dismissed EB-1C Case: Restaurant

idene5fvtng data deleted to 
prevent ckarly unwarranted 
of oemnal prlvacv 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. § 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. 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immgrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C). The petitioner is a limited liability company organized under the laws of the State of Florida 
that is operating a restaurant. The petitioner seeks to employ the beneficiary as its general manager. 
The director denied the petition concluding that the petitioner had not demonstrated that: (1) a qualifying 
relationship between the foreign and United States entities existed at the time of filing the petition; or (2) the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner contends that an affiliate relationslp exists as a result of the control 
exercised over the foreign and United States entities by two shareholders common to both organizations. 
Counsel challenges the director's finding that the beneficiary would not be employed by the United States 
entity in a qualikng capacity, claiming that he would possess managerial authority over two managerial 
workers and a professional employee. Counsel submits a brief and documentary evidence in support of the 
appeal. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made avadable . . . 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 or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 issue in this proceeding is whether a qualifying relationship existed between the foreign and United 
States entities at the time of filing the immigrant petition. 
The regulation at 8 C.F.R. 5 204.56)(2) states in pertinent part: 
Affiliate 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; 
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. 
The petitioner filed the instant petition on April 4, 2005. In an appended letter, dated March 10, 2005, the 
petitioner addressed the existence of an affiliate relationship wi 
 employer, stating 
that two Venezuelan companies, 
 C.A., each own 25 
vercent of the foreign and United States entities, or a cumulative ownershiw of 50 wercent of both 
- 
organizations. The pet~tioner explarned that the general managers 0fllPIc.A. and 
.A. are directors of the petitioning entity and the beneficiary's foreign employer, and 
"control the affairs" of the organizations. As evidence of the purported qualifying relationship, the petitioner 
submitted: (1) its articles of organization; (2) a schedule of its members and the corresponding ownership 
interests; (3) copies of its issued membership certificates'; and (4) translated copies of the articles of 
foreign employer, as well as of the companies -.A., 
In a May 10, 2005 notice of intent to deny, the director noted that the record contained conflicting 
documentary evidence as to the ownerskp of the petitioning entity. Specifically, the director stated that the 
owners identified on the membership certificates issued by the petitioner did not correspond to the owners 
identified on the petitioner's 2002 and 2003 income tax returns. The director asked that the petitioner address 
the contradictory evidence, and submit "proof of payment for [the] purchase of units of the petitioner by each 
member." 
Counsel for the petitioner responded in a letter dated June 7, 2005 noting errors made by the petitioner's 
accountant on the organizat~on's 2002 and 2003 income tax returns, which resulted in the incorrect 
1 
The AAO notes that the membership certificates are numbered one through seven, yet the record does not 
contain membership certificate number six. 
Page 4 
identification of two of the petitioner's members.' Counsel submitted amended tax returns for these two 
years, noting that at the end of the year 2003 and at the time of filing, the petitioner's members were as 
follows: 
Appended membership certificates reflected two transfers from the original owners that took place in 
February 2002 and November 2003, which resulted in the above-noted ownership interesk3 
Additional documentation previously submitted by the petitioner identified the following stockholders of the 
beneficiary's foreign employer: 
With regard to the consideration furnished for membership interests in the petitioning entity, counsel 
explained that the directors -and both "family owned 
companies," furnished monies fi-om their personal accounts. Counsel stated tha 
also furnished consideration for the membership 
which, the record reflects, was ultimately transferred to- in November 2003. 
In a decision dated July 7,2005, the director concluded that the petitioner had not established the existence of 
a qualifying relationshp between the foreign and United States entities. The director again noted the 
conflicting evidence presented by the petitioner with regard to its ownership, and observed that the tax returns 
submitted by the petitioner in an attempt to clarify its purported ownership were not titled "amended." The 
director further noted that four shareholders, of which two were the same as the petitioner's members, owned 
the beneficiary's foreign employer, and that, as a result, common ownership did not exist between the foreign 
and United States entities. Consequently, the director denied the immigrant petition. 
