dismissed EB-1C Case: Restaurant

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OBce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
LIN 07 067 50584 
Date: 
DEC 0 1 2009 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 8 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
.' 
Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Nevada corporation that seeks to employ the beneficiary as its executive 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. 5 1153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: 1) the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity; 2) the petitioner failed to 
establish that the beneficiary was an employee of the foreign entity; and 3) the petitioner failed to establish 
that the beneficiary is an employee of the U.S. entity. 
On appeal, the petitioner disputes the director's findings, asserting that the beneficiary's prior approvals of L-1 
visa petitions, filed on behalf of the same beneficiary, establish that the petitioner is eligible for the 
immigration benefit sought in the present matter. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first issue in this proceeding is whether the petitioner established that the beneficiary 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. 
 1 101(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) of the Act, 8 U.S.C. $ 1 101(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. 
In support of the Form 1-140, the petitioner provided a description of the beneficiary's proposed employment, 
stating that the beneficiary's responsibilities would fit into one of four categories: daily operation, developing 
market research strategies, developing policy and operating procedures, and financial perfonnance of the 
company. The first category--daily operation-would include quality improvement, supervision, and 
training of service oriented, food preparation, and support personnel; conducting analysis of sales and services 
to maximize cash flow; continuous decor renovation; catering and special events proposals and planning. The 
second category-marketing research strategies-would be comprised of the following: purchasing necessary 
equipment and negotiating with local vendors to add Peruvian roasted chicken to the petitioner's menu; 
expanding the restaurant menu to include Mexican style dishes; expanding into the gaming industry and wire 
transfer services; purchasing commercial programming satellite to host major broadcasting events; and adding 
live music as part of the restaurant's weekend feature. The third category-policy and operating procedures- 
would include the following: using uniforms to distinguish the petitioner from its competitors; implementing 
customer-friendly service polices to expand the market for the petitioner's restaurant; implementing 
preventive maintenance programs to cut repair and equipment costs; and employing policies to ensure food 
freshness and improved cash flow. The fourth category-financial performance-would include supervising 
finances and maintaining proper inventory to ensure positive cash flow and maintain adequate cash reserves 
to account for unpredictable sales fluctuations. 
The record also contains the petitioner's organizational chart, which shows the beneficiary in the position of 
president at the top of the hierarchy. The chart indicates that the treasurer is the beneficiary's immediate 
subordinate at the tier below the president. The third tier includes a financial manager, an operating manager, 
and a marketing employee. It is noted that the position of financial manager is filled by the same individual 
who is identified as the treasurer, while the positions of financial manager and marketing are both filled by 
the beneficiary. It appears that the beneficiary does not oversee anyone in his marketing position. However, 
in his position as operating manager, the beneficiary's immediate subordinate is depicted as the restaurant 
manager, while the financial manager's two subordinate positions are identified as warehouse and accounting. 
It is noted that the accounting position is filled by the financial manager, thus indicating that she performs 
rather than manages others in the performance of accounting duties. Additionally, in the petitioner's separate 
list of the beneficiary's direct subordinates, the petitioner listed the warehouse employee, thus indicating that 
the organizational chart, which lists the warehouse employee as the financial manager's direct subordinate, 
may be inaccurate and overall unreliable. 
On March 17, 2008, the director issued a request for additional evidence (WE) instructing the petitioner to 
provide, in part, a more detailed description of the beneficiary's proposed employment, including a specific 
list of job duties and the percentage of time allotted to each duty. The director also instructed the petitioner to 
provide a more detailed description of the beneficiary's subordinates' job duties. 
In response, the petitioner provided another job description, again classifying the beneficiary's responsibilities 
according to four categories-managing the organization, organizing to achieve the corporate goals and 
objectives, leading the organization, and controlling the organization-and listing the job duties that 
correspond to each category. It is noted that the petitioner failed to comply with the director's request to 
assign the percentage of time to specific job duties and, instead, assigned the percentage of time to the broad 
categories. Regardless, as the director has paraphrased the petitioner's response and included the information 
in the denial, the AAO need not repeat the job description in the present discussion. That being said, 
however, in light of the organizational chart, which shows that the beneficiary occupies two additional 
positions, aside fi-om that of president, the AAO will also include the job descriptions provided for the 
operations manager and the marketing manager. 
The following are the main job duties of the operations manager: 
1. Hiring and firing wait and maintenance staff, chefs, and other personnel in the kitchen: [sic] 
He evaluates the performance of each employee in these areas, accordingly [sic] to what he 
sees and to what the [clhef and the [rlestaruant [mlanager report to him. 
