dismissed EB-1C Case: General Business

identifying data deleted to 
prevent clearly unw~t.ed 
invaSion of personal pnvac) 
~UCCOpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Sentices 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
MAR 15 2011 
Date: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)( I )(C) of the Immigration and Nationality Act, 8 U.S.c. § I lS3(b)(1 )(C) 
ON BEHALF OP PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this maller have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.P.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form [-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an Oklahoma corporation that seeks to employ the beneficiary as its general manager. 
Accordingly, the petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § I I 53(b)(l)(C), as a 
multinational executive or manager. The director denied the petition based on three independent grounds of 
ineligibility: I) the foreign entity has not been doing business; 2) the petitioner failed to establish that the 
beneficiary was employed abroad in a qualifYing managerial or executive capacity; and 3) the petitioner failed 
to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits new and previously submitted evidence in 
an effort to overcome the adverse findings. All relevant submissions will be fully addressed in the analysis 
below. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least I year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b )(1 )(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first issue in this proceeding is whether the director properly concluded that the petitioner has not been 
doing business abroad through a foreign entity. The regulation at 8 C.F.R. § 204.5(j)(2) defines doing 
business as the regular, systematic, and continuous provision of goods andlor services by a firm, corporation, 
or other entity and does not include the mere presence of an agent or office. 
Page 3 
The record shows that the documentation initially submitted by the petitioner in support of the Form 1-140 did 
not include evidence establishing that the foreign entity had been doing business for one year prior to the 
filing of the instant Form 1-140. 
Accordingly, this deficiency was noted in the request for evidence (RFE), which was issued on April 28, 
2009. The director expressly instructed the petitioner to provide evidence establishing that the foreign entity 
had been doing business for at least one year. The director also provided examples ofthe types of documents 
that could be submitted to meet the filing requirement. 
In response, the petitioner provided translations of various government-issued certificates showing that the 
foreign entity was a registered entity abroad. The petitioner also provided a handful of the foreign entity's 
business invoices all showing sales and purchase transactions that took place in 2009. 
After reviewing the submitted documentation, the director determined that the petitioner failed to establish 
that the foreign entity had been doing business during the requisite time period and therefore issued an 
adverse decision dated August 19, 2009. The director also questioned the lack of evidence establishing that 
the foreign entity paid taxes since 2001. 
On appeal, the petitioner submits evidence establishing that the Jordanian law does not require the foreign 
entity to pay taxes. While it is understandable that foreign laws differ from those that are in effect in the 
United States, the petitioner was provided with the opportunity to submit other evidence to establish that the 
foreign entity had been doing business. This information is crucial for the purpose of establishing that the 
petitioner satisfies the prerequisite of operating as a multinational entity, which 8 C.F.R. § 204.5(j)(2) defines 
as the qualifying entity, or its affiliate, or subsidiary that conducts business in two or more countries, one of 
which is the United States. 
In the present matter, the documentation submitted on appeal is insufficient. While the record as a whole 
appears to indicate that the foreign entity had been doing business in 2009, it is not clear that the foreign 
entity was doing business in 2008 when the Form 1-140 was filed or that it was doing business during the 
beneficiary'S alleged period of employment abroad. Additionally, counsel's emphasis on the evidence that 
shows the petitioner's previously approved L-l employment of the beneficiary is misplaced and does not alter 
the fact that each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof. As such, each petition must stand on its own individual merits. U.S. Citizenship and 
Immigration Services (USCIS) is not required to assume the burden of searching through previously provided 
evidence that may have been submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. The approval of a nonimmigrant petition in no way guarantees that 
USCIS will approve an immigrant petition filed on behalf of the same beneficiary. 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Page 4 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.C!. 51 (2001). 
To summarize the issue of the foreign entity doing business, the AAO finds that the record lacks sufficient 
evidence to establish that the petitioner was a multinational entity either at the time the instant Form 1-140 
was filed or during the time of the beneficiary'S purported employment abroad. As indicated above, any prior 
approval of the petitioner's L-I employment of the beneficiary does not establish that the petitioner meets the 
applicable filing requirements in the present matter. Therefore, on the basis of this initial finding, the instant 
petition cannot be approved. 
The two remaining issues in this proceeding call for an analysis of the beneficiary'S job duties. Specifically, 
the AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
would be employed in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the 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; 
(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) ofthe Act, 8 U.S.C. § I 10 I (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; 
Page 5 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In a letter dated May 19, 2008, president of the petitioning entity, stated that the 
beneficiary'S proposed employment was that of restaurant manager where the beneficiary would be in charge 
of making decisions regarding employee work schedules, ordering supplies, supervising his assigned 
subordinates, and recommending personnel actions. No job description was provided for the beneficiary'S 
position abroad with the foreign entity. 
