dismissed EB-1C Case: Restaurant

(b)(6)
DATE: OCT 2 9 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S . Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 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-290B) 
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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
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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 a Florida corporation operating in the United States as a restaurant. It seeks to employ the 
beneficiary in the United States as its president and CEO. Accordingly, the petitioner endeavors to classify 
the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary was 
employed abroad and that he would be employed in the United States in a qualifying managerial or executive 
capacity. 
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. 
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. 
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 m which the 
employee primarily--
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(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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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. 
II. Facts and Procedural History 
The record shows that the petition was filed on September 23, 2013 and was accompanied by a supporting 
statement, dated September 9, 2013, which explained that the petitioner and the beneficiary's employer abroad 
are affiliates. The statement did not contain a description of the beneficiary's employment abroad other than 
to state that the beneficiary is the foreign entity's majority owner and that the restaurant currently has five 
employees, including two managers and three subordinate employees. With regard to the U.S. entity, the 
beneficiary, on behalf of the petitioner, indicated that he invested money to lease and remodel a space to 
house a new restaurant. He also stated that the petitioner entered into a commercial lease for its existing 
restaurant and provided the following brief job description of his proposed position with the U.S. entity: 
[The beneficiary] will occupy the most senior management position in the company. He will 
be responsible for managing and overseeing the operations of [the petitioner]. He will plan 
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and execute business objectives, develop and execute organizational policies and establish 
responsibilities and procedures for attaining objectives. [The beneficiary] will review activity 
reports and financial statements of the E-2 company to determine progress and status in 
attaining objectives and revise objectives and plans in accordance with current conditions. 
[He] will oversee all aspects of the operations of restaurant to ensure that 
it is running effectively and meets the highest standards including quality of beverage & food, 
guest interaction, service, atmosphere and cleanliness. He will be in charge of organizing 
marketing activities, such as promotional events and discount schemes. [He] will be 
responsible for hiring as well as evaluating performance of employees and contractors for 
compliance with established policies and objectives of the company and contributions in 
attaining objectives. [The beneficiary] will supervise and oversee the cooks and waiters of 
[the] restaurant as well as accounting, bookkeeping and lease affairs plus ensuring proper 
training of new employees, formulating work schedules, and maintaining good customer 
public relations within the community. 
Mter reviewing the record, the director determined that the petitioner did not provide sufficient evidence to 
establish that the beneficiary was employed abroad and would be employed in the United States in a 
qualifying managerial or executive capacity. Accordingly, the director issued a request for evidence (RFE), 
dated October 22, 2013, in which he instructed the petitioner to provide additional job descriptions for the 
beneficiary's positions with the foreign and U.S. entities. The director stated that the job descriptions should 
describe the beneficiary's job duties in much greater detail, listing his specific daily tasks along with an 
estimate of the percentage of time the beneficiary allocated and would allocate to each job duty with the 
foreign entity and the prospective U.S. employer. The director also instructed the petitioner to provide each 
entity's organizational chart along with job _ descriptions for the beneficiary's subordinates and evidence of 
their respective educational credentials. 
The petitioner's response included two statements - one from the foreign entity and the other from the 
petitioner- both dated December 19, 2013, describing the beneficiary's respective positions. As the director 
included the beneficiary's proposed list of job duties in the denial, the same information need not be repeated 
in this discussion. The following job description was provided with regard to the beneficiary's employment 
abroad: 
• Making all key and important decisions regarding the company including human resources, 
marketing, finance, accounting, and government relations[.] 20% 
• Meet with the management each day before opening to define objectives and tasks[.] 10% 
• Negotiation with suppliers and verification of all orders[.] 10% 
• Daily meeting with all company employees[.] 10% 
• Be available to respond to any issues presented by managers that can be related to customer 
service, personnel, suppliers or governmental matters[ .] 15% 
• Oversee daily, weekly, monthly, trimester, quarterly and yearly financial matters, accounting, 
payroll and tax filings[.] 20% 
• Review of daily activity reports to determine company progress in attaining goals and 
objectives and research opportunities for company growth[.] 15% 
The petitioner also provided organizational charts for both entities, depicting the beneficiary at the top of each 
entity's organizational hierarchy. The foreign entity's chart indicates that there are two managers overseeing 
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two separate operations. One of the operations - - shows that two employees are projected, 
although no position titles or employees are specifically identified. The other operation is not named and is 
showing as having a prep cook, cook, and sales person directly subordinate to the operation's manager. Like 
the foreign entity's chart, the chart of the petitioning entity also shows two separate operations -
- both headed by the beneficiary. The chart appears to 
show projections of future developments, including two retail locations belonging to and 
future hires for the wholesale operation. The petitioner also provided a second chart, which includes the 
restaurant operation that existed at the time the Form I-140 was filed and businesses operating under the 
heading of , including two retail shops and a third operation named ' " The 
portion of the chart depicting the existing restaurant operation shows a restaurant manager directly 
subordinate to the beneficiary, followed by two cooks, two prep cooks, two dishwashers, one waiter and one 
"help waitress," and four additional positions - two waiters, one cook, and one prep cook/dishwasher - shown 
as seasonal hires from December to May. 
