dismissed EB-1C Case: Restaurant

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
FILE: 
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 
NEBRASKA SERVICE CENTER Date: JAJI 1 4 2-ell 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.c. § I 153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision. or you have additional 
information that you wish to have considered. you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska 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 that seeks to employ the beneficiary as its president and CEO. 
Accordingly, the petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(C), as a 
multinational executive or manager. The director denied the petition based on the conclusion that the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusion and asserts that the petitioner met the preponderance of 
the evidence standard in establishing that it would employ the beneficiary in an executive capacity. Counsel 
also indicates that the appeal is intended to encompass the denial of the beneficiary's Form 1-485 and that of 
the beneficiary's spouse and child. However, the regulation at 8 C.F.R. § 245.2(a)(5)(ii) states, in pertinent 
part: "No appeal lies from the denial of an application [to adjust status under section 245 of the Act] by the 
director, but the applicant, if not an arriving alien, retains the right to renew his or her application in 
proceedings under 8 CFR part 240." 
The authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland 
Security pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L 107-296. 
See DHS Delegation Number 0150.1 (effective March 1,2003). The AAO exercises appellate jurisdiction 
over the matters described at 8 C.F.R. § 103.I(f)(3)(iii) (as in effect on February 28, 2003). The AAO only 
has jurisdiction over adjustment applications "when denied solely because the applicant failed to establish 
eligibility for the bona fide marriage exemption contained in section 245(e) of the Act." 8 C.F.R. 
§ 103. I (f)(3)(iii)(JJ) (as in effect on February 28,2003). As the applicant's Form 1-485 does not fall within 
our jurisdiction, the only matters that will be addressed in this decision are those that deal directly with the 
petitioner's eligibility to classifY the beneficiary as a multinational manager or executive. 
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. 
Page 3 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)( I )(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 primary issue in this proceeding is whether the petitioner would employ the beneficiary in the United 
States in a qualifYing managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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. § IIOI(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 
ofthe organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
Page 4 
(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 beneficiary, on behalf of the petitioner, submitted a statement of the 
proposed employment describing the beneficiary's proposed position with the U.S. entity.' The director also 
provided evidence establishing the petitioner's purchase of a restaurant establishment as well as the 
restaurant's payroll and tax documentation. 
On January 20, 2009, the director issued a request for additional evidence _ instructing the petitioner to 
provide a supplemental statement further describing the beneficiary's proposed employment, including a list 
of the proposed job duties, the types of employees supervised, and the level of authority of the beneficiary's 
immediate supervisor. The director also asked for the petitioner's organizational chart depicting the 
beneficiary's position in relation to other employees within the hierarchy. 
In operations manager of the petitioner's restaurant establishment, provided a letter 
dated April 10, 2009 on behalf of the petitioner, expanding the beneficiary's original job description which 
was provided in support of the Form 1-140. listed the four criteria discussed in the statutory 
definition for executive capacity and identified the various duties and responsibilities to illustrate the four 
individual criteria. 
The first criterion----directing the management of the organization or its major components-would include 
directing and coordinating the petitioner's financial and budgeting activities, analyzing company operations to 
determine whether financial and operational objectives are being met, and directing and coordinating all 
activities associated with production, pricing, sales, and distribution of products and services. The 
.-,- .a: financial and budgeting responsibilities would include reviewing financial reports provided by 
, the operations manager, and the restaurant supervisor and _ direct 
subordinate. Based on his analysis of the financial reports, the beneficiary would provide instructions on how 
to maximize returns on investments and increase efficiency and profitability. The beneficiary will also review 
profit statements offered by the company's accountant and direct the managerial staff to make any necessary 
cost reductions and policy changes. Lastly, the beneficiary will review management and operating reports 
provided by the operations manager, restaurant supervisor, and the restaurant staff and floor manager to 
ensure that production, pricing, and sales are optimal to increase profits. 
In addressing the second criterion-establishing organizational goals and policies ___ stated that the 
beneficiary will receive weekly reports from the above mentioned restaurant management staff in order to 
formulate policies for future implementation. The beneficiary will also set annual goals for the subordinate 
staff to ensure optimal operation. 
