dismissed EB-1C Case: Food Service

(b)(6)
DATE: MAR 2 4 2014 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
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) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-2908) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
L/tL 
'/- Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a New York limited liability company operating as a bakery and cafe. It claims to 
be a subsidiary of the beneficiary's foreign employer located in Turkey. The petitioner is seeking to 
employ the beneficiary as its "Store & Production Manager." Accordingly, the petitioner filed a 
Form I-140, Immigrant Petition for Alien Worker, 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. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish: (1) that it would 
employ the beneficiary in a qualifying managerial or executive capacity; (2) that the foreign entity 
had employed the beneficiary in a qualifying managerial or executive capacity; (3) that the 
petitioner had been doing business for at least one year prior to filing the petition; or (4) that the 
foreign entity is doing business as defined in the regulations. 
On appeal, counsel disputes the director's findings and submits a brief with ten exhibits including 
utility bills, bank statements, corporate papers, and tax forms. 
I. TheLaw 
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. 
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A United States employer may file a petition on Form I-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. 
Additionally, the regulations at 8 C.P.R. § 204.5U)(3)(i) state that the petitioner must provide the following 
evidence in support of the petition in order to establish eligibility: 
(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at 
least one year in a managerial or executive capacity by a firm or corporation, or 
other legal entity, or by an affiliate or subsidiary of such a firm or corporation or 
other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas ; and 
(D) The prospective United States employer has been doing business for at least one 
year. 
II. Employment in a Managerial or Executive Capacity 
The first issue to be addressed is whether the petitioner established that it would employ the 
beneficiary in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 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; 
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NON-PRECEDENT DECISION 
(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. § 1101(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. 
A. Facts 
The petitioner filed the Form I -140 on December 31, 2012 and asserted that the beneficiary would 
be employed as its "Store & Production Manager." The petitioner stated that it operates a bakery 
and cafe business with ten (1 0) employees and that it currently employs the beneficiary in the 
proffered position pursuant to an approved L-1 A nonimmigrant petition. 
In a letter dated December 27, 2012, the petitioner stated that the company had expanded to four 
locations throughout the New York Metropolitan area and currently had a total of 24 full-time 
employees working in its four facilities. The petitioner described the beneficiary's duties as 
follows: 
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NON-PRECEDENT DECISION 
He is responsible for not only managing the entire production facility, but also for 
supervising and overseeing the production budget, the hiring of staff for the 
production facility, the hiring of individuals involved in the mechanics of packaging, 
delivering and marketing the products and overseeing the daily activities of 10 
individuals. 
* * * 
In the area of human resources management, [the beneficiary] exercises authority in 
regard to hiring, firing, training and delegation of assignments according to 
capabilities, production goals etc. He conducts performance reviews and ensures that 
his staff follows corporate and quality control procedures. 
Functioning autonomously, [the beneficiary] also establishes and promotes the 
standardization and quality-control of the company's products based upon the 
traditional ingredients originated in the parent office in Turkey. He also modifies 
some of the products to better accommodate American tastes and preferences. He 
meets regularly with the CEO to ensure that the corporate philosophy is understood 
and that he translates the unique concerns and requirements of a specialty food 
enterprise, into a viable business that incorporates traditional Turkish foods with 
American tastes, preferences and culinary presentations. He also assists in 
formulating strategy and plans to improve the corporate goals, and in fact, his 
participation in strategizing company's long-term goals has been quite successful to 
the extent that the corporate has opened 3 new facilities in addition to its new 
manufacturing facility in Queens, New York .... 
In sum, [the beneficiary] has autonomous control over, and exercises wide latitude 
and discretionary decision-making and establishing the most advantageous course of 
action for the successful management, product and direction of our organization, as 
well as its increased sales. 
In addition to this letter, the petitioner provided copies of Internal Revenue Service (IRS) Form W-
2, Wage and Tax Statements for 16 individuals employed in 2011. The petitioner did not provide 
an organizational chart or evidence of wages paid to employees in 2012. 
The director issued a request for evidence (RFE) on February 2, 2013, in which he instructed the 
petitioner to submit, among other items, the following: (1) the beneficiary's position title; (2) the 
beneficiary's specific daily duties; (3) the percentage of time spent on each duty; (4) an 
organizational chart showing the number of subordinate managers/supervisors or other employees 
who report directly to the beneficiary along with a brief description of their job titles, duties and 
education level, and whether they work full or part-time; and (5) IRS Forms W-2 for each employee 
covering relevant years. 
