dismissed EB-1C Case: Bakery

U.S. Department of IIon~eland Security 
20 Mass. Ave., N.W., Rni. 3000 
Washington, DC 20529-2090 
identifying data deleted to 
Prevent clearly un Warrated 
 U.S. citizenship 
hvaim ofpersonal privacy and Immigration 
Services 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b)(l)(C) 
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. 
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, as required by 8 C.F.R. 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a limited liability company organized in the State of Florida for the purpose of 
operating as a bakery, pastry shop, and delicatessen. The petitioner seeks to employ the beneficiary 
as its bakery general manager. Accordingly, the petitioner endeavors to classify the beneficiary as 
an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or manager. The 
director denied the petition based on three independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; 2) the petitioner failed to establish that it would employ the beneficiary in a qualifying 
managerial or executive capacity; and 3) the petitioner failed to establish that it has a qualifyng 
relationship with the beneficiary's foreign employer. 
On appeal, counsel disputes all three grounds for denial and further addresses the issue of the 
petitioner's ability to pay. The AAO hereby notes that while the director addressed the petitioner's 
ability to pay, he made a favorable determination with regard thereto, finding that the record does 
not warrant an adverse finding. As such, counsel's arguments with regard to this issue will not be 
addressed further. The AAO also finds that the petitioner has provided sufficient evidence and 
information to establish that the beneficiary was more likely than not employed abroad in a 
qualifying managerial or executive. Therefore, the AAO hereby withdraws this issue as a basis for 
ineligibility and will limit the current discussion to the two remaining issues-the beneficiary's 
employment capacity in his proposed position with the U.S. entity and the petitioner's qualifying 
relationship with the beneficiary's foreign employer. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
Page 3 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
The first issue in this proceeding calls for an analysis of the beneficiary's job duties. Specifically, 
the AAO will examine the record to determine whether the beneficiary would be employed in the 
United States in a qualifying managerial or executive capacity. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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. 5 1 101 (a)(44)(B), provides: 
The term "executive capacity" means 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; 
Page 4 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated April 30, 2007, which includes 
the following description of the beneficiary's proposed employment with the U.S. petitioner: 
He will direct and coordinate activities involved with the production, sale, and 
distribution of bakery products. He will manage and direct subordinate managers and 
personnel. He will determine the variety and quantity of bakery products to be 
produced, [sic] according to orders and sales projections. He will develop budget for 
the bakery operation, utilizing experience and knowledge of current market 
conditions. He will direct sales activities, following standard business practices. He 
will plan product distribution to customers, and will negotiate with suppliers to 
arrange [the] purchase and delivery of bakery supplies. He will implement, through 
his subordinate managerial personnel, policies to utilize human resources, machines, 
and materials productively. He [will] train subordinates in all phases of bakery 
activities and will hire and discharge employees. He will confer with [the] chief 
administrative officer and other administrative personnel to review achievements and 
discuss required changes in goals or objectives resulting from current status and 
conditions. He will have wide discretional [sic] authority over decision[-]making, 
and full authority to manage. 
On September 6, 2007, the director issued a request for additional evidence (RFE) informing the 
petitioner that the beneficiary's proposed job description that was initially submitted was insufficient 
to establish eligibility. Accordingly, the petitioner was instructed to provide another job description 
using plain language when listing the beneficiary's proposed job duties in much greater detail. The 
petitioner was asked to allocate the percentage of time to be spent on each duty. The director 
cautioned the petitioner against lumping tasks together when estimating the time spent on each. 
Additionally, the director asked the petitioner to provide an organizational chart illustrating its 
staffing structure and the beneficiary's placement therein, as well as a job description of each 
employee named in the chart. 
In response to the above, the petitioner provided a letter dated October 10, 2007, which included a 
supplemental description of the beneficiary's proposed U.S. employment, which he divided into two 
main areas of concentration-directing and coordinating activities regarding production, sale, and 
distribution of bakery products to which approximately 20% of the beneficiary's time would be 
allotted, and managing and directing subordinate managers and personnel to which approximately 
80% of the beneficiary's time was allotted. Each category was further subdivided into job duties to 
which a more specific percentage of time was assigned. As the director provided this job description 
in its entirety in his decision, this information has been incorporated into the record and need not be 
Page 5 
restated in the present decision. A full discussion of the stated duties and the director's findings with 
regard thereto will be provided below. 
