dismissed EB-1C Case: Food And Retail

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prevent clearly ua warran ted 
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U.S. Department of Homeland Security 
20 Mass. Ave., N. W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
LIN 06 254 52259 
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. § 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 or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
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 was organized in the state of Florida claiming to be in the business of operating food and retail 
stores. The petitioner seeks to employ the beneficiary as its 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. 9 1153(b)(l)(C), as a multinational executive or 
manager. The director denied the petition based on the determination that the petitioner failed to establish 
that the beneficiary would be employed in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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. 
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 primary Issue in this proceeding is whether the petitioner would employ the beneficiary in a capacity that 
is managerial or executive. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 9 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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. § 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; 
(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 August 17, 2006, which includes the 
following responsibilities to be assigned to the beneficiary under an approved petition: 
1. 
 Direct operations by developing and implementing strategies and services that meet or 
exceed the needs of the U.S. operations. 
2. 
 Direct and coordinate activities within the organization to obtain optimum efficiency and 
economy in order to maximize profits. 
3. 
 Plan and develop organizational policies and goals, and implement these goals through the 
supervising of employees. 
4. 
 Direct and coordinate promotions to develop new markets. 
Page 4 
5. 
 Analyze budgets to identify areas in which reductions can be made, and allocate [an] 
operating budget. 
6. 
 Supervise and direct preparation of directives to subordinates in the outlining of policies, 
programs or organizational changes to be implemented. 
7. Supervise personnel. 
On July 2, 2007, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide the following documentation to assist Citizenship and Immigration Services (CIS) in determining the 
beneficiary's employment capacity in the proposed position in the United States: I) a detailed description of 
the beneficiary's proposed day-to-day duties with a percentage of time assigned to each duty; 2) the 
petitioner's organizational chart illustrating the beneficiary's position compared to others within the h~erarchy; 
3) the job descriptions of the beneficiary's subordinates; 4) the petitioner's hours of operation and the working 
hours of each staff member; and 5) the beneficiary's W-2 statement for 2006 as well as the petitioner's 
quarterly tax return for the first quarter of 2007. 
The petitioner responded with a letter from its prior counsel, dated September 20, 2007, which included the 
following percentage breakdown of the beneficiary's proposed employment: 
1. 
 Direct operations by deveIoping and implementing strategies and services that meet or 
exceed the needs of the U.S. operations. Direct and coordinate activities within the 
organization to obtain optimum efficiency and economy in order to maximize profits. 30% 
[The beneficiary] will be in charge of the strategic development of the company. He will 
work with the company ownersJdirectors and other managerial personnel in designing and 
implementing company development strategies. He will periodically review the company 
goals and targets and discuss with partners and managers ways to improve the finance and 
operations of the company. 
2. 
 Supervise and direct preparation of directives to subordinates in the outlining of policies, 
programs or organizational changes to be implemented. Plan and develop organizational 
policies and goals, and implement these goals through the supervising of employees. 30% 
[The beneficiary] will direct and lead the operation of the company by working through his 
managers. He makes sure on a daily basis that all of his managers are successfully 
performing their duties. This includes directing and training managers and evaluating their 
performances, establishing local and national sales territories, quotas and goals for the 
company, reviewing and evaluating weekly reports such as control sheets, weekly 
inventory reports, hourly deposits and readings, sales by PLU reports, and coordinator 
reports. 
3. 
 D~rect and coordinate promotions and other marketing activities to develop new markets 
for the company. 20% 
Page 5 
[The beneficiary] will be responsible for the overall marketing of the U.S. operations. He 
will supervise and direct employees to conduct marketing research. He will review various 
marketing proposals, plans and make the final decisions. He will also represent the 
company in various public appearances to promote the company. 
4. 
 Analyze budgets to identify areas in which reductions can be made, and allocate operating 
budgets. 20% 
[The beneficiary] is responsible for making decisions of budgeting and finance. His job 
duties include planning and developing and establishing policies and objectives in order to 
maximize company sales and profits; reviewing plans and objectives to determine progress 
and status in attaining objectives and revising objectives in accordance with the conditions 
at hand. He will work with the managers of the company to make sure that the company 
maintains a healthy financial status. 
