dismissed EB-1C Case: Restaurant And Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 19, 2023 In Re: 2925974 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, describing itself as an investor in a restaurant and a convenience store business, seeks 
to permanently employ the Beneficiary as its general manager in the United States under the first 
preference immigrant classification for multinational executives or managers. See Immigration and 
Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a 
U.S. employer to permanently transfer a qualified foreign employee to the United States to work in a 
managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish that the Beneficiary would be employed in the United States in a managerial or executive 
capacity. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in a managerial capacity in the United States. The Petitioner does not claim that the 
Beneficiary would be employed in an executive capacity. Therefore, we restrict our analysis to 
whether the Beneficiary would be employed in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A) of the Act. The Petitioner only contends that the Beneficiary 
would qualify as a personnel manager, and not as a function manager. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or managerial 
employees. Contrary to the common understanding of the word "manager," the statute plainly states 
that 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." Id. If a 
beneficiary directly supervises other employees, the beneficiary must also have the authority to hire 
and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 
204.5(j)(2). In addition, on appeal, the Petitioner does not assert that the Beneficiary would qualify 
as a personnel manager based on his supervision of professional subordinates, but his oversight of 
subordinate supervisors and managers. 
When examining the managerial capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in a managerial 
capacity. 8 C.F.R. § 204.5(j)(5). 
A. Duties 
To be eligible as a multinational manager, the Petitioner must show that the Beneficiary will perform 
the high-level responsibilities set forth in the statutory definition at section 101(a)(44)(A)(i)-(iv) of the 
Act. If the record does not establish that the offered position meets all four of these elements, we 
cannot conclude that it is a qualifying managerial position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial 
duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See 
Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether a given 
beneficiary's duties will be primarily managerial, we consider the Petitioner's description of the job 
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duties, the company's organizational structure, the duties of a beneficiary's subordinate employees, 
the presence of other employees to relieve the beneficiary from performing operational duties, the 
nature of the business, and any other factors that will contribute to understanding a beneficiary's actual 
duties and role in a business. 
The Petitioner stated that the Beneficiary would oversee the investment decisions of the Petitioner, 
including a Mediterranean restaurant it owns and a gas station and convenience store owned by a 
wholly owned subsidiary of the Petitioner, B-E- LLC. The Petitioner explained that the Beneficiary 
would be responsible for controlling and managing the income and expenses of the company, 
reviewing its marketing, promotion, sales strategies, human resources, and other costs, and devising 
policies related to material purchases, staffing, pricing of menu items, and the selection of providers. 
The Petitioner submitted the following duty description for the Beneficiary: 
• Develop a strategic plan to advance [the Petitioner's] mission and objectives (9.5%) 
o Develop and review vision/mission statement and its impact on decision 
crafting. 
o Craft and review current strategic plan and relevant business plans against new 
opportunities and risks. 
o Determine what has been missed and what should be incorporated into the 
revised strategic plan, missions, and objectives. 
o Ensure that appropriate strategies are designed and implemented for embedding 
the strategic plan into performance measures and job descriptions at all levels 
of the organization. 
• Ensure [the Petitioner's] growth projections, sale objectives, food cost objectives, 
and desirable profits are consistently met by meeting with the Head Chef and Front 
Office Managers for the restaurant and the General Manager for the convenience 
of store on a weekly basis to review operational reports, analyze promotional 
programs and their effectiveness, establish profit expectations, and review weekly 
income and expense reports (5.5%) 
o Compare data and trends against agreed-upon financial and production business 
plan goals and objectives. 
o Recommend corrective actions and measures. 
• Review and amend strategic policies and procedures and direct the operations of 
the organization in order to meet [Petitioner's] objectives, sales goals and profit 
margins ( 10%) 
o Ensure that specific and measurable performance improvements are set within 
specific strategic timeframes and tied to relevant strategic goals. 
o Ensure that subordinate managers implement action plans that translate 
objectives into a specific set of steps, responsibilities, schedules and teams for 
implementing the plans to achieve the objectives. 
o Review strategic policies and performance measures that provide quantitative 
means of reviewing, evaluating and updating actions, improvement objectives, 
strategic goals, and process performance. 
