remanded L-1A Case: Restaurant

US. Department of Homeland Security 
kbiJjp 
PUBLIC COPY '""" 
U.S. citizenship and Immigration Ser 
Office of Administrative Appeals, MS 
Washington, DC 20529-2090 
File: EAC 08 209 50334 0ffice:VERMONT SERVICE CENTER Date: 
U. S. Citizenship 
and Immigration 
Services 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
vices 
2090 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
vn F. Grissom 
Acting Chief, Administrative Appeals Office 
EAC 08 209 50334 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the 
director's decision and remand the petition for further review and entry of a new decision. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as L-1A nonimmigrant 
intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1 101 (a)(15)(L). The petitioner, a Florida corporation, operates a restaurant. The petitioner states 
that it is a subsidiary of Ozzonno, S.A., located in Buenos Aires, Argentina. The petitioner seeks to employ 
the beneficiary in the position of general manager for a period of three years. 
The director denied the petition on September 12, 2008, concluding that the petitioner failed to establish that 
the beneficiary will be employed in the United States in a primarily managerial or executive capacity. The 
director's decision refers to the petitioner as a "cattle importer established in 2004 that currently employs six 
individuals," and refers to the beneficiary's proposed position as "operations manager," and her proposed 
subordinates as "a controller, a veterinarian, an assistant supervisor, a ranch hand and a livestock yard 
attendant." 
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, counsel for the petitioner emphasizes that the 
director's decision contains several factual errors and suggests that the director confused the instant petition 
with an unrelated petition filed by a cattle importing company. Counsel notes that the petitioner operates a 
restaurant with 22 employees and seeks to employ the beneficiary as its general manager. Counsel asserts 
that the evidence of record establishes that the beneficiary will be employed in a primarily managerial 
capacity. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(a)(15)(L) of the Act. Specifically, 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 within three years preceding the beneficiary's application for admission into the United 
States. 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, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 9 214.2(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. 
. EAC 08 209 50334 
Page 3 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(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 himher to perfom the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. !j 1101(a)(44)(A), defines the term "managerial capacity" as 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-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. !j '1 101(a)(44)(B), defines the term "executive capacity" as 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; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
. EAC 08 209 50334 
Page 4 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant petition July 25, 2008, indicating its intent to employ the beneficiary as 
the general manager of its company, which operates a restaurant with 21 employees. The petitioner noted that 
the beneficiary was previously granted L-1A classification and served as general manager of the petitioning 
company soon after its establishment, from July 2002 until July 2003.' In a letter dated July 17, 2008, the 
petitioner stated that the beneficiary will perform the following duties: 
. . . to exercise wide discretion over the day-to-day operations of the company, including 
executing contracts with clients and providers, directing activities such as production, payroll 
and service, monitor work activities, and evaluate performance. Finally [the beneficiary] will 
continue to have full discretion over the hiring and firing of all employees, assign duties, 
responsibilities, and work stations to employees in accordance with work requirements. Her 
time will continue to be dedicated to managing and supervising the operations of [the 
petitioner]. 
The petitioner provided a copy of its payroll journal for the period ended on June 3, 2008, which indicated 
wages and salaries paid to 22 full-time employees. 
The director issued a request for additional evidence on August 4, 2008, advising that the petitioner's initial 
evidence did not establish that the beneficiary would function at a senior level in an organizational hierarchy 
other than in position title, or that the beneficiary would supervise and control the work of a subordinate staff 
of supervisory, managerial or professional employees who could provide relief from performing the services 
of the company. The director instructed the petitioner to submit a list clearly delineating every position, and 
explaining how the beneficiary's subordinates are bona fide managers or professionals. The director also 
requested that the petitioner explain why it has offered the beneficiary an annual salary of $30,000, noting that 
this "is a substantially smaller amount that what is normally meted out to a manager or executive who 
receives L-1A nonimmigrant classification from the USCIS." 
In a letter dated August 19, 2008, the petitioner stated that the beneficiary will be employed in a managerial 
capacity, as she will function at a senior level in the organization and supervise and control the work of other 
supervisory and managerial employees. Specifically, the petitioner stated that the beneficiary will: (1) be in 
charge of managing the U.S. company and directing the negotiations of the company's future expansion; (2) 
supervise and direct the activities of other supervisory and managerial employees reporting to her; (3) have 
full discretion over the hiring and firing of all employees, and assign duties, responsibilities and work stations 
in accordance with work requirements; and (4) exercise wide discretion over the day-to-day operations of the 
company, including executing and approving contracts with clients and providers, directing activities such as 
sales, payroll and service, monitoring work activities, and evaluating performance. 
