dismissed EB-1C Case: Food Service

identifying data deleted 6 
Prevent cb.: ; ufiwarrantd 
invmim of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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. 8 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. 
6 )m- fdL 
obert P. Wie ann, Director 
I 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an organization incorporated in the State of Florida in January 1997. It claims to operate a 
"Subway" franchise and to investigate investment opportunities. It seeks to employ the beneficiary as its 
general managerhusiness development. 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. 3 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition on August 23,2005 determining that the petitioner had not established that it was 
conducting business in a regular, systematic, and continuous manner. The director based her decision on the 
petitioner's claim that it operated one franchise and that the franchise agreement had an initial term of 20 years 
with an option to extend. The director concluded that a company doing business on a conditional or term basis 
was not doing business as required but was operating as an agent. 
On appeal, counsel for the petitioner asserts that: (1) the director erred when determining that the beneficiary's 
employment is temporary, seasonal or term employment; and (2) the director erred when determining that the 
petitioner was operating as an agent. Counsel submits a brief and documentation in support of the appeal. 
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 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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 that 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. See 8 C.F.R. 
fj 204.56)(5). 
The issue in this proceeding is whether the petitioner has established that it was doing business when the 
petition was filed. 
Title 8, Code of Federal Regulations, section 204.56)(3) states: 
(i) Required evidence. A petition for a multinational executive or manager must be 
accompanied by a statement from an authorized official of the petitioning United States 
employer which demonstrates that: 
(D) 
 The prospective United States employer has been doing business for at least one 
year. 
The regulation at 8 C.F.R. tj 204.56)(2) states in pertinent part: "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." 
In a December 22, 2004 letter appended to the petition, the petitioner indicated that it operated a "Subway" fast 
food service and was researching opportunities to invest in additional "Subway" franchises. The petitioner also 
provided its Articles of Organization; a Florida Annual Resale Certificate for Sales Tax for Subway which 
included the petitioner's name; 2004 financial statements for the petitioner-Subway the petitioner's 2002 
and 2003 Internal Revenue Service (IRS) Forms 1120, U.S. Corporation Income Tax Return, identifLing Subway 
in the name portion of the return; and 2003 and 2004 IRS Forms 941, Employer's Quarterly Federal Tax 
Return, listing the petitioner-Subway s the employer. 
On May 2, 2005, the director requested a copy of the franchise agreement betweemRestaurant and 
the petitioner as well as any other pertinent documentation that detailed who owned and controlled the 
franchise. 
itioner provided a copy of 
 dated February 1, 1994 
" a Florida corporation, an 
 an individual, for a "Subway 
Sandwich Shop" to be located in the State of Florida. The etitioner also provided: a copy of a January 17, 
1993 letter advising of a tr 
me 
lment 
indicating that was self-emplo ed but also listin as Isac 
mployer and indicating thatas 
 ontract for sale 
of a "Subway Sandwich Shop" dated February 1, 1994 between 
 buyer and two 
individuals as sellers; a conveyance to Isac Efraim for his purchase of fixtures, goods, and the lease pertaining 
to a Subway Sandwich Shop, dated February 1, 1994; and other documentation listing Isac Efraim as the 
buyer of the Subway Sandwich Shop franchise 
= 
As noted above, the director denied the petition on August 23, 2005 determining that the petitioner as a 
franchisee could not be considered as conducting business in a continuous, systematic, and regular fashion. 
On appeal, counsel for the petitioner asserts that the Subway Sandwich Shop has been operating since 1997 
and is a successful business and will continue to be successful. Counsel also notes that the petitioner "also 
manage other Subway franchise -  ranchi is "managed the operations of an additional 
restaurant, Captain Shrimp Seafood House and Genuine Broaster Chicken, and on August 1, 2005 [the 
petitioner] purchased 100% of the shares of Monster Burger, Inc., the company operating the restaurant in 
Lauderhill, Florida." 
 es, among other items, copies of a franchise agreement between "Doctor's 
for Subway Franchise 28624, copies of Monster Burger, Inc.'s share ' and- 
certificate number 2 to s ow a 
 transferred 100 shares to the petitioner on August 1,2005. 
Counsel's assertion and evidence is not persuasive. Preliminarily, the AAO observes that the director did not 
correctly analyze the deficiencies in the record regarding the issue of the petitioner's doing business. 
Likewise, counsel does not adequately address the deficiencies in the director's reasoning on appeal. 
However, generally, the AAO will find that a company that conducts business as a franchisee may be 
considered doing business in a continuous, systematic, and regular manner. In this matter, however, the 
petitioner has not established that it is doing business as a franchisee or otherwise. 
The record of proceeding does not include a mana ement agreement or other documentation establishing that 
the petitioner manages the Subway franchise # h The documentation in the record reflects that an 
individual owns and operates the franchise. The AAO acknowledges that the owner of Subway franchise 
references the petitioner's name on some official documents; but referencing the petitioner is 
insufficient to establish that the petitioner manages, operates, or otherwise conducts Subway franchise 
business. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Crafi of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The record lacks 
documentary evidence that the petitioner manages or operates Subway franchise 
Counsel's submission of a second Subway franchise agreement and other evidence that Isac Efraim owns 
other restaurants is not pertinent to the matter at hand for the same reasons discussed above. Counsel's 
assertions that the petitioner manages these other restaurants are also not persuasive. 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 Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter oflaureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Finally, counsel's submission of documentation to establish that the petitioner purchased shares in a restaurant 
in August 2005, eight months after the petition was filed is not pertinent to the record of proceeding in this 
matter. A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future 
Page 5 
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Kutigbak, 14 I&N 
Dec. 45,49 (Comm. 1971). 