Next,~ddressed the third criterion of executive capacity-exercising wide latitude in discretionary 
decision-making. He stated that the beneficiary will receive only general supervision from the petitioner's and 
the foreign parent entity's board of directors. _ stated that the beneficiary will have discretionary 
authority to negotiate and approve contracts with suppliers, distributors, and state and federal agencies, to 
appoint department heads or managers, and to delegate responsibility to staff members. 
I As the director included this job description in the May 22, 2009 decision denying the petition, the AAO need not 
repeat this infonnation in the current discussion. 
Page 5 
Lastly, with regard to the fourth criterion--establishing that the beneficiary will receive only general 
supervision from higher level executives __ again indicated that the beneficiary would receive a 
certain level of supervision from the petitioner's and the foreign parent entity's board of directors. 
Per request in the _ the petitioner's organizational chart was also provided. It depicts the board of 
directors at the top of the petitioner's organizational hierarchy, followed by the beneficiary as the company's 
president and CEO. The chart depicts the petitioner's counsel, the operations manager, and the petitioner's 
accountant as the beneficiary's three direct subordinates. The remainder of the staff consists of a hierarchy of 
restaurant personnel, induding a restaurant supervisor and a staff and floor manager, both subordinate to the 
operations manager, a kitchen staff supervised by the kitchen manager, who is subordinate to the restaurant 
supervisor, and a wait staff supervised by the head waiter, who is subordinate to the staff and floor manager. 
After reviewing the documentation submitted, the director determined that the petition did not warrant 
approval and therefore issued an adverse decision dated May 22, 2009. The director found the beneficiary's 
job description to be overly vague and further noted that the petitioner's organizational chart does not 
establish that the petitioner has achieved a level of organizational complexity that would warrant the services 
of an employee who would primarily carry out job duties in a managerial or executive capacity. 
Additionally, the director determined that the evidence submitted does not establish that the beneficiary 
would be relieved of having to primarily perform operational tasks. He also found that the proposed 
employment does not fit the definition of managerial capacity, as the beneficiary would not oversee the work 
of professional, managerial, or supervisory employees. 
In the appellate brief that was submitted in support of the appeal, counsel challenges the adverse findings that 
interpret the beneficiary's job description in the context of the statutory definition for managerial capacity. 
Counsel states that the petitioner has consistently maintained that the beneficiary's proposed employment is in 
an executive capacity. While the AAO acknowledges that counsel's argument is in fact based on the 
petitioner's own claims, it is noted that considering the beneficiary's proposed employment in light of both 
statutory definitions, i.e., the definition for managerial and executive capacity, is common practice in 
determining a petitioner's eligibility under section 203(b)(J)(C) of the Act. This is done for the benefit of the 
petitioner to ensure that no petitioner is adversely affected merely by choosing the wrong statutory definition 
in relation to the beneficiary. In other words, by considering the beneficiary's proposed employment under 
both statutory definitions, U.S. Citizenship and Immigration Services (USCIS) ensures that any possibility of 
qualifYing for the desired immigrant classification has been explored and that no petitioner would be rendered 
ineligible simply by claiming executive capacity for an employee whose job duties more closely fit the 
statutory definition of managerial capacity or vice versa. There is no indication in the present matter that the 
director conducted his analysis only under the statutory definition for managerial capacity. In citing the 
statutory definition of executive capacity and later discussing the petitioner's organizational complexity and 
whether or not the beneficiary would be directing the management of an organization the AAO is satisfied 
that the director considered the beneficiary's proposed employment under both of the statutory definitions. 