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In response, the petitioner submitted a one-page letter dated April 9, 2013, in which it described the 
beneficiary's duties as follows: 
It is the responsibility of the beneficiary to manage the new production facilities [in 
Queens, NY] and the Master Baker . . . who obtained certificates from the 
_________ _, --- ~~ _ _ _ The beneficiary must also determine culinary standards, oversee 
the activities of professional baking staff and ensure compliance with culinary and 
health standards. He must also instruct individuals working under his management 
and ascertain the highest level of quality control. 
Most importantly, [the beneficiary] is a functional manager with broad decision 
making discretion of functions at a senior level within the organizational hierarchy. 
With respect to the function managed, that is the production facility, he is solely 
responsible for it and is therefore in a managerial or executive position. Not only 
does he function at a senior level in the organizational hierarchy with respect to the 
functions managed, but he has absolute authority over the functions, specifically 
production and quality control, which are essential to the organization. The 
employees under his management must follow the standards established by [the 
beneficiary], and his determinations are mandatory. He decides when to change the 
product line, when to change ingredients, the volume of production and the staff 
necessary to maintain the production facility at maximum capacity. 
The petitioner did not provide its organizational chart in response to the RFE. It provided copies of 
IRS Forms W-2 issued to 15 employees in 2012, with reflected that five employees received 
salaries consistent with full-time employment. The remaining employees' salaries were consistent 
with part-time or part-year employment and ranged from $763 to $9,500. 
After reviewing the record including the petitioner's response, the director determined that the 
petitioner failed to establish that the beneficiary would be employed in a managerial or executive 
capacity. In denying the petition, the director observed that the petitioner 
provided an overly broad 
position description at the time of filing and failed to add any additional information regarding the 
beneficiary's actual duties in response to the RFE, including the requested percentages of time the 
beneficiary would allocate to performing specific tasks. In addition, the director observed that the 
petitioner failed to submit the requested organizational chart or job descriptions for the beneficiary's 
claimed subordinate employees. The director denied the petition, in part, based on the petitioner's 
failure to submit a complete response to the RFE. See 8 C.F.R. § 103.2(b)(14). Based on these 
evidentiary deficiencies, the director 
concluded that the petitioner did not adequately support its 
claim that the beneficiary will manage an essential function of the organization, or that he will 
otherwise be employed in a primarily managerial capacity. 
On appeal, the petitioner asserts that the director "erroneously misconstrued the evidence and failed 
to give proper weight and consideration to the previously submitted documentation and evidence." 
The petitioner submits an "addendum" to its prior letter dated April 9, 2013 in which it provides 
information regarding the amount of time the beneficiary allocates to four broad areas of 
(b)(6)
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responsibility, along with an organizational chart identifying the names and job titles of the 
beneficiary's subordinates, and payroll records for the first eight months of2013. 
Counsel states that the beneficiary is responsible for managing production of the petitioner's 
products, but also manages the production staff. Counsel asserts that the newly submitted letter and 
organizational chart establish that the majority of the beneficiary's duties relate to operational and 
policy management and to the supervision of supervisory employees. Counsel acknowledges that 
"there are technical elements in the production process which were require [sic] his professional 
expertise as a baker, but these are incidental to his overall managerial responsibilities." Finally, 
counsel contends that the director "summarily dismissed the petition on the grounds that the 
petitioner purportedly does not employ staff deemed sufficient to support the beneficiary in a 
primarily managerial or executive capacity." Counsel states that the director's decision reflects a 
bias against small businesses. 
B. Analysis 
Upon review, the petitioner has not established that it will employ the beneficiary in a qualifying 
managerial or executive capacity. 
In 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. § 204.50)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). USCIS reviews the totality 
of the record, which includes not only the beneficiary's job description, but also takes into account 
the nature of the petitioner's business, the employment and remuneration of other employees, as well 
as the job descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a 
complete understanding of a beneficiary's actual role within a given entity. 