• Analyze FOB/BOH operations to evaluate performance and determine areas of 
potential cost reduction, service improvement, or policy change (10%) 
o Ensure that the policies and procedures remain current and appropriate. 
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o Compare results against defined benchmarks to identify opportunities for 
improved performance. 
o Approve business strategy changes that reflect new areas of improvement. 
o Approve action plans to address performance gaps. 
• Oversee an ensure that company policies on employee performance appraisals are 
followed and completed by the Head Che±: Front Office of the House Managers 
and Convenience Store Manager on a timely basis (5%) 
• Review and analyze financial statements in order to recommend yearly budgets for 
shareholder approval and prudently managing the organization's resources within 
budget guidelines (5%) 
• Review and approve the balance sheets for submissions to shareholders, keeping 
abreast of the various activities of [ the Petitioner] and its economic performance; 
conferring with and reporting to the Venezuelan parent company's shareholders on 
matters that have a material effect on fundamental corporate issues, such as pricing 
and profitability (10%) 
• Exercise discretionary authority over the hiring and firing of Head Che±: Front of 
the House Managers and Convenience Store General Manager, as well as oversee 
the hiring of support personnel for all operations; ensuring personnel policies and 
procedures are followed; developing performance standards; completing and 
administering merit reviews; having authority to terminate and recommend 
personnel actions (10%) 
• Exercise managerial discretion over the day-to-day operations and provide 
guidance and advice to underlying managerial staff (5%) 
• Analyze customer research, current market conditions and competitor information 
(5%) 
• Oversee the business development activities by reviewing and amending, as 
needed, the marketing strategies and plans and ensuring that [the Petitioner's] 
growth projections, sales objectives and desirable profits are consistently met 
(10%) 
• Meet with CPA to establish procedures and reporting schedules for attaining 
objectives, directing and coordinating formulations of financial programs to 
provide fonding for new a continued operations to maximize return on investments 
(5%) 
• Review and sign contracts and other documents to bind [the Petitioner] legally such 
as purchase agreements and bank loans (5%) 
• Manage the relationship with product and service providers, such as food suppliers, 
maintenance contractors, etc. (5%) 
The Petitioner submitted little detail and supporting documentation to substantiate the Beneficiary's 
performance of her claimed managerial duties, such as the strategic plan she developed, vision and 
mission statements she formulated, farther investment decisions she made, and promotional programs 
she analyzed. Likewise, the Petitioner did not sufficiently explain and document the business plan 
goals the Beneficiary set, corrective actions and measures she implemented, policies and procedures 
she reviewed and amended, performance improvements she set, and cost reductions and service 
improvements she determined. The Petitioner similarly did not articulate and document the 
benchmarks she identified, goals and objectives she set, key performance indicators she negotiated, 
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budgets she recommended, or personnel policies and procedures she established. The Petitioner also 
did not discuss with specificity or support the marketing strategies she put in place, financial plans she 
formulated, or relationships with suppliers and service providers she managed. In addition, in each 
case, the Petitioner did not provide sufficient detail as to the various managerial tasks she would 
perform under an approved petition, including the investment decisions she would make, marketing 
and promotion she would oversee, sales strategies she would implement, and policies related to 
material purchases, among others. The duty description further included little discussion of the 
Petitioner's restaurant and convenience stores businesses and the description largely could have 
applied to any manager acting in a business in any industry. 
For instance, the Petitioner submitted several letters the Beneficiary was asserted to have issued to "all 
of the employees" of the company, but these included few specifics to corroborate her primary 
performance of managerial level duties and her delegation of non-qualifying tasks to her claimed 
subordinate supervisors and managers. The provided letters mainly ordered all employees to meet on 
unspecified topics at the restaurant, including a letter in April 2019 discussing "new offers" the 
company would offer and another in February 2018 mentioning "new products" they would 
implement. Similarly, two letters from the Beneficiary from January and February 2019 stated that 
all the staff would meet to "discuss all the improvements for the better performance of the restaurant," 
while another in May 2018 noted the meeting was related to "restructuring of the personnel hours." 