Accordingly, in the April 28, 2009 RFE, the director instructed the petitioner to provide, in part, the following 
evidence: I) organizational charts showing the beneficiary'S foreign and proposed positions within each 
entity's hierarchy; 2) the job titles, educational levels, and job descriptions of the beneficiary's subordinates in 
the beneficiary's foreign and proposed positions; 3) the specific dates of the beneficiary's employment with 
the foreign employer; and 4) evidence establishing that the beneficiary'S past and proposed employment fits 
the definition of managerial capacity, including a breakdown of the amount of time the beneficiary spent and 
would spend on the duties that comprised his position abroad and the duties that would comprise his position 
within the U.S. entity. 
In response, counsel submitted a letter dated June 9, 2009 in which he stated that none of the beneficiary'S 
subordinates required educational degrees. The supporting evidence included an organizational chart, which 
depicted the beneficiary at the top of the petitioner's organizational hierarchy with two assistant managers as 
his two direct subordinates and a staff of servers, hosts, cooks, and machine washers, all of whom are 
depicted as subordinates of the two assistant managers. The petitioner also provided the foreign entity's 
organizational chart depicting the U.S. petitioner's president as one of two franchise ownerslheads of the 
company, the beneficiary in the position of general manager as their direct subordinate, and one hardware and 
one software specialist, both subordinate to the beneficiary. 
With regard to the beneficiary's proposed U.S. employment, the petitioner provided the following description: 
The restaurant General Manager is responsible for managing and leading the entire operation 
of the restaurant. The GM must ensure optimum guest satisfaction, hiring and developing [a] 
hospitality focused team, increased sales and profit margins. 
Directs, coordinates, and participates in preparation of, and cooking, assembling or packaging 
of food served or prepared by [the] restaurant; collection of monies from guests; delivery of 
guest service. 
Coordinates food service activities and controls day-to-day operations of a quick service 
restaurant. 
Page 6 
Plans and prepares work schedules to meet staffing requirements and training needs. 
Coordinates sales promotions activities and prepares, or directs employees preparing, 
restaurant display, sinage [sic] and crew training according to media plan. Interprets business 
records and reports and ensures expenditures stay within budget. Administers cost control 
practiciesa [sic] and initiates corrective action when necessary. 
In a separate, undated, statement from , the beneficiary's proposed position was described as 
one requiring general responsibility over the functioning of a restaurant, including supervising assistant 
managers, who are themselves first-line supervisors, maintaining hiring and firing authority, and exercising 
discretion over the restaurant's day-to-day operations. Additionally, the petitioner provided a 12-hour account 
of the beneficiary's day, specifYing the tasks the beneficiary completes and the time allocated to the 
completion of each task. The list of tasks provides a time breakdown for the following daily morning tasks: 
30 minutes is allotted to cash verification; 30 minutes to a restaurant walkthrough; ten minutes to composing 
a floor chart and assigning side work; 20 minutes to completing "prep" list; 30 minutes to conducting a line 
check; and 15 minutes to "[s]erver rally and shift focus." The beneficiary allocates one hour to each of the 
following tasks: planning "F.O.H." cuts; planning "B.O.H." cuts; server checkouts and side work; checking 
and organizing "B.O.H." side work; completing paperwork, conducting interviews, and invoices; and "work 
flow with seniors and kids." The remaining hour of the beneficiary's time would be distributed among three 
tasks: working the floor chart for the evening shift and planning for the evening, which together would 
comprise 30 minutes, and conducting a quick inventory in preparation for the night shift, which would 
consume another 30 minutes of the beneficiary'S time. 
It is noted that no additional information was provided with regard to the beneficiary'S employment abroad. 
After reviewing the petitioner's submissions, the director determined that neither the beneficiary'S 
employment abroad nor his proposed employment with the U.S. entity fit the definition of managerial or 
executive capacity. The director found that the beneficiary would primarily perform the petitioner's daily 
operational tasks and that he would not oversee the work of professional employees. 