2. Evaluates the [clhefs requests for supplies, and suggestions for menu options: [sic] He, in 
coordination with the [mlarketing [mlanager, reviews the proposed specials or limited time 
specials for the ongoing campaign. He meets with our providers, reviews prices and places 
the purchase orders . . . . 
3. He oversees scheduled deliveries . . . 
4. [He pllans routine services for the dining room areas and the kitchen are [sic]: [sic] He is 
responsibly [sic] for having enough and well prepared personnel . . . . He is responsibly 
[sic] for the schedules and has to solve any unexpected absent or availability [sic] of the 
employees. 
5. He has to check the daily sales of the restaurant [and] collects the money every day: [sic] 
He has to verify the accuracy of the sales. He collects the money and reports any shortage 
or overage in the [slales. He delivers this money to the office assistant . . . . 
6. [He r]eview[s] the daily returned or voided items. He has to ensure that the procedure for 
voiding or discounting an item in a check has been followed . . . . He has to maintain a 
record for each dish and for each employee related to these events. . . . 
The petitioner also provided the following job description for the marketing manager: 
1. 
 Find out what customers want and provide it to them. She designs suerveys that the waiters 
give to our clients. She elaborates charts with the results. . . . 
2. She has to make sure everyone in the restaurant is worry [sic] about customer 
satisfaction.. . . 
3. 
 She has to provide waiters with all the necessary elements for selling our products. She is 
the responsibly [sic] of providing the restaurant with stand-tables and posters that promote 
the new campaign. 
4. 
 She is responsible for informing the employees regarding all the ongoing promotions, and 
to motivate [sic] them for [sic] selling those specific products. 
5. She is responsibly [sic] for obtaining the participation of our providers in the 
advertisement. She usually gets donation of products or advertisement banners . . . . 
6. 
 She has to get information regarding the adequate media for advertising the restaurant 
accordingly [sic] to the target marketing for each campaign. 
7. 
 She has to work closely with the financial manager in order to keep the campaign inside the 
budget and to report [to the beneficiary] with the progress of the [mlarketing [pllan. 
With regard to the above, while the petitioner repeatedly used the female pronoun in its references to the 
marketing manager, it is noted that the organizational chart that has been provided in support of the petition 
shows that the beneficiary, a male, occupied the position of marketing manager at the time of filing. 
Additionally, while the AAO understands that the beneficiary's proffered position was that of managing 
directorlpresidentl of the U.S. entity, the supporting organizational chart, which illustrates the petitioner's 
organizational hierarchy at the time of filing indicates that the petitioner had no employees other than the 
beneficiary to fill the positions of operations and marketing managers. Therefore, the AAO will consider the 
job duties that correspond to those positions to determine the employment capacity the beneficiary would 
likely have assumed at the time of the priority date. 
In a decision dated October 7, 2008 the director denied the petition concluding that the petitioner failed to 
establish that it would employ the beneficiary in a qualifying managerial or executive capacity. In discussing 
the job description provided in response to the RFE, the director observed that several of the tasks that were 
listed would be performed intermittently, either on a weekly or monthly basis, not on a daily basis. The 
director further observed that while the beneficiary would perform numerous non-qualifling tasks, the 
petitioner failed to indicate exactly how much of the beneficiary's time would be devoted to those tasks, thus 
precluding the conclusion that the beneficiary would primarily perform duties within a qualifying capacity. 
On appeal, the petitioner contends that the director failed to provide an impartial opinion and instead looked 
for reasons to deny the petition. The petitioner further asserts that the director did not give proper 
consideration to the facts presented. However, in light of the director's numerous references to the evidence 
on record as well as the analysis expounding on the various deficiencies, the AAO finds that the petitioner's 
arguments are not persuasive. 
In examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 204.56)(5). In 
the present matter, the director stressed the significance of a detailed job description by issuing an RFE that 
expressly instructed the petitioner to list specific job duties the beneficiary would carry out on a daily basis 
and the percentage of time that would be devoted to each task. As noted above, rather than assigning the 
percentage of time to specific tasks, the petitioner instead assigned a percentage of time to each of four 
general categories, which comprised, in part, of non-qualifying tasks. For instance, the fust category listed in 
the response to the RFE indicates that the beneficiary manages the entire organization, which includes 
researching specialized magazines, newspapers, and the internet. Conducting such research constitutes an 
operational task and is not deemed to be within a qualifying capacity. It is therefore crucial for the petitioner 
to indicate approximately how much of the beneficiary's time would be allotted to this non-qualifying task. 
