dismissed EB-1C Case: Food Services

U.S. Citizenship 
and Immigration 
Services 
In Re : 16169362 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a food services company, seeks to permanently employ the 
Beneficiary as its president and general manager in the United States under the first preference 
immigrant classification for multinational executives or managers . Immigration and Nationality Act 
(the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition concluding the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
States . On appeal, the Petitioner asserts that the Director overlooked "overwhelming evidence" 
supporting the Beneficiary's managerial role in the United States. Further, the Petitioner states that 
the Director did not consider the Beneficiary's foreign managerial subordinates he oversaw while 
employed in the United States. The Petitioner also contends that the Beneficiary would qualify as a 
function manager and executive . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who , in the three years preceding the filing of the 
petition , has been employed outside the United States for at least one year in a managerial or executive 
capacity , and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker , must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition , that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204 .5(i)(3) . 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in a managerial or executive capacity in the United States. The Petitioner did not clearly 
indicate prior to appeal whether the Beneficiary would qualify as a manager or an executive. In fact, 
the Beneficiary's title of "president and general manager" is suggestive of both. The Petitioner must 
clearly describe the duties to be performed by the Beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. The Petitioner must demonstrate that the Beneficiary's 
responsibilities will meet the requirements of one or the other capacity. As the Petitioner asserts on 
the record that the Beneficiary qualifies as a manager overseeing subordinate "managerial" employees, 
and now emphasizes on appeal his "executive" role, we will analyze both capacities in this decision. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
When examining the managerial or executive capacity of a given beneficiary, we will review the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive capacity. 8 C.F.R. § 204.5(j)(5). 
A. Duties 
To be eligible as a multinational executive or manager, the Petitioner must show that the Beneficiary 
will perform the high-level responsibilities set forth in the statutory definition at section 
10l(a)(44)(A)(i)-(iv) of the Act. If the record does not establish that the offered position meets all 
four of these elements, we cannot conclude that it is a qualifying managerial or executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial or 
executive-level duties, as opposed to ordinary operational activities alongside the Petitioner's other 
employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether 
a given beneficiary's duties will be primarily managerial or executive, we consider the Petitioner's 
description of the job duties, the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve the beneficiary from performing 
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operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. 
The Petitioner stated that it operates a restaurant location serving "high quality classic all American 
food." The Petitioner listed the following duties for the Beneficiary as its asserted president and 
general manager: 
1. Develop and implement a strategic plan to advance the Company's mission and to 
promote revenue, profitability, and growth of the organization- 10%; 
2. Oversee Company operations to ensure efficiency, quality, service, and cost-
effective management ofresources - 12% 
3. Plan, develop, and implement marketing strategies for growth of revenues - 10%; 
4. Approve company operational procedures, policies, and standards - 5%; 
5. Review and approve activity reports and financial statements to determine progress 
and status in attaining objectives, and revise objectives and plans in accordance 
with current conditions - 12% 
6. Evaluate performance of executives for compliance with established policies and 
procedures of the Company and their contributions in attaining objectives - 11 %; 
7. Present Company report at Board of Director's meeting- 10%; 
8. Direct company planning and policy-making - 5%; 
9. Approve Company staffing/scheduling, including hire/terminate management staff 
-5%; 
10. All authorities given to the Chief Financial Office or Secretary of the Company 
[sic] - 10%. 
The Petitioner submitted a generic U.S. duty description for the Beneficiary that does not credibly 
establish he was primarily engaged in the performance of qualifying managerial or executive-level 
duties as of the date the petition was filed in February 2020. For instance, the Director emphasized in 
a request for evidence (RFE) that the Beneficiary's duty description was vague and lacked detail. 
However, the Petitioner only resubmitted the same duty description in response to the RFE. We agree 
that the provided duty description lacks credible specifics to substantiate the Beneficiary's primary 
performance of qualifying managerial or executive-level duties. For instance, the Petitioner did not 
detail or provide supporting documentation to substantiate "strategic plans" the Beneficiary 
implemented, "company operations" he oversaw, "marketing strategies" he developed, or 
"procedures, policies, or standards" he approved. Likewise, the Petitioner did not articulate or 
document the objectives the Beneficiary set or revised, "planning or policy-making" he directed, 
staffing decisions he made, or "capital expenditures" he approved. The Beneficiary's stated duties 
could apply to any managerial or executive-level employee acting in any business or industry and his 
duty description includes no detail as to his specific daily tasks, nor does it include discussion of its 
business. 