In a separate document, the petitioner indicated that the beneficiary's only direct subordinate is the restaurant's 
manager, whose direct subordinate is the restaurant's head cook. The petitioner indicated that the rest of the 
restaurant's employees report directly to either the restaurant's manager or the head cook. The petitioner also 
provided its state quarterly wage report, which shows six employees were paid wages in September 2013, the 
month during which the instant Form I-140 was filed. 
In a decision dated March 12, 2014, the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary was employed abroad and would be employed in the United States in a 
qualifying managerial or executive capacity. The director found that the job descriptions provided in 
response to the RFE were deficient in their lack of details regarding the beneficiary's day-to-day job duties. 
The director also observed inconsistent information regarding the number of employees the petitioner had at 
the time of filing and found that the petitioner failed to submit requested information to establish the 
beneficiary's management of professional employees in either position. 
On appeal, the petitioner resubmitted the evidence that was previously provided in response to the RFE. 
Based our review of the record and for the reasons stated below, we find that the petitioner has failed to 
establish that the beneficiary was employed abroad and would be employed in the United States in a primarily 
managerial or executive capacity. 
III. Issues on Appeal 
As indicated above, the primary issues to be addressed in this proceeding call for an examination of the 
beneficiary's former and proposed positions with the foreign and U.S. entities, respectively. 
A. Qualifying Employment Abroad 
In general, when examining the executive or managerial capacity of a given position, we review the totality of 
the record, starting first with the description of the beneficiary's job duties. See 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). Beyond the required 
description of job duties, we conduct a review of other relevant factors, including the employer's 
organizational structure, the presence of subordinate employees and their respective positions, the nature of 
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the business conducted by the employing entity, and any other factors that may contribute to a comprehensive 
understanding of the beneficiary's actual duties and role in his position with the foreign entity. 
In the present matter, the petitioner offered a vague list of the beneficiary's responsibilities that fail to 
establish that the beneficiary's time in his position with the foreign entity was allocated primarily to tasks 
within a qualifying capacity. While the petitioner claimed that the beneficiary allocated 20% of his time to 
making key business decisions, the petitioner did not establish that negotiating with suppliers, meeting with 
restaurant staff, addressing matters concerning customer service, personnel, and suppliers, which consumed 
approximately 35% of the beneficiary's time, were tasks performed within a managerial or executive capacity. 
The petitioner also failed to establish what tasks the beneficiary performed in the course of overseeing the 
foreign entity's payroll and finances. Without additional information as to the specific tasks the beneficiary 
performed daily to meet his oversight responsibility, it cannot be concluded that such tasks went beyond the 
level of daily operations. In addition, while reviewing daily activity reports is a function that may be 
performed in a managerial capacity in certain circumstances, in the matter at hand, the petitioner did not 
clarify who actually generates these reports. Although the petitioner provided a document indicating that 
handled the foreign entity's accounting, payroll, government filings, and personnel 
management, the record indicates that Mr. did not assume these responsibilities until January 2012, 
approximately nine months prior to the beneficiary's arrival to the United States. It is unclear who, if not the 
beneficiary, was performing these administrative job duties prior to January 2012. It is also unclear how 
much time would have been allocated to these non-qualifying tasks if the beneficiary was performing them 
prior to January 2012. 
Despite the director's conclusion that the petitioner failed to submit sufficient evidence to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity for the requisite time 
period, counsel failed to address the director's specific findings and instead resubmitted the same 
documentation and job descriptions that the director previously found to be insufficient. In light of the 
considerable shortfalls of the supporting evidence submitted in this proceeding, it cannot be concluded that 
the beneficiary was employed abroad in a qualifying managerial or executive capacity and on the basis of this 
initial conclusion, the instant petition cannot be approved. 
B. Qualifying Employment in the United States 
Next, turning to the beneficiary's proposed employment with the petitioning U.S. entity, we conduct a similar 
comprehensive analysis of the record. As indicated above, a determination of the beneficiary's managerial 
employment capacity starts with an analysis of the beneficiary's proposed job duties with the petitioning 
entity. See 8 C.F.R. § 204.50)(5). 