Counsel for the petitioner filed an appeal on August 8, 2005, claiming the existence of an affiliate relationship 
as a result of the control held by two shareholders common to both the United States and foreign entities, who 
cumulatively own 50 percent of each organization. In a subsequently submitted appellate brief, dated 
September 2, 2005, counsel addresses the ownership 
 and the beneficiary's foreign 
employer, noting  that.^. and 
 .A. each own 25 percent of both 
organizations. Counsel contends that, as a result, the foreign and United States entities "are controlled by the 
Counsel explains that rather than identifying the cornPanles.A. and- 
.A. as members, the accountant incorrectly listed each company's director as an individual owner 
of the petitioning entxty 
thatan transferred their ~nterests in 250 units each to 
.A. an- respectively. 
Page 5 
same two companies that own 50% of their interests." Counsel further states that the required element of a 
common "control" between the foreign and United States organizations is satisfied as a result of "agreements" 
entered into by the owners of each organization, which resulted in the petitloner and the foreign entity 
and control each organization to the directors o 
.A.~ Counsel contends, as a result, 
.A. control and direct the petitioner and the beneficiary's foreign employer through their dnectors, 
thereby demonstrating the existence of an affiliate relationship. Counsel cites Matter of Hughes, 18 I&N Dec. 
289, 293 (Comm. 1982), as authority for the supposition that an affiliate relationship may exist despite a 
disparity between the individual owners of each organization as long as the owners common to each 
organization control both entities. 
Counsel subm~ts affidavits from the 
who attest to the control and 
and directors o 
respectively. Counsel aIso 
 personally, in which 
they attest to their right to direct and control the petitioning entity and the beneficiary's foreign employer. 
Upon review, the petitioner has not demonstrated the existence of a qualifying relationship between the 
foreign and United States entities. 
The regulation and case law confirm 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 (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). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-365. Without full 
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. 5 204.56)(3)(ii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
4 
 As ev~dence of the "agreements," counsel references affidavits subrmtted by the owners of the ~etitioner, 
and invoices and checks signed by the directors oil- and 
Page 6 
property, or other consideration furnished to the entity in exchange for stock ownership. 
 Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
Here, the petitioner has not demonstrated that the foreign and United States entities are "owned and controlled 
by the same group of individuals," as required in the regulation at 8 C.F.R. 5 204.5(')(2). The record reflects 
that the petitioner 
 foreign employer have two common shareholders, 
C.A. and 
 C.A., each of who own 25 percent of both 
petitioner erroneously relies on Matter of Hughes to support its suggestion that 
 C.A. 
and hold and control a collective 50 percent interest mereby 
creating an affiliate relationship. In order to establish "de facto" control of both entities by an individual, the 
petitioner must provide agreements relating to the control of a majority of the shares' voting rights through 
proxy agreements. Matter of Hughes, 18 I&N Dec. 289, 293 (Cornrn. 1982). A proxy agreement is a legal 
contract that allows one individual to act as a substitute and vote the shares of another shareholder. See 
Black's Law Dictionary 1241 (7th Ed. 1999). 
Moreover, in Sun Moon Star Advanced Power, Inc. v. Chappel, 773 F. Supp. 1373 (N.D. Cal. 1990), the 
Immigration and Naturalization Service (now CIS) refused to recognize the indirect ownership of the 
petitioner by three brothers, who held shares of the company as individuals through a holding company. The 
decision further noted that the two claimed affiliates were not owned by the same group of individuals. The 
court found that the Immigration and Naturalization Service decision was inconsistent with previous 
interpretations of the term "affiliate" and contrary to congressional intent because the decision did not 
recognize the indirect ownership. After the enactment of the Immigration Act of 1990, the Immigration and 
Naturalization Service amended the regulations so that the current definition of "subsidiary" recognizes 
indirect ownership. See 56 Fed. Reg. 61 11 1, 61 128 (Dec. 2, 1991). Accordingly, the basis for the court's 
decision has been incorporated into the regulations. However, despite the amended regulation and the 
decision in Sun Moon Star, neither legacy Immigration and Naturalization Service nor CIS has ever accepted 
a random combination of indimdual shareholders as a single entity, so that the group may claim majority 
ownership, unless the group members have been shown to be legally bound together as a unit within the 
company by voting agreements or proxies. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
In this case, the U.S. entity is owned by two individuals and two companies, while the foreign entity is owned 
by four companies, of which two are common to the members of the petitioning entity. As evidence of the 
purported "de facto" control held by -.A. an 
petitioning and foreign entibes, the petitioner provided affidavits 
 1 
C.A.  and.^., as well as affidav~ts hom the directors of the fore~gn company's other 
two corporate shareholders. Additionally, the pet~boner presented invoices and checks signed by - 
and on behalf of the pet~tioner and the beneficiary's foreign employer. None of the 
submitted documentation is sufficient to establish that. and - 
C.A., as a single interest, collectively control a majority of either the petitioner's or foreign entity's voting 
Page 7 a 
rights. Absent documentary evidence such as voting proxies or agreements to vote in concert so as to 
establish a controlling interest, the petitioner has not established that the same legal entity or individuals 
control both entities. 