Although we do not expect the Petitioner to articulate and document every managerial or executive 
task performed by the Beneficiary, it is reasonable to expect that it would provide sufficient detail and 
documentation to corroborate his performance of qualifying duties, particularly since it asserts he 
acted in his role in the United States as an L-1 A nonimmigrant for approximately one year prior to the 
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date this petition was filed. 1 Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily managerial or executive 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, 1108 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Even though the Beneficiary holds as a managerial or executive-level title and manages or directs a 
portion of the business does not necessarily establish eligibility for classification as a multinational 
manager within the meaning of section 101(a)(44)(A) or (B) of the Act. The Beneficiary may exercise 
discretion over the Petitioner's day-to-day operations and possess the requisite level of authority with 
respect to discretionary decision-making; however, the position description alone is insufficient to 
establish that his actual duties would be primarily managerial or executive in nature. 
B. Staffing, Personnel and Function Manager, and Executive Capacity 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, we take into account the reasonable needs of the organization, in light of its overall 
purpose and stage of development. See section 101 (a)( 44 )( C) of the Act. 
On appeal, the Petitioner appears to contend that the Beneficiary would qualify as a personnel manager 
based on his supervision of subordinate supervisors. The Petitioner also states on appeal that the 
Director failed to consider that the Beneficiary "performs major functions" for the company, 
suggesting it asserts he also would qualify as a function manager. The statutory definition of 
"managerial capacity" allows for both "personnel managers" and "function managers." See section 
101(a)(44)(A) of the Act. 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." Id. 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(i)(2). 
The Petitioner submitted an organizational chart indicating that the Beneficiary would supervise a 
manager overseeing three "wait staff." The organizational chart also showed that the Beneficiary 
would supervise a chief financial officer and secretary supervising an "outside CPA." 
1 We acknowledge that United States Citizenship and Immigration Service (USCIS) records indicate that the Beneficiary 
was previously approved for L-lA intracompany transferee nonimmigrant visas filed by the Petitioner, a category largely 
mirroring the immigrant classification for multinational executives or managers. However, it is important to note that each 
petition filing is a separate proceeding with a separate record and a separate burden of proof. In making a determination 
of statutory eligibility, USCTS is limited to the information contained in that individual record of proceeding. 8 C.F.R. ~ 
103.2(b)(l6)(ii). The Director's decision does not indicate whether they reviewed the prior approvals of the other 
nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the same evidence contained in 
the current record, their approval would constitute an error on the part of the Director. We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have 
been erroneous. Matter of Church Scientology Int'/, 19 I&N Dec. 593, 597 (Comm'r 1988). 
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The Petitioner has not sufficiently demonstrated that the Beneficiary would qualify as a personnel 
manager based on his oversight of subordinate supervisors. First, the Petitioner provided conflicting 
assertions as to its claimed organizational structure leaving uncertainty as to whether the Beneficiary 
oversaw subordinate supervisors as of the date the petition was filed. For instance, as noted above, 
the organizational chart reflected that the Beneficiary supervised a manager and a chief financial 
officer and secretary. However, the Petitioner also submitted subordinate duty descriptions indicating 
that he oversaw a "manager/administration" and a "store manager." In addition, it is also noteworthy 
that the organizational chart was incomplete, as it did not identify the employees by name. The 
Petitioner must resolve inconsistencies and ambiguities in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner further submitted supporting evidence demonstrating it was not sufficiently developed 
to employ supervisors or managers subordinate to the Beneficiary as of the date the petition was filed 
in February 2020. The Petitioner must establish that all eligibility requirements for the immigration 
benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. 
§ 103 .2(b )( 1 ). To illustrate, a provided state quarterly wage tax report from the fourth quarter of 2019, 
dated just before the time the petition was filed, reflected that the Petitioner employed only three 
individuals in December 2019. We reasonably presume that one of these employees was the 
Beneficiary as he is listed in the report. Meanwhile, the Petitioner submitted a payroll journal for the 
period from December 30, 2019 through January 12, 2020 indicating that it paid wages to only two 
employees, neither of whom were the Beneficiary's claimed supervisory subordinates. This leaves 
substantial question as to whether the Beneficiary was overseeing subordinate managers or supervisors 
as of the date the petition was filed. 
