dismissed EB-1C Case: Restaurant

identifvlng data deleted to 
prevent clcerly unwarranted 
invasion of personal privacy 
liOB1JC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
MAY 23 20U 
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 
FILE: 
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. § 1153(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 maller 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 he 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Do not file any motion directly with the AAO. 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, 
~erry Rhew 
V hief, Administrative Appeals Office 
www.uscis.gov 
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 Texas corporation that that operates a seafood restaurant. It seeks to employ the 
beneficiary as its "chef manager." 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. 
In support of the Form 1-140 visa petition, the petitioner submitted a statement dated November 12, 2009, 
which included infonnation regarding the petitioner's affiliation with a corporation in Mexico and a 
description of the beneficiary's proposed employment. The petitioner also provided supporting evidence, 
including the petitioner's financial and corporate documents as well as documents pertaining to the 
petitioner's foreign affiliate. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director issued a request for additional evidence (RFE) dated February 2, 2010, informing the petitioner 
of various evidentiary deficiencies. The director noted that the beneficiary and his subordinate "kitchen 
supervisor" share identical job duties. The director determined that the petitioner submitted evidence that 
indicated that the beneficiary would perform non-qualifying tasks and oversee the work of non-supervisory, 
non-professional, and non-managerial employees. The director therefore instructed the petitioner to provide a 
supplemental description of the beneficiary's proposed employment, listing the proposed job duties and the 
percentage of time the beneficiary would allocate to each item on the list. The director also asked the 
petitioner to provide further information about the beneficiary'S subordinates, including the number of 
subordinates and their brief job descriptions and educational levels. 
The petitioner's response included a statement dated March 4, 2010, containing additional details regarding 
the beneficiary's position and a percentage breakdown of his job duties. The petitioner also provided its 
organizational chart, which shows that the position of chef manager is subordinate to the general manager and 
oversees the kitchen supervisor and a "storage" position. The petitioner submitted a job description for the 
kitchen supervisor. The petitioner did not provide any information - such as a job description or educational 
credentials - which would have allowed the director to evaluate the nature of the storage position. The 
petitioner also failed to explain what supervisory duties the beneficiary executed with respect to the storage 
position. 
After reviewing the record, the director concluded that the petitioner failed to establish that the petitioner 
would employ the beneficiary in a qualifying managerial or executive capacity. The director therefore issued 
a decision dated March 30, 2010 denying the petition. 
On appeal, counsel submits a brief in which he disputes the denial, contending that the director erroneously 
assessed the job duties of the kitchen supervisor to be the same as those of the beneficiary, thus leading the 
director to conclude that the beneficiary is a first-line supervisor who supervises a non-professional staff. 
The AAO finds that counsel's assertions are not persuasive and fail to overcome the director's denial. 
Page 3 
I. The Law 
The primary issue to be addressed in this proceeding is whether beneficiary will be primarily employed in a 
managerial capacity in his proposed position within the petitioning U.S. entity. The petitioner does not claim 
that the beneficiary will be employed in an executive capacity. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 atIiliate 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)(I)(C) of the Act as a multinational executive or manager. 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. 8 C.F.R. § 204.5(j)(5). 
Section 10l(a)(44)(A) of the Act, 8 U.S.c. § 1l01(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, suhdivision, 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. 
(Emphasis added); see also 8 C.F.R. § 204.50)(2). 
Although the beneficiary is not required to supervise personnel, if it is claimed that the duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), 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 seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.O. 1966). 
Therefore, the AAO must focus on the level of education required by the subordinate 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. 
II. Discussion 
In examining the claimed managerial capacity of the beneficiary, the AAO will look first to the petitioner's 
description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then consider this information in 
light of other relevant factors, such as the petitioner's organizational hierarchy, the beneficiary's position 
therein, and the beneficiary'S subordinates, the job duties they perform, and the educational credentials they 
possess. 
In the present matter, the petitioner failed to fully disclose relevant information pertaining to the beneficiary's 
subordinate employees and provided deficient information about the beneficiary's own job duties. 
As previously noted, while the petitioner has provided information about one of the beneficiary's subordinate 
employees (the kitchen supervisor), the organizational chart on record indicates that the beneficiary would 
Page 5 
directly supervise the work of a kitchen supervisor and a storage employee. The petitioner has provided no 
information as to how the storage employee would be managed or how much of the beneficiary's time would 
be allocated to managing that individual. Furthermore, the petitioner failed to provide any information about 
the duties or educational credentials of the storage employee, focusing instead on the kitchen supervisor. The 
petitioner's failure to provide necessary requested information pertaining to the other employee who is shown 
on the organizational chart precludes the AAO from fully evaluating the beneficiary's managerial role within 
the petitioning entity. See 8 C.F.R. § 103.2(b)(14). 
Additionally, the AAO tinds that the description of the beneficiary's proposed employment lacks sufficient 
information to clearly convey the understanding that the beneficiary would primarily perform qualifying tasks 
and oversee the work of supervisory, managerial, or professional employees. 