The petitioner also provided two organizational charts-one illustrating the organizational hierarchy 
of the entire U.S. operation including six store locations, and the other illustrating the organizational 
hierarchy of the specific bakery location where the beneficiary would assume one of three claimed 
general manager positions. The latter depicts the beneficiary at the top of the organization with two 
bakery general managers as his direct subordinates, both of whom are shown as overseeing the work 
of an operations manager. The operations manager is shown as overseeing the production manager, 
who oversees the bakery staff, consisting of a master baker, baker, and assistant baker, as well as a 
customer service staff, consisting of seven customer service leads. 
On May 2, 2008, the director issued a notice denying the petition, issuing several findings, one of 
which was that the petitioner failed to establish that the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity. The director restated the beneficiary's job 
description and discussed the organizational chart, both of which were provided in response to the 
RFE. It is noted that in his discussion of the organizational chart, the director stated that the 
beneficiary oversees bakery general manager #2, who oversees bakery general manager #3. The 
AAO notes that the organizational hierarchy illustrated in the chart that was submitted in response to 
the RFE shows bakery general managers #2 and #3 as being at the same level within the 
organizational hierarchy. With the exception of the beneficiary's position as bakery general 
manager, there is no indication that either of the other two general managers is at a higher placement 
within the hierarchy than the other. As such, the erroneous comment is hereby withdrawn. The 
AAO has conducted its own, independent review of the petitioner's organizational chart and all other 
supporting evidence prior to making its final determination. 
That being said, the director made other valid observations that contributed to his overall conclusion. 
Namely, the director observed a disproportionate number of managerial versus staff employees 
within the petitioner's personnel structure. The director also noted the overlapping job duties 
attributed to members of the management staff and further speculated on the likelihood of the 
beneficiary having to primarily perform non-qualifying job duties and supervising non-professional 
employees in light of the need to spread out the management staff among the various shifts during 
the store's hours of operation. Lastly, the director questioned the validity of the job description 
submitted in response to the WE, noting that several of the job duties are vague and fail to convey 
an understanding of the specific tasks the beneficiary would actually perform. The director 
specifically noted the generality of the petitioner's responsibility to implement policies regarding the 
productive distribution of human resources, machines, and materials to which the petitioner 
attributed 20-25% of the beneficiary's time. 
The AAO concurs with the director's observation and finds that other job duties in the description 
were equally vague. Namely, the petitioner attributed 5-10% of the beneficiary's time to directing 
sales activities and customer service, and another 20-25% of the beneficiary's time to supervising the 
managerial and other subordinate personnel. However, neither duty conveys what specific tasks the 
beneficiary would perform. In other words, how exactly would the beneficiary direct sales and 
customer service and how would he supervise subordinates. Neither set of responsibilities is defined 
with specific tasks. Specifics are clearly an important indication of whether a beneficiary's duties 
Page 6 
are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the 
employment. Id. 
Additionally, the beneficiary's job description includes a number of job duties that cannot be readily 
identified as being within a qualifying capacity. Specifically, it is unclear how developing the 
bakery's budget, which would consume 5-10% of the beneficiary's time, is a qualifjlng managerial 
or executive task. Similarly, negotiating purchases and deliveries of bakery supplies, which would 
also consume 5-10% of the beneficiary's time, is indicative of a daily operational task rather than a 
task within a qualifying capacity. Next, the petitioner attributed 15-20% of the beneficiary's time to 
training, hiring, and firing bakery employees. There is no evidence, however, that the staff to be 
trained would be comprised of supervisory, professional, or managerial employees. See section 
101(a)(44)(A)(ii) of the Act. The same amount of time was also attributed to conferring with a chief 
administrative officer, a position that is not identified in either of the organizational charts submitted, 
and with other administrative personnel. 