The petitioner also provided an organizational chart depicting a multi-tiered hierarchy, including three 
managerial tiers and one tier of employees. The beneficiary's position is directly subordinate to the 
company's directors/shareholders. Subordinate to the beneficiary are the positions of rnarketingjpurchasing, 
which is handled by and operations, which is also handled by and 
, and accounting/payroll, which is outsourced. 
 The only position that is shown as having 
subordinates is that of operations, which is divided in half, giving one management position to - 
and one management position to each of whom is shown as heading a staff of four employees. 
Thus, based on the illustrated hierarchy, and are each supervising themselves in 
their respective managerial positions in addition to having separate job duties under the heading of 
marketingjpurchasing. 
Additionally, the petitioner provided separate job descriptions for each of the three positions that are directly 
subordinate to the beneficiary as well as a weekly schedule for two random weeks in 2007 representing the 
hours worked by the employees in each of the petitioner's two Subway locations. With regard to the job 
descriptions, the position of marketinglpurchasing manager is assigned with conducting market research, 
preparing market reports, presenting marketing plans, and making all necessary purchases; and the position of 
operations manager is assigned with daily operations of the manufacturing factory, assigning work schedules 
to employees, supervising employees to ensure that they comply with proper procedures and safety rules, 
hiring and firing employees, and preparing production reports. In light of the nature of the petitioner's 
business, i.e., owning and operating two Subway restaurants, the petitioner's references to factory and 
manufacturing are confusing. The petitioner provided no explanation nor is there a clear link between 
Subway restaurant businesses and manufacturing of any kind. The petitioner also failed to explain how Mr. 
and make time for the job duties that are associated with their respective 
rnarketingjpurchasing management positions, which appear to be separate and distinct from their respective 
restaurant management duties. It is noted that 
 work schedule for the week of September 11, 
2007 shows that he worked a total of 45 hours. The petitioner provided no explanation as to how much more 
time would contribute to those duties that are outside the immediate realm of managing his 
desigmated Subway location. 
Furthermore, in light of the stores' hours of operation, the AAO notes a considerable anomaly with regard to 
the work schedule of store Specifically, the store's Friday work schedule shows that the earliest time 
Page 6 
any employee began work at that location on September 14, 2007 was 11:OO a.m., even though the store's 
hours of operation during the week were from 9:00 a.m. until 9 p.m. It is unclear who was operating the store 
at that location for the two hours prior to the time the first three employees came on duty to start their 
respective shifts at 11 a.m. 
Lastly, the AAO notes that the probative value of work schedules that reflect the petitioner's hours of 
operation in 2007 is limited, as the Form 1-140 in the present matter was filed in 2006. In addition, the work 
schedule for store shows only three employees working under while the organizational 
chart indicates that 
 had four employees working under him. 
On January 9, 2008, the director issued a decision denying the petitioner's Form 1-140. The director found 
that the petitioner's description of the beneficiary's prospective employment was overly vague, consisting 
primarily of general responsibilities without explanation as to how the beneficiary meets those 
responsibilities. The director further noted that the petitioner failed to explain the apparent discrepancy 
between the 36 Form W-2s it issued in 2006 and the considerably fewer number of employees named in the 
organizational chart. The director concluded that the petitioner failed to establish a need and an ability to 
support a primarily managerial or executive capacity employee. 