Two other provided letters from March and April 2018 indicated the employees would "discuss all 
that happened in said month." In sum, the provided letters did little to credibly substantiate that the 
Beneficiary was, and would be, primarily engaged in managerial-level duties and primarily delegating 
operational tasks to his asserted subordinate supervisors and managers. The letters do not provide 
relevant detail such as the improvements the Beneficiary implemented, how she restructured 
personnel, or the new products she introduced. 
The Petitioner further emphasized in the Beneficiary's duty description that she held weekly meetings 
with her head chef and managers discussing their reports and promotional programs. However, the 
submitted support letters did not substantiate that her subordinate supervisors provided weekly reports 
or that the Beneficiary and her asserted managers discussed them. In fact, the letters are more 
reflective of the Beneficiary's apparent involvement in most of the day-to-day operational functions 
of the business. Again, the Petitioner must establish that the Beneficiary would be primarily engaged 
in managerial duties, as opposed to ordinary operational activities alongside its other employees. See 
Family Inc. v. USCIS, 469 F.3d at 1313, 1316. 
In addition, in the Beneficiary's duty description, the Petitioner discussed her focus on investment 
decisions and marketing strategies. However, it is not clear what investment decisions the Beneficiary 
would focus on, beyond the company's initial decision to invest in the restaurant and convenience 
store businesses it already owns. The Petitioner also pointed to the Beneficiary's focus on "marketing 
strategies" and "promotional programs," yet a provided 2018 IRS Form U.S. Return of Partnership 
Income showing that it only invested $890 on "advertising and promotion. 1" Likewise, the 
Beneficiary's duty description questionably explained that the Beneficiary would be tasked with 
reporting to its shareholders, when it has no shareholders, since it is partnership. In total, these 
discrepancies and ambiguities leave uncertainty as to the credibility of the Beneficiary submitted duty 
1 The petition was filed on July 19, 2018. 
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description. The Petitioner must resolve discrepancies and ambiguities in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Although we do not expect the Petitioner to articulate every specific managerial task or document her 
performance of every managerial duty, it is reasonable to expect that it would provide sufficient 
credible detail and documentation to properly substantiate her primary performance of qualifying 
managerial duties. Further, there is little supporting evidence to demonstrate the Beneficiary 
delegating non-qualifying operational tasks to her claimed subordinate supervisors or managers or her 
exercising personnel authority over them. This lack of detail and documentation is noteworthy 
considering the Petitioner asserts in its support letters that the Beneficiary has been acting in her 
purported managerial role since 201 7. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Even though the Beneficiary holds as a managerial title and manages or directs a portion of the 
business does not necessarily establish eligibility for classification as a multinational manager within 
the meaning of section 101(a)(44)(A) of the Act. The Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making; however, the position description alone is insufficient to establish that 
her actual duties would be primarily managerial in nature. 
B. Staffing, Personnel Manager 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
In support of the petition, the Petitioner provided an organizational chart reflecting that the Beneficiary 
supervised two "front of the house managers" and a head chef working for its restaurant, and a general 
manager working for its wholly owned subsidiary, B-E- LLC, operating the gas station and 
convenience store. The chart farther showed that the front of the house managers supervised a waiter 
supervisor overseeing a head waiter who was shown to supervise three waiters and two servers (who 
were not identified by name). The chart also showed that the head chef oversaw two kitchen 
employees and a dishwasher. Meanwhile, the general manager working for B-E- LLC was shown to 
supervise two sales/cashier employees working at the gas station and convenience store. 