In this matter, the petitioner has consistently failed to provide information regarding the actual tasks 
the beneficiary would perform on a day-to-day basis. The petitioner indicates that the beneficiary is 
responsible for "managing the entire production facility," "supervising and overseeing the 
production budget," hiring, firing, training and scheduling employees, overseeing packaging and 
delivery, marketing of products, ensuring quality control, m·odifying products, and contributing to 
the company's long-term strategies. While some of these duties suggest the beneficiary's heightened 
level of authority, the information provided at the time of filing was overly general and was not 
supplemented by any information regarding the staffing or personnel structure of the petitioner as of 
the date of filing. Conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
(b)(6)
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Accordingly, the director reasonably requested a more detailed description of the beneficiary's 
duties , including information regarding the specific tasks he will perform and the percentage of time 
he will allocate to such tasks. While the petitioner submitted a duty description in response to the 
RFE, it did not expand upon the original description or include information regarding the amount of 
time the beneficiary would allocate to specific duties on a weekly basis . Rather , the petitioner added 
new non-specific language to the initial job description, noting that the beneficiary would "determine 
culinary standards ," oversee "professional baking staff," ensure "compliance with culinary and 
health standards," provide instruction to his subordinates, and make decisions regarding product and 
ingredient changes , production volume and staffing . The petitioner did not mention the previously 
claimed duties associated with marketing, budgeting, packaging and delivery, but rather seemed to 
focus more on the beneficiary's oversight of employees. These employees were not identified in the 
record despite the director 's specific request for an organizational chart and information regarding 
the beneficiary's subordinates. 
Overall, the two brief position descriptions submitted prior to adjudication were overly vague and 
lacked the detail necessary to establish that the beneficiary's duties would be primarily managerial 
in nature. 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 . 
The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the 
course of his daily routine . The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, ajj'd, 905 F.2d 41 (2d. Cir. 1990). 
Therefore, it was appropriate for the director to deny the petition , in part, based on the petitioner's 
failure to submit a complete response to the RFE. The petitioner's response did not include the 
detailed description of the beneficiary's duties , the percentage of time he allocates to each duty, the 
requested organizational chart, or the requested evidence identifying the beneficiary's subordinates 
and their job duties. Failure t~ submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F .R. § 103 .2(b )( 14 ). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primaril y" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. Here, the petitioner failed to document what proportion of the 
beneficiary's duties would be managerial functions and what proportion would be non-managerial. 
The petitioner lists the beneficiary's duties as including both managerial and administrative or 
operational tasks , but fails to quantify the time the beneficiary spends on them. This failure of 
documentation is important because several of the beneficiary's daily tasks , such as marketing , 
product development , and training non-professional employees, do not fall directly under traditional 
managerial duties as defined in the statute. For this reason , the petitioner has not established that 
the beneficiary would be performing duties that are primarily managerial in nature. See IKEA US, 
Inc. v. US Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C . 1999). 
On appeal , the petitioner has submitted an "addendum" to its April 9, 2013 letter in an attempt to 
comply with the RFE. Where, as here , a petitioner has been put on notice of a deficiency in the 
evidence and has been given an opportunity to respond to that deficiency, the AAO will not 
accept 
(b)(6)
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Page 9 
evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); 
see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the 
submitted evidence to be considered, it should have submitted the documents in response to the 
director's request for evidence. !d. Under the circumstances, the AAO need not consider the 
sufficiency of the evidence submitted on appeal. 
Regardless, the newly provided job description, even if it had been timely submitted, is insufficient 
to establish eligibility as it is even less specific than those previously submitted. The petitioner 
states that the beneficiary will allocate 60% of his time to "manage and supervise the new 
production facility," 20% to "manage and supervise the production staff," 10% to "manage and 
supervise culinary . and quality control staff," and 10% to "manage and oversee the activities of the 
entire baking staff." Conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, affd, 905 F. 2d 41 
(2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the 
petitioner's business, and any other factors that will contribute to a complete understanding of a 
beneficiary's actual duties and role in a business. The director denied the petition, in part, based on 
the petitioner's failure to submit evidence to corroborate the number and types of subordinates 
supervised by the beneficiary. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) ofthe Act, 8 U.S.C. § 1101(a)(44)(A)(i) 
and (ii). Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that 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)(A)(iv) of the Act; -8 C.F.R. § 
204.5(j)(5). If a beneficiary directly supervises other employees, the beneficiary must also have the 
authority to hire and fire those employees, or recommend those actions, and take other personnel 
actions. 8 C.F.R. § 204.5(j)(5). 