On appeal, counsel questions the relevance of the director's observation regarding the number of W-2s issued 
In 2006, asserting that an explanation is not warranted, as the petitioner was merely complying with the 
director's request for W-2 statements. Counsel's argument, however, lacks merit. While the number of W-2s 
in and of itself is not noteworthy, the fact that the number of W-2s issued in 2006 far exceeds the number of 
employees listed in the petitioner's organizational chart glves rise to questions regarding the underlying 
reason for the discrepancy. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). In the present matter, counsel's firm belief that the director's observation 
is irrelevant to the overall issue of the petitioner's eligibility, precludes the petitioner from being forthcoming 
with information that may be dispositive of the director's adverse finding. The AAO notes that while counsel 
provides a number of possible explanations to resolve the inconsistency, there is no indication that counsel's 
statements are factually based. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaighena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 
(BIA 1983); Matter of Rarnirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Additionally, counsel asserts that the beneficiary's subordinates are two managers, who are knowledgeable in 
managing the petitioner's personnel and its finances. Counsel further asserts that the petitioner has sufficient 
personnel at each of its two store locations such that the beneficiary is relieved from the non-qualifying tasks 
that are directly entailed in working in a restaurant. However, as discussed above, the record remains unclear 
as to the petitioner's staffing at the time the Form 1-140 was filed, as the 2006 W-2s do little to establish 
whom exactly the petitioner employed as of August 30,2006. Even if, as suggested by counsel, the petitioner 
issued a large number of W-2s to employees who were briefly employed during intermittent periods 
throughout the tax year, this assertion must be supported with documentary evidence in order to meet the 
burden of proof in these proceedings. Matter of SoSfici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of'Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Moreover, even if the petitioner provided sufficient evidence to corroborate the assertions put forth in the 
organizational chart, there is no presumption that the beneficiary is relieved from having to primarily perform 
non-qualifying tasks merely because the petitioner has a manager and employees at each of its two restaurant 
locations. The underlying assumption is that the only tasks that are performed in the restaurant setting can be 
deemed as non-qualifying and that any tasks that are performed outside that setting are likely to be within a 
managerial or executive capacity. This presumption, however, is erroneous. In examining the executive or 
managerial capacity of the beneficiary, CIS will look first to the petitioner's description of the job duties. See 
8 C.F.R. $ 204.56)(5). Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
In the present matter, the director's RFE specifically addressed the job description the petitioner initially 
provided and clarified what information that description was lacking. While the petitioner acknowledged the 
director's request, the response did not include the requested information, but rather included more of the 
same broad statements that were originally provided. For example, the petitioner indicated that 30% of the 
beneficiary's time would be allotted to designing and implementing development strategies, which would 
involve periodically reviewing company goals and targets. However, the petitioner failed to identify any 
strategies that have been or would be designed and implemented or to specify actual job duties performed or 
to be performed in the design and implementation process. 
The petitioner further stated that another 30% of the beneficiary's time would be allotted to supervising 
subordinates, which would include training managers, evaluating their performances, establishing local and 
national sales temtories, quotas and goals. However, the petitioner failed to explain how the training of 
existing managerial personnel is a realistic daily need and how the managers would arrange the time to be 
trained when their primary concern is running the restaurants that are assigned to them. The petitioner also 
failed to explain the need to asslgn sales territories either locally or nationally. The petitioner owns two 
restaurants that are part of a national franchise, thereby indicating that there are Subway restaurants 
throughout the United States. Why, then, would the petitioner have the need to establish national sales 
territories to sell a product that is already made available throughout the entire country at numerous locations 
or to engage in an activity which is more likely than not performed solely by the franchisor? The broad 
terminology used in describing the beneficiary's employment is not readily applicable to the specific nature of 
the petitioner's restaurant businesses and further perpetuates the confusion as to what exactly the beneficiary 
would be doing on a daily basis. Case law has firmly established the significance of a detailed description of 
job duties, acknowledging that the actual duties themselves reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In the 
present matter, at least 60% of the beneficiary's time would be consumed with tasks that have not been 
defined. Therefore, since the petitioner has failed to specifically identify the tasks that would consume the 
primary portion of the beneficiary's time, the AAO cannot conclude that the beneficiary would be primarily 
employed in a qualifying managerial or executive capacity. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 8 204.56)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position for at least one out of the three years prior to his entry 
to the United States as a nonimmigrant to work for the same employer. It appears that the director made a 
general comparison between the beneficiary's U.S. and foreign job descriptions, suggesting that the two were 
equally lacking in specific job duties. However, it does not appear that the director included the latter as a 
basis for denial. Nevertheless, the director's wording strongly indicates that the job description provided for 
the beneficiary's foreign employment is similarly deficient in its lack of information regarding the 
beneficiary's specific tasks. As previously stated, in order for USCIS to make an informed determination as 
to the capacity in which the beneficiary was employed abroad, the petitioner must provide a detailed 
description of specific job duties. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. As this 
information was not provided, the AAO cannot affirmativeIy determine that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. 9 204.5Cj)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.50)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." Although the 
petitioner provided its various tax documents showing gross income earned in 2004 and 2005, a tax return 
does not show the frequency of the petitioner's sales transactions. As such, it cannot be relied upon to 
determine whether an entity is conducting business on a "regular, systematic, and continuous" basis and the 
petition must be denied for this additional reason. See id. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the MO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
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 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, aff'd, 345 F.3d 683. 
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. $ 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.