dismissed EB-1C Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re: 20596856 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY . 26, 2022 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as the operator of a franchised restaurant location, seeks to pennanently 
employ the Beneficiary as a food and beverage manager in the United States under the first preference 
immigrant classification for multinational executives or managers . Immigration and Nationality Act 
(the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish that: 1) it had a qualifying relationship with the Beneficiary's foreign employer', 2) the 
Beneficiary would be employed in a managerial or executive capacity in the United States, 3) the 
Beneficiary was employed in a managerial or executive capacity abroad, and 4) it had the ability to 
pay the Beneficiary's proffered wage. The matter is now before us on appeal. On appeal, the Petitioner 
contends it has established the Beneficiary's eligibility as a function manager. 
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 since the 
Petitioner did not establish that the Beneficiary would be employed in a managerial or executive 
capacity in the United States. Since this identified basis for denial is dispositive of the Petitioner's 
appeal, we decline to reach and hereby reserve its appellate arguments with respect to the Director's 
other grounds for denial. See INS v. Bagamasbad, 429 U.S . 24, 25 (1976) ("courts and agencies are 
not required to make findings on issues the decision of which is unnecessary to the results they reach"); 
see also Matter of L-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
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)(l)(C) of the Act. 
1 The Director further concluded that the Petitioner and foreign employer were not a part of the same multinational 
organization based on the determination that it did not demonstrate a qualifying relationship. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed 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). 
The Petitioner solely contends that the Beneficiary would qualify as a function manager, and not as a 
personnel manager. The statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." See section 101(a)(44)(A) of the Act. The term "function 
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate 
staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will 
manage an essential function, it must clearly describe the duties to be performed in managing the 
essential function. In addition, the petitioner must demonstrate that "(l) the function is a clearly 
defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the beneficiary will 
primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level 
within the organizational hierarchy or with respect to the function managed; and ( 5) the beneficiary 
will exercise discretion over the function's day-to-day operations." Matter of G- Inc., Adopted 
Decision 2017-05 (AAO Nov. 8, 2017). 
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 as a multinational 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 
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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 in support of the petition that it is a "franchised branch" of the foreign employer 
and a "premier South Indian chain of non[-]vegetarian restaurants" based in New Jersey. The 
Petitioner listed the following general duties for the Beneficiary as its proposed food and beverage 
manager: 
• Manage the opening and closing of the kitchen 
• Prepare, cook and present food, quickly and efficiently, meeting our standards 
• Assist in keeping the kitchen clean, hygienic and tidy, at all times 
• Work safely around kitchen equipment and monitor and deal with any maintenance 
issues 
• Manage all kitchen-related office administration and third-party contractors 
• Manage and maintain correct staffing levels 
• Identify and take an active role in the recruitment of new staff members 
• Use food development plan to improve the sales and profitability of the restaurant 
• Maintain wastage through correct product measurement 
• Maintain personal knowledge by completing in-house training, attending courses 
and completing workbooks 
• Always adhere to all company policies and procedures 
• Carry out instructions given by the management team and head office 
In addition, the Petitioner listed certain percentages of time the Beneficiary devoted to different 
broadly cast responsibilities and included underlying tasks within each category: 
Quality Control 35% 
• While reporting to the Operations Manager, take responsibility for setting the 
expectation for all kitchen team members to maximize productivity 
• Responsible for speed and accuracy of the team 
• Responsible for the development and operation of their team to support one of the 
most critical factors in our success, food quality 
• Consistently monitor food temperature of hot food as well as [ e ]nsuring that our 
cold good is stored according to standards 
• Responsible for food safety 
• Perform basic repairs as needed to the kitchen equipment 
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Kitchen Safety and Equipment Maintenance 15% 
• Manage the day-to-day operation, identify and solve real problems, improve 
performance 
• Ensure consistent and accurate records are kept for temperature logs 
• Monitor/manage waste daily 
• Manage food cost 
• Manage inventory rotation and product usage standards 
• Communicate with Operations Manager on basic repairs and upkeep to the facility 
Personal Management 20% 
• Controls the head cook, grill cook, Indian & Tandoor cook and the assistant cooks 
• Adept at making all the chettinad food preparations 
• Thorough knowledge of our recipes and food preparation procedures 
