dismissed EB-1C Case: Restaurant

U.S. Department of Homeland Security 
20 Mass. Ave., N.W ., Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Citizenship 
and Immigration 
il 
- 'v 
Office: TEXAS SERVICE CENTER Date: 
 JUC 09 
SRC 06 120 52123 
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. 3 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, ~hdf 
Administrative Appeals Office 
b 
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. The petitioner operates as an 
Italian restaurant chain and seeks to employ the beneficiary as its director of operations. 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. $ 1153(b)(l)(C), as a multinational 
executive or manager. The director determined that the petitioner failed to meet its burden of proof and 
denied the petition on the two following independent grounds of ineligibility: 1) the petitioner failed to 
establish that it would employ the beneficiary in a qualifying managerial or executive capacity; and 2) the 
petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity. 
On appeal, counsel disputes both grounds of the director's decision and submits a brief as well as additional 
documentation in support of his arguments. After a thorough review of the submissions, the AAO finds that 
the petitioner has met its burden of proof with regard to the first ground cited in the denial. As such, the 
director's adverse findings with regard to the first ground are hereby withdrawn. The remainder of this 
discussion will address the director's adverse findings with regard to the beneficiary's position with the 
foreign entity. 
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. 
I 
 The AAO notes that counsel specifically asked that Citizenship and Immigration Services (CIS) treat the petitioner's 
Form I-290B as a motion to reopenireconsider. See 8 C.F.R. 5 103.5(a)(2) and (3), respectively. However, in reviewing 
a petitioner's motion, the director has the discretionary authority to forward the record to the AAO in the event that the 
petitioner fails to meet the regulatory requirements for a motion. Accordingly, the record has been forwarded to the 
AAO to be treated as an appeal. 
Page 3 
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 primary issue in this proceeding is whether the beneficiary was employed abroad by a qualifying entity in 
a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in 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. tj 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
1 
(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 fiom higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated January 27, 2006, in which the petitioner 
stated that the beneficiary's position abroad was in the position of general manager, which included 
"overseeing and managing the company's overall plans, budgets, policies and transactions; overseeing and 
coordinating daily operations, including all facets of sales, expense control, inventory management, vendor 
relationships and financial performance." Although the petitioner provided a list of 1,186 employees that 
were part of the foreign entity's staffing structure, the position titles were in Spanish with no English language 
translation to accompany the list. 
On May 23, 2006, the director issued a request for additional evidence (RFE) instructing the petitioner to 
describe, in greater detail, the beneficiary's foreign position, including his specific job duties as well as the job 
titles and job duties of the beneficiary's subordinates. The petitioner was also asked to include an 
organizational chart of the foreign entity to illustrate the beneficiary's position with the company's hierarchy. 
In response, the petitioner submitted a letter dated July 31, 2006, which included the following statement 
regarding the beneficiary's employment abroad: 
[The beneficiary] was responsible for the overall management and supervision of operational 
management decisions. He was in charge of ensuring all operational aspects of the company 
were conducted in a cost-efficient and productive manner, reviewing personnel requirements 
and providing guidance regarding the proper execution of work according to [the] company's 
standards. [The beneficiary] was responsible for supporting [the] market and [the] company's 
direction, and monitoring the execution and adjustment of overall plans[.] 
Although the petitioner provided a detailed chart illustrating its own organizational hierarchy, including the 
names and position titles of the beneficiary's subordinates, the same is not true of the organizational chart for 
the foreign entity, which included no job titles. Instead, the chart named the beneficiary's department (as well 
as the two other departments at the same level within the organization) and the four divisions within the 
beneficiary's department. Although a translated list of positions was provided as part of the response, the list 
did not include the names of the employees that occupied those position titles, nor were there any identifying 
factors that placed the position titles within the specific departments or divisions listed in the organizational 
chart. Lastly, of the claimed 1,186 employees, only 123 position titles appeared on the English language 
translation, which was unaccompanied by any documentation to show that the translation originated from a 
certified translator such that proper evidentiary weight can be given to the document. See 8 C.F.R. 
9 103.2(b)(3). 
In a decision dated August 18, 2006, the director denied the petition finding that the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity. The 
director properly noted the deficient organizational chart, which failed to identify the beneficiary by name and 
job title, instead naming only the department where the beneficiary was employed. The director properly 
focused on the extreme lack of detail in the petitioner's statement regarding the beneficiary's job duties 
abroad, concluding that the petitioner failed to convey an adequate understanding of tasks the beneficiary 
performed to help reach the company's business goals. 