The AAO recognizes the reference in two affidavits to the foreign 
olders. The petitioner presented this as 
as the directors .A. an 
over the beneficiary's foreign employer. The AAO observes, however, that Title Three from the minutes of 
the August 6,2001 shareholder's meeting, which was referenced in the affidavits, merely states that two of the 
company's directors would exerci 
 ss of the company, yet does not 
specifically assign control to eith 
any evidence of the claimed contr 
either organization. Thus, the companies are not affiliates as both companies are not owned and controlled by 
the same individuals. 
The AAO notes that in Matter of Tessel, 17 I&N Dec. 631 (Acting Assoc. Comm. 1981), the beneficiary 
solely owned 93% of the foreign corporation and 60% of the petitioning organization, thereby establishing a 
"high percentage of common ownership and common management . . . ." It was further determined that 
"[wlhere there is a high percentage of ownership and common management between two companies, either 
directly or indirectly or through a third entity, those companies are 'affiliated' within the meaning of that term 
as used in section 101(a)(15)(L) of the Act." Id. at 633. The facts in the present matter can be distinguished 
from Matter of Tessel because no one shareholder holds a majority interest in either corporation. The record, 
therefore, fails to demonstrate that there is a high percentage of common ownership and common 
management between the two companies. 
Based on the foregoing discussion, the petitioner has not demonstrated the existence of a qualifying 
relationship between the foreign and United States entities. Accordingly, the appeal will be dismissed. 
The AAO will next address the issue of whether the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. 5 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 withn the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level withn 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. 9 1101(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 its March 10, 2005 letter appended to the immigrant petition, the petitioner stated that the beneficiary 
would occupy the position of general manager in the United States entity. The petitioner explained: 
The [gleneral [mlanager oversees the work of the [clhef, the [flloor [mlanager and the 
[alccountant. He has the day-to-day discretionary authority in coordinating and directing the 
work of the kitchen, the dining room, and administrative departments. He is the [flood 
[slafety [mlanager responsible for ensuring that the restaurant is in compliance with all health 
and hygiene laws. He hires, trains, evaluates and dismisses personnel and listens to 
complaints. He develops plans to make the restaurant more competitive and profitable. 
Strong managerial shlls are needed for the smooth coordination of the kitchen, dining room, 
take-out service and administrative components. 
An attached organizational chart identified the beneficiary as the direct manager of the kitchen supervisor, 
floor manager, and accountant. The AAO notes that while the petitioner identified on the organizational chart 
the additional subordinate positions of chef, cook helper, grill cook, waitress, bus boy, cashier, and 
maintenance, it did not submit evidence of the employment of a subordinate staff until its response to the 
director's notice of intent to deny. The petitioner also submitted a brief outline of the lower-level positions, as 
well as Internal Revenue Service (IRS) Form W-2, Wage and Tax Statement, for the years 2002 through 
2004, and payroll records for the period beginning January 23,2005 and ending January 28,2005. 
In her May 10, 2005 notice of intent to deny, the director asked that the petitioner submit a "definitive 
statement" describing the beneficiary's proposed position in the United States company, including: (1) the title 
of the pos~tion; (2) a list of the accompanying job dut~es; (3) the percentage of time the beneficiary would 
devote to each task; and (4) the subordinate employees who would report to the beneficiary and their job titles 
and job duties. The director requested that the petitioner also submit an organizational chart reflecting the 
workers employed by the petitioning entity. 
In her June 7, 2005 response, counsel for the petitioner included a statement fi-om the petitioner outlining the 
following job duties to be performed by the beneficiary as its general manager: 
Coordinate activities among the various departments - kitchen, dining and administrative 
sections. 15% 
Synchronize the activities of the Kitchen Supervisor, Floor Manager and Accountant to 
ensure prompt and top quality food service to the customers. This entails among other things, 
coordinating the timely ordering of supplies for the Kitchen Supervisor and Floor manager 
with the accountant's priority of making sure expenditures balance with income. It involves 
prioritizing the needs of the different sections by discussing it with each head - the Kitchen 
Supervisor, the Floor Manager and the Accountant and arriving at a consensus for the benefit 
of the business as a whole. 