The Petitioner also repeatedly made statements on the record suggesting that it was not sufficiently 
developed to support the Beneficiary in a qualifying managerial capacity as of the date the petition 
was filed. For example, in a letter from the Beneficiary submitted in response to the RFE in August 
2020, he stated that "within five years, not only will the venture support the executive leadership 
moved to the U.S .... but we expect to double the size of the American staff" Meanwhile, on appeal, 
the Petitioner states that "at the time of filing, based on [the] Petitioner's market plan, developed by 
[the Beneficiary], it was [the] Petitioner's intent to move forward with six employees." These 
statements appear to indicate that the Beneficiary's eligibility is reliant on future development and that 
it did not have sufficient employees as of the date the petition was filed to support him in a managerial 
capacity overseeing subordinate supervisors. Further, there is no supporting evidence indicating the 
Beneficiary's supervision of subordinate supervisors, or his delegation of duties or personnel authority 
over them. See 8 C.F.R. § 204.5(i)(2). 
As such, the Petitioner did not establish that the Beneficiary supervised subordinate supervisors or 
managers within its organizational structure as of the date the petition was filed. Given the Petitioner's 
limited staffing as of the date the petition was filed, it is not clear who was performing the inherent 
non-qualifying operational duties of its sole restaurant location, such as ordering supplies, preparing 
the food, serving its customers, amongst other similar duties. It appears most likely, given the provided 
evidence, that the Beneficiary was primarily engaged in these tasks alongside his few colleagues as of 
the date the petition was filed, rather than primarily delegating these duties to supervisory and 
operational level subordinates. 
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On appeal, the Petitioner also contends that the Director did not consider subordinate managers the 
Beneficiary supervised abroad while working in the United States. We will consider employees based 
abroad and their impact on relieving the Beneficiary from primarily performing non-qualifying 
operational duties, but a Petitioner must properly substantiate their existence, their performance of 
duties for the U.S. company, and a beneficiary's personnel authority over them. See Matter of Z-A-, 
Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016) at 6,7. 
The Petitioner does not provide supporting evidence to substantiate the Beneficiary's supervision of 
subordinate managers abroad, nor does it submit evidence to demonstrate that they perform duties for 
the U.S based company or that they relieved him from performing non-qualifying operational tasks 
while working in the United States. In fact, it is not clear how managers working for the foreign 
employer support the Petitioner or Beneficiary, particularly since it indicates that the foreign employer 
operates only one franchised sandwich shop location. Therefore, the Petitioner has not sufficiently 
demonstrated that the Beneficiary qualified as a personnel manager based on his personnel authority 
over foreign managers supporting its operations in the United States. 
In the alternative, the Petitioner did not establish that the Beneficiary would qualify as a personnel 
manager based on his supervision of professional subordinates. To determine whether a beneficiary 
manages professional employees, we must evaluate whether the subordinate positions require a 
baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation"). Section 10l(a)(32) of the Act, 
states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or 
seminaries." Therefore, we must focus on the level of education required by the position, rather than 
the degree held by subordinate employee. The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a professional 
capacity. 
The Petitioner did not, and does not on appeal, explicitly assert that the Beneficiary qualifies as a 
personnel manager based on her supervision of professional subordinates, but it did indicate in a 
subordinate duty description that his claimed subordinate "manager/administration" holds a bachelors' 
degree in business administration. However, the Petitioner does not articulate why this position 
requires a bachelor's degree to perform its duties. Further, as discussed, it has not credibly established 
that it employs someone in this role, since its supporting tax documentation indicated that it employed 
only two subordinates below the Beneficiary as of the date the petition was filed and its internal payroll 
journal from January 2020 showed it did not employ the claimed administration manager. The 
Petitioner also has not provided any supporting documentation to substantiate that any of its 
subordinates hold bachelor's degrees or that the Beneficiary has personnel authority over employees 
with such degrees. Therefore, the Petitioner has not demonstrated that the Beneficiary would qualify 
as a personnel manager based on his supervision of professional subordinates. 
