dismissed L-1A Case: Restaurants

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: 
IN RE: 
SRC 04 017 53087 Office: TEXAS SERVICE CENTER Date: 1 0 mb 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 110l(a)(l5)(~) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
t? 
drninistrative Appeals Office 
SRC 04 017 53087 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 1973 and 
claims to be a chain of Japanese restaurants. The petitioner claims to be a subsidiary of Sasaki Sogyo Co., 
Inc., located in Tokyo, Japan. It seeks to employ the beneficiary temporarily in the United States as the 
general manager for a period of three years, at a weekly salary of $750.00. The director determined that the 
petitioner failed to submit sufficient evidence to establish that (1) the foreign entity has been doing business; 
and (2) that the beneficiary had been employed by the foreign entity in a managerial or executive capacity. 
On appeal, counsel submits a brief in opposition to the director's decision. Counsel asserts that the petitioner 
has submitted sufficient evidence to establish that the beneficiary has been employed by the foreign entity in a 
managerial or executive capacity. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 3 214.2(1)(l)(ii) states, in part: 
lntracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the Unite States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this 
section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services to be 
performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization with the three years preceding the filing of the 
petition. 
SRC 04 017 53087 
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(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hirnlher to perform the intended 
serves in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the foreign entity is doing business as defined in the regulations. 
The regulations at 8 C.F.R. 5 214.2(1)(l)(ii)(G) state: 
Qualifying organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one 
other country directly or through a parent, branch, affiliate, or 
subsidiary for the duration of the alien's stay in the United States as 
an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the 
Act. 
The regulations at 8 C.F.R. 3 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent or 
office of the qualifying organization in the United States and abroad. 
In the instant matter, the petition was filed petitioner initially stated in the petition 
that the U.S. entity was a subsidiary of located in Tokyo, Japan and that the 
the petitioner submitted copies beneficiary had been employed by the 
of the foreign entity's Articles of Incorporation, Certificate of Registration, financial report, and a profit and 
loss statement, both covering the tax period from July 1, 1998 through June 30, 1999. 
ated: "Submit evidence of the business conducted by 
uring the past year. Submit current financial records, 
such as tax re s, evidence of business conducted, such as receipts or 
invoices." 
In her decision to deny the petition, the director stated that although Citizenship and Immigration Services 
(CIS) requested evidence of the foreign entity doing business, no evidence that the company abroad was 
doing business as defined in 8 C.F.R. 4 214.2(1)(l)(ii)(H) was submitted. 
SRC 04 017 53087 
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On appeal, counsel does not address the director's finding. Therefore, the director's finding that the petitioner 
had not shown that the foreign entity is doing business will be affirmed. The regulation states that the 
petitioner shall submit additional evidence as the director, in his or her discretion may deem necessary. The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $8 103.2(b)(8) and (12). 
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. 5 103.2(b)(14). Further, the non-existence or other unavailability of required evidence 
creates a presumption of ineligibility. 8 C.F.R. 103.2(b)(2)(i). The petitioner has not met the regulation at 
8 C.F.R. $ 214.2(1)(3)(i). For this reason, this petition may not be approved. 
The second issue in the proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(9 Manages the organization, or a department, subdivision, function, or 
component of the organization; 
(i i) Supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) If another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) Exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i) Directs the management of the organization or a major component or 
function of the organization; 
(ii) Establishes the goals and policies of the organization, component, or 
function; 
SRC 04 017 53087 
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(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
The petitioner initially stated in the petition that the beneficiary had been employed by the foreign entity from 
September 2002 to the present. The petitioner described the beneficiary's past duties as: 
Administrative manager of Japanese restaurant operation since September 2002. Duties 
include marketing, public relations, account management, supervision of staff, human - - 
resource management and to 311999; 1212000 to 812002: 
administrative manager with Tra 
In a letter of support, dated October 17, 2003, counsel for the petitioner stated that it was the petitioner's 
intention to employ the beneficiary for a period of three years, so that he can set up, define, and put into place 
the general management program for the U.S. entity's operations in accordance with the Japanese style of 
restaurant management. 