Reviewing the evidence in the matter at hand, the description of the beneficiary's proposed employment is 
overly general and fails to convey a meaningful understanding of the beneficiary's daily tasks. Namely, the 
petitioner broadly states that the beneficiary allocates 30% of his time to "managing accounting matters" and 
meeting with the manager "to supervise wage and hour" and oversee pricing negotiations. However, the 
petitioner did not adequately define the specific underlying tasks involved in such management and 
supervision. In other words, if the manager would actually carry out the tasks associated with "wage and 
hour" and pricing negotiations, it is unclear what specific tasks the beneficiary would perform or what role he 
would assume in the course of his supervision. Specifics are clearly an important indication of whether a 
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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. 
The petitioner also indicated that the beneficiary would be directly involved in preparing to open new 
business locations, conducting research to find additional business locations, and looking for investors for 
additional business opportunities. However, the petitioner did not establish that any of these tasks, which 
would be performed in the course of commencing new businesses, are tasks that would be performed within a 
qualifying managerial or executive capacity. Rather, these tasks are more closely associated with the needs of 
a new business that is still in the developmental phase of operation, as opposed to tasks performed within the 
scope of an established business that has advanced beyond the initial stages of operation and has the need and 
capability to employ an individual whose primary focus would be to perform tasks that are within a qualifying 
managerial or executive capacity. 
In addition, despite the petitioner's submission of a supplemental job description in response to the director's 
RFE, we cannot overlook the petitioner's original supporting statement in which the beneficiary indicated that 
he would assume the responsibility of marketing and promotional events and overseeing, hiring, and 
evaluating restaurant staff and contractors whose job duties and educational credentials were not provided 
thus precluding the determination that these would be professional or managerial employees. The beneficiary 
also indicated that he would undertake administrative tasks, such as accounting and booking and formulating 
employee work schedules. It is unclear how much time the beneficiary planned to allocate to these non­
qualifying tasks at the time the petition was filed. While no beneficiary is required to allocate 100% of his or 
her time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to the 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 101(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). Here, the petitioner has failed to establish 
that the beneficiary was prepared to focus his time primarily on the performance of qualifying managerial or 
executive tasks at the time the petition was filed. 
Furthermore, looking to the petitioner's organizational hierarchy, it is not apparent that the petitioner was 
adequately staffed at the time of filing such that it had the ability to relieve the beneficiary from having to 
allocate his time primarily to administrative and operational tasks that would otherwise be performed by 
subordinate employees. As noted in the director's decision, the petitioner provided inconsistent information 
as to the number of employees it had at the time of filing. Namely, while the petitioner's Form 1-140 indicates 
that the petitioner had 15 employees at the time of filing, it listed a total of ten restaurant employees in the 
organizational chart that was provided in response to the RFE, while the petitioner's state quarterly wage 
report for the 2013 third quarter indicates that the petitioner had only six employees in September of 2013 
when the petition was filed. While all of the restaurant employees listed in the petitioner's organizational 
chart were included in the state quarterly wage report that accounts for the relevant time period, it appears that 
not all ten employees were employed simultaneously throughout the quarter. Despite the fact that the director 
discussed inconsistencies pertaining to the petitioner's staffing at the time of filing, this issue was not • addressed on appeal, which, as noted above, was entirely comprised of evidence that had been previously 
submitted in response to the RFE. 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 
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Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Given the petitioner's failure to resolve or even to acknowledge 
these anomalies on appeal, the petitioner has failed to establish precisely who was part of its organizational 
hierarchy at the time of filing. 
Furthermore, while the petitioner included in its organizational chart, the fact that it 
was organized as a limited liability company indicates that it is an entity separate and apart from the petitioner 
itself, despite the petitioner's ownership of the entity. It is therefore unclear that the evidence pertaining to the 
business operations of the business established by is relevant in this proceeding, as it does 
not directly concern the beneficiary's employment specifically within the entity filing the petition, but rather 
another of the petitioner's business interests. 
In summary, the above analysis indicates that the petitioner has failed to provide sufficient probative evidence 
to properly support the claim that the beneficiary would be employed in a qualifying managerial capacity 
where the primary portion of his time would be spent managing a staff of supervisory, professional, or 
managerial employees. Therefore, the petitioner has failed to meet the preponderance of the evidence 
standard with regard to the beneficiary's proposed employment and on the basis of this second adverse 
conclusion, this petition cannot be approved. 
IV. Conclusion 
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, 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 of Otiende, 26 I&N Dec. 
127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.