The Petitioner farther appears to suggest on appeal that the Beneficiary would qualify as a function 
manager, noting the Director's failure to consider "major functions" performed by him for the U.S. 
company. 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 
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function" within the organization. See section 10l(a)(44)(A)(ii) of the Act. If a petitioner claims that 
a beneficiary will manage an essential function, it must clearly describe the duties to be performed in 
managing the essential function. In addition, the petitioner must demonstrate that "(l) the function is 
a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the 
beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at 
a senior level within the organizational hierarchy or with respect to the function managed; and (5) the 
beneficiary will exercise discretion over the function's day-to-day operations." Matter of G- Inc., 
Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
In this matter, the Petitioner has not sufficiently established that the Beneficiary would act as a function 
manager under an approved petition. The Petitioner did not clearly define the essential function that 
the Beneficiary would manage in the United States, but only vaguely indicated that he would be the 
company's highest ranking official and oversee its restaurant business. In addition, the Petitioner did 
not properly demonstrate that the Beneficiary would primarily manage a function as opposed to 
performing non-qualifying tasks relevant to its operation. For instance, the Petitioner provided an 
organizational chart including two subordinate managers as well as several wait staff to perform the 
operational duties of a restaurant business. However, as we have noted, the Petitioner's supporting 
wage tax documentation indicates that it had only two employees subordinate to the Beneficiary as of 
December 2019 and its payroll journal from only two weeks later reflects only two other different 
employees. 
This leaves substantial question as to whether there were sufficient operational employees to sustain 
the business as of the date the petition was filed, including employees to seat and serve customers, 
order supplies, prepare the food, amongst other tasks inherent to such a business. Given the submitted 
evidence indicating its limited staffing as of the date the petition was filed, it appears that the 
Beneficiary was very likely primarily engaged in these type of non-qualifying operational level tasks 
rather than primarily performing managerial duties. As such, the Petitioner did not establish that the 
Beneficiary would qualify as a function manager. 
Lastly, on appeal the Petitioner cites to a non-precedent decision issued by us in 2016 and contends it 
is similar to this matter. The Petitioner asserts that this demonstrates that the Beneficiary would 
qualify as an executive working "within a complex organizational hierarchy." First, following a 
review of our records, we were unable to locate the decision referenced by the Petitioner and this 
decision was not submitted on appeal. Further, even if there was such a non-precedent decision, this 
decision was not published as a precedent and therefore does not bind USCIS officers in future 
adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the 
specific facts of the individual case and may be distinguishable based on the evidence in the record of 
proceedings, the issues considered, and applicable law and policy. 
Regardless, the evidence provided in this matter does not sufficiently establish that the Beneficiary 
would have qualified as an executive as of the date the petition was filed. The statutory definition of 
the term "executive capacity" focuses on a person's elevated position. Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of an 
organization or major component or function thereof Section 10l(a)(44)(B) of the Act. To show that 
a beneficiary will "direct the management" of an organization or a major component or function of 
that organization, a petitioner must show how the organization, major component, or function is 
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managed and demonstrate that the beneficiary primarily focuses on its broad goals and policies, rather 
than the day-to-day operations of such. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the organization, major 
component, or function as the owner or sole managerial employee. A beneficiary must also exercise 
"wide latitude in discretionary decision making" and receive only "general supervision or direction 
from higher level executives, the board of directors, or stockholders of the organization." Id. 
As we have discussed previously in this decision, the Petitioner provided a generic duty description 
for the Beneficiary including few specifics and little supporting documentation to substantiate his 
primary performance of executive-level duties despite claiming that he has been acting in this capacity 
for approximately one year prior to the date the petition was filed. The Petitioner contended that the 
Beneficiary oversaw subordinate managers overseeing operational level employees; however, its tax 
and internal payroll documentation reflected that it employed, at most, two employees subordinate to 
him. Given that it claimed to operate a restaurant, it is not clear how this level of staffing would have 
been sufficient as of the date the petition was filed to support the Beneficiary in an executive where 
he would act in an elevated role primarily focusing on its broad goals and policies rather than its day­
to-day operations. Likewise, there is no evidence that the Petitioner's operations are supported by 
foreign employees to relieve the Beneficiary from non-qualifying operational-level tasks. Therefore, 
the Petitioner has not established that the Beneficiary would be employed in an executive capacity. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would be employed 
in a managerial or executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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