In a letter of support, dated October 17, 2003, the petitioner described the beneficiary's duties at the foreign 
entity as: 
[The beneficiary] has been working for our parent company in Tokyo since September 2002 
as Administrative Manager. His duties include marketing, public relations and 
communications (in Japanese and English), account management, supervision of personnel, 
human resource management and application of modern business administration techniques. 
[The beneficiary's] expertise is his bilingual management skills backed by his education and 
his prior management expertise of more than three years with Trader Vic's in Osaka, Japan. 
[The beneficiary] has worked closely rained him in 
management of Japanese restaurants and o supervised him in 
restaurant accounting. His job has 
operations and the future general management of our restaurants in the United States.. ..[The 
beneficiary is also responsible for all accounting matters and he reports directly to our 
director in charge of accounting, who has trained him in financial and accounting matters of 
our restaurant operation. 
The petitioner submitted a copy of the U.S. entity's organizational chart and translated letters of employment 
verification from abroad. The first translated letter, dated September 3, 2003, states that the beneficiary was 
employed by Trader Vic's in Osaka, Japan from March 1998 to March 1999 and from December 2000 to 
August 2002. Trader Vic's company manager described the beneficiary's job title as "Floor 
ManagerlAdministrative Manager," and his duties as: floor manager, quality control, cost control, and 
personnel training. The second translated letter, dated September 9, 2003, was from the foreign entity, and 
stated that the beneficiary had been employed by the foreign entity as administrative manager from September 
2002 to the present. It was further stated in the letter: 
SRC 04 0 17 53087 
Page 6 
[The beneficiary's] duties at our office are mainly to oversee U.S. restaurant management and 
accounting operations, to be responsible for the accounting matters of each restaurant of - - 
new menus under the 
supervision o 
[The beneficiary's] leadership skills enable him to oversee and supervise his employees; he 
also has a thorough knowledge of the operations of Sasaki Sogyo Co., Ltd. and works closely 
wit-ho is one of our directors and is well known in the Japanese restaurant 
industry. 
In the request for evidence, the director specifically stated: 
Submit a definitive statement describing the foreign and U.S. employment of the beneficiary, 
including: 
List all duties. 
Percentage of time spent on each duty. 
Number of subordinate managers/supervisors or other employees who report 
directly to the beneficiary. 
A brief description of their job titles and duties; give their educational 
background; if the beneficiary does not supervise other employees, specify what 
essential function within the organization he manages. 
Specific dates his employment began and ended in each position with your 
company. 
Indicate the qualifications required for the position. 
Indicate the level of authority held by the beneficiary. 
Indicate whether or not the beneficiary functions at a senior level within the 
corporation. 
Specify his position within the organizational hierarchy. 
Indicate who provides the product sales/services or produces the product of the 
business. 
Submit a copy of the petitioners and the beneficiary's foreign employer organizational chart. 
Submit copies [of] the State, Employer's Quarterly Tax Returns from January 2002 to the 
present for Sasaki Sogyo USA, Inc. 
Submit copies of Quarterly Wage Reports for all employees from 2002 to present. 
In response to the director's request for evidence, counsel described the beneficiary's duties abroad as: 
"Duties: Beneficiary has been working for petitioner's parent company in Tokyo since September 2002 as 
Administrative Manager. His duties include marketing, public relations and communications (25%); account 
management (25%); supervision of personnel (25%) and human resource management and administration 
(25%)." The petitioner submitted a copy of the foreign chart that showed the 
beneficiary as administrative manager, under the direction o irector of accounts and 
administration. The organizational chart also depicted a president and vice-president, with a construction, real 
estate, restaurant, and export division under their direction. The petitioner also submitted a copy of the U.S. 
SRC 04 017 53087 
Page 7 
entity's organizational chart that showed an executive hierarchy to include a president, vice-president, and 
general manager. The chart also depicted five restaurant managers and staff, all of whom are under the 
direction of the executive hierarchy. Counsel stated that all ten of the subordinate managers (two for each 
designated U.S. restaurant) would report directly to the beneficiary as general manager. The petitioner 
submitted copies of the U.S. entity's IRS Form 1120, U.S. Corporate Income Tax Return for the fiscal year 
2002-2003, and IRS Form 941, Employer's Quarterly Federal Tax Return for 2002 and 2003, including a 
roster of all employees. 