Additionally, a significant portion of the job description contains general job responsibilities that fail to 
convey any sense of the types of tasks they would entail. For instance, the petitioner indicated that the 
beneficiary would provide the policies, procedures and strategies and create an organizational structure which 
would enable the company employees to meet the organization's goals and objectives. In reviewing these 
broad statements, the AAO is unable to gain a meaningful understanding of how they translate into to specific 
daily tasks. In other words, it is unclear what steps the beneficiary would take on a daily basis to meet these 
overly generalized objectives. Specifics are clearly an important indication of whether a beneficiary's duties 
1 
 In the Form 1-140, the petitioner referred to the manager as the executive manager. However, the position of executive 
manager does not appear on the organizational chart submitted in support of the petition. Rather, the position at the top 
of the organizational hierarchy is identified as that of president. Although the AAO will assumes that the position of 
executive manager is equivalent to that of president, this minor inconsistency has not been resolved. 
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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). The petitioner's general discussion of the beneficiary's authority in setting company 
policies and objectives fails to reveal specific daily tasks, thereby making it impossible to affirmatively 
conclude that the primary portion of the beneficiary's time would be devoted to qualifying managerial or 
executive tasks. 
Furthermore, the AAO notes that the beneficiary would occupy the additional positions of operations manager 
and marketing manager, both of which will require the performance of non-qualifying tasks. For instance, 
both managerial positions require the compilation of reports regarding the restaurant's product sales and 
effectiveness of certain promotions, both of which constitute non-qualifying tasks. While the AAO 
acknowledges that neither managerial position is the proffered position, the petitioner's eligibility must be 
assessed based on facts that are in existence at the time of filing. See Matter of Katigbak, 14 I&N Dec. 45,49 
(Cornm. 1971). In the present matter, the petitioner clearly did not have an operations manager or a 
marketing manager at the time the Form 1-140 was filed. As such, the petitioner would need to allocate the 
beneficiary's time in such a way as to allow him to perform the non-qualifying tasks associated with each of 
the non-proffered positions. While the AAO acknowledges that the beneficiary does not have to actually 
assume the proffered position unless and until the petition is approved and the beneficiary's status is adjusted 
to that of permanent resident, the petitioner must establish that it had the capability to employ the beneficiary 
in a qualifying capacity at the time of filing. See id. Here, the petitioner lacked sufficient staffing to employ 
the beneficiary in a primarily qualifying capacity at the time of filing. 
In light of the above observations, the AAO finds the petitioner's arguments on appeal are entirely baseless. 
The director properly and impartially assessed the evidence presented and provided a clear discussion of the 
deficiencies that precluded a favorable finding. The AAO concludes that the director's analysis was correct. 
The evidence of record lacks an adequate job description and further contains information that indicates that 
the petitioner was unable to employ the beneficiary in a qualifying managerial or executive capacity at the 
time of filing. Therefore, based on ths initial conclusion, the AAO cannot approve the instant petition. 
The two remaining issues require a discussion of the beneficiary's ownership interests in the foreign and U.S. 
entities. Specifically, the AAO will analyze the record to determine whether the beneficiary's ownership of 
the foreign and U.S. entities precludes him from being deemed an employee of either entity. In light of 
documentation submitted in support of the Form 1-140 with regard to the beneficiary's ownership in the U.S. 
and foreign entities, the director's instructions in the RFE included a series of questions that the petitioner was 
instructed to answer in order to gauge each organization's level of control over the beneficiary. Specifically, 
the petitioner was asked 1) whether either organization can hire or fire the beneficiary or set rules and 
regulations for his work; 2) whether and to what extent the beneficiary's work has been and would be 
supervised by each organization; 3) whether the beneficiary reported or would report to someone higher 
within each organization; 4) whether and to what extent the beneficiary was and would be able to influence 
each organization; 5) whether the beneficiary is described as an employee per written contract with either 
entity; and 6) whether the beneficiary shares in the profits, losses, and/or liabilities of either organization. 