The petitioner states that the beneficiary manages its production facility in _ New York, and 
identified his position as "Store & Production Manager" on the Form I-140. The submitted 
photographs reflect that the Astoria facility includes both a production area and a retail storefront. 
Although the director requested an organizational chart and the names, job titles, job duties, 
educational levels and full- or part-time status of the beneficiary's subordinates, the petitioner failed 
to provide this evidence in response to the RFE. The petitioner simply reiterated that the 
beneficiary supervises 10 employees without providing any additional information beyond 
. identifying one employee as a baker. As discussed, any failure to submit requested evidence that 
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Page 10 
precludes a material line of inquiry shall be grounds for denying the petitiOn. 8 C.F.R. § 
103.2(b)(14). Thus, the petitioner has not established that these employees possess or require a 
bachelor's 
degree, such that they could be classified as professionals, and in fact counsel 
acknowledges on appeal that the petitioner does not employ professionals. Nor has the petitioner 
shown that any of these employees supervise subordinate staff members or manage a clearly 
defined department or function of the petitioner, such that they could be classified as managers or 
supervisors. Thus, the petitioner has not shown that the beneficiary's subordinate employees are 
supervisory, professional, or managerial, and he cannot qualify as a personnel manager. See section 
101(a)(44)(A)(ii) ofthe Act. 
On appeal, the petitioner submits an organizational chart for the first time and indicates that the 
beneficiary supervises two supervisory employees -
a pastry chef and a master baker. The 
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it 
for the record before the visa petition was adjudicated. The petitioner failed to submit the requested 
evidence and now submits it on appeal. However, the AAO need not consider this evidence for any 
purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). Nevertheless the petitioner has not provided position descriptions for the 
employees depicted on the chart. 
Further, even if the petitioner had submitted the chart previously, the evidence does not corroborate 
the petitioner's employment of most of the employees listed therein as of the date of filing. The 
payroll records submitted on appeal reflect that three of the beneficiary's claimed subordinates (all 
"assistants") were on the payroll of' ~-- - --o·· ___ 0 _ __ .. . , as of January 2013. The individuals 
listed as "pastry chef' and "master baker" on the organizational chart are not listed on the payroll 
records as of January 2013 and did not receive IRS Forms W-2 in 2012. An individual identified 
as a "helper" was hired in June 2013 and works for - ·· ._.... .. ~~ · · ~ ~ -" Another "helper" 
was hired by the petitioner in August 2013, while the third helper does not appear on any Forms W-
2 or payroll records. Therefore, although the petitioner listed a total of 11 employees on the chart, 
the record confirms the petitioner's employment of only three of these workers- the beneficiary, the 
company president, and a cook- as of December 2012 when the petition was filed. A petitioner 
must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Comm'r 1971). The record does not corroborate the petitioner's claim that the 
beneficiary supervised 10 employees at the time the petition was filed. The latest payroll report 
submitted for review, for August 2013, reflects only five employees. 
The petitioner also asserts that the beneficiary is a function manager. The term "function manager" 
applies generally when a beneficiary does not supervise or control the work of a subordinate staff 
but instead is primarily responsible for managing an "essential function" within the organization. 
See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is 
managing an essential function, the petitioner must furnish a written job offer that clearly describes 
the duties to be performed in managing the essential function, i.e. identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the 
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beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 204.50)(5). 
In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the 
beneficiary manages the function rather than performs the duties related to the function. 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 Boyang, Ltd. v. INS., 67 F.3d 305 (Table), 1995 WL 
576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm'r 1988)). 
Although the petitioner stated in response to the RFE that the beneficiary manages its production 
and quality control functions, it has not provided sufficient evidence to establish that he will 
perform primarily managerial duties associated with these functions, nor has it corroborated its 
claim that it has 10 employees working at its Astoria, New York production facility to perform the 
operational tasks at the facility. Further, the petitioner indicated that the beneficiary is responsible 
for overseeing budgeting, marketing, packaging and delivery functions for this location, but did not 
identify employees to perform operational tasks associated with these areas of responsibility. 
Overall, the evidence is insufficient to establish that the beneficiary will primarily manage an 
essential function. 
On appeal, counsel correctly observes that a company's size alone, without taking into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa to a 
multinational manager or executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). 
However, it is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as a company's small personnel size, the absence of employees who 
would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g. Family Inc. 
v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). 