2. Oversee Kitchen area and supervise Kitchen Supervisor: 20% 
Approve orders to replenish lutchen supplies. Assist the Chef in selecting menu items and 
introducing new items based on past success with dishes and food items. Periodically spot 
check and evaluate food production and cleaning processes and machines to make sure that 
hygiene standards are maintained. Attend to complaints/concerns of the Kitchen Supervisor 
and resolve them by discussing possible alternatives and deciding on the best one that is 
conducive to all involved. For example, note which equipment needs to be replaced or fixed 
and coordinate between the Kitchen Supervisor and Accountant and Floor Manager the best 
time to have the equipment replaced or fixed talung into consideration the time when 
business is slow and money is available for such expenses. 
Close the restaurant at the end of the day making sure all equipment - ovens, stoves, etc. are 
off and alarms are turned on. 
3. Oversee Dining area and supervise Floor Manager: 20% 
Evaluate with Floor Manager the customer feedback - complaints and compliments; discuss 
ways to improve service and process. Approve and introduce new ideas of improving the 
service. Oversee the running of the dlning area to make sure that the Floor Manager has 
C 
everything running smoothly - e.g. staffing is sufficient, customers are seated and served in a 
timely manner, payments are collected and new customers are attended to as they arrive and 
a. 
that hygiene standards are maintained: Assist the Floor Manager and make final decisions 
when there is a crisis at any time varying from troublesome customers to supplies not arriving 
on time to medical or other emergencies. Move between the dining and kitchen area 
especially in rush times to make sure there is proper coordination of activities. Ensure that 
new dining room staff are trained and oriented properly by the Floor Manager. 
4. Oversee the income and expenditures of restaurant and supervise the Accountant: 20% 
Discuss, prioritize and approve major expenses of hiring new employees and purchasing 
more equipment with the Accountant based on data and information provided by the 
Accountant, Floor Manager and Kitchen Supervisor. 
"' Page 10 
Make sure that supplies are ordered and paid for in a timely manner and that there are 
sufficient fmds to pay for any large expenses before approving their purchase. Make sure 
that taxes are prepared and filed in a timely manner. 
Prepare budget with the accountant to present before the Directors of [the petitioning entity] 
(hereinafter, Directors). Prepare price list of new dishes and adjust prices annually based on a 
cost analysis provided by the Accountant making sure that a profit margin is included. 
Obtain approval of prices from the Directors. 
Prepare and adjust pay rate for each employee with the Accountant's assistance and obtain 
approval of this from Directors. 
Tally cash and charge receipts received and balance them against the record of sales. Deposit 
the day's receipts at the bank and secure them in a safe place. 
Hiremire and Supervise Training of Personnel and other administrative functions: 25% 
Hire employees and supervise their training and orientation. When necessary, fire 
employees. Motivate employees and be attentive to complaints/concerns of employees and 
customers. Approve or disapprove requests for leave by Kitchen Supervisor or Floor 
Manager. Evaluate employees' performance periodically. Plan and launch a marketing and 
public relations strategy for the restaurant e.g. placing ads in the newspaper, creating flyers, 
offering discount meals, promoting the restaurant to businesses etc. Recruit workers or place 
ads for workers when necessary. Develop and propose ways of increasing business and 
obtain approval from Directors - e.g. introduce live band in the restaurant. Negotiate with 
other businesses on behalf of [the petitioner] for their services or products. Sign contracts on 
behalf of [the petitioner]. 
The petitioner submitted an organizational chart of its staffing levels at the time of filing, noting the 
employment of nine workers, in addition to the beneficiary, in the subordinate positions of kitchen supervisor, 
floor manager, accountant, chef, cook helper, grill cook, waitress, and cashier. An attached payroll journal 
for the period April 1, 2005 through June 30, 2005, as well as a state quarterly tax return for the quarter 
ending June 30,20015 reflected the employment of the ten workers identified on the petitioner's organlzational 
chart. 