• Promotional readiness and existing ongoing readiness of subordinates 
• Training of qualified team members to expand the operational efficiency of all 
shifts 
Daily Operations: Housekeeping Kitchen 20% 
• Checking stock levels and ordering supplies 
• Helping in any area of the kitchen when circumstances dictate 
• Deciding the menu, inventory and material management 
• Authorized to decide the menus and their prices for all outdoor catering and in 
house party orders 
Handling Kitchen Order Tickets 10% 
• Independently handles the kitchen smoothly during busy hours by helping and 
passing the kitchen order tickets 
• Handles the party orders and outdoor catering orders and assisting to complete in 
the kitchen without any complaints 
The Beneficiary's duties and the submitted supporting evidence indicate his primary involvement in 
non-qualifying operational duties related to operating the Petitioner's kitchen rather than managerial­
level tasks overseeing a defined function within the organization. For instance, the Beneficiary's 
duties stated that he would be regularly responsible for opening and closing the kitchen, preparing, 
cooking and presenting food, assisting in keeping the kitchen clean, dealing with maintenance issues, 
maintaining accurate stocking levels, and managing wastage. Likewise, the Beneficiary's duty 
description included other apparent non-managerial duties, such as him monitoring the temperature of 
hot foods, ensuring cold food is stored properly, performing basic repairs to kitchen equipment, 
keeping temperature logs, handling inventory rotation, and communicating repairs to the operations 
manager. Similarly, the duty description stated that the Beneficiary would be tasked with being adept 
at all food preparation and recipes, checking stocking levels, ordering supplies, passing order tickets 
to the kitchen, and handling and completing party and catering orders. 
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. 
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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 lists the 
Beneficiary's duties as including some asserted managerial tasks, but many administrative or 
operational duties, and it does not sufficiently quantify the time he would spend on each. In sum, the 
Beneficiary's duty description primarily includes non-qualifying operational tasks directly related to 
preparing foods, keeping the kitchen clean, supplying the kitchen, taking and completing orders, 
among other similar tasks he either performs or completes alongside his asserted coworkers. For this 
reason, we cannot determine whether the Beneficiary would primarily perform the duties of a manager. 
See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
On appeal, the Petitioner contends that the Director did not give sufficient "deference" to an expert 
opinion submitted on the record from a professor of food and beverage and hospitality management. 
The professor concluded that the Beneficiary's position was that of a function manager. However, the 
provided expert opinion lists the same duties discussed above reflecting the Beneficiary's primary 
performance of non-qualifying operational level tasks and provides little detail as to his claimed 
qualifying managerial level duties. For instance, beyond the discussed duty description, the professor 
emphasizes the Beneficiary "leading projects," being responsible for assigning tasks to his team 
members, "spearhead[ing] ... development and progress of all initiatives related to kitchen operations," 
overseeing the "design and execution of strategic planning and processes," and developing new 
business objectives. In addition, in concluding that the Beneficiary's position would be managerial, 
the professor points to him managing relationships with third-party vendors, developing and revising 
project plans and business strategies, and creating and disseminating "strategic roadmaps." 
However, the expert opinion and the record includes little detail and supporting documentation to 
substantiate the Beneficiary's performance of these claimed managerial duties, such as the projects he 
led, initiatives he spearheaded, strategic plans and processes he designed, business objectives he 
developed, third-party vendors he coordinated with, or strategic roadmaps he created and 
disseminated. Although we do not expect the Petitioner to articulate every specific managerial task or 
document his performance of every managerial duty, it is reasonable to expect that it would provide 
sufficient credible detail and documentation to properly substantiate his primary performance of 
qualifying managerial duties. Further, there is no supporting evidence to demonstrate the Beneficiary 
delegating non-qualifying operational tasks to the asserted employees within his function. This lack 
of detail and documentation is noteworthy considering the record appears to indicate that the 
Beneficiary has been acting in his purported managerial role since 2017. 2 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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
Therefore, the submitted expert opinion and other supporting evidence does not sufficiently establish 
the Beneficiary's asserted managerial position, and we disagree that the Director erred by not giving 
it proper "deference," as the Petitioner contends on appeal. We may, in our discretion, use as advisory 
opinion statements from universities, professional organizations, or other sources submitted in 
2 The petition was filed in February 2017. The Petitioner submitted IRS Forms W-2, Wage and Tax Statements, for the 
Beneficiary reflecting that he was paid $28,050 in 2017, $46,378.57 in 2018, and $48,857.14 in 2019. Further, a letter 
from the Petitioner's accountant submitted on appeal states that the Beneficiary was paid a salary of$47,138.65 in 2020. 