Although the AAO concurs with the director's overall conclusions, the record shows conflicting information 
with regard to the beneficiary'S supervisory duties and does not clearly establish exactly whom the beneficiary 
would oversee. While the organizational chart depicts the beneficiary at the top of the hierarchy directly 
overseeing the work of two assistant managers, the general job description attributed to the general manager 
indicates that the beneficiary's supervisory role would extend to the wait staff, who serve the food and collect 
money from the guests, and to the kitchen staff, who actually prepare and assemble the food. Although a time 
breakdown was also provided in the RFE response, it is unclear exactly how much of the beneficiary'S time 
would be specifically allocated to overseeing the non-professional wait and kitchen staff. The AAO notes 
that counsel's appeal statements placing emphasis on the number of staff the beneficiary oversees fail to 
address the heart of the issue in the present matter, which focuses on whether the beneficiary would primarily 
perform tasks of a qualifYing nature. Regardless of the number of employees the beneficiary would oversee, 
if the beneficiary's subordinates are non-managerial and non-professional and if the beneficiary spends the 
primary portion of his time overseeing the work of such subordinates then it cannot be concluded that the 
beneficiary primarily performs tasks of a qualifYing nature. In fact, even if the beneficiary does not spend the 
primary portion of his time overseeing the work of non-managerial and/or non-professional subordinates, any 
time spent as a first-line supervisor of non-managerial and/or non-professional employees cannot be deemed 
Page 7 
as time spent within a qualifying capacity. Merely focusing on the number of subordinates a beneficiary has 
is erroneous and does not establish that a beneficiary is employed in a qualifying capacity. 
The same job description also indicates that the beneficiary is responsible for preparing the work schedules of 
all employees, not only the assistant managers who are depicted as the beneficiary's direct subordinates. 
Additionally, while the beneficiary is tasked with coordinating sales promotion activities, it is unclear what 
specifically the beneficiary would be coordinating, as no other staff member is tasked with actually carrying 
out the sales promotions or conducting any other marketing-related tasks. In sum, the overview of the general 
manager indicates that the beneficiary would carry out a significant number of non-qualifying tasks that can 
only be deemed as the daily operational functions within a restaurant business. 
When the AAO turns its attention to the time breakdown of the beneficiary'S typical 12-hour day, the list of 
items also includes a number of non-qualifying tasks, including assigning tasks to non-professional 
employees, checking out servers and supervising their side work, the administrative tasks involved in daily 
paperwork that is associated with running a restaurant, interviewing restaurant staff, and randomly conducting 
floor checks in the restaurant during the course of a shift to print checks and check table turnovers. 
Additionally, a number of the assigned tasks were unclear, as the job description used abbreviations, such as 
OAR, FOH, and BOH, none of which are clearly defined such that would enable either the director or the 
AAO to more clearly understand the nature of the specific tasks associated with these abbreviated terms. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to his/her proposed position. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections IOI(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). In the present matter, it appears that those tasks that are 
necessary to provide services within the context of a restaurant business would consume the primary portion 
of the beneficiary'S time. While it is clear that the beneficiary is not the one who makes the food or serves it 
to the restaurant patrons as counsel pointed out in his appellate brief, the list of non-qualifying tasks is not 
limited to preparing and serving the food. As apparent by the list of tasks attributed to the beneficiary's 
position, there are numerous administrative tasks and tasks involving oversight of non-professional 
employees that are also deemed to be non-qualifying. Although the AAO does not dispute the beneficiary'S 
level of discretionary authority or his top position within the petitioner's restaurant hierarchy, neither factor 
establishes that the beneficiary's time would be primarily allocated to tasks within a qualifying managerial or 
executive capacity. In fact, despite the beneficiary'S elevated position and his authority over the staff and the 
petitioner's daily restaurant activities, the record indicates that the beneficiary would devote the primary 
portion of his time to various operational tasks and thus cannot be deemed as someone that would be 
employed within a primarily managerial or executive capacity. 
With regard to the beneficiary'S employment abroad, the record is simply devoid of specific tasks the 
beneficiary performed. It is noted that the actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afj'd, 905 F.2d 41 (2d. Cir. 1990). 
Thus, when this key element, i.e., a detailed job description, is missing, the AAO is unable to conclude with 
any degree of certainty that the claimed employment was primarily comprised of managerial- or executive­
level tasks. Furthermore, while the foreign entity's organizational chart shows the beneficiary as supervising 
Page 8 
a hardware and a software specialist, no evidence or information has been provided to establish that either 
position is that of a professional or supervisory employee, nor does the record contain any information to 
determine the specific supervisory tasks the beneficiary performed or how much of his time was actually 
allocated to such tasks. Thus, based on the overall lack of information with regard to the beneficiary's 
position with the foreign entity, the AAO is unable to make an affirmative finding as to the nature of the tasks 
that consumed the primary portion of the beneficiary's time. 
Lastly, as stated earlier in this discussion, counsel's reliance on the director's prior approval of the 
beneficiary's L-I employment is misplaced, as 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 [&N Dec. at 597. 
In light of the above analysis, the AAO finds that the petitioner has failed to establish that the beneficiary was 
employed abroad or that he would be employed in the United States within a qualifying managerial or 
executive capacity. Therefore, on the basis of these two additional adverse findings, the instant petition 
cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. [n visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.