Here, the director's decision reflects that the petition was denied primarily based on the petitioner's 
failure to submit requested evidence that was material to establishing the beneficiary's eligibility, 
including his detailed position description, a company organizational chart, and information 
regarding the duties performed by the beneficiary's subordinates. The director also correctly 
observed that the IRS Forms W-2 submitted did not corroborate the petitioner's claim that it has 10 
full-time employees or its alternate claim that it has 24 full-time employees. Therefore, the 
petitioner did not meet its burden to establish that the beneficiary would be relieved from 
performing non-managerial duties associated with the operation of the petitioner's production 
facility, such that it would have a reasonable need for the beneficiary to perform primarily 
managerial duties. 
In sum, the petitioner has submitted an inadequate description of the beneficiary's duties and 
insufficient evidence of its organizational structure as of the date of filing. Accordingly, the 
petitioner has not established that the beneficiary will be employed in a primarily managerial or 
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Page 12 
executive capacity, as required by section 203(b)(l)(C) of the Act, and for this reason, the appeal 
will be dismissed. 
III. Employment Abroad in a Managerial or Executive Capacity 
The second issue addressed by the director is whether the petitioner established that the foreign 
entity employed the beneficiary in a primarily managerial or executive capacity. 
As previously stated, the AAO gives primary consideration to the description of the beneficiary's 
position and duties, as a detailed description of the beneficiary's actual daily tasks tends to reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, at 1103. The AAO also gives 
ample consideration to the job duties of the beneficiary's subordinate employees, the nature of the 
business, the employment and remuneration of employees, and any other facts that contribute to a 
comprehensive understanding of the beneficiary's actual role in a business. 
According to the petitioner's initial letter, the beneficiary was responsible for "managing several 
specific functions to wit, the production of the products, overseeing the research and development 
of the products and training the staff to produce products according to the companies [sic] ancient 
recipes." The beneficiary was "required to meet with our own personnel which were involved in the 
creative and aesthetic design of the food products." The petitioner further stated that it was the 
beneficiary's responsibility "to determine production capacity, prepare baking schedules, improve 
and create the inventory of products, hire and manage the bakers, kitchen staff and other personnel 
involved in the manufacturing and distribution process." 
In response to the director's detailed RFE, the petitioner provided a letter from the foreign employer 
stating that the beneficiary had been employed as production manager with the company since 2001 
until being transferred to the U.S. petitioner in January 2006. The letter further described the 
beneficiary's responsibilities as follows: 
[H]e was required to meet with our executive staff on a daily basis to discuss quality 
issues, the quantity of production, experimentation with new recipes and preparing 
the products for delivery to our foreign customers. [The beneficiary] managed the 
staff of machine operators, technicians, bakers, kitchen assistants and the quality 
control staff. He was required to hold daily staff meetings with the individuals who 
worked under his management and control and to insure that the products were made 
according to the recipe, that all timetables for production were maintained, and most 
importantly, that the products met the stringent quality control standards mandated 
by the owners. He also managed an individual who worked under .his direct control 
and whose primary function was to experiment with various ingredients, components 
and recipes in an effort to improve existing products and to create new products that 
the company wished to popularize. 
His functions were entirely managerial. He did not participate in the actual work of 
preparing the products nor did he participate in their sale and distribution. His role 
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was to manage the team of employees that work in the production facility. In his 
capacity as a manger, he was able to hire and fire employees, he set the pay scale for 
his department and had the discretion to raise salaries for his employees or terminate 
their employment. He would typically walk around the production facility, which 
was quite large, and ensure that the production line moved swiftly, that each 
employee knew the tasks they were responsible for, he periodically checked the 
production for quality control purposes and maintained inventory of both raw 
products and finished products so that we could always be capable of meeting 
demand and special orders. An appropriate breakdown of his job duties would be the 
following: 
Manage and supervise the production staff which consisted of_ employees---50% 
Manage and supervise the quality control staff which consisted of_employees-20% 
Manage and supervise the creation of new products and new recipes 10% 
Manage and supervise the purchase of i!lventory 10% 
Inspection of Machinery 5% 
Arrangement of work schedules and assignment of personnel 5% 
The letter also referred to an enclosure containing a complete list of job titles for the employees 
working under the beneficiary and a description of their duties. A careful review of the record 
confirms that this evidence was not included with the petitioner's response. 
