dismissed EB-1C Case: Food Production

identifying data deleted to 
prevent c1eariy unwarranted 
invasion of personal privac} 
PuBUCCOpy 
DATE: JUL 1 3 2011 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
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. § lI53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.ulcis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Georgia limited liability company that seeks to employ the beneficiary as its food 
production manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment­
based immigrant pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.s.C. 
§ Il53(b )(1 )(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to provide supporting 
evidence at the time of filing the Form 1-140. The director addressed various eligibility criteria cited at 
8 C.F.R. § 204.5(j)(3)(i) and found that the record fails to establish that I) the U.S. entity has been doing 
business in the United States; 2) the beneficiary was employed abroad in a qualifying capacity during the 
requisite time period by a branch, affiliate, or subsidiary of the U.S. entity; and 3) the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
On appeal, counsel states that the beneficiary will be employed as a manager and indicates that additional 
evidence andlor information will be submitted within thirty days of the appeal. The petitioner has since 
supplemented the record with supporting documentation and asks that the AAO approve the petition. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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. 
Page 3 
The first issue to be addressed in this discussion is whether the petitioner has established that it has been 
doing business. 
The regulation at 8 C.F.R. § 204.5(j)(3)(i)(D) requires the petitioner to provide evidence to establish that it 
has been doing business for at least one year prior to filing the Fonn 1-140. The regulation at 8 C.F.R. 
§ 204.5(j)(2) defines doing business as "the regular, systematic, and continuous provision of goods andlor 
services by a finn, corporation, or other entity and does not include the mere presence of an agent or office." 
As properly noted in the denial, the petitioner did not provide any supporting evidence at the time the Form 1-
140 was filed and thus failed to establish that the U.S. entity had been doing business. 
On appeal, states that both the foreign entity and the U.S. 
petitioner continue to do business. to tax documents, bank statements, payroll records, and 
corporate reports' as evidence that both entities are doing business. 
The petitioner's supporting documentation, however, is insufficient to establish that the U.S. entity had been 
doing business during the one-year period prior to filing the instant petition or that it is currently doing 
business. Despite _belief, none of the documents referenced provide an accurate measure of the 
regularity or continuity with which the petitioner had been carrying out business transactions. While both tax 
and payroll documents establish the existence of the petitioner as a business entity, such documents do not 
establish that the petitioner has sold its goods and services on a regular, systematic, and continuous basis. As 
such, these documents do not allow the AAO to detennine whether the petitioner was doing business in the 
time and manner prescribed by 8 C.F.R. § 204.5(j)(3)(i)(D). 
Next in this proceeding, the AAO will address the regulatory criterion cited at 8 C.F.R. § 204.5(j)(3)(i)(B), 
which requires the petitioner to 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 a branch, affiliate, or subsidiary of the beneficiary's foreign employer. 
As a threshold matter, the AAO notes that the above regulatory requirement is comprised of multiple parts. 
The first part requires the petitioner to establish that the beneficiary was employed abroad in a qualifYing 
managerial or executive capacity; the second part requires the petitioner to establish that the qualifYing 
employment took place during a specific time period; and the remaining part of the regulation requires the 
petitioner to establish that the beneficiary's prospective U.S. employer is a branch, affiliate, or subsidiary of 
the foreign employer where the beneficiary had been previously employed. 
I The AAO notes that, while the petitioner's letterhead indicates that it is doing business under the name 
official document that was issued by the State of Georgia Department of Revenue indicates that 
the petitioner's official name is and that this 
Although it appears that are one and the same, the inconsistency 
between the petitioner's letterhead and the official state document was not addressed or explained. 
2 While not germane to the findings issued herein, the record contains no evidence that the petitioner supplemented the 
record with the U.S. entity's audited financial reports. Additionally, while the foreign entity's financial reports have been 
submitted on appeal, there is no evidence to establish that these were audited reports as claimed on appeal. 
Page 4 
In the present matter, the record does not establish that the petitioner met any of the three criteria that 
comprise 8 C.F.R. § 204.5U)(3)(i)(B). 
First, with regard to the issue of managerial or executive capacity, the AAO notes that a detailed description 
of the beneficiary's specific job duties is crucial, as the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103,I!08 (ED.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient. Here, the petitioner has not provided a description of the job duties the beneficiary performed 
during his employment abroad. 
With regard to the second element-the time period of foreign employment-the petitioner has not provided 
any documentation to establish when the beneficiary's employment abroad took place. As such, even if the 
petitioner were able to establish that the foreign employment was within a qualifying managerial or executive 
capacity, there is no evidence to establish that the time period and duration of the foreign employment meets 
the regulatory req uirement. 
Lastly, the petitioner has not established that the beneficiary's U.S. employer is the same employer, or an 
affiliate or subsidiary ofthe beneficiary'S employer abroad. 
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 (B[A 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 [&N Dec. 362 (BIA [986); Matter of Hughes, 18 [&N Dec. 289 
(Comm. [982). [n the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 [&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems. Inc., 19 I&N Dec. 362. Without full disclosure 
of all relevant documents, USC[S is unable to determine the elements of ownership and control. 
In the present matter, while the petitioner provided a copy of a membership certificate dated January I, 2008 
showing the issuance of 100,000 units the beneficiary'S claimed foreign employer, 
the petitioner's 2008 partnership tax return, identified a total of six shareholders, each 
owning between 10-25% of the U.S. entity. Thus, based on the information provided in the tax return, the 
petitioner is not a subsidiary of the claimed. In fact, while 
is among the shareholders, owing 20% of the petitioner, there is no evidence that this entity is 
any way to the beneficiary'S claimed foreign employer such that the foreign employer can be 
deemed one of the owners of the petitioning entity. 
