign entity's total income, the foreign entity's partially translated
6 
tax filings dated 
January 2017 and March 2017, and a monthly payroll document for April 2017. Without additional 
evidence, the record does not include sufficient information to establish that the foreign entity has 
the financial ability to remunerate the beneficiary and commence doing business in the United States 
as set out in the petition and accompanying documents. 
The Petitioner has not submitted probative evidence establishing a credible expectation that it will 
support a manager or executive within the one-year timeframe. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary was 
employed in a managerial or executive capacity for the foreign entity and will be employed in a 
managerial or executive position for the Petitioner within one year. 
ORDER: The appeal is dismissed. 
Cite as Matter ofL-B-. LLC, ID# 881560 (AAO Jan. 9, 2018) 
5 The Petitioner claims that $29,000 of the capital contribution came from the Beneficiary's spouse's sale of personal 
property and the additional $21,000 came from his personal funds. Although the Petitioner references the Beneticiary 
and her spouse's ownership of the foreign entity, the record does not include evidence corroborating that ownership. 
Accordingly, it is not clear if the foreign entity actually supplied the capital necessary to obtain its membership in the 
Petitioner, as was required in the Petitioner's operating agreement. Although we do not enter a tinding on the qualifying 
relationship between the Petitioner and the Beneficiary's foreign employer, the Petitioner must address this issue in any 
future proceedings. 
6 
Any document in a foreign language must be accompanied by a full English language translation. 8 C.F.R. 
§ 1 03.2(b )(3). The translator must certify that the English language translation is complete and accurate, and that the 
translator is competent to translate from the foreign language into English. !d. The tax filings include only a translated 
first paragraph. Because the Petitioner did not submit a properly certified English language translation of the document. 
we cannot meaningfully determine whether the translated material is accurate and thus supports the Petitioner's claims. 
9