The petitioner provided the foreign employer's undated organizational chart identifying ten 
employees subordinate to the beneficiary in a variety of positions, including two baklava chefs, 
chefs assistant, a helper, one cutting chef, a sherbet -syrup chef, a baker, a packaging staff person, a 
cold room staff person, and a shipper. 
The petitioner provided few details regarding the beneficiary's specific duties, and the percentage of 
time breakdown included in the letter refers to categories of duties that are general and vague 
leaving little insight into the tasks actually performed by the beneficiary. Specifics are clearly an 
important indication of whether a beneficiary's duties 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. Sava, 724 F. Supp. 1103 (E.D.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; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the 
course of his daily routine. 
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Page 14 
The petitioner 's staffing is unclear and may be inconsistent. The foreign employer left two blank 
spaces in its letter, plainly omitting the number of employees on both its production staff and its 
quality control staff. Further, the employees identified by position on the organizational chart 
appear to be primarily kitchen workers whereas the foreign employer's letter discusses the 
beneficiary's role in managing technicians, machine operators, and quality control staff in addition 
to kitchen personnel. The petitioner has not provided a clear understanding of the role or duties of 
the foreign entity's employees. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Overall, based on the limited evidence, the beneficiary's work appears to be more consistent with 
that of a first line supervisor rather than a manager/executive. For example , the petitioner's 
description refers to the beneficiary's regular monitoring of the production facility floor ensuring 
that employees were performing properly and quality control is maintained. The beneficiary also 
directly supervised employees in the development of new recipes and products. The beneficiary is 
not required to supervise personnel but if it is claimed that his duties involve supervising 
employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See§ 101(a)(44)(A)(ii) of the Act. In this matter, the petitioner denies 
that its employees are professional. Further, some of the beneficiary's duties involve overseeing 
those employees directly providing a service or creating a product; therefore, the beneficiary would 
have been performing in a first-line supervisor role. There is insufficient documentation to 
determine how much time the beneficiary spent involved in those duties and there is insufficient 
documentation to establish that any of the beneficiary 's subordinate employees were supervisors or 
managers. 
Accordingly, the petitioner has not established that the foreign entity employed the beneficiary in a 
qualifying managerial or executive capacity. For this additional reason the appeal will be 
dismissed. 
IV. Doing Business in the United States 
The third issue addressed by the director is whether the petitioner had been doing business in the 
United States for at least one year prior to filing the petition. 
According to 8 C.F.R. § 204.5G)(3)(i)(D) the petitioner must establish that it has been doing 
business for at least one year prior to filing the Form I-140. The regulation at 8 C.F.R. § 204.5(j)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods and/or 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." 
The director determined and the AAO agrees that the petitioner did not submit sufficient evidence 
to establish that it had been doing business for one year prior to filing the instant petition. The 
petition was filed on December 31, 2012 and therefore the petitioner's evidence must reflect regular 
and continuous business activities since January 1, 2012. 
(b)(6)
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Page 15 
The petitioner indicated on the Form I-140 that it has gross annual income of $709,562; however, 
the figure reported on the petitioner's IRS Form 1065, U.S. Return of Partnership Income for 2011 
indicates an ordinary business loss of $3 78,686. 
According to the petitioner's initial letter, the limited liability company has employed the 
beneficiary as its production and quality control manager since his arrival in the United States in 
January 2006. The petitioner explained that the company prospered and expanded to include a total 
of four locations throughout the New York metropolitan area. The petitioner's factory and retail 
store, located in Queens, N.Y., "sells foods on a retail level as well as serving as the wholesale 
distributor to restaurants and food shops, and the production facility for all of North America." The 
petitioner provided evidence including photographs of retail cafe establishments, a company van, 
and a kitchen. 
In the RFE, the director requested additional evidence such as receipts, invoices, detailed reports of 
traded goods or services and/or import/export licenses, contracts or agreements with shipping and 
receiving companies. In response, the petitioner provided bank statements covering the months of 
February through April 2012, several untranslated foreign language documents, and IRS Form W-2 
statements for 2012. The petitioner also resubmitted 2011 tax documents. 
