dismissed EB-1C Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re : 11283641 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 1, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, an owner and operator of a barbeque restaurant, seeks to permanently employ the 
Beneficiary as its president 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 contends the Beneficiary qualifies as a manager based on her 
supervision of subordinate managers and professionals as defined by the regulations . 
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(j)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would act in 
a managerial capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in an executive capacity. Therefore, we restrict our analysis to whether the Beneficiary 
would be employed in a managerial capacity. 
"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). 
When examining the managerial 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 
capacity. 8 C.F.R. § 204.5(j)(5). 
A. Duties 
To be eligible for L-lA nonimmigrant visa classification as a manager, the Petitioner must show that 
the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 101(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 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 
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, 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 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 owns and operates a barbeque restaurant franchise and that it "has been 
exploring other business opportunities to invest, manage, and develop more franchised [barbeque] 
fast-food restaurants in the next few years." The Petitioner indicated that the Beneficiary would 
perform some of the following duties as its president: 
Set and implement the overall strategy of the U.S. company- 15% 
• Set and adjust the development strategy for the company, organize to implement the 
overall strategy of the company, develop market opportunities, clarify the business 
direction and focus of the company and follow through the whole process of new 
projects of important clients, 
• Review potential new office locations researched, selected, and recommended by 
subordinate owner operator, 
2 
• Negotiate lease terms with landlord, 
• Attend different tradeshow and private events, 
• Allocate and approve budget for business development purposes, and 
• Modify and approve the budget and instruct the Owner Operator to execute according 
to the plan. 
Make and implement the annual operation plan of the U.S. company- 15% 
• 
• 
• 
• 
• 
• 
• 
Set, amend and implement the annual operation plan based on the annual operation 
goals, prepare and implement the financial budget plan and plans for profit distribution 
and redistribution, 
Set sales goals for the restaurant and the mobile app business, 
Approve new vendors for restaurant equipment and supplies, 
Direct financial management, including specific goals for the company's balance sheet, 
Determine the funding for each store's operations and projects, 
Arrange for various payments of operational expenses and review accounting reports 
to monitor payment status, and 
Inquire about the source and reason for the extra expenditure . 
Establish sound routine operational management rules- 25% 
• Select middle and high-level management personnel, 
• Approve major personnel decisions, 
• Improve financial management systems and make financial rules and regulations, 
• Establish and improve the logistics and administrative management rules, 
• Lead in establishing sound internal communication channels, and 
• Coordinate relationships between different departments. 
Build an efficient and vibrant employee team- 25% 
• Responsible for hiring and firing of direct subordinates, including Pitt Boss and Owner 
Operator, 
• Provide reasonable salary system and effective motivation system, continuously train 
and develop excellent employees, and 
• Establish company culture, regulate internal cohesion, and hold various employee 
events. 
Manage the work of direct subordinates- 20% 
• 
• 
• 
• 
• 
Preside over regular meetings with the Pitt Boss and Owner Operator, 
Supervise and evaluate the work performance of subordinate managers and appoint and 
remove them, 
Learn about the company's status and any issues in daily operations, 
Provide advice to Pit Boss and Owner Operator regarding problems encountered, how 
to resolve problems, and make work plans for the corning week, 
Provide guidelines and instructions to the managers, 
• Make decisions on issues that may interrupt the effective and efficient running of 
the normal business activities, and 
• Establish KPI (Key Performance Indicator) systems. 
3 
The Petitioner submitted supporting evidence indicating the Beneficiary's likely involvement in 
several non-qualifying operational duties related to its barbeque restaurant. For instance, the Petitioner 
submitted a printout of an online ordering application listing the Beneficiary as a contact for orders. 
Further, a letter provided with the petition from the owner-operator of the Petitioner's barbeque 
restaurant described several apparent non-qualifying operational level duties, such as her closely 
monitoring sales, inventory, accounts receivable and payable and her purchasing "raw materials" and 
new cooking equipment. Likewise, the Petitioner submitted instructions written by the Beneficiary 
from November 2018 where she discusses a claimed subordinate doing "more deep cleaning." 