On appeal, counsel challenges the director's finding, asserting that the beneficiary has been employed in both 
a managerial and an executive capacity. However, counsel's supporting arguments address only the director's 
findings with regard to the beneficiary's proposed position with the U.S. petitioner. The only document 
submitted on appeal with regard to the beneficiary's foreign employment is a letter dated September 18, 2006 
in which the foreign entity's general manager stated that the beneficiary was employed by the foreign entity 
from 1998 to 2002 as the new business development manager, a job title that is different from the one cited in 
the January 27, 2006 support letter, which referred to the beneficiary's foreign position as that of general 
manager. It is noted that this inconsistency regarding the beneficiary's job title abroad has neither been 
acknowledged nor resolved. See Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
The current general manager of the foreign entity further stated that the beneficiary was directly responsible 
for the foreign business operation and its expansion into a chain restaurant. However, no follow-up 
explanation is provided to clarify how the beneficiary's foreign position falls under the statutory definitions 
for managerial and executive capacity. See sections 101(a)(44)(A) and (B) of the Act, respectively. 
Furthermore, if the petitioner chooses to represent the beneficiary as both an executive and a manager, it must 
establish that the beneficiary meets each of the four criteria set forth in the statutory definition for executive 
and the statutory definition for manager. In the present matter, despite the director's specific request for a 
detailed description of job duties, the petitioner's submissions consist of the beneficiary's vague job 
responsibilities. Precedent case law has firmly established that specifics are clearly an important indication of 
whether a 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. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Where, as here, the crucial information and 
proper supporting evidence is missing, the AA0 is unable to conclude that the beneficiary's foreign 
employment consisted primarily of managerial andor executive duties. 
Additionally, the record contains documentation that leads the AAO to question whether the beneficiary was, 
in fact, employed by the foreign entity for the requisite one-year period prior to coming to the United States as 
a nonirnmigrant. Specifically, the petitioner has indicated that the beneficiary was employed abroad from 
June 1998 to November 2002. However, in the Form G-325A, the beneficiary indicated that he lived in 
Florida as early as February 2000 and did not provide his last foreign address to assist CIS in determining 
when he last resided abroad. The record also shows that the beneficiary was issued employment authorization 
in July 1998 and that the authorization was valid until July 1999, a time during which the beneficiary 
previously claimed employment abroad. Lastly, the record shows that the applicant was married in the United 
States in February 2000, thereby leading the AAO to question whether he returned to Colombia to continue 
his purported employment with the foreign entity as previously claimed. Thus, in light of these numerous 
anomalies and the petitioner's failure to supplement the record with the required information regarding the 
beneficiary's foreign employment, the AAO cannot conclude that the requirements enumerated in 8 C.F.R. 
$ 204.56)(3)(i)(B) have been met. For this reason, the petition may not be approved. 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not previously addressed in the director's final decision. More specifically, 8 C.F.R. tj 204.5Cj)(3)(i)(C) 
states that the petitioner must establish that it has a qualifying relationship with the beneficiary's foreign 
employer. 
The regulation at 8 C.F.R. tj 204.5('j)(2) states in pertinent part: 
Affiliate means: 
Page 6 
(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 the present matter, the petitioner has maintained the claim that it is a subsidiary of Meals, Mercadeo de 
Alimentos de Colombia S.A. Among its supporting documents, the petitioner provided Articles of 
Amendment to Articles of Organization filed on June 28, 2002, showing Meals de Colombia Ltda. among its 
managers receiving a distribution of 71 3% of the petitioner's profits and losses.' In response to the RFE, the 
petitioner provided exhibit 7, which included membership certificate nos. 7-9 accompanied by the Articles of 
Amendment to Articles of Organization. While these documents show a change in the ownership and 
profitlloss distribution, effective in February 2006, they show that Meals de Colombia owns 51% of the 
petitioning entity and, therefore, maintains a controlling interest in Four Runners Investments, LLC. 
However, the record lacks documentation to establish a connection between Four Runners Investments, LLC, 
the U.S. petitioner, and Archie's Gourmet Pizza. Furthermore, the petitioner provided a photocopy of an 
article from Pizza Today from February 2006 identifying the beneficiary as the owner of Archie's Gourmet 
Pizza. Thus, even if the petitioner is doing business as Archie's Gourmet Pizza, there is a possible 
discrepancy with regard to the company's ownership. 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 Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(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. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
2 
 Exhibit 8, submitted in support of the Form 1-140, contains a certified translation of the foreign entity's Certificate of 
Existence and Legal Representation showing that it is doing business as Meals de Colombia S.A. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 
As a final note, service records show the petitioner's previously approved L-1 employment of the beneficiary. 
With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, in general, given the 
permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny by CIS than 
nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $8 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 4 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cf. $9 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also $ 316 ofthe Act, 8 U.S.C. 5 1427. 
In addition, because CIS spends less time reviewing Form 1-129 nonimmigrant petitions than Form 1-140 
immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. 
v. INS, 293 F. Supp. 2d 25,29-30 (D.D.C. 2003) (recognizing that CIS approves some petitions in error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. CIS is not required to assume the 
burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. The approval of a nonimmigrant 
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same 
beneficiary. CIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 
F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomely, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimrnigrant petitions on 
behalf of the beneficiary,-the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. The petitioner has not sustained that burden. 
Page 8 
ORDER: The appeal is dismissed.