dismissed L-1A Case: Restaurants And Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N. W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 03 067 51558 Office: NEBRASKA SERVICE CENTER Date: 2 3 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, Nebraska Sernice 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner, to classify the beneficiary as a manager or 
of the Immigration and Nationality Act (the Act), 8 
to be a wholly owned subsidiary of = 
located in India and is engaged in the business of acquiring and operating 
restaurants and retail stores. The initial petition was approved for one year to allow the petitioner 
to open a new office. It seeks to extend the petition's validity and the beneficiary's stay for three 
years as the U.S. entity's managing director. The petitioner was incorporated in the State of 
Minneapolis in 2001 and claims to have two employees. 
On April 10, 2003, the director denied the petition because the petitioner failed to establish that 
the beneficiary has been and will be employed in a primarily executive or managerial capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to the AAO for review. 
On appeal, the petitioner's counsel claims that the beneficiary has been "primarily engaged in a 
managerial capacity with the petitioning business." 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary in 
a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year. Furthermore, 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, executive, or specialized knowledge capacity. 
In relevant part, the regulations'at 8 C.F.R. 5 214.2(1)(14)(3) state that an individual petition filed 
on Forrn 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 (I)(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. 
Further, pursuant to 8 C.F.R. 5 214.2(1)(14)(ii), if the petitioner is filing a petition to extend the 
beneficiary's stay for L-1 classification, the regulation requires: 
A visa petition under section 101(a)(15)(L) which involved the opening of a new office 
may be extended by filing a new Forrn 1-129, accompanied by the following: 
LIN 03 067 5 1558 
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(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined 
in paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous 
year and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a managerial 
or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the beneficiary has been and will be primarily performing 
executive or managerial duties for the United States entity. Section 101(a)(44)(A) of the Act, 8 
U.S.C. 9 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
i. manages the organization, or a department, subdivision, function, or component of 
the organization; 
ii. 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-today 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 IOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
LIN 03 067 5 1558 
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(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; 
(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. 
On December 24, 2002, the petitioner filed the Form 1-129. The petitioner described the 
beneficiary's proposed U.S. duties as "oversee[ing] acquisition and management of restaurants 
and retail stores, oversee[ing] management of all business operations including financial 
operations, marketing and sales operations, hiring and oversight of management." 
Additionally, the petitioner submitted a December 12, 2002 supporting letter further describing 
the beneficiary's proposed U.S. duties as: 
Oversees management of, a restaurant specializing in Mexican 
food and Market, a retail convenience store. Directing and overseeing 
financial operations, purchasing of inventory items as well as marketing and sales 
efforts. . . . [Rlesponsible for purchasing construction rnateriaIs to export to 
affiliate companies. . . . [Rlesponsible for the hiring of all management personnel 
for each business operation and will have discretionary authority over aU 
business operations. 
[The Beneficiary] has engaged in the management of essential functions. He has 
spent the majority of his time negotiating the agreements to purchase restaurants 
and retail stores; leases for commercial property; and overseeing start up 
operations for the existing businesses. [The petitioner] currently employs 2 
individuals at [the Mexican restaurant] and 3 individuals at the [convenience 
store]. [The] [bleneficiary has hired a [mlanager to manage [the convenience 
store]. Currently, [the] beneficiary is involved in managing the day-today 
operations of [the Mexican restaurant]. 
On January 27, 2003, the director requested additional evidence such as a description of the 
beneficiary's duties performed for the previous year and the duties the beneficiary will perform 
under the extended petition, a description of the U.S. entity's staff, a detailed description of the 
employees' duties, and evidence of the wages paid to the employees. 
In a February 26, 2003 letter, the petitioner responded to the director's request for additional 
evidence by reiterating the beneficiary's proposed U.S. duties and stated that "[the] [bleneficiary 
will be responsible for identifying business opportunities, negotiating the purchase of businesses 
and entering into leases or subleases for the premises. Each business will employ three 
LIN 03 067 5 1558 
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individuals including a [mlanager." In addition, the petitioner claimed that it currently employs 
four employees, two individuals at the restaurant and two individuals at the convenience store. 
The petitioner stated that the beneficiary currently is involved in "managing the day-to-day 
operations of the restaurant." Finally, the petitioner claimed that "as the business further expands 
[the beneficiary] will hire and oversee the work of a [mlanager who will be responsible for 
managing the restaurant." 
On April 10, 2003, the director denied the petition because the petitioner failed to establish that 
the beneficiary has been and will be employed in a primarily executive or managerial capacity. 
The director found that I) the beneficiary will be performing as a first line supervisor rather than 
in an executive or managerial capacity; 2) the beneficiary will not supervise subordinates that are 
managerial, supervisory, or professional; and, 3) the beneficiary will perform the day-to-day 
duties relative to the operation of the restaurant and convenience store. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to the AAO for review. 
On appeal, the petitioner's counsel claims that the beneficiary has been "primarily engaged in a 
managerial capacity with the petitioning business." Counsel claims: 1) the supervisory and 
hands-on functions of the restaurant are performed by two employees; 2) the beneficiary oversees 
a manager at the convenience store and a supervisor of the restaurant; and, 3) the beneficiary has 
performed some of the day-to day duties in the start-up operation of the restaurant, however, 
never at the convenience store, and it currently has two employees performing the day-to-day 
duties at the restaurant. 