In her decision, the director concluded that the beneficiary would not be employed by the United States entity 
in a primarily managerial or executive capacity. The director noted a discrepancy in the organizational chart 
submitted with the initial filing and the organizational chart provided after the director's notice of intent to 
deny, statlng that the latter chart reflected a staff of five additional employees. The director stated that the 
record was unclear as to the workers employed at the time of filing the petition, and concluded that the 
beneficiary would not be supervising managerial or professio~l employees. The director further concluded 
that the beneficiary would perform many of the functions related to the positions of cook helper, grill cook, 
waitress, bus boy, cashier, and bookkeeper, which the director determined were unoccupied when the 
immigrant petition was filed. Consequently, the director denied the petition. 
Page 11 
On appeal, counsel for the petitioner contends that the director incorrectly concluded that the beneficiary 
would not be employed as a manager as a result of "inadvertent" discrepancies in the documentary evidence 
submitted by the petitioner and her reliance on the petitioner's initial organizational chart. Counsel explains 
that the first organizational chart provided by the petitioner contained only those employees "that had some 
management/supervisory responsibility," while the second organizational chart identified all positions 
occupied at the time of filing, including the lower-level positions. Counsel notes that the petitioner also 
mistakenly indicated that three employees had been hired after the date of filing, when in fact the petitioner 
had already employed them. Counsel references the petitioner's April 2005 payroll journal, noting that it 
confirms the employment of ten workers at the time of filing in the positions identified by the petitioner. 
Counsel contends that the beneficiary qualifies as a manager, as he would be supervising the work of 
managerial, supervisory and professional employees. Counsel challenges the director's finding that the 
beneficiary would be performing routine tasks of the petitioner's business, stating that "[the beneficiary] does 
not and has no need to do the work of the bus boys, gnll cook or any other workers." Counsel further 
explains the functions performed by the petitioner's lower-level staff, noting that when business is slow, the 
waitresses perform the tasks of the bus boys, the floor manager acts as the cash~er, and the kitchen supervisor 
assists in preparing the food. Counsel states that the petitioner's business requires a general manager "to 
coordinate the different sections of the restaurant," and "[to make] the day-to-day discretionary decisions of 
whether to reduce employees or hire more employees depending on the business[,] and what actions to take to 
increase business." 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
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. § 204.56)(5). The definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high 
level responsibilities that are specified in the definitions. Second, the petitioner must prove that the 
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her 
time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 
Cir. July 30, 1991). 
Here, while the petitioner submitted a lengthy statement of the beneficiary's job responsibilities, it does not 
comport with the petitioner's claim that the beneficiary would primarily perform managerial or executive 
responsibilities. Rather, it would appear that the beneficiary would devote a significant portion of his time to 
primarily performing the day-to-day routine tasks of the restaurant. For instance, based on the petiboner's 
representation, the beneficiary would be responsible for such non-qualifying tasks as assisting in the 
development of the petitioner's menu, analyzing and revising prices, reviewing "food production and cleaning 
processes and machines" for compliance with safety and health standards, computing and balancing daily 
cash and charge receipts, malung bank deposits, planning and launching the petitioner's marketing and public 
relations campaigns, and negotiating for the products and services used by the petitioner. The beneficiary's 
job description also suggests that he would be responsible for ordering supplies and ensuring timely payment. 
The AAO notes, however, that the petitioner indicated the kitchen supervisor would be responsible for 
ensuring the availability of food supplies. Regardless, it does not appear that the beneficiary would be 
primarily performing the high level managerial or executive responsibilities outlined in the statutory 
definitions of "managerial capacity" and "executive capacity." See 5s 101(a)(44)(A) and (B). The AAO 
notes that an employee who "pr~marily" performs the tasks necessary to produce a product or to provide 
Page 12 
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 Int 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
In addition, the petitioner has not established that the company employs a staff sufficient to support the 
beneficiary in a primarily managerial or executive capacity. As required by section 101(a)(44)(C) of the Act, 
if staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, CIS must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. 
At the time of filing, the petitioner was a four-year-old company that had been operating a restaurant. 
According to the petitioner's advertisements, the restaurant is open daily for a total of 107 hours per week. 
The petitioner clajims that it employed ten workers, including the beneficiary, when the petition was filed. 
Following a review of the wages reflected in the petitioner's payroll journal for the quarter ending June 30, 
2005, the period during which the instant petition was filed, the AAO observes that several of the petitioner's 
lower-level workers, including the cashier, two waitresses, and grill cook, were likely employed on a part- 
time basis. Additionally, while the petitioner identified the positions of dishwasher and bus boy on its 
organizational chart, these positions were not occupied when the petition was filed. Based on this evidence, it 
is unclear how the reasonable needs of the petitioning entity might plausibly be met by the services of the 
beneficiary, as well as its four full-time workers and five part-time employees. 