Therefore, it appears that, between 40% and 60% of the beneficiary's time would be spent 
performing non-qualifjlng, operational tasks with another 25-35% percent of the beneficiary's time 
attributed to general job responsibilities whose specific tasks have not been identified. The AAO 
notes that an employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 
I&N Dec. 593, 604 (Comm. 1988). Based on the above assessment of the beneficiary's time 
allocation, the AAO cannot conclude that the beneficiary would spend the primary portion of his 
time performing tasks within a qualifjlng managerial or executive capacity. 
Counsel addresses the issue of the beneficiary's proposed employment in her appellate brief, where 
she cited National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472 (5th Cir. 1989), and Mars Jewelers 
v. I.N.S., 702 F. Supp. 1570 (N.D. GA 1988), in support of the contention that the number of 
subordinates to be supervised by the beneficiary should not be a factor in determining whether the 
beneficiary's position fits the definition of managerial and/or executive capacity. However, in 
accordance with the holding in National Hand Tool Corp. v. Pasquarell, the director did not deny 
the petition based on the size of the petitioning organization. In addition, there is no indication that 
the director's decision was based on the number of employees the beneficiary would oversee. 
Rather, the director's more immediate concern deals with the nature of the prospective duties the 
beneficiary would perform and his supervision of non-professional employees, both of which are 
issues that the AAO has specifically addressed in this decision. Furthermore, counsel's reliance on 
Mars Jewelers v. I.N.S. is misplaced. The court clearly states in its decision that the error made by 
the legacy Immigration and Naturalization Service (INS) was applying the 1987 regulations instead 
of the 1983 regulations to a petition filed in 1986. Mars Jewelers v. I.N.S., 702 F. Supp. 1570, 1575. 
Thus while the court found that the beneficiary in that matter was not a first-line supervisor under 
the 1983 regulations, it implied that this would have been the case had the 1987 regulations applied. 
Id. at 1575. Specifically, the court in Mars Jewelers v. INS. stated the following: 
It is apparent that the INS was inappropriately applying its 1987 regulations to this 
factor. Under the 1987 regulations, one of the requirements of a manager is that he 
"supervises and controls the work of other supervisory, professional, and managerial 
employees. . . ." 8 C.F.R. 5 214.2(1)(l)(ii)(B) (1988). This language is not in the 1983 
regulations. 
Id. (footnote omitted). Thus, contrary to the assertions of counsel, as the present petition was filed in 
2004, it would have been legal error for the director to apply the obsolete 1983 regulations and the 
holding of Mars Jewelers v. I.N.S. to the present matter. 
Counsel also refers to an unpublished decision in which the AAO determined that the beneficiary 
met the requirements of serving in a managerial and executive capacity for L-1 classification even 
though he was the sole employee. However, counsel has furnished no evidence to establish that the 
facts of the instant petition are analogous to those in the unpublished decision. While 8 C.F.R. 
5 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Counsel's contention that the petitioner's previously approved L-1 employment of the beneficiary 
sets precedent for the action that is to be taken with regard to a subsequently filed Form 1-140 is also 
without merit. In fact, the approval of a nonimmigrant petition in no way guarantees that USCIS 
will approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many I- 
140 immigrant petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103. The AAO is not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 
at 597. In fact, if the previous nonimmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the approvals would constitute 
material and gross error on the part of the director. 
Lastly, counsel's numerous references to the petitioner's gross profits and the large corporate 
structure, of which the petitioner is a component, are irrelevant for the purpose of determining 
whether the beneficiary merits classification as a multinational manager or executive. As indicated 
above, in examining the executive or managerial capacity of the beneficiary, the AAO first reviews 
the petitioner's description of the proposed job duties. 
 See 8 C.F.R. fj 204.56)(5). 
 Another 
contributing factor is the beneficiary's placement in the petitioner's organizational hierarchy. In light 
of the above discussion, which examines these and other relevant factors, the AAO finds that the 
director's decision with regard to the issue of the beneficiary's proposed employment was warranted. 
The other issue in this proceeding is whether the petitioner has a qualifying relationship with the 
beneficiary's foreign employer. 
The regulation at 8 C.F.R. 5 204.5Cj)(2) states in pertinent part: 
AfJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) 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; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
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 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
In the present matter, the petitioner claims to be a subsidiary of the entity that employed the 
beneficiary abroad. In support of this claim, the petitioner provided the following documentation: 
1. 