For instance, in the initially submitted letter, the petitioner stated that the beneficiary would supervise the 
kitchen staff. In response to the RFE, after the director noted that the beneficiary and the "kitchen supervisor" 
share identical job duties, the petitioner indicated that the beneficiary would not directly supervise the kitchen 
staff but would instead supervise the workers through the kitchen supervisor. The petitioner then submitted a 
revised description of the beneficiary'S job duties, with the beneficiary accomplishing many of the claimed 
duties "through the kitchen supervisor." In short, the initial description represented the beneficiary as 
supervising the non-professional kitchen staff, while the second iteration of the job duties has the beneficiary 
managing the work through a subordinate supervisor. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility has 
been established. 8 C.F.R. § 103.2(b)(8). When responding to a request for evidence, a petitioner cannot offer 
a new position to the beneficiary, materially change a position's duties, or alter the beneficiary's level of 
authority within the organizational hierarchy. The petitioner must establish that the position offered to the 
beneficiary when the petition was filed merits classification as a managerial or executive position. Matter of 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). In the present case, the petitioner 
introduced significant doubt when it changed the description of the job duties in response to the director's 
RFE. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter afRo, 19 I&N Dec. 582, 
591 (BIA 1988). If USCIS fails to believe that a fact stated in the petition is true, US CIS may reject that fact. 
Section 204(b) of the Act, 8 U.S.c. § 1154(b); see also Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir.1989); 
Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). 
The petitioner failed to provide sufficient detail about the beneficiary's actual daily supervisory tasks to 
clarify precisely how the beneficiary would accomplish what the petitioner claims is indirect supervision of 
non-professional employees. Nevertheless, the petitioner consistently described duties that would involve the 
beneficiary'S direct involvement in the supervision and training the kitchen's non-professional staff. For 
example, the petitioner statcd that the beneficiary would "[d]ireet the preparation of meals through the 
Kitchen Supervisor, which includes observing the methods of food preparation, sizes of portions, and 
garnishing of foods to ensure food is prepared in the prescribed manner." If the beneficiary'S duties include 
Page 6 
the direct observation of food preparation, it is difficult to comprehend how this duty would be accomplished 
through a subordinate kitchen supervisor. 
Regardless of the role of the kitchen supervisor, which remains in doubt, the job description indicates that the 
beneficiary would perform a significant number of non-managerial or non-supervisory tasks, including: 
oversee the training of all kitchen staff (20%), planning the weekly food budgets (15%), planning the menus 
(15%), assisting management with the purchase of food from suppliers (5%), supervising the quality of food 
deliveries (5%), supervising the testing of cooked food before presentation (5%), proposing new recipes (5%), 
and overseeing compliance with health and safety laws (5%). Based on the petitioner's own representations, 
the petitioner spends only 15% of his time supervising the kitchen staff, 5% of his time coordinating the 
assignments of the kitchen staff, and 5% of his time directing the preparation of meals, all duties which are 
purportedly accomplished through the kitchen supervisor. 
While 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 the 
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 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, the petitioner has failed to establish that the beneficiary's time in his proposed position 
would be primarily allocated to the performance of qualifying managerial or executive tasks. The totality of 
the record does not support a conclusion that the beneficiary'S subordinates arc supervisors, managers, or 
professionals. Instead, the record indicates that the beneficiary supervises the nonprofessional kitchen staff 
and performs the actual day-to-day tasks of operating the restaurant's kitchen. The petitioner has not 
provided evidence of an organizational structure sufficient to elevate the beneficiary to a supervisory position 
that is higher than a first-line supervisor of non-professional employees. Therefore, in light of the 
deficiencies that have been discussed in this decision, the AAO finds that the petition does not warrant 
approval and the director's decision will be affirmed. 
Section 101(a)(44)(C) of the Act requires US CIS to "take into account the reasonable needs of the 
organization, component, or function in light of the overall purpose and stage of development of the 
organization, component, or function." The AAO has long interpreted the statute to prohibit discrimination 
against small or medium-size businesses. However, the AAO has also consistently required the petitioner to 
establish that the beneficiary's position consists of "primarily" managerial and executive duties and that the 
petitioner has sufficient personnel to rclieve the beneficiary from performing operational and administrative 
tasks. 
Reading section 101(a)(44) of the Act in its entirety, the "reasonable needs" of the petitioner may justify a 
beneficiary who allocates a substantial portion of his duties to managerial tasks, but those needs will not 
excuse a beneficiary who spends the majority of his or her time on non-qualifying duties. The reasonable 
needs of the petitioning seafood restaurant do not supersede the requirement that the beneficiary be 
Page 7 
"primarily" employed in a managerial or executive capacity as required by the statute. See Brazil Quality 
Stones v. Chertoff, 531 F.3d 1063, 1070 n.lO (9th Cir., 2008). 
III. Beyond the Decision of the Director 
Additionally, while not previously addressed in the director's decision, the AAO finds that the petitioner has 
failed to meet 8 C.F.R. § 204.5(j)(3)(i)(B), which requires the petitioner to establish that the beneficiary was 
employed abroad in a qualifying managerial or executive position for at least one out of the three years prior 
to his entry to the United States as a nonimmigrant to work for the same employer. As the record shows that 
the beneficiary performed similar job duties within a comparable organizational hierarchy abroad, the same 
deficiencies apply to the beneficiary's foreign employment. The AAO finds that the petitioner failed to 
establish that the beneficiary's employment abroad was within a qualifying managerial or executive capacity. 
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 Soltane v. DOl, 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. 
IV. Conclusion 
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 
sustained that burden. 
ORDER: The appeal is dismissed.