The Petitioner also submitted another letter from the owner-operator stating that the Beneficiary "has 
managed the ... restaurant from the beginning" and noting that she "personally ensures the quality and 
timely delivery of all caterings and call[s] customer[s] to ask opinions." In addition, the Petitioner 
provided a weekly schedule from November 2018 reflecting that the Beneficiary was assigned hours 
as a "Pitt Boss" from 11:00 am to 9:30 pm on Tuesday and Wednesday, and from 11:00 am to 7:30 
pm on Sunday of that same week. 1 Likewise, the Petitioner stated in a support letter that the 
Beneficiary approves and corrects this weekly schedule. It also submitted a text message exchange 
between the Beneficiary and a subordinate discussing the cash receipts from that day, including a 
picture of an applicable receipt, and it indicated that this practice is "routine every night." Therefore, 
in sum, it the Petitioner provided documentary evidence indicating that the Beneficiary is likely 
primarily engaged in ordinary operational activities alongside the other employees of its barbeque 
restaurant. Further, it is noteworthy that many of these apparent non-qualifying operational duties 
questionably do not appear in the Beneficiary's asserted duty description leaving uncertainty as to 
their credibility. 
Whether the Beneficiary is a managerial employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" managerial. See sections 101(a)(44)(A) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties would be 
managerial functions and what proportion would be non-qualifying. The Petitioner submits evidence 
reflecting the Beneficiary's duties as including administrative or operational tasks, but it does not 
quantify the time she spends on these duties as compared to qualifying managerial tasks. For this 
reason, we cannot determine whether the Beneficiary would primarily performing the duties of a 
manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
In addition, the Beneficiary's duty description is overly generic, not supported by the submitted 
evidence, and it does not sufficiently convey that she would devote her time primarily to qualifying 
managerial tasks. For instance, the Petitioner emphasized the Beneficiary would spend approximately 
30% of her time developing additional restaurant locations and a "mobile app business," including 
formulating strategies related to these ventures. However, the record reflects that the Beneficiary has 
been in the United States since December 2015 as a nonimmigrant, supposedly employed as the 
Petitioner's president, yet there is no evidence to indicate that it has, or is in the process of, developing 
any other franchise locations or working on any ventures beyond its one barbeque restaurant location. 
Further, the Beneficiary's duties are largely generic and could apply to any president in any business 
and industry and they do not sufficiently substantiate her asserted managerial role. The duty 
description includes few specifics related to the company's actual business or industry. The Petitioner 
1 The petition was filed on May 3, 2019. 
4 
provided insufficient examples and little supporting documentation to demonstrate the Beneficiary's 
performance of qualifying managerial duties, such as development strategies she set, "new projects" 
or "important clients" she worked with, budgets she approved, operational plans she put in place, or 
sales goals she set. Similarly, the Petitioner did not credibly describe or document major personnel 
decisions she made, financial management systems she established, "management systems" she 
created, or "KPI systems" she implemented. 
The lack of detail and documentation regarding the Beneficiary's asserted managerial capacity is 
particularly notable given that the Petitioner asserts that she has acted in this role in United States for 
more than three years. Although we do not expect the Petitioner to articulate every specific related to 
the Beneficiary's duties or document her performance of every managerial task, it is reasonable to 
expect that it would provide sufficient credible detail and documentation to properly substantiate her 
performance of managerial duties, particularly since it their evidentiary burden and it claims she has 
acted in this role for years. Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily managerial in nature, otherwise meeting the definitions would simply be a matter 
ofreiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d41 (2d. Cir. 1990). 
Even though the Beneficiary holds a senior position within the organization, the fact that she will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational manager within the meaning of section 10l(a)(44)(A) 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 her actual duties would be primarily managerial in nature. 
B. Staffing and Personnel Manager 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
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. 
The Petitioner submitted an organizational chart with the petition indicating that the Beneficiary would 
supervise a "Pitt Boss" and an owner-operator. The chart farther reflected that the Pitt Boss would 
oversee three "Shift Pitt bosses" and that one shift bosses would supervise eight restaurant staff 
employees. In addition, the chart indicated that the owner-operator would oversee a marketing 
employee and an outsourced bookkeeping and a tax service provider. 
On appeal, the Petitioner emphasizes that the "local first-line managers supervised by [the] beneficiary 
have food handler certificate[s] and Serv Safe Manager Certificate[s] of [the] National Restaurant 
Association" and that they are "professionals in the hospitality industry." The Petitioner also asserts 
that the claimed owner-operator subordinate to the Beneficiary earned a Bachelor of Arts degree in 
China. The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(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 
5 
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). As 
the Petitioner does not assert that the Beneficiary would act as a function manager, we will only 
analyze whether she would qualify as a personnel manager as claimed. 