Counsel also relied on the U.S. Department of Labor's (USDOL) definition of chief executive in asserting that 
the beneficiary's job duties are qualifying. Counsel's argument, however, fails for two reasons. First, the 
USDOL's general definition of a chief executive does not reflect the specific job duties that would actually be 
performed by the beneficiary. Second, the USDOL's description of a chief executive is entirely unrelated to 
the statutory definition of managerial or executive capacity in the immigration context, as the USDOL is not 
tasked with determining whether an alien merits employment-based immigrant visa classification under 
section 203(b)(1 )(C) of the Act. Thus, counsel's reliance on information provided by USDOL is misplaced 
and does not establish what the beneficiary's proposed job duties are or whether the proposed employment 
meets either of the statutory definitions that apply to the matter at hand. 
Counsel's focus instead should be on the job duties that are specific to the beneficiary's proposed employment 
with the U.S. entity. It is noted that reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties, as the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Nor can the petitioner satisfY its 
burden of proof by providing conclusory assertions regarding the beneficiary's employment capacity or by 
merely repeating the language of the statute or regulations. 
In the present matter, the description of the beneficiary's job duties is too vague to convey a meaningful 
understanding of exactly what the beneficiary will be doing on a daily basis and how much of his time would 
be spent on qualifYing tasks versus non-qualifYing ones. For instance, while the petitioner indicated 
repeatedly that the beneficiary is responsible for reviewing reports provided by subordinates and for 
delegating instructions and responsibilities based on the contents in the reports, no specific information was 
provided to explain which factors affect the beneficiary's decisions or the specific types of tasks the 
beneficiary would delegate and to whom they would be delegated. A comprehensive job description should 
provide enough information to enable USCIS to gain a meaningful understanding of the types of tasks that 
comprise the beneficiary's days at work. Stating that the beneficiary would spend a significant portion of his 
time reading reports and delegating responsibilities based on the contents of those reports does not provide a 
realistic illustration of the beneficiary's daily job duties in the context of a restaurant business. 
Additionally, while the beneficiary will be vested with a heightened degree of discretionary authority to 
negotiate and approve contracts and agreements with suppliers and distributors, the petitioner does not 
explain how such negotiation can be deemed as something other than an operational task. While the 
beneficiary's position within the petitioner's hierarchy and his level of discretionary authority are certainly 
factors that the AAO takes into account in determining the beneficiary's employment capacity, an ultimate 
decision cannot be made without a detailed description of the beneficiary's proposed job duties. See 8 C.F.R. 
§ 204.5(j)(5). Here, the only information with any degree of specificity regarding the beneficiary's job duties 
involves reviewing reports and negotiating contracts with various suppliers and distributors. This information 
is insufficient to enable the AAO to draw any conclusions as to how the beneficiary spends his time at work 
on a daily basis. 
Based on the information provided, it appears that the petitioner's main business concern is the operation of a 
single restaurant. It is unclear how, in the context of a restaurant setting, the beneficiary would be limited to 
performing primarily managerial or executive tasks or what those tasks would be. While the AAO 
acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or executive-level 
tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would perform are only 
incidental to hislher 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 I o I (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 
Page 7 
Dec. 593, 604 (Comm. 1988). Here, the petitioner has simply failed to provide sufficient information 
specifically identifYing the beneficiary's actually daily tasks. In light of this deficiency, the AAO cannot 
conclude that the beneficiary's prospective employment would be in an executive or managerial capacity. 
Additionally, while not addressed in the director's decision, the AAO finds that the petitioner has failed to 
meet the initial filing requirement discussed at 8 C.F.R. § 204.5(j)(3)(i)(D), which states that the petitioner 
must establish that it has been doing business for at least one year prior to filing the Form 1-140. The 
regulation at 8 C.F.R. § 204.5(j)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." As stated above, the evidence of record indicates that the petitioner's main business 
concern is the operation of a single restaurant which the petitioner purchased on August II, 2007 as 
evidenced by the bill of sale provided initially in support of the Form 1-140. The Form 1-140 itself was filed 
on November 5, 2007, or approximately three months after the purchase of the restaurant. The petitioner has 
provided no evidence to establish that it had been doing business prior to its purchase of the restaurant, thus 
indicating that it had not conducted business on a "regular, systematic, and continuous" basis for one full year 
prior to the date the petition was filed. See id. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identifY all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajj'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. § 1361. The petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.