The director determined that the petitioner's documentation was insufficient to establish that it had 
been in business for at least one year prior to filing the petition. The AAO agrees with the director, 
finding that the record lacks evidence of regular and continuous sales transactions for the requisite 
one-year period prior to the date the petition was filed on December 31, 2012. Despite the 
petitioner's submission of tax returns and W -2s, there is no way of determining the frequency of the 
petitioner's sales transactions from those annual returns and documents. The petitioner's bank 
statements do not establish the regular transaction of business but even if it did, the petitioner 
submitted statements covering only three months in 2012. Finally, the petitioner submitted foreign 
language documents but failed to include certified translations of the documents therefore the AAO 
cannot determine whether that evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3). 
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. 
The petitioner has not shown that it has been doing business for at least one year prior to filing this 
petition. For this additional reason the appeal will be dismissed. 
V. Doing Business Abroad 
The fourth and final issue addressed by the director is whether the petitioner established that the 
foreign entity is doing business. 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
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. 
(b)(6)
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Page 16 
The director requested additional evidence after determining that the petitioner failed to establish 
that the foreign employer was doing business when it filed the petition. In response, the petitioner 
submitted un-translated corporate documents. Because the petitioner failed to submit certified 
translations of the documents, the AAO cannot determine whether the evidence supports the 
petitioner's claims. See 8 C.F.R. § 103.2(b)(3). Accordingly, the evidence is not probative and will 
not be accorded any weight in this proceeding. 
The AAO agrees with the director's finding that the petitioner failed to provide sufficient evidence 
to establish that the foreign employer is actively engaged in the regular, systematic, and continuous 
provision of goods or services. Therefore, it cannot be concluded that the petitioner has established 
that the foreign parent company is a qualifying organization as required by the regulation at 8 
C.F.R. § 204.2(l)(l)(ii)(G)(2). For this reason, the petition may not be approved. 
VI. Qualifying Relationship 
Although not addressed by the director, the petitioner has not established that it has a qualifying 
relationship with the beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally § 203(b)(1)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.50)(2) 
(providing definitions ofthe terms "affiliate" and "subsidiary." 
In support of the initial Form I-140, the petitioner refers to the foreign entity as "[o]ur parent 
company in Turkey." The petitioner's letter describes itself and the foreign entity as the same entity 
and refers to the petitioner as its U.S. office. The director's RFE correctly stated that the petitioner 
provided no evidence establishing a qualifying 
relationship with the foreign entity and asked the 
petitioner to submit documents such as its Articles of Organization, operating agreement, meeting 
minutes, and other documentation to establish its ownership and control. The director also 
requested complete 2011 federal tax returns. In response, the petitioner submitted an Operating 
Agreement and 2011 federal tax returns. 
The petitioner submitted an operating agreement which identified 
the managing member holding a 99% interest in the petitioning 
company. A provision in paragraph 18 of the agreement required the managing member to issue 
certificates evidencing membership in the LLC but the petitioner did not provide these documents. 
According to the petitioner's Schedule B-1, Information on Partners Owning 50% or More of the 
Partnership of the petitioner's Form 1065, U.S. Return of Partnership Income for 2011, a Turkish 
citizen identified as ~ 1 owns 99% of the LLC. This information is also stated on 
the petitioner's 2011 Schedule K-1, Partner's Share oflncome, Deductions, Credits, etc. However, 
these entries are contrary to the petitioner's claim that it is a subsidiary of the foreign employer, a 
Turkish corporation. 
(b)(6)
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Page 17 
Furthermore, the petltwner did not provide evidence regarding the foreign entity to evaluate 
whether there was an affiliate relationship between the entities. 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). Notably the director requested documentation such as the articles of organization and 
membership certificates in order to address ownership and control of the company, but the 
petitioner failed to provide the documents. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). For these 
additional reasons the petition will be dismissed. 
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 Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
VII. Conclusion 
The AAO acknowledges that USCIS approved nonimmigrant petitions that had been previously 
filed on behalf of the beneficiary. If the previous nonimmigrant petitions were approved based on 
the same unsupported and contradictory 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'r 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). 
It must be noted that many 1-140 immigrant petitions are denied after users approves prior 
nonimmigrant I-129 L-1 petitions. See, e.g., Q Data 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the consequences of an approved 
petition, there is a significant difference between a nonimmigrant L-1 A visa classification, which 
allows an alien to enter the United States temporarily, and an immigrant E-13 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 §§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 
and 1184; see also§ 316 of the Act, 8 U.S.C. § 1427. Because USCIS spends less time reviewing 1-
129 nonimmigrant petitions than 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. § 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-1A 
petition's validity). 
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Page 18 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.