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Restaurant Managers Qualify As an L-1 Visa Occupation

January 24, 2013

Pellegrino Bottle and GlassA restaurant manager does qualify for the L-1 non-immigrant visa category, according to recent court decision by the Administrative Appeals Office (AAO), provided that certain criteria are met.

In order to qualify for the L-1 visa classification, the petitioner must establish that the beneficiary employee will work for the petitioner in an occupational position that is one of the following: (1) managerial, (2) executive, or (3) with specialized knowledge. The petitioner must also establish that beneficiary employee has worked in one of the three capacities for one continuous year within the previous three years prior to the filing date of the application. Also, the L-1 petition must establish that the beneficiary employee will oversee other supervisors, will oversee professional employees, or will primarily manage an essential function of business.

In the particular case before the AAO court, the petitioning employer was a company that operated a Japanese cuisine style restaurant with an affiliated company situated in Japan. The employee had already been working for the petitioner as a restaurant manager in the United States with a one-year L-1 visa, which was granted to allow the petitioning company to employ the beneficiary for the purpose of opening a new US office. The petitioning company had filed an extension of the L-1 visa with the USCIS, which was subsequently denied.

The USCIS based its denial upon its conclusion that the employer failed to establish that the employee would be working in the United States primarily in a managerial or executive capacity. The USCIS stated that the employee did not qualify as it concluded that he was a first-line supervisor. The USCIS based this conclusion upon its determination that the managers that would be working under his supervision were not professionals, and it also concluded that he would be assisting his subordinate staff with the day-to-day nonsupervisory tasks of the business.

The petitioner appealed this decision and argued before the AAO court that the beneficiary did qualify because the majority of his time would be spent on managerial responsibilities and that his subordinates would conduct the day-to-day duties of the business. The petitioner argued that the USCIS used an improper legal standard because it is not required for the beneficiary to supervise professionals if it is established that the beneficiary will manage subordinate supervisors. The petitioner also presented argument that the duties of the beneficiary are primarily managerial.

The AAO agreed with the petitioner and sustained the appeal, and it withdrew the USCIS decision. The AAO held that in order to qualify as a manager for purposes of the L-1 visa classification, it must be established that the beneficiary employee will oversee other supervisors, or oversee professional employees, or primarily manage an essential function of business. The AAO held that the USCIS applied the law incorrectly since it required the beneficiary employee to oversee other supervisors who were also professional employees.

Consequently, a restaurant manager may be eligible to work under the L-1 visa category, provided that the occupational position meets the requirements emphasized by the AAO in the above case.

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