sustained L-1A Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-0-I-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 12,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM l-!29, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant group, seeks to extend the Beneficiary's temporary employment as its vice 
president of operations under the L-1 A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § l!O!(a)(!S)(L). 
The L-1 A 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 a managerial or 
executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as claimed, that the Petitioner will employ the Beneficiary in the United States in an 
executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director owed 
deference to a prior approval, and relied on an improperly restrictive interpretation of the definition 
of"executive capacity." In the alternative, the Petitioner also asserts that the Beneficiary qualifies as 
a manager. 
Upon de novo review, we agree with the Director's Jinding that the Beneficiary is not an executive, 
but will sustain the appeal based on a finding that the Petitioner will employ the Beneficiary in a 
managerial capacity. 
!. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneliciary's application for 
admission into the United States. Section 10l(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 or executive capacity. !d. 
Mauer of F-0-1-. Inc. 
II. DEFERENCE 
Before we address the merits of the case, we note that the Petitioner cites "a 2004 Service Memo 
stating that, absent something extraordinary, the Service should grant 'deference' to prior 
approvals." That memo is the Memorandum from William R. Yates, Associate Director for 
Operations, USCIS, HQOPRD 72/11.3, The Significance of a Prior CIS Approval of a 
Nonimmigrant Petition in the Context cJf a Subsequent Determination Regarding Eligibility fhr 
Extension of Petition Validity (Apr. 23, 2004). The Yates Memorandum has been rescinded by 
USClS Policy Memorandum PM-602-0151, Rescission of Guidance Regarding Deference to Prior 
Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status 
(Oct. 23, 20 17), https://www.uscis.gov/laws/policy-memoranda. The new policy memorandum, 
which is binding on all USCIS components, including the AAO, states: "An adjudicator's fact­
linding authority ... should not be constrained by any prior petition approval, but instead, should be 
based on the merits of each case." !d. at 3. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
A. Executive Capacity 
An executive capacity is 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) ofthe Act. 
The Director found the Beneficiary's highest-ranking subordinate employees are supervisors rather 
than managers, and therefore "the beneticiary is not primarily directing the management of the U.S. 
entity." On appeal, the Petitioner does not press the claim that the Beneficiary's subordinates are 
managers. Instead, the Petitioner asserts that this finding is irrelevant, and cites two federal district 
court decisions and the Foreign Affairs Manual (FAM). Upon review, we find that the cited cases 
are not binding on the Administrative Appeals Oftice. Further, the FAM provides guidance to 
employees of the Department of State in carrying out their otlicial duties, such as the adjudication of 
visa applications abroad, but is not relevant to this proceeding. 
Ultimately, the issue is that an executive must direct the management of the organization or a 
department, subdivision, function, or component thereof. The statutory definitions differentiate 
between managing an organization (the role of a manager) and directing the management of an 
organization (the role of an executive). It is the petitioner's burden to establish how an executive 
can "direct the management" in the absence of managers to direct, without personally managing the 
organization. The Petitioner has not explained how the Beneficiary will direct the management 
without directing managers or managing the company himself. 
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Molter of F-0-1-, Inc. 
Furthermore, another key element of an executive capacity is that an executive establishes the goals 
and policies of the organization, component, or function. See section I 01 (a)(44)(B)(ii). The 
Beneficiary's job description, however, requires him to ensure "that the broad goals and policies 
established by the President are effectively implemented and executed" (emphasis added). 
Therefore, the position does not meet one of the cornerstone requirements of an executive capacity. 
B. Managerial Capacity 
On appeal, the Petitioner asks us, in the alternative, to consider the Beneficiary's positton as 
managerial. Because this request involves no material change to the facts of the record, we will 
examine it here as part of our de novo review of the record. 
A managerial capacity is an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization, 
and exercises discretion over the day-to-day operations of the activity or function for which the 
employee has authority. A personnel manager supervises and controls the work of other 
supervisory, professional, or managerial employees. A personnel manager must also have the 
authority to execute or recommend personnel actions such as hiring, tiring, and promotions. Section 
IOI(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
The Petitioner submitted details and documentation of specific examples of the Beneficiary's 
activities and the record shows that the Beneficiary has general authority over the company's 
restaurants; supervises and controls the work of subordinates who are, themselves, supervisors: has 
authority over hiring, firing, and other personnel actions; and exercises discretion over the day-to­
day operation of the restaurants. The record does not indicate that the Beneficiary has significant 
operational or administrative duties that would substantially' reduce the time available to spend on 
managerial functions. 
IV. CONCLUSION 
The Petitioner has established that it will employ" the Beneficiary in a managerial capacity. 
ORDER: The appeal is sustained. 
Cite as Matter ofF-0-1-. Inc., ID# 933176 (AAO Mar. 12, 2018) 
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