In response, the petitioner provided an undated statement explaining that the beneficiary is the majority owner 
of the foreign and U.S. entities. The petitioner also provided documentation to support this claim. With 
regard to the queries posed in the RFE, the petitioner stated the following with regard to the beneficiary's 
position in each entity: 1) the beneficiary sets the rules and regulations; 2) the beneficiary supervises the 
work of all managers; 3) the beneficiary manages each organization and does not report to anyone higher than 
himself; 4) the beneficiary is the main decision-maker and is the one who sets the goals and policies for each 
corporation; and 5) the beneficiary shares in the profits, losses, and/or liabilities. With regard to the issue of 
the beneficiary being referred to as an employee in a written agreement or contract with either entity, the 
petitioner indicated that the beneficiary is employed as the general manager of both organizations. With 
regard to the foreign entity, the petitioner referred to articles seven and eight of the foreign entity's 
incorporation document. Article seven states that the company's managers have the power to organize 
internal systems of the corporation and to enter into contracts, and oversee and control the company's 
activities. Article eight states that the beneficiary "shall hold the position of general manager of the 
corporation . . . ." With regard to the U.S. entity, the petitioner merely referred to the beneficiary's pay stubs 
as proof of his employment with the petitioning company. 
After reviewing the documentation on record as well as the petitioner's responses to the queries posed in the 
RFE, the director determined that the beneficiary was not an employee of the foreign entity and would not be 
an employee of the U.S. entity. On the basis of these two additional grounds, the director determined that the 
petitioner is not eligible to classify the beneficiary as a multinational manager or executive. 
On appeal, the petitioner disputes the director's conclusions, arguing that the beneficiary's "duties are 
subordinated [sic] to the foreign corporation's needs." The petitioner again points to articles seven and eight 
of the foreign entity's incorporation document in which the beneficiary was appointed as the company's 
general manager. Additionally, the petitioner refers to article six, which states that the owner appoints the 
manager and that the manager is subject to be removed at any time. However, this statement must be 
considered in light of the fact that the owner and the manager are the same individual. Therefore, in essence, 
the beneficiary is in charge of the duration of his own employment and cannot be removed from the position 
of general manager by anyone other than himself. This only furthers the director's conclusion that the 
beneficiary was not an "employee" of the foreign entity, as he was the only authority who set the working 
conditions for the position of general manager, which he occupied. 
With regard to the U.S. entity, the petitioner asserts that a mistake was made when answering the set of 
questions posed in the RFE. Specifically, the petitioner claims that the beneficiary is subject to the control of 
the U.S. entity's board of directors. In support of this claim, the petitioner submits a copy of its articles of 
incorporation an specifically points to article six, which states that the board of directors will govern the 
petitioning corporation according to the provisions set out in the company's by-laws. The petitioner also 
refers to article three, section two of the petitioner's by-laws, which also states that the corporation will be 
government by the board of directors. However, a review of article three, section one, subsection (b) of the 
petitioner's by-laws states that the board of directors is elected by the company's shareholders. As the 
beneficiary is the petitioner's sole shareholder, he can add or remove anyone fi-om the board of directors at his 
own discretion. Therefore, the beneficiary is ultimately subject to his own control as the sole shareholder. 
Accordingly, as previously concluded by the director, the beneficiary's majority ownership of the foreign 
entity and his sole ownership of the U.S. entity indicate that the beneficiary, in the context of both entities, is 
the employer for all practical purposes. He maintains control of both organizations; he has and would 
continue to set the rules governing his work at both entities; and he shares in all profits and losses of both 
entities. In light of these factors, the AAO cannot conclude that the beneficiary was an employee of the 
foreign entity or that he would be an employee of the U.S. entity. Based on these additional findings, this 
petition cannot be approved. 
Lastly, the petitioner expresses its extreme disbelief that the petitioner's prior L-1 A petitions, which were filed 
on behalf of the same beneficiary, could have been erroneously approved on multiple occasions. However, as 
previously stated in the director's decision, each nonimmigrant and immigrant petition is a separate record of 
proceeding and must stand on its own individual merits. As USCIS is not required to assume the burden of 
searching through previously provided evidence submitted in support of other petitions, the AAO is unable to 
determine why the petitioner's previously filed nonimmigrant petitions had been approved. If, in fact, the 
prior petitions had been approved based on the same assertions that are contained in the current record, the 
approvals would constitute material and gross error on the part of the director. However, as the AAO does 
not know the contents of the records pertaining to those nonimmigrant petitions, a conclusion cannot be made 
as to why the petitions were approved. Regardless, the director and the AAO have provided thorough 
analysis of the submissions and have explained how the petitioner has fallen short of establishing 
eligibility for the immigration benefit sought. Therefore, despite any of the director's decisions with regard to 
previously filed petitions, the instant petition cannot and will not be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.