The director subsequently denied the petition after determining that the petitioner had failed to submit 
sufficient evidence to establish that the beneficiary had been employed by the foreign entity in a primarily 
managerial or executive capacity. The director noted that contrary to the petitioner's definition of the 
beneficiary's duties abroad, the evidence showed that no employees, divisions or functions are listed under 
the beneficiary's title of administrative manager. The director further noted that while the beneficiary carried 
the title "administrative manager," the record showed that he actually performed various marketing and 
administrative functions himself. The director stated that the petitioner had failed to submit evidence to 
demonstrate that the beneficiary worked through others to accomplish the goals of the organization. The 
director concluded that the petitioner had failed to demonstrate that the beneficiary has been employed abroad 
in an executive or managerial capacity. 
On appeal, counsel disagrees with the director's decision and asserts that the list of the beneficiary's job 
duties including: public relations and communications, account management, supervision of personnel, and 
human resource management and administration, clearly demonstrate that the beneficiary's job duties abroad 
are managerial or executive in nature. Counsel emphasizes that human resource management and supervision 
of personnel require the supervision and management of other employees. Counsel further asserts the 
beneficiary's duties described by the foreign entity meet the definition of manager or executive. Counsel 
contends CIS "misconstrued" the foreign entity's organizational chart in determining that the beneficiary had 
not been employed abroad in a managerial or executive capacity. Counsel contends the beneficiary is 
nistrative manager, and that in this position he reports directly to 
or in charge of the accounts and administration. Counsel further 
t the same level and parallel to the president of the foreign entity, 
s at the same level as the vice-president of the company. Counsel 
asserts that in "Japanese style business culture," the president and vice-president are responsible for 
"overseeing the general management affairs, policies, procedures and objectives of the corporation and its 
fiscal matters," while the director and the beneficiary "oversee all accounting and administrative matters of 
the corporation." In support of this assertion, the petitioner submitted a translated letter on appeal written by 
the foreign entity in which it is stated in part: 
This is to certify the duties of the above mentioned employee who is employed with us as 
Administrative Manager since September 2002, and his level of authority in the 
organizational chart of our Corporation. 
We have in our organization the positions of Pre 
two positions, we have the positions of a seni 
oversees the accounts and administrative matters. 
which is a full time corporate employee position. 
of Vice President, is the position of Administrative Manager which [the beneficiary] holds. 
The position of Vice President and his position are equivalent in authority and responsibility. 
SRC 04 017 53087 
Page 8 
[The beneficiary] spends half of his time in supervision of personnel, and human resource 
management of our four divisions, especially the Restaurant Division and he spends the other 
half of his time in public relations, communications, marketing and account management 
pertaining to these divisions. The heads of these four divisions report directly to him in 
matters concerning accounting, personnel and human resources and administrative matters. 
They report directly to the Vice President on matters other than the above, such as general 
policies, sales, budgetary expenses and allied fiscal matters. 
Counsel argues that the vice-president supewises four divisions of the foreign entity, including 
"staff/employees" and that therefore, the beneficiary performs his duties through the four divisions and their 
employees, thus accomplishing the goals of the organization. Counsel further argues tha 
dis senior director of the foreign entity and that this position is on par with that of the company presl ent, as is - 
the beneficiary's position in the foreign entity on par with that of the company's vice president. Counsel 
concludes by arguing that the beneficiary does not spend the majority of his time performing marketing and 
administrative functions, but rather spends 50 percent of his time on the supervision of personnel and human 
resource management and administration. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). The petitioner must clearly describe 
the duties to be performed by the beneficiary and indicate whether such duties are either in an executive or 
managerial capacity. Id. The petitioner asserts that the beneficiary has been employed by the foreign entity 
in a managerial capacity in that his job duties include: public relations, communications, account 
management, supervision of personnel, human resource management and administration. The definitions of 
executive and managerial capacity have two parts. First, the petitioner must show that the beneficiary 
performs the high-level responsibilities that are specified in the definitions. Second, the petitioner must show 
that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or 
her time on day-to-day functions. Champion World, lnc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 
(9fi Cir. July 30, 1991). There has been insufficient evidence submitted to demonstrate how the beneficiary 
performs the job duties abroad or what the duties actually entail. In the instant matter, there has been 
insufficient evidence andlor explanation given to establish that the beneficiary primarily performs high-level 
responsibilities at the foreign entity that can be defined as managerial or executive in nature. 
