remanded L-1A Case: Restaurant Management

o U.S. Citizenship 
"" and Immigration 
Services 
MATTER OF J-M- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 21,2016 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a fast food restaurant management company, seeks to temporarily employ the 
Beneficiary as the president of its new office under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § 1101(a)(l5)(L). The L-1A classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to 
work temporarily in an executive or managerial capacity. 
The Director, Vermont Service Center, denied the petition on February 26, 2016. The Director 
concluded that the Petitioner had not established that: (I) it had control of the franchised U.S. entity 
and therefore, that it has a qualifying relationship with the Beneficiary's claimed foreign employer; 
and (2) the Beneficiary would be employed in the United States in a managerial or executive 
capacity within one year of the approval of the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that it submitted ample evidence demonstrating the parent company's control over the 
business and intent to expand the business during its initial year of operations. 
Upon de novo review, we will_ withdraw the -Director's decision and remand the matter to the 
Director, Vermont Service Center, for entry of a new decision. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(l5)(L) of the Act. 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. Id. · 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of J-M- LLC 
(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) ofthis 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 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 him/her to 
perform 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 regulation at 8 C.F.R. § 214.2(1)(3)(v) further provides that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office in the United States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive of managerial 
authority over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure ofthe foreign eJ;Itity. 
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(b)(6)
Matter of J-M- LLC 
II. QUALIFYING RELATIONSHIP 
The first issue to be addressed is whether the Petitioner established that it has a qualifying 
relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
one' entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 101 (a)( 15)(L) of the Act; 8 C.F .R. § 214.2(1). 
The Director denied the petition based on a finding that the Petitioner will operate a ' 
franchise, and that, based on the terms of the submitted franchise agreement, it did not 
establish that it has the "legal or actual authority" to exercise control over its business. For this 
reason, the Director foun~ that the Petitioner did not establish that it has a qualifying relationship 
with the Beneficiary's claimed foreign employer, 
Upon review, we find that the Director improperly focused solely on the Petitioner's claimed 
operation of a franchise business rather than reviewing any documentation that would establish 
actual ownership and control of the U.S. and foreign companies. Additionally, the Director 
erroneously found that the Petitioner had purchased a majority interest in 
the company that is claimed to operate the franchised restaurant, when the petition was filed. The 
record shows that the Petitioner purchased only a 49% interest in this company and did not submit 
evidence that it exercises control based on this minority interest. · 
We note that a franchise agreement like any operational or contractual agreement, will list certain 
terms and conditions as requirements for each party. However, the franchisor's contractual 
conditions regarding the use of its brand name do not establish its ownership or control over the 
legal entity that operates the franchise. That is, the franchisor does not claim and the record does not 
'include evidence that the franchisor has any ownership or control over the petitioning limited 
liability company. While the minority-owned limited liability company that operates the franchise 
may be the Petitioner's asset, the franchise agreement does not control the Petitioner's ability to 
' make business decisions regarding its operations, including investing in other assets. The Director 
here did not examine the actual ownership and control of the Petitioner and mistakenly found that 
the Petitioner had purchased a majority interest in For this reason, the 
Director's decision must be withdrawn. 
Although the Director's decision will be withdrawn, the record as presently constituted does not 
contain sufficient evidence of a qualifying relationship between the Petitioner and the Beneficiary's 
claimed foreign employer. 
Specifically, the record does not include any documentary evidence establishing the Petitioner's 
ownership. We note that the Certificate of Organization submitted for the record, alone, is not 
sufficient to establish ownership or control of a limited liability company. Limited liability 
3 
(b)(6)
Matter of J-M- LLC 
companies are generally obligated by the jurisdiction of formation to maintain records identifying 
members by name, address, percentage of ownership, written statements of the contributions made 
by each member, the times at which additional contributions are to be made, events requiring the 
dissolution of the limited liability company, and the dates on which each member became a 
member. 1 These membership records, along with the LLC's operating agreement, certificates of 
membership interest, and minutes of membership and management meetings, must be examined to 
determine the total number of members, the percentage of each member's ownership interest, the 
appointment of managers, and the degree of control ceded to the managers by the members. 
Additionally, a petitioning company must disclose all agreements relating to the voting of interests, 
the distribution of profit, the management and direction of the entity, and any other factor affecting 
actual control of the entity. See Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 (Comm'r 
1986). Without full disclosure of all relevant documents, U.S. Citizenship and Immigration Services 
(USCIS) is unable to determine the elements of ownership and control. 