The AAO notes that the petitioner claims in its response to the director's request for additional 
evidence that the beneficiary "has been working in an executive/managerial capacity." However, 
the petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under 
section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. A petitioner 
must establish that a beneficiary meets each of the four criteria set forth in the statutory definition 
for executive and the statutory definition for manager if it is representing the beneficiary is both 
an executive and a manager.' 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). On review, the petitioner 
has not established that the beneficiary has been and will be empioyed in a primarily executive or 
1 
The AAO notes an inconsistency in the record concerning the beneficiary's duties. The 
December 12, 2002 letter refers to the beneficiary as "an intra-company executive" whereas on 
appeal, counsel claims that the beneficiary "has indeed been primarily engaged in a managerial 
capacity with the petitioning business." It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
LIN 03 067 51558 
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managerial capacity. The petitioner's descriptions of the beneficiary's proposed U.S. duties are 
general. For example, the petitioner described the beneficiary's duties as "oversee[ing] 
acquisition and management of restaurants and retail stores" and "directing and overseeing 
financial operations." However, the petitioner fails to specify how the beneficiary will oversee the 
company's businesses or finances. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Crafi of California, 14 I&N Dec. 190 (Reg. Corn. 1972). Specifics are clearly an 
important indication of whether a beneficiary's duties involve specialized knowledge, otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. See Fedin Brcjs. 
Co., Ltd. v. Suva, 724 F. Supp. I 103 (E.D.N.Y. 1989), ard, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner described the beneficiary as being involved in "purchasing of inventory 
items as well as marketing and sales efforts." Since the beneficiary is actually engaged in 
marketing and sales efforts, it appears that he will be providing the services of the business rather 
than directing such activities. An employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be employed in a managerial rx 
executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Corn. 
1988). 
Moreover, 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 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
Q 1101(a)(44)(A)(ii). The petitioner stated that the beneficiary "has engaged in the management 
of essential functions. He has spent the majority of his time negotiating the agreements to 
purchase restaurants and retail stores; leases for commercial property; and overseeing start up 
operations for the existing businesses." If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. In addition, the petitioner must provide a comprehensive and 
detailed description of the beneficiary's daily duties demonstrating that the beneficiary manages 
the function rather than performs the duties relating to the function. Here, the petitioner has failed 
to provide a detailed description specifying the duties that the beneficiary primarily performs for 
the U.S. entity. As previously stated an employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be employed in a managerial or 
executive capacity. Matter of Church Scientology International, 19 I&N Dec. at 593,604. In this 
matter, the petitioner has not provided evidence that the beneficiary manages an essential 
function. 
Although the beneficiary is not required to supervise personnel, if it is claimed that the 
beneficiary's duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See 5 101(a)(44)(A)(ii) of 
the Act. The petitioner claimed that the beneficiary is responsible for the "oversight of 
management" and "manage[s] the day-today operations of the restaurant." The petitioner 
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claimed that it employed four workers.' These workers included two employees at the restaurant 
and two employees at the convenience store. Although specifically requested by the director, the 
petitioner failed to provide a detailed description of the claimed subordinate employees' duties. 
Without such specifics, it is difficult to determine whether these employees actually perform the 
nonrnanagerial or nonexecutive tasks of the business. Based upon the petitioner's description of 
the beneficiary's duties for the US, entity, the beneficiary appears to be acting as a first-line 
supervisor as the beneficiary currently is involved in "managing the day-today operations of the 
restaurant." A managerial or executive employee must have authority over day-to-day operations 
beyond the level normally vested in a first-line supervisor, unless the supervised employees are 
professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cormn. 
1988). 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the 
field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 9 1 101(a)(32), states that "[tlhe term 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." The term 
"profession" contemplates knowledge or learning, not merely skill, of an advanced type in a 
given field gained by a prolonged course of specialized instruction and study of at least 
baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor. 
Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of 
education required by the position, rather than the degree held by a subordinate employee. The 
possession of a bachelor's degree by a subordinate employee does not automatically lead to the 
conclusion that an employee is employed in a professional capacity as that term is defined above. 
In the instant matter, the petitioner has not, in fact, established that an advanced degree is actualIy 
necessary, for example, to perform the convenience store manager's duties or restaurant 
employees' duties, which are among the beneficiary's subordinates. 
Finally, the petitioner claims that "as the business further expands [the beneficiary] will hire and 
oversee the work of a [mlanager who will be responsible for managing the restaurant." However, 
the petitioner must establish eligibility at the time of filing the nonirnmigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. Matter of Michelin Tire Carp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
After careful consideration of the evidence, the AAO concludes that the petitioner failed to 
establish that the beneficiary has been and will be employed in a primarily executive or 
managerial capacity. For this reason, the petition may not be approved. 
The Form 1-129 indicates that the petitioner has two employees. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 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). 
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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. 5 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.