The petitioner's suggestion that some employees, such as the kitchen supervisor and floor manager, would 
assume the performance of Iower-level workers' routine tasks during "slow" periods is not sufficient to 
overcome this finding by the AAO. The petitioner has not clarified at what times this substitution in positions 
and job duties would occur, stating merely "when business is slow." Nor did the petitioner account for the 
performance of those responsibilities originally held by the htchen supervisor and floor manager or identify 
who would supeniise kitchen and floor operations in the restaurant when these two employees are not on 
duty. In fact, the periodic modifications in the positions and job duties performed by the petitioner's staff 
raise the additional question of whether the beneficiary would be required to assume the performance of 
additional lower-level non-qualifying tasks than those already referenced above. Absent an explanation as to 
the petitioner's staffing levels, as well as a discussion of how the petitioner accounts for the performance of its 
routine daily tasks, the AAO cannot conclude that the petitioner would employ the beneficiary in a primarily 
managerial or executive capacity. 
The AAO notes an additional disparity in the petitioner's staffing levels. According to the petitioner's payroll 
journals, its chef and cook helper, who are identified by the petitioner as lower-level employees, receive 
higher wages than those pald to the htchen supervisor, floor manager, and accountant. This raises doubt as to 
the representations made by the petitioner, particularly with respect to its staffing levels and the job 
responsibilities held by each employee. 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 ofHo, 19 I&N Dec. 582,591 (BIA 1988). 
Based on the foregoing discussion, the beneficiary would not be employed by the United States entity in a 
primarily managerial or executive capacity. For this additional reason, the appeal will be dismissed. 
Page 13 
Beyond the decision of the director, an additional issue is whether the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. The petitioner submitted a June 7, 2005 letter 
describing the job duties associated with the beneficiary employment as manager of the foreign company. 
The AAO notes that except for some minor changes to the foreign entity's personnel, the job description was 
essentially the same as that offered for the beneficiary's position in the United States entity. As already 
discussed above, the beneficiary's performance of such non-managerial and non-executive routine tasks as 
assisting in the development of the foreign restaurant's menu, analyzing and revising prices, reviewing "food 
production and cleaning processes and machines" for compliance with safety and health standards, computing 
and balancing daily cash and charge receipts, making bank deposits, planning and launching the foreign 
restaurant's marketing and public relations campaigns, negotiating for the products and services used by the 
foreign company, and ordering supplies and ensuring timely payment of invoices suggests that the beneficiary 
was not employed in a primarily managerial or executive capacity. Despite the detailed organizational chart 
of the foreign entity, it does not appear that the beneficiary was relieved &om performing non-qualifying day- 
to-day functions of the restaurant. The MO again notes that an employee who "primarily" performs the 
tasks necessary to produce a product or to provide services is not considered to be "primarily7' 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 Clzurch Scientology 
Int 'I., 19 I&N Dec. 593,604 (Comm. 1988). For th~s additional reason, the petition will be denied. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the MO 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), afld. 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 MO reviews 
appeals on a de novo basis). 
The MO recognizes that CIS previously approved an L-1A nonimmigrant petition filed on behalf of the 
beneficiary. It must be noted that many 1-140 immigrant petitions are denied after CIS approves prior 
nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); 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. 1103 (E.D.N.Y. 1989). 
 Exam~ning the consequences of an approved petition, there is a 
significant difference between a nonimmigrant L-IA visa classification, which allows an alien to enter the 
United States temporarily, and an immigrant E-13 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. 
CJ: 99 204 and 214 of the Act, 8 U.S.C. tjtj 1154 and 1184; see also tj 316 of the Act, 8 U.S.C. 8 1427. 
Because CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
at 29-30; see also 8 C.F.R. 5 214.2(1)(14)(i)(requiring no supportmg documentation to file a petit~on to extend 
an L-1A petition's validity). Furthermore, each nonirnmigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof; each petition must stand on its own individual merits. The 
approval of a nonimmigrant petition in no way guarantees that CIS will approve an immigrant petition filed 
on behalf of the same beneficiary. Based on the lack of evidence of eligibility in the current record, the 
director was justified in departing from the prior nonimmgrant petition approval and denying the immigrant 
petition. 
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. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.