dismissed EB-1C Case: Restaurant

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofjce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 09 036 52571 
MAY 0 7 2010 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: SE<LF-REPRESENTED 
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. 5 103.5. 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 $585. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Vperry Rhew 
Chief, Administrative Appeals Office 
Page 2 
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 limited liability company organized in the State of Florida. It seeks to employ the 
beneficiary as manager of its restaurant. Accordingly, the petitioner endeavors to classify the beneficiary as 
an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
based on two independent grounds of ineligibility: 1) the petitioner failed to establish that it has a qualifying 
relationship with the foreign entity that employed the beneficiary abroad; and 2) the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, the petitioner disputes the denial, asserting that the denial was improperly issued in violation of 
the petitioner's due process rights under the Fifth Amendment of the Constitution. The petitioner provides an 
appellate brief further expressing disagreement with the director's decision to deny the petition. 
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)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first basis for the director's denial and therefore the first issue to be addressed in this proceeding is 
whether the petitioner has a qualifying relationship with the foreign entity that employed the beneficiary 
abroad. 
The regulation at 8 C.F.R. 5 204.50)(2) states in pertinent part: 
AfJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In support of the Form 1-140, the petitioner submitted two separate letters, both dated November 11, 2008. 
While both letters similarly referred to the beneficiary's prior employment in Brazil in the restaurant industry 
as a means of expressing the beneficiary's prior experience in a similar field as the one in which the petitioner 
is engaged, the beneficiary's foreign employer was not specifically identified and no mention was made nor 
documentation provided to indicate that the petitioner and the beneficiary's foreign employer share common 
ownership and control such as to constitute a qualifying relationship. See Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
Accordingly, in a decision dated February 9, 2009, the director denied the petition, finding that the petitioner 
failed to establish that it has a qualifying relationship with the beneficiary's foreign employer. The director 
restated the statutory and regulatory requirements that clearly impose upon the petitioner the burden of 
establishing that it is "the same employer or a subsidiary or affiliate of the firm or corporation, or other legal 
entity" that employed the beneficiary abroad. In other words, the director adequately reiterated the statutory 
and regulatory prerequisite for a qualifying relationship between the U.S. petitioner and the beneficiary's 
employer. The director then observed that the evidence of record indicates that the petitioner is a local 
business with no indication of foreign ownership. 
On appeal, the petitioner asserts that the denial, without prior issuance of a request for additional evidence 
(WE) or a notice of intent to deny (NOID:), constitutes an infringement on the petitioner's Fifth Amendment 
due process right to petition for the beneficiary's employment. The petitioner's argument, however, fails in 
several respects. 
First, in order to prevail in a due process claim, the petitioner must show that any violation of the regulations 
resulted in "substantial prejudice" to them. See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) 
(holding that an alien "must make an initial showing of substantial prejudice" to prevail on a due process 
challenge). Here, the petitioner has fallen far short of meeting this standard. The record and the adverse 
Page 4 
decision both indicate that the director properly applied the statute and regulations to the petitioner's case. 
The petitioner's primary complaint is that the director denied the petition. As previously discussed, the 
petitioner has not met its burden of proof and the denial was the proper result under the regulation. 
Second, the petitioner's argument is premised on the underlying belief that the issuance of an RFE or NOID is 
compulsory on the part of U.S. Citizenship and Immigration Services (USCIS). The petitioner is incorrect, as 
the decision to issue such notices is entirely at the discretion of the director, who can choose to deny a petition 
if all required initial evidence is not submitted with the petition. See 8 C.F.R. 5 103.2(b)(8)(ii). Thus, the 
director did not violate any statutory or regulatory provision by choosing not to issue an RFE or a NOID. 