Page 5 
The inconsistency between the petitioner's membership certificate and its 2008 tax return creates two 
problems. First, the fact that the anomaly exists is in itself an issue of credibility. 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). Here, no such 
objective documentation has been provided to establish the reason for or resolution to the inconsistency. 
Second, if the petitioner has six distinct owners and is not the foreign entity's subsidiary as claimed via the 
membership certificate, the burden is on the petitioner to establish that the foreign entity is owned and 
controlled by the same group of individuals with each individual owning and controlling approximately the 
same share or proportion of each entity. See the definition of affiliate at 8 C.F.R. § 204.5(j)(2). The 
petitioner has not, however, provided evidence to establish that it is an affiliate of the foreign entity. 
Therefore, the AAO finds that the record fails to establish that the petitioner meets any of the three criteria 
that comprise 8 C.F.R. § 204.5(j)(3)(i)(B) and on the basis of this second adverse conclusion the instant 
petition cannot be approved. 
The third issue to be addressed in this proceeding deals with the beneficiary's proposed employment with the 
U.S. petitioner and whether such employment falls within the statutory definition of managerial or executive 
capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § I 10 I (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization In which the 
employee primarily--
(il 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 10 1 (a)(44)(B) of the Act, 8 u.s.c. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization In which the 
employee primarily--
-Page 6 
(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- I 40, the petitioner appended the following list of the beneficiary's proposed duties 
and responsibilities: 
• Responsible for the production of food which meets the quality standards for food service and 
procurement of food products including purchasing, order, receiving, storing and unit 
inventory quantities of food and supplies necessary for menus; 
• Responsible for training, supervising, direction, motivation and disciplining of staff; 
• Responsible for development and execution of fundamental strategies required to deliver 
financial targets while creating sustainable competitive advantages; 
• Develop and apply strategic insights to guide business in addressing needs across the entire 
food service value chain; 
• Coordinate activities of and direct indoctrination and training of chefs, cooks and other 
kitchen workers engaged in preparing and cooking various foods ... ; 
• Plan and regularly update menus, serving armngements and utilization of food surpluses .... 
• SpecifY food portions and courses, production and time sequences, and work station and 
equipment arrangements; 
• Inspect supplies, equipment and work areas to ensure efficient service and conformance to 
standards; 
• Analyze operational problems such as theft and wastage and establishes [sic] controls; 
• Schedule corporate parties and reservations; 
• Develop plans to operate the new locations, supervise and direct personnel program and 
training, will negotiate contracts; coordinate production and product quality in accordance 
with policies, principles and procedures established by the business owner. 
Page 7 
On appeal, the petitioner provided a similar job description paraphrasing and repeating most of the items 
included in the initial list of duties and responsibilities. The petitioner also provided an additional job 
description with percentage breakdowns allocating the beneficiary's time as follows: 
• Strategic planning including planning production schedule within budgetary limitations and 
time constraints analyzing personnel and other resources to select the best way of meeting 
production quota and determine the equipment to be used, the work shifts that are necessary, 
and the sequence of production; develop [aJ position control system to contain labor cost; 
coordinate the resources and activities required to meet demands of customers; decide on the 
maintenance and or replacement of equipment; work out the most efficient methods of 
producing a wide and varied range of gourmet boutique products prepared to customers' 
specifications and timely delivered, supervise/perform business functions[.J 60% 
• Working with the purchasing department and suppliers to improve the quality of the products' 
components; oversee ordering of stock and coordinate export orders[.J 30% 
• Financial matters including evaluating costs and revenues[.J 10% 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5Ul(5). Reciting the beneficiary'S vague job 
responsibilities or broadly-cast business objectives is not sufficient. The petitioner must establish what the 
beneficiary will primarily do on a daily basis, as the actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (ED.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
would perform are only incidental to hislher proposed position. 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 IOI(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. at 604. 
In the present matter, while the petitioner has provided enough information to establish that the beneficiary 
has discretionary authority over the petitioner's employees and business operations, the above job descriptions 
fail to establish that the primary portion of the beneficiary's time would be allocated to tasks within a 
qualifying managerial or executive capacity. Despite the likelihood that a considerable portion of the 
beneficiary's time would be spent managing subordinate personnel, the petitioner failed to establish precisely 
how much of his time would be allocated to personnel-related matters nor is there any indication that the 
beneficiary would primarily oversee the work of managerial or professional employees. The record also 
indicates that the beneficiary would be involved in contract negotiation and various customer service tasks, 
neither of which can be categorized as being within a managerial or executive capacity. 
In summary, the petitioner did not provide a sufficiently detailed delineation of the beneficiary'S tasks and 
failed to establish that the primary portion of the beneficiary'S time would be spent performing tasks within a 
qualifying managerial or executive capacity. Therefore, on the basis of this third adverse finding, the instant 
petition cannot be approved. 
Page 8 
Finally, with regard to the petitioner's previously approved L-1 employment of the beneficiary, the AAO 
notes that each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. USCIS is not required to assume the 
burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. 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 1-140 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; lKEA 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 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. 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, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (ED. La.), affd, 248 F.3d 1139 (5th Cir. 
200 I), cert. denied, 122 S.C!. 51 (2001). 
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.