As a preliminary matter, the Petitioner submitted another organizational chart in response to the 
Director's request for evidence (RFE) showing several differences, asserting this was due to normal 
turnover in the restaurant industry. However, our focus must be on the Petitioner's organizational 
structure as of the date the petition was filed, namely that explained above. The affected party has the 
burden of proof to establish eligibility for the requested benefit at the time of filing the benefit request 
and continuing until the final adjudication. 8 C.F.R. § 103.2(b )(1 ); see also Matter of Katigbak, 14 
I&N Dec. 45, 49 (Comm'r 1971) (providing that "Congress did not intend that a petition that was 
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properly denied because the beneficiary was not at that time qualified be subsequently approved at a 
future date when the beneficiary may become qualified under a new set of facts."). 
The Petitioner submitted state quarterly tax returns from the second quarter of 2018, corresponding 
with the date the petition was filed in July 2018, leaving uncertainty as to its assertion that the 
Beneficiary oversaw subordinate supervisors and managers at this time. For instance, these state wage 
forms reflected that the Petitioner's two asserted full-time front of house managers earned $2,067.01 
(approximately $8268 annually) and $1870.00 (approximately $7486 a year) that quarter, while their 
claimed subordinates accrued more salary, namely the head waiter $3446. 71 ( about $13, 786 annually), 
the waiter supervisor $4654.49 (or $18,617.96 annually), and the dishwasher $3730 (about $14,920 
annually). Likewise, the state quarterly wage forms showed that the head chef, another of the 
Beneficiary's other asserted subordinate supervisors, earned $3639 (or approximately $14,556 
annually). Meanwhile, according to the state tax forms, the head chef's subordinates again earned 
more than their claimed supervisor, as the the kitchen employees earned $5280 ($21,120 annually) 
and $4260 ($17,040 annually) that quarter. In addition, state wage forms specific to the Petitioner's 
convenience store business, also from the second quarter of 2018, showed that the claimed general 
manager (the last of the Beneficiary's asserted subordinate supervisors) earned much less than both 
the salesclerk/cashiers. 2 
In total, the fact that all the Beneficiary's claimed supervisors and managers earned less than their 
operational subordinates at the time the petition was filed leaves substantial question as to whether 
there was a tier of supervisors and/or managers working below him as claimed. Indeed, the limited 
income of the two front of the house managers and the claimed general manager of the convenience 
store suggests that the Beneficiary would likely assist with the non-qualifying operational tasks of the 
business alongside his subordinates, particularly since the organizational chart showed only two filled 
waiter positions and five vacant waiter/server positions. These inconsistencies in the state wage forms 
and the lack of supporting evidence to substantiate the Beneficiary's delegation of non-qualifying 
duties to his claimed supervisors, leaves uncertainty as to the Petitioner's claim that he was acting 
primarily as a personnel manager when the petition was filed. In addition, it also noteworthy that the 
record includes no evidence of the Beneficiary exercising personnel authority over his claimed 
subordinate managers and supervisors. Again, the Petitioner must resolve discrepancies and 
ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. at 582, 591-92. Whether the Beneficiary is a managerial employee turns on 
whether the Petitioner has sustained its burden of proving that their duties are "primarily" managerial. 
See sections 101(a)(44)(A) of the Act. 
As noted, the Petitioner only contends that the Beneficiary would qualify as a personnel manager. 
However, as discussed, the Petitioner did not submit sufficiently detailed duties and supporting 
documentation necessary to corroborate that the Beneficiary was, and would be, primarily engaged in 
performing the qualifying tasks of a personnel manager. In addition, the Petitioner provided state 
wage forms corresponding with the date the petition was filed which did not substantiate that there 
were four subordinate supervisors and/or managers working below him as asserted. Therefore, the 
2 The state qua11erly wage form from the second quarter of 2018 applicable to the Petitioner's wholly owned subordinate 
B-E- LLC reflected that the claimed general manager of the convenience store earned only $990 that quarter, while the 
salesclerks accrued $4120 and $3960 respectively. 
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Petitioner did not demonstrate that the Beneficiary would act as a personnel manager under an 
approved petition. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would be employed 
in a managerial capacity in the United States. 
ORDER: The appeal is dismissed. 
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