Lastly, the petitioner appears to believe that being a U.S. organization and having business associates who 
actively engaged in business abroad for at least one year is sufficient to meet the qualifying relationship 
requirement. This interpretation of the statutory and regulatory requirement regarding a qualifying 
relationship is not correct. Both the Act and 8 C.F.R. 5 204.5(j)(3)(i)(B) state that the petitioner must 
establish that it has a qualifying relationship with the foreign entity that employed the beneficiary abroad for 
at least one out of the three years prior to the alien's entry into the United States if the alien entered the United 
States for the purpose of working for the same entity or an affiliate or subsidiary of the foreign entity. If the 
alien did not enter the United States for such purpose, the petitioner must establish that the one year of 
qualifying employment took place within the three years prior to the filing of the petition. 8 C.F.R. 
9 204.5(j)(3)(i)(A). The terms affiliate and subsidiary, whose regulatory definitions are restated above, define 
what qualifies as a qualifying relationship between the U.S. and foreign entities. See 8 C.F.R. tj 204.5(j)(2). 
Relevant case law further establishes that that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362; Matter of Hughes, 1 8 I&N Dec. 289. 
In the present matter, the petitioner provides a confusing explanation, claiming that it is "a partnership to be 
considered with a partnership organized within the United States if the foreign partnership markets its 
services under the same internationally recognized name . . . ." Equally as confusing is the petitioner's 
follow-up statement claiming that its organization is comprised of "multiple members, an affiliate to 
qualifying related organizations to petition for its managers from foreign entities (associates)." The 
petitioner's confusing statements make it impossible for the AAO to determine what type of relationship the 
petitioner claims to have with a foreign entity, which foreign entity is on the other end of that purported 
relationship, and what type of affiliation, if any, the petitioner has with the beneficiary's still unidentified 
foreign employer. In summary, the petitioner has not claimed nor provided evidence to indicate that it shares 
common ownership and control with the beneficiary's former foreign employer. Therefore, the petitioner has 
failed to establish that it has the qualifying relationship that is required to show eligibility for the immigration 
benefit sought in the present matter. Based on this initial finding, the instant petition cannot be approved. 
The second issue in this proceeding is whether the petitioner established that it 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. 5 1 10 1(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 5 
(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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 8 1 10 1(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In the petitioner's support letters, the petitioner mentioned the beneficiary's prior managerial experience and 
generally stated that the beneficiary's skills, courses, training, and level of education make the beneficiary an 
ideal candidate for the managerial position with the petitioning entity. The petitioner focused heavily on the 
beneficiary's multilingual abilities, claiming that many of its clients speak Italian, Portuguese, or Spanish, all 
three of which the beneficiary is also able to speak. The following job description was provided for the 
beneficiary's proposed employment: 
This position requires the beneficiary to establish the operation of the company, organize and 
oversee all administrative matters[,] exercise full responsibility for recruiting, hiring, training 
and dismissing employees. He will ensure the coordination of the departments and workers, 
implements [sic] policies and adopt strategies to improve business holding full authority over 
all executive decisions . . . . He will handle all policy and business decisions such as 
Page 6 
negotiation of contracts to provide for services, purchases, sales pricing, banking insurance 
and credit terms and its employees[.] He is also, responsible for insuring that sales and profit 
goals are met each quarter, has the discretionary authority to reduce costs as he sees fit. His 
senior level is established since his function within the organization includes the decision[- 
].making authority over salary increases, hiring and firing, training of staff, budgetary 
concerns, and capital expenditures[.] He will have authority to bind the company 
contractually in any matters. . . . 
In the United States the beneficiary will secure his managerial position with a qualified staff 
of employees. He will direct and supervise their activities which will be geared towards the 
sales of our products. In addition, he will be responsible for the analysis of the company's 
revenues, sales techniques and overall operations. He will observe the daily progress of 
employees. And will [sic] include development of marketing strategies in order to determine 
the potential emerging markets for our services and create materials for marketing, sales 
training, and presentations. He will assist "Sal's" with business expansion, productivity and 
profit. Will [sic] develop solutions to any problems that he perceives based on previous 
managerial experience. . . . 