The Petitioner has not sufficiently demonstrated that the Beneficiary would act as a personnel manager 
overseeing subordinate supervisors. As discussed, the Petitioner provided an organizational chart 
reflecting that the Beneficiary oversaw three subordinate "Pitt Bosses" who in tum supervised 
restaurant staff It also claimed that the Beneficiary oversaw the owner-operator, who had 
subordinates of his own. First, the Petitioner provided supporting evidence indicating that the claimed 
"Pitt Bosses" subordinate to the Beneficiary are actually operational employees fulfilling temporary 
roles to ensure that the restaurant operates properly. However, there is little evidence or indication 
that these are permanent positions, or that these employees hold actual personnel authority over their 
claimed subordinates. In fact, as we have noted, the supporting documentation reflects that the 
Beneficiary acted as a "Pitt Boss" herself twice a week as late as November 2018. The Petitioner also 
provided a document appearing to reflect that its various operational employees are assigned to these 
different roles on a week to week and shift to shift basis, suggesting that these are not actual 
subordinate supervisors and managers, but operational employees assigned to these roles as needed. 
Further, as discussed, there is substantial evidence indicating that the Beneficiary acts alongside these 
operational employees performing all the tasks necessary to keep the barbeque restaurant operating. 
In addition, the Petitioner has not credibly established that the owner-operator is her subordinate. First, 
there is no credible evidence on the record of the Beneficiary exercising personnel authority over the 
owner-operator. The Petitioner also provided a generic duty description for the owner-operator, 
vaguely indicating that he supervised marketing staff: compiled recommendations for the 
Beneficiary's review, conducted food safety assessments, and resolved customer complaints. These 
duties appear to be largely the same as the Beneficiary's and there are several documents on the record 
indicating that the owner-operator, the Beneficiary's husband, also acted as the company's president 
before and after her entry as a nonimmigrant. In fact, despite the owner-operator claiming that the 
Beneficiary can fire him, he also states that "we are more sort of partners and it is common to run 
business with husband and wife." As such, it is questionable that the Beneficiary would exercise foll 
personnel authority over the owner-operator since he owns 100% of the Petitioner and he is her 
husband and stated business partner. In fact, given the submitted evidence, it seems more likely that 
the Beneficiary and her husband act as partners in running the business on a daily basis. Therefore, 
for the foregoing reasons, the Petitioner did not sufficiently establish that the Beneficiary would act as 
a personnel manager based on her personnel authority over subordinate supervisors. 
Next, we will analyze the Petitioner's contention that the Beneficiary would qualify as a personnel 
manager based on her supervision of subordinate professionals. 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 101(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 
6 
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 has not sufficiently demonstrated that the Beneficiary would qualify as a personnel 
manager based on the supervision of subordinate professionals as claimed. As noted, the Petitioner 
contends that the "local first-line managers supervised by [the] beneficiary have food handler 
certificate[s] and Serv Safe Manager Certificate[s] of [the] National Restaurant Association" and that 
they are "professionals in the hospitality industry." However, food handling or safety certificates are 
not bachelor's degrees and the duties of the "Pitt Boss" positions do not include professional tasks 
requiring a bachelor's degree as contemplated by the regulations, including them interacting with 
customers, submitting food orders, and ensuring the implementation of safety policies in a restaurant 
setting. 
Further, even if the Petitioner had established that the Beneficiary would have personnel authority 
over the owner-operator, it is not clear how this qualifies as a professional position as defined by the 
regulations. The Petitioner only indicates that the owner-operator earned a Bachelor of Arts degree 
from China, but it does not indicate how this position requires such a degree to perform its duties, 
including marketing a barbeque restaurant, conducting research on online food ordering, and 
conducting food safety assessments. In fact, the staff schedule indicates that the owner-operator was 
assigned to open the restaurant four days per week, suggesting that he is fulfilling a role similar to that 
of the Beneficiary; namely performing non-professional operational duties running the restaurant that 
do not require a bachelor's degree. As such, the Petitioner has not sufficiently established that the 
Beneficiary would act as a manager of professional subordinates. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would act in a 
managerial capacity in the United States. 
ORDER: The appeal is dismissed. 
7