' The petitioner indicated on Form 1-129 that a previous request to extend the new office petition was denied. 
(SRC-03-195-50485). The approved "new office" petition was valid from July 15, 2002 until July 14, 2003 
(SRC-02-190-50326). The beneficiary was last admitted to the United States in F-1 status on March 27, 
2008. 
. EAC 08 209 50334 
Page 5 
The petitioner indicated that the beneficiary would oversee a total of five managerial employees including a 
chief financial officer, two operations managers, a human resources manager, and a chef, and provided 
descriptions for each position. The petitioner also submitted an organizational chart showing that the chief 
financial officer will supervise an administrative assistant, the operations managers will supervise two 
bartenders, two cleaning people, two cashiers, three waiters and one dishwasher, and the chef will supervise 
two pizza cooks, two cooks, and one pastry chef. 
Finally, the petitioner stated that the beneficiary's proffered annual salary is $50,000 and that the $30,000 
salary was indicated in error on the Form I- 129. 
The director denied the petition on September 12, 2008, concluding that the petitioner failed to establish that 
the beneficiary will be employed in a primarily managerial or executive capacity. As noted above, the director 
referred to the petitioner as a "cattle importer established in 2004 that currently employs six individuals," and 
stated that the beneficiary's proposed position is "operations manager," supervising "a controller, a 
veterinarian, an assistant supervisor, a ranch hand and a livestock yard attendant." 
On appeal, counsel for the petitioner emphasizes the obvious factual errors in the director's decision, noting 
that the director apparently confused the facts of the instant petition with those of an unrelated petition. 
Counsel asserts that the evidence of record establishes that the beneficiary will be employed in a primarily 
managerial or executive capacity and requests that the petition be approved. 
Upon review, the AAO will withdraw the director's decision and remand the petition to the director for 
further action and entry of a new decision. 
When denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this 
duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 
291 of the Act, 8 U.S.C. 5 1361. See 8 C.F.R. 5 103.3(a)(l)(i). Upon review of the director's decision, the 
AAO agrees that the director makes no direct references to the petitioner's evidence and in fact appears to 
have issued the decision based on the facts of an entirely unrelated petition. 
Furthermore, although the director issued a request for evidence, the director limited his inquiry to whether 
the beneficiary would supervise subordinate managers or professionals, and whether an annual salary of 
$30,000 is sufficient for an L-1A manager or executive. The RFE reflected an incomplete application of the 
statute and regulations to the facts of this case, as the director restricted his analysis of the beneficiary's 
eligibility as a manager or executive to whether the beneficiary would supervise subordinate professionals or 
managers. Furthermore, the director's supposition that the beneficiary's salary was insufficient is not 
supported by the statute and regulations, which do not provide for the consideration of the proffered salary as 
a factor in determining the beneficiary's employment capacity. 
However, notwithstanding the director's errors, the AAO finds the evidence of record insufficient to establish 
the petitioner's and beneficiary's eligibility for the requested classification. Accordingly, the director's 
decision will be withdrawn and the petition will be remanded to the director, who is instructed to request 
additional evidence consistent with the discussion below. 
EAC 08 209 50334 
Page 6 
When examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job 
duties 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 record does not contain a sufficiently detailed description of the beneficiary's proposed position as 
general manager of the U.S. company. Accordingly, the director is instructed to request that the petitioner 
provide a comprehensive, specific description of the duties to be performed by the beneficiary, including a 
breakdown of the percentage of time she will devote to those duties on a weekly basis. If the petitioner 
indicates that the beneficiary "oversees," "supervises," "directs" or "manages" an activity or function, the 
petitioner should clearly indicate who among its employees performs the routine duties associated with the 
particular activity or function. 
The petitioner should also be instructed to provide a detailed organizational chart identifying the names and 
job titles of all employees working for the company as of the date the petition was filed. In addition, the 
petitioner should provide information regarding its hours of operation, and a sample work schedule for its 
employees, to establish that the company has sufficient lower-level staff to perform the routine duties 
associated with operating a full-service restaurant. 