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evidence as expert testimony. However, where an opinion is not in accord with other information or 
is in any way questionable, we are not required to accept or may give less weight to that evidence. 
Matter of Caron Int'!, 19 I&N Dec. 791 (Comm'r 1988). 
Even though the Beneficiary holds as a managerial title and manages or directs a portion of the 
business does not necessarily establish eligibility for classification as a multinational manager within 
the meaning of section 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, Function 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 conflicting evidence related to its staffing levels leaving substantial 
uncertainty as to whether the Beneficiary's claimed function existed when the petition was filed, and 
whether it was, and is, sufficiently staffed to relieve him from primarily performing the non-qualifying 
operational tasks widely discussed in his duty description. In the Form I-140, the Petitioner stated that 
it had 25 employees, while an organizational chart submitted in support of the petition showed only 
12 employees, including the Beneficiary and the managing partner. The organizational chart also 
reflected that the Beneficiary would oversee a front office supervisor overseeing a bartender, a cashier, 
a "busser/runner," and an order taker. Further, the chart indicated that the Beneficiary would supervise 
a head chef overseeing a "Chettinad Chef'' supervising a dishwasher, and that he would also supervise 
a "Dosa/Parotta Chef'' overseeing a butcher/kitchen helper. 
However, the IRS Form 941, Employer's Quarterly Federal Income Tax Return dated closest to the 
time the petition was filed from the fourth quarter of 2016 reflected that it paid wages to only four 
employees. This leaves substantial question as to who was performing the various operational tasks 
inherent in the positions listed underneath the Beneficiary, including running the bar, taking payments 
and orders, delivering food to customers, and preparing food, all duties emphasized in the duty 
description. Further, the Petitioner provided no supporting evidence to substantiate the employment 
of contractors to fulfill these operational roles, despite suggesting that it engaged contractors when 
needed. 
In response to the Director's request for evidence (RFE), the Petitioner provided little evidence as to 
the staffing of its organization, such as a list of its employees and contractors and their duties, as 
indicated by the Director in the RFE. In fact, the Petitioner submitted additional evidence leaving 
further doubt as to whether its was sufficiently staffed to support the Beneficiary's claimed function. 
For instance, the Petitioner provided a state quarterly wage form from the second quarter of 2020 
reflecting that it paid wages to only three employees, one being the Beneficiary and the other the front 
office supervisor listed in its only submitted organizational chart. Meanwhile, an IRS Form 941 from 
the third quarter of 2020 showed that it had paid wages to only two employees. Again, the record 
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included no other supporting evidence to support that it employed contractors to operate the restaurant 
and the Beneficiary's food and beverage function at that time. 
The conflicting documentary evidence as to the Petitioner's staffing leaves substantial uncertainty as 
to whether the Beneficiary had a kitchen and beverage function to oversee as of the date the petition 
was filed through to this adjudication, a function it claimed included operational level employees to 
relieve him from non-qualifying tasks. In fact, the expert opinion emphasized by the Petitioner on 
appeal pointed to "a number of professional-level personnel to carry out the day-to-day operations of 
the food and beverage function," including an operational manager, branch manager, kitchen manager, 
several types of cooks and assistants, dishwashers, amongst other typical restaurant employees. 
However, the submitted evidence, both from the date the petition was filed and thereafter, reflects that 
the Petitioner had few employees to fulfill these various roles and to make up the Beneficiary's 
asserted function. Indeed, the expert opinion discusses a subordinate kitchen manager and kitchen 
supervisor, leaving further uncertainty as to the Petitioner's assertion that it would also require the 
Beneficiary's food and beverage manager role. Again, the Petitioner must resolve inconsistencies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing and continuing 
through adjudication. 8 C.F.R. § 103.2(b)(l). 
As noted, the Petitioner only contends that the Beneficiary would qualify as a function manager, and 
not as a personnel manager. However, as discussed, the Petitioner did not establish that the 
Beneficiary's claimed function existed when the petition was filed, or thereafter, based on the 
conflicting and insufficient evidence specific to its staffing levels. Furthermore, even if it 
demonstrated that the Beneficiary's asserted function existed when the petition was filed, it did not 
demonstrate that he would be primarily tasked with managerial tasks overseeing a function rather than 
performing non-qualifying operational duties. See Matter of G- Inc., Adopted Decision 2017-05. 
Therefore, for the foregoing reasons, the Petitioner has not established that the Beneficiary would be 
employed in a managerial capacity in the United States. 
ORDER: The appeal is dismissed. 
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