 The petitioner's Articles of Organization, filed on January 17, 2001 with the State of 
Florida Division of Corporations. Article IV of the document states that the 
petitioner is a manager-managed company, and Article V of the same document 
- - 
itates that the managing member is ~- 
2. 
 Membership certificate No. 1, showing 2001 as the year of issue and naming = 
as a member of the petitioning entity to whom 51 of the petitioner's 
units were assigned. The cert 
document, dated September 19, 
5 1 % of its membership interest to 
the attorney who would ensure the transfer of interest. 
3. 
 Membership certificate No. 2, similarly containing only the year of issue (2001), 
assigning 49 of the petitioner's units to This certificate is accompanied 
by an assignment document, dated May 16, transferred 
his ownership interest in the petitioning entity to 
4. 
 Membership certificate No. 3 dated May 16, 2003, issuing the above 49 shares to 
, accompanied by an 
 September 19,2003, 
transfemng units to 
5. 
 Membership certificate No. 4 dated January 1, 2003, issuing 5 1% of the ~etitioner's 
-, - 
units to 
 This certificate is accompanied by an assignment document 
dated SetcmbcrO5, transfening the 5 1 % of the petitioner's units to - 
P 
Page 9 
6. 
 Membership certificate No. 5 dated September 19, 2003, issuing 49% of the 
petitioner's units to - 
7. Membership certificate No. 6 dated September 9, 2005, issuing 51% of the 
In reviewing the above documents, a number of inconsistencies were observed, causing the AAO to 
strongly question their authenticity and, therefore, the validity of the transfers of interest they 
purported to place in effect. First, the petitioner's Articles of Organization clearly names - 
as the petitioner's managing member, thereby indicating that she is the owner of the 
petit~onlng ent~ty. As such, certificate No. 1 appears to be inconsistent with the petitioner's Articles 
of Organization, as it purported to convey a membership interest from 
whose membership interest in the petitioning entity had not been 
that point was identified as the petitioning entity's sole owner and therefore the only one with any 
authority to convey ownership. For similar reasons the AAO questions the validity of membership 
certificate No. 2 in which purports to convey ownership interests that have not been 
established as belonging to him in the first place. As stated above, 
 according to the 
petitioner's own Articles of Organization, had been named as the sole managing member. 
 It 
therefore follows that none of the successive membership certificates (Nos. 3-6) can be deemed valid 
as they all stem from the assumption that at some oint had transferred 51% of the 
petitioner's shares ownership interests to & and 49% to However, the 
AAO cannot assume that initiated such transfers of ownership without supporting, 
corroborating evidence. See Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Further, the fact that certificate nos. 1 and 2 fail to cite the specific date of issue poses further 
problems, as this deficiency prevents the AAO from being able to determine whether the transfer 
documents that purported to authorized the transfer of ownership were consistent with the 
membership certificates. 
Lastly, the assignment document in No. 3 above is inconsistent with the membership certificate in 
No. 5 above. Namely, the assignment document, which was meant to authorize the transfer of Mr. 
ownership interest to 
 was dated after membership certificate No. 4, therefore 
indicating that the shares were not authorized for transfer when membership certificate No. 4 was 
issued. This inconsistency casts yet further doubt on the validity of either of these documents. 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982). In the present matter, while the petitioner has attempted 
to meet the regulatory requirement cited in 8 C.F.R. 5 204.5(j)(3)(i)(C) by providing evidence of a 
qualifying relationship, the documentation provided is fraught with considerable deficiencies and 
inconsistencies. Precedent case law has well established the petitioner's burden to resolve any 
inconsistencies in the record by independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
 Here, the inconsistencies cited above by the AAO have neither been 
acknowledged nor resolved. Therefore, the AAO cannot conclude that the beneficiary's foreign and 
prospective U.S. employers are similarly owned and controlled. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencev Enterprises, Inc. v. United States, 229 F. Supp. 2d 1 025, 1 043 
(E.D. Cal. 2001), afd, 345 F.3d 683 (9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.