The record also contains inconsistent evidence regarding the petitioner's ownership that precludes a finding 
that the petitioner has a qualifying relationship with the foreign entity, as required by 8 C.F.R. 214.2(1)(3)(i). 
The petitioner indicates that it has two equal owners, Ozzonno S.A., an Argentine company, and Romina 
Garcia, a citizen of Argentina. The petitioner submitted a copy of its stock certificate #3 indicating that 50 of 
the company's 100 authorized shares were issued to Ozzonno S.A. on May 28,2003. 
However, the petitioner indicated on its 2006 IRS Form 1120, U.S. Corporation Income Tax Return at 
Schedule K, that the U.S. company is wholly-owned by Panamanian person or entity. This information 
directly contradicts the petitioner's claim that it is owned and controlled by the beneficiary's previous foreign 
employer, Ozzonno S.A. 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). The petitioner should be instructed to clarify this discrepancy and to 
submit additional documentary evidence in support of the claimed qualifying relationship, such as the 
company's stock transfer ledger, copies of all stock certificates issued to date, amended tax returns, and 
evidence that the foreign entity paid for its ownership interest in the U.S. company. 
Finally, the evidence of record.does not establish that the beneficiary has at least one continuous year of full- 
time employment abroad with a qualifying organization within the three years preceding the filing of the 
petition, or that her prior year of employment abroad was in a position that was managerial or executive in 
nature. See 8 C.F.R. $5 214.2(1)(3)(iii) and (iv). 
The petitioner indicates that the beneficiary was employed by its alleged parent company in Argentina from 
April 1, 2001 until April 30, 2002, and by the petitioner from July 15, 2002 until July 14, 2003. The instant 
petition was filed on July 25, 2008, and the beneficiary was last admitted to the United States as an F-1 
. EAC 08 209 50334 
Page 7 
nonimmigrant student on March 27, 2008. While the petitioner suggests that the instant petition is a 
continuation of the beneficiary's previous employment as the U.S. company's general manager, the 
intervening five years cannot be overlooked. There is no evidence that the beneficiary has been employed by 
any qualifying entity in the United States or abroad since 2003. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(A) defines "intracompany transferee" as: 
An alien who, within three years preceding the time of his or her application for 
admission into the United 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. Periods spent in the 
United States in lawful status for a branch of the same employer or a parent, aflliate, or 
subsidiary thereof and brief trips to the United States for business or pleasure shall not 
be interruptive of the one year of continuous employment abroad but such periods shall 
not be counted toward fu2Jillment of that requirement. 
(Emphasis added). 
It appears that the beneficiary has spent significant periods of time in the United States as an F-1 student since 
at least 2006. However, the beneficiary's time in the United States as an F-1 student would be considered 
interruptive of her continuous employment abroad. Absent evidence that the beneficiary worked for the 
foreign entity in Argentina for a full year during the three years preceding her most recent admission to the 
United States, USCIS cannot conclude that the beneficiary possesses one year of employment abroad within 
the requisite time period. 
Finally, even assuming, arguendo, that the petitioner could establish that the beneficiary was employed by the 
foreign entity for one continuous year within the relevant time frame, the record as presently constituted 
contains insufficient evidence to establish that the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity. 
Therefore, the director is instructed to request additional evidence to establish that the beneficiary meets the 
requirements set forth at 8 C.F.R. $5 214.2(1)(3)(iii) and (iv). 
It is emphasized that the petitioner must establish eligibility at the time of filing the nonimmigrant 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 Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Evidence and explanation that the petitioner submits must show eligibility as of the filing date, July 25, 2008. 
In this matter, the evidence of record raises underlying questions regarding eligibility. Further evidence is 
required in order to establish that the beneficiary meets the requirements for L-1A classification as of the date 
of filing the petition. The director's decision will be withdrawn and the matter remanded for further 
. 'EAC 08 209 50334 
Page 8 
consideration and a new decision. The director is instructed to issue a request for evidence addressing the issues 
discussed above, and any other evidence he deems necessary. 
ORDER: The decision of the director dated September 12, 2008 is withdrawn. The matter is 
remanded for further action and consideration consistent with the above discussion and 
entry of a new decision.