A proper analysis of the record of proceeding in this matter reveals that the petitioner has not established that 
it was conducting business as a manager of franchised sandwich shops or other restaurants. The petitioner has 
not established a legal connection between itself and the business conducted at the Subway franchises or other 
restaurants when the petition was filed. For this reason, the petition will not be approved. 
Beyond the decision of the director, the petitioner has not established a qualifying relationship between the 
claims that Turfe 
. The petitioner 
tda. in the amount 
of 5,100 shares on January 7, 1997 to establish this fact. However, the IRS Forms 1120, included in the 
record of proceeding indicate on Schedule E that an officer, identified only by a social security number, owns 
100 percent of the petitioner's outstanding shares. Thus, the record is inconsistent and insufficient to establish 
a qualifying relationship between the petitioner and the beneficiary's foreign employer. 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. Mutter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). For this 
additional reason, the petition will not be approved. 
In addition, the petitioner has not established that the beneficiary will be employed in a managerial or 
executive capacity for the U.S. petitioner. See 101(a)(44)(A) and (B) of the Act. The petitioner indicates in 
its December 22, 2004, letter submitted in support of the petition, that the beneficiary "will continue to 
conduct and control all operations and strategic management activities, in the US." The petitioner added: 
He will set and review corporate objectives for its expansion, coordinate the purchasing of 
new franchises, product development, directing the expense control of the company, 
including outsourcing services, personnel evaluation and hiring and firing, he will review 
financial statements and analysis of the company, identify and develop business opportunities 
and project feasibility. 
[The beneficiary] will continue to develop guidelines and policies to be adhered by 
managerial, sales and support personnel. He will be responsible to identify new business 
opportunities in the US and he will serve as liaison between vendors and distributors. This 
position is a highly managerial and executive position as he will be responsible for the 
general management and business development of [the petitioner]. 
The petitioner also provided an organizational chart showing the beneficiary's proposed position of general 
managerhusiness development over "Subway which included two shift managers and three sales 
associates and an outsourced accounting position. 
The petitioner's description of the beneficiary's duties is vague and does not provide a comprehensive 
understanding of the beneficiary's duties on a daily basis. In addition, the petitioner indicates that the 
beneficiary will identify new business opportunities in the United States and serve as a liaison between 
vendors and distributors. This information suggests that the beneficiary will perform operational tasks rather 
than managerial or executive tasks. An employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Moreover, evidence in the record 
including the petitioner's organizational chart, the identify of the employees working at the sandwich shop, 
and the sandwich shops hours of operation, when considered together, suggests that the beneficiary will assist 
in the daily tasks necessary to operate the sandwich shop or at most, act as a first-line supervisor of 
non-professional employees. A managerial or executive employee must have authority over day-to-day 
operations beyond the level normally vested in a first-line supervisor, unless the supervised employees are 
professionals. Id. For this additional reason, the petition will not be approved. 
Further, the petitioner has not established that the beneficiary was employed in primarily a managerial or 
executive capacity for the foreign entity. Although the petitioner indicates that the beneficiary held the 
executive position of vice-president and that he is "uniquely qualified to assume core duties" for the 
petitioner, the petitioner has not provided a detailed description of the beneficiary's duties for the foreign 
entity. 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. 9 204.50)(5). Titles alone are not informative and 
do not establish the actual duties of the beneficiary. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). For this additional reason, the petition will not be approved. 
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), affd. 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 AAO reviews 
appeals on a de novo basis). 
Lastly, the AAO acknowledges that the beneficiary received an L-1A nonimmigrant visa petition approval 
prior to filing this petition. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See 9 9 10 1 (a)(44)(A) and 
(B) of the Act, 8 U.S.C. tj 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimrnigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cf: $5 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also 3 316 of the Act, 8 U.S.C. § 1427. 
In addition, it must be noted that many Form 1-140 immigrant petitions are denied after Citizenship and 
Immigration Services (CIS) approves prior nonimmigrant Form 1-129 L-1 petitions. See, e.g., Q Data 
Page 7 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because CIS spends 
less time reviewing Form 1-129 nonimmigrant petitions than Form 1-140 immigrant petitions, some 
nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
at 29-30; see also 8 C.F.R. tj 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L-1A petition's validity). The AAO is not bound or estopped by the previous decisions of the service 
center director. 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 (E.D. La.), afd, 248 F.3d 1139 
(5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Moreover each nonimrnigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. See 8 C.F.R. 8 103.8(d). The 
approval of a nonimmigrant petition does not guarantee that CIS will approve an immigrant petition filed on 
behalf of the same beneficiary. As the evidence submitted with this petition does not establish eligibility for 
the benefit sought, the director was justified in departing from previous nonimmigrant approvals by denying 
the immigrant petition. 
Further, if the previous nonimmigrant petitions were 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 CIS 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). 
In this instance, the petitioner's lack of actual business, the deficient descriptions of the beneficiary's duties 
for both the petitioner and the foreign entity, and the petitioner's lack of a qualifying relationship with the 
foreign entity demonstrate the beneficiary's ineligibility for this visa classification when the petition was filed. 
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. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.