remanded L-1B Case: Restaurant

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 11 1 50283 Office: CALIFORNIA SERVICE CENTER Date: 1 0 2005 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 lOl(a)(lS)(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 
WAC 03 Ill 50283 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the 
decision of the director and remand the matter for a new decision. 
According to the evidence contained in the record, the petitioner was incorporated Jul 23 2002 and claims 
to be a Chinese Cuisine Restaurant. The petitioner claims to be an affiliate of m restaurant, 
located in South Korea. It seeks to employ the beneficiary temporarily in the United States as a head chef for 
one year, at an annual salary of $42,000.00. The director determined that the evidence submitted by the 
petitioner was not sufficient to establish that a qualifying relationship exists between the U.S. and foreign 
entities. 
On appeal, counsel disagrees with the director's decision and states that the evidence submitted is sufficient to 
establish a qualifying relationship between the U.S. and foreign entities. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section IOl(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). 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. 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. 5 214.2(IXl)(ii) states, in part: 
Intracornpany transferee means 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. 
The regulation at 8 C.F.R. 5 214.2(1)(3) further 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)(t)(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 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 
WAC 03 11 1 50283 
Page 3 
education, training, and employment qualifies himlher 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. 5 214.2(1)(3)(vi) states that if the petition indicates that the beneficiary is coming to 
the United States in a specialized knowledge capacity 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 business entity in the United States is or will be a qualifying organization as defined 
in paragraph (I)(I)(ii)(G) of this section; and 
C) The petitioner has the financial ability to remunerate the beneficiary and to commence 
doing business in the United States. 
The issue in this proceeding is whether the petitioner has established that a qualifying relationship exists 
between the U.S. and foreign entities. 
The pertinent regulations at 8 C.F.R. 5 2 14.2(1)(l)(ii) define a "qualifying organization" and related terms as: 
(G) QualrfLing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions 
of a parent, branch, affiliate or subsidiary specified in paragraph (I)(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 IOI(a)(15)(L) of the Act. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operation division or office of the same organization housed in a 
different location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
WAC 03 11 1 50283 
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over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) AfJiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
In the instant matter, the petitioner claims to be an affiliate of the foreign entity. The petitioner stated that the 
U.S. and foreign entities were affiliates in that the U.S. entity was 100 percent owned and operated by Je- 
Young Hwang, who owned 61 percent of the foreign entity. The petitioner initially submitted as evidence a 
copy of the U.S. entity's Articles of Incorporation, stock certificate number one, and Notice of Transaction. 
The director denied the petition after determining that the petitioner failed to submit sufficient evidence to 
establish that a qualifying relationship existed between the U.S. and foreign entities as re 
8 C.F.R. 3 214,2(1)(l)(iiXG). The director stated that the main controller of both organizations was 
VP m 
ut that he did not own and control approximately the same share or proportion of each en 1 
lrector also stated the record showed that one individual owned the U.S. entity, and two individuals owned 
the foreign entity. The director concluded by stating that neither an affiliate nor a subsidiary relationship 
existed between the U.S. and foreign entities. 
On appeal, counsel is a 'legal entity'." 
such, the foreign 
entity is the subsidiary o ns I00 percent of the 
U.S. entity, and 
both entities 
owned and controlled by the same .. . individual'." Counsel concludes by asserting that in as much a: 
ns and controls both entities as an individual, the two entities are affiliated. 
On reviewing the petition and the evidence, the petitioner has established that a 
between the U.S. and foreign entities. The evidence of record demonstrates 
percent of the foreign entity and 100 percent of the U.S. entity, thus meeting 
relationship, since the same individual owns and controls both entities through majority ownership. In the 
instant matter, there has been a showing of commonality in the ownership and control of the U.S. and foreign 
entities. Therefore, the director's decision with respect to this issue will be withdrawn. 
Although not directly addressed by the director, another issue is whether the beneficiary has been and will be 
employed in a specialized knowledge capacity, and whether the position to be filled in the United States requires 
specialized knowledge. 
WAC 03 11 1 50283 
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Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1 184(c)(2)(B), provides the following: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has a speciai 
knowledge of the company product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests and its application in 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes and procedures. 
In this matter, the petitioner claims that the beneficiary has been and will be a head chef for its restaurants 
specializing in Chinese cuisine. The petitioner stated in the petition that the beneficiary had been and would be 
responsible for planning and directing food preparation, buying and preparation activities, daily examination of 
menus and dishes served, and participating in the hiring, supervising, and training of new chefs and cooks. In a 
letter of support, dated February 20, 2003, the petitioner stated that the beneficiary, while employed by the 
foreign entity, had undergone extensive chef training and participated in developing the chef-training program 
involving the culinary art of Chinese cooking. 
In response to the director's request for evidence on the subject, the petitioner stated, "the company seeks to 
transfer [the beneficiary] to the U.S. branch restaurant to provide training of newly hired chefs. . . ." The 
petitioner also stated, "[The beneficiary] is not only the Head Chef holding the specialized knowledge and skill 
involving the restaurant's trade secret recipes; he is also one of the three who develops the Chef Training 
program." Although counsel states that the petitioner is petitioning for L-1B intracompany transferee (an 
employee with specialized knowledge) status for the beneficiary, the record does not substantiate its claim. 
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 not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. I (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). 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). The petitioner submitted a copy of the U.S. entity's IRS 
Form 1 120, U.S. Corporate Tax Return for the year 2002, which showed the restaurant's gross receipts or sales in 
the amount of $147,915.00. The petitioner submitted copies of the U.S. entity's payroll records, which showed 
that the U.S. entity employed 20 employees. The petitioner also submitted an organizational chart, which showed 
that the U.S. entity employed two cooks, and that two head chef positions remained unfilled. 
Although the petitioner asserts that the beneficiary's position requires specialized knowledge, the petitioner 
has not articulated any basis to the claim that the beneficiary has been and will be employed in a capacity 
requiring specialized knowledge. The petitioner states that the beneficiary is needed in the United States in 
order to train newly hired chefs, but that assertion is unsupported by evidence of a training program or the 
subject matter of that training. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of SofJicci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Crafr of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
WAC 03 1 11 50283 
Page 6 
Other than submitting a general description of the beneficiary's job duties, the petitioner has not identified any 
aspect of the beneficiary's position that involves special knowledge of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests. In this matter, the record shows that 
the beneficiary prepares Hunan dishes and supervises non-professional, non-managerial subordinate staff. 
The petitioner has not submitted any evidence of the knowledge and expertise required for the beneficiary's 
position that would differentiate that employment from the position of head chef at other employers within the 
industry. Simply going on record without supporting documentary evidence is not sufficient for the purpose 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of Cal$ornia, supra. 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 Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). There has been insufficient 
evidence presented to demonstrate that the beneficiary has been and will be employed in a specialized 
knowledge capacity or that the beneficiary is to perform a job requiring specialized knowledge in the 
proffered position. For this reason, the petition will be remanded to the director for consideration of this 
issue. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought rests solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. 
ORDER: The decision of the director, dated April 16, 2003, is withdrawn. The petition is remanded to the 
director for entry of new decision which, if adverse to the petitioner, shall be certified to the AAO 
for review without requiring an additional appeal fee.