The petitioner also provided the following percentage breakdown to describe the beneficiary's proposed 
employment: 
1. Overseeing and coordinating commercial operations-30%[.] 
2. Establishing appropriate contact and business relationships with customers, Distributors 
and others, reviewing terms and negotiating most favorable deals [flor the corporation, 
3 0% [.I 
3. Monitoring consumer preferences and possible marketing opportunities, assuring a correct 
positioning within the market and proper promotion of the products and services offered- 
30%[.] 
4. Assigning sales, setting goals, and analyzing sales statistics to determine sales potential and 
inventory requirements-1 0%[.] 
The director generally concluded that the petitioner failed to establish that the beneficiary would function in a 
managerial or executive capacity. 
On appeal, the petitioner claims that the director's decision was arbitrary and capricious, asserting that an RFE 
or NOID should have been issued to inform the petitioner of any deficiencies prior to the ultimate denial. As 
discussed above, the director's choice to forego issuing an RFE or NOID in the present matter does not 
establish that the denial was arbitrary or capricious. Therefore, the AAO finds that the petitioner's statement 
is without merit. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 9 204.56)(5). Next, the AAO notes that an employee 
who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to 
Page 7 
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). 
In the present matter, while the petitioner has adequately conveyed a sense of the beneficiary's level of 
discretionary authority with regard to the petitioner's employees and business matters, the description failed to 
establish that the primary portion of the beneficiary's time would be allocated to performing tasks within a 
qualifying capacity. A portion of the job description indicated that at least some portion of the beneficiary's 
time would be allotted to non-qualifying tasks, while a significant portion of the job description failed to 
specify actual daily tasks. For instance, the petitioner stated that the beneficiary would be responsible for 
negotiating various types of contracts and developing marketing strategies. However, contract negotiation 
and marketing are both operational tasks and therefore cannot be deemed as qualifying within a managerial or 
executive capacity. The beneficiary is also charged with overseeing company employees in their sales of the 
company's products and hiring and training employees. However, the petitioner failed to establish that the 
employees the beneficiary would oversee, hire, and train can be deemed supervisory, professional, or 
managerial. See sections 10 1 (a)(44)(A)(ii) of the Act. Although the petitioner assigned a percentage of time 
to general job responsibilities, the percentage breakdown did not specifically indicate the percentage of time 
the beneficiary would spend in contract negotiation or employee supervision. 
Other portions of the beneficiary's job description were overly general and failed to convey an understanding 
of the specific tasks that would be performed or how they fit in the context of a restaurant business. For 
instance, the petitioner stated that the beneficiary would coordinate departments, implement policies, and 
make sure that sales and profit goals are met. The petitioner did not clarify what actual daily tasks would be 
performed in meeting these general job responsibilities. 
With regard to the percentage breakdown, the job description was generally vague and also included certain 
elements that indicated the beneficiary would spend a significant portion of his time performing non- 
qualifying tasks. For instance, the petitioner allocated 30% of the beneficiary's time to overseeing and 
coordinating commercial operations. It is unclear what these "commercial operations" could possibly be 
given that the petitioner is a restaurant operation. The petitioner indicated that another 60% of the 
beneficiary's time would be allocated to establishing business relationships with customers and distributors, 
monitoring consumer preferences, and ensuring that the petitioner's products get properly promoted. 
However, the beneficiary's performance of customer service and marketing related tasks cannot be deemed as 
time spent in a qualifying managerial or executive capacity. According to the percentage breakdown, 
approximately 60% of the beneficiary's time would be spent performing daily operational tasks. As stated 
above, an employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" eniployed 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. at 604. The petitioner 
has failed to establish that the beneficiary would primarily perform tasks within a qualifying managerial or 
executive capacity. Therefore, based on this second ground cited in the director's denial, the instant 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. 5 1361. The petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.