Counsel asserts on appeal that the foreign entity's organizational structure is based upon the "Japanese style 
business structure," which depicts the director of accounts and administration and the administrative manager 
position to be on par with that of the president and vice president's positions. However, there has been no 
independent documentary evidence submitted to substantiate the assertion. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Further, on 
appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its 
level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
CIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). 
The petitioner fails to document what proportion of the beneficiary's duties have been managerial functions 
and what proportions have been non-managerial. For example, the petitioner lists the beneficiary's duties as 
SRC 04 017 53087 
Page 9 
"marketing, public relations and communications (25%); account management (25%); supervision of 
personnel (25%) and human resource management and administration (25%)" but fails to quantify in detail 
the time the beneficiary spends performing each function. Further, the petitioner fails to state whether the 
beneficiary performs bookkeeping functions or manages professional CPAs as his "account management" 
duties. This failure of documentation is important because several of the beneficiary's daily tasks, such as 
marketing, public relations, and administration do not fall directly under traditional managerial duties as 
defined in the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). 
The inconsistencies between counsel's assertions and the submitted evidence raise serious doubts regarding 
the claim that the foreign company employed the beneficiary in a 
8 C.F.R. § 214.2(1)(3)(iv). For example, the foreign entity's organizational chart depict 
as accounts and administration director, and the beneficiary as his 
administrative manager. In a letter of support, dated October 17, 2003, the petitioner stated in part: "[The - 
beneficiary] has worked closely with ho trained him in management of Japanese 
restaurants.. ..[The beneficiary's] job ging the Japanese restaurant operations . . .. 
[The beneficiary] is also responsible for all accounting matters and he reports directly to our director in charge 
of accounting, who has trained him in financial and accounting matters of our restaurant operation. In a letter 
of support from the foreign entity, dated September 9, 2003, the beneficiary's duties are described in part as: 
skills enable him to oversee and supervise his employees; he.. . works closely 
with ho is one of our directors." In response to the director's request for evidence, the 
petitioner submitted a copy of the U.S. entity's organizational chart. Counsel asserts that all ten of the 
subordinate managers (two for each designated U.S. restaurant) 
report directly to the beneficiary as general manager. Although 
trained the beneficiary and that 
U.S. entity's organizational chart show; 
es that the beneficiary would be supervising, 
not taking direction from 
resolve any 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). If CIS fails to believe that a fact stated in the petition is 
true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 1154(b); see also Anetekhai v. I.N.S., 876 
F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Although counsel asserts on appeal that the beneficiary is managing a subordinate staff in that he performs his 
duties through the management of the foreign entity's four divisions, the record does not establish that the 
subordinate staff is composed of supervisory, professional, or managerial employees. See section 
101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be acting in a managerial 
capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional. 
Section 101(a)(44)(A)(iv) of the Act. The foreign entity's organizational chart shows that the beneficiary 
takes direction from the accounts and administration director. However, there is no evidence submitted to 
show that the beneficiary manages or directs any subordinates. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do 
SRC 04 017 53087 
Page 10 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Although 
specifically requested by the director, the petitioner failed to submit evidence demonstrating the number of 
subordinate managers/supervisors or other employees who report directly to the beneficiary. The petitioner 
also failed to provide the director with subordinate job descriptions, job titles, duties, and evidence of their 
educational backgrounds. The regulation states that the petitioner shall submit additional evidence as the 
director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established, as of the time 
the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). It 
appears from the record that the beneficiary has been primarily performing the day-to-day marketing and 
administrative functions of the foreign entity, rather than serving in a managerial or executive capacity. 
Further, there has been no evidence submitted to demonstrate that the beneficiary manages the organization, 
department, subdivision, function, or component of the organization. In this matter, there is insufficient 
evidence in the record to show that the beneficiary has been employed by the foreign entity in a managerial or 
executive capacity. For this additional reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.