While the record shows that the Beneficiary owns a 50% interest in the foreign entity, we cannot 
determine whether the Beneficiary's foreign employer owns any interest in the Petitioner or whether 
the Beneficiary owns any interest in the Petitioner. Accordingly, we cannot conclude that the 
Petitioner is an affiliate of the Beneficiary's foreign employer through common ownership or that 
the Petitioner is a subsidiary of the Beneficiary's foreign employer through ownership of a: 
controlling interest in the Petitioner. On remand, the, Director should request additional evidence to 
determine the actual ownership and control of both the foreign and U.S. companies. 
III. U.S. EMPLOYMENT IN A QUALIFYING MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also denied the petition finding that the Petitioner did not establish that the Beneficiary 
would be employed in a managerial or executive capacity, as defined at section 101 (a)( 44) of the 
Act, within one year of approval of the petition. 
Specifically, in denying the petition, the Director reviewed the Beneficiary's stated proposed duties 
and the staffing levels of the franchise operated by the Petitioner's claimed 
subsidiary, and determined that the record did not establish that he would 
be performing primarily managerial or executive duties. 
However, as noted above, the record does not establish that is a qualifying 
subsidiary of the Petitioner or that the Petitioner exercises control over the franchised operations. 
For this reason, we find that the Director's reasoning, which was based on an assumption that the 
A review of the Georgia Secretary of State business records shows that the Petitioner's status is 
"Active/Noncompliance." That is, the Petitioner in this matter has not filed its annual registration/annual report to keep 
the State of Georgia informed as to the current members, addresses, etc. On remand, the Petitioner should provide 
evidence of its corporate status and compliance with all state filing requirements applicable to Georgia limited liability 
companies. 
4 
(b)(6)
Matter of J-M- LLC 
Petitioner owns and controls 
franchise, was flawed. 
and will operate a 
As the Petitioner's business plan submitted at the time of filing was limited to describing the 
franchise operated by it ~ is unclear what the 
Beneficiary's actual role would be during the first year of operations and beyond. 
The Petitioner claimed that it had purchased the majority shares of 
company which owns and operates a location in 
would operate the as per the operating agreement. 1 
included a 2009 franchise agreement between 
·franchisor, and 
location The Petitioner claimed that 
a 
Georgia, and that it 
The initial record also 
doing business as 
Georgia 
and 
franchisee, for the same 
owns both 
and has jurisdiction rights over all franchises in the area/ 
The record also includes a management agreement between the Beneficiary, an individual, as 
operating manager, and as the company. This document includes the 
Beneficiary's agreement "to devote his full business, time, energy, and skill to the business of the 
Company and to the promotion of the Company's interest as may be required for the fulfillment of 
Operating Manager's obligations under this Agreement." Based on this evidence, the Beneficiary 
would be allocating all of his time to managing a restaurantpperated by a partially-owned company 
that does not have a qualifying relationship with the petitioner. 
As the petition will be remanded, the Director is instructed to review the Petitioner's business plans 
once again, taking 'into account the evidence showing that the Petitioner does not in fact own a 
controlling interest in and therefore does not indirectly own and control the 
franchise. 
It is not clear how the Beneficiary's management agreement with will 
impact his work for the Petitioner. That is, the management agreement calls for the Beneficiary "to 
devote his full business, time, energy, and skill to the business of the Company and to the promotion 
ofthe Company's interest as may be required for the fulfillment of Operating Manager's obligations 
under this Agreement." It is unclear if the Beneficiary will devote all his time to the interests of 
a company in which the Petitioner owns a minority interest, rather than 
2 The Petitioner's 49 percent interest in if verified, is a minority interest in the company as the 
two other members together hold a 51 percent interest in the company. As noted above, the Director erroneously 
acknowledged that the Petitioner owns a majority interest in Thus, in addition to not addressing 
relevant evidence of the Petitioner's actual ownership, the decision overlooks the fact that the Petitioner does·not actually 
own a majority interest in the LLC that claims to own the franchise. Moreover, signed a lease for the 
location in September 2009, but the franchise agreement for the same location was signed in October 
2009 between the franchisor and a different entity - The Petitioner does not offer a cogent explanation 
and documentary evidence corroborating the multiple transfers of interest in the franchise located in 
Georgia. 
.Matter of J-M- LLC 
working in managerial or executive capacity for the Petitioner. Further, the Petitioner's business 
plan contained the financial objectives and hiring plans for the franchised restaurant only and did not 
include information regarding the Petitioner's own plans for the first year. 
IV. CONCLUSION 
At this time, we take no pos1t10n on whether the Petitioner and Beneficiary qualify for the 
classification sought. We will remand this matter to the Director for a new decision. The Director 
should request any additional evidence deemed warranted and allow the Petitioner to submit such 
evidence within a reasonable period of time. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
I . 
(BIA 2013). . 
ORDER: The decision of the Director, Vermont Service Center, is withdrawn. The matter is 
remanded to the Director, Vermont Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. -
Cite as Matter of J-M- LLC, ID# 10320 (AAO Sept. 21, 2016)