dismissed EB-1C Case: Restaurant/Cargo

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.; Rm. A3042 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 02 126 50670 Office: CALIFORNIA SERVICE CENTER Date: JuM (D 1 
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. 8 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, Director 
Administrative Appeals Office 
WAC 02 126 50670 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter then came before the Administrative Appeals Office (AAO) on appeal. The appeal was summarily 
dismissed based on the determination that counsel failed to specifically identify an erroneous conclusion of 
law or statement of fact. The matter is now before the AAO on motion to reopen and reconsider. The motion 
to reopen will be granted in order to consider the appellate brief. However, the AAO's prior decision 
dismissing the appeal will be affirmed. 
The petitioner is a California corporation operating as a Filipino restaurant and cargo company. It seeks to 
employ the beneficiary as its vice president 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. 8 1153(b)(l)(C), as a multinational executive or manager. The director 
determined that the beneficiary would not be employed in a managerial or executive capacity and denied the 
petition. 
On appeal, counsel disputed the director's conclusions and indicated her intent to submit further information 
within 30 days of the date the appeal was filed. However, as the additional information was not received by 
the AAO by November 20,2003 when the case was reviewed, the AAO summarily dismissed the appeal. 
On motion, counsel submits postal return receipts documenting the service center's timely receipt of the 
petitioner's appellate brief. However, as the brief was not forwarded to the AAO in a timely fashion, the 
AAO was unable to consider it while reviewing the case. The AAO will now review the brief in which 
counsel asserts that the director "mischaracterized" the beneficiary's job description and erred in denying the 
petition. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
WAC 02 126 50670 
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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 issue in this proceeding is whether the beneficiary would be employed in a capacity that qualifies as 
managerial or executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 110l(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, hctions 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. $ 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. 
WAC 02 126 50670 
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In Part 6 of the petition, the petitioner stated that the beneficiary "[pllans, directs, and coordinates operations 
of restaurant." 
In a notice, dated May 23, 2002, the director requested that the petitioner submit additional information. The 
request instructed the petitioner to provide its organizational chart describing the managerial hierarchy and 
staffing levels. The petitioner was also instructed to clearly identify the beneficiary's position in the chart as 
well as the names, job titles, and brief descriptions of the job duties of the beneficiary's subordinate 
employees. 
The petitioner responded with an organizational chart, which shows that the petitioner's only subordinate is a 
general manager whose immediate subordinates are two cashiers. The petitioner also provided a job 
description for the beneficiary, but failed to provide one for the general manager. It is noted that the 
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the 
record before the visa petition was adjudicated. The petitioner failed to submit the requested evidence and 
now submits it on appeal. However, the AAO will not consider this evidence for any purpose. See Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will 
therefore be adjudicated based on the record of proceeding before the director. As the beneficiary's full job 
description and list of discretionary decisions were incorporated into the director's decision, the AAO need 
not repeat that information in this discussion. 
On September 16, 2002 the director denied the petition noting, "[Gliven the type of business that the 
petitioner conducts, it is unreasonable to believe that the beneficiary, as the [vlice [plresident, will not be 
involved with the day-to-day non-supervisory duties that are common place [sic] in the industry." Although 
the director properly concluded that the beneficiary would not be employed in a managerial or executive 
capacity, his focus on the nature of the petitioner's business was misplaced. Therefore, the director's 
comment in this regard will be withdrawn. The director did, however, properly consider the petitioner's 
organizational chart upon which he based the conclusion that the petitioner lacks the organizational 
complexity to actually require an individual who would primarily perform managerial or executive tasks. The 
director further concluded, based on the organizational chart, that the beneficiary would act as a first-line 
supervisor whose subordinates consist of 10 non-professional employees. 
On appeal, counsel referred to the petitioner's previously granted L-1A non-immigrant petitions, claiming 
that the 1-140 petition can only be denied upon proof that the previous approvals were the result of gross 
error. In support of this argument counsel cited the case of National Hand Tool Corp. v. K.L. Pasquarel, 889 
F.2d 1472 (Dec. 15, 1989). However, a review of the cited case suggests that it does not support counsel's 
assertions. To the contrary, the judge in the cited case expressly stated that CIS is not under any obligation to 
grant a preference 1-140 visa petition where prior nonimmigrant visa petition(s) may have been granted. See 
id. In addition, the director's decision does not indicate whether he reviewed the prior approvals of the other 
nonimrnigrant petitions. If the previous nonimmigrant petitions were approved based on the same 
unsupported and contradictory 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. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). 
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Furthermore, 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 nonimmigrant 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.), afyd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Counsel also argued that the director failed to consider the fact that the petitioner employs a general manager 
who acts as the first-line supervisor and that the beneficiary is therefore relieved of having to act in that non- 
qualifying capacity. However, as previously stated, the petitioner failed to provide a job description of the 
alleged first-line supervisor, thereby making it impossible for the MO to determine, with any degree of 
certainty, that the beneficiary is relieved of having to perform the duties of a first-line supervisor as claimed. 
The statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503 (BIA 1980). 
Counsel asserted further that the director "mischaracterized" the beneficiary's job duties and explained that 
rather than being personally involved in the daily menu preparations, the beneficiary awaits the general 
manager's approval in regards to the menus for catering jobs. However, the beneficiary's job description 
clearly distinguishes between menus for catering jobs and menu preparation for the restaurant as they are both 
listed as separate duties. Although counsel apparently provided an example of the general manager's duties, 
it is noted that a full description ofjob duties was not provided. Therefore, the AAO remains unclear as to the 
general manager's role within the petitioner's organizational structure. Nor is there a clear indication as to 
how the general manager relieves the beneficiary of having to perform non-qualifying duties, particularly in 
light of the fact that the beneficiary's description of duties indicates that the beneficiary is still required to 
approve budgets on a daily basis, prepare catering proposals, meet with prospective clients of the catering 
service, and conduct market research. If the petitioner's general manager acts as the first-line supervisor, as 
suggested, there is no explanation as to why the beneficiary continues to perform the petitioner's day-to-day 
operational tasks. It is noted that an employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Although the petitioner indicated 
that its intention is to expand its business and hire additional personnel, a petitioner must establish eligibility 
at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a 
new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, the petitioner's future 
business plans are entirely irrelevant in this proceeding. 
CIS will look first to the petitioner's description of the job duties in determining the beneficiary's eligibility 
for classification as a multinational manager or executive. See 8 C.F.R. 9 204.56)(5). In the instant case the 
record does not suggest that the beneficiary would primarily perform managerial or executive duties. Rather, 
the petitioner's organizational chart, combined with the description of duties, suggest that the petitioner lacks 
the organizational complexity to require an individual to perform primarily managerial or executive duties. 
As such, the MO cannot conclude that the beneficiary would primarily perform qualifying duties. For this 
reason the petition cannot be approved. 
Beyond the decision of the director, further review of the record suggests that the petitioner has not 
established a qualifying relationship with a foreign entity. 
WAC 02 126 50670 
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The regulation at 8 C.F.R. 8 204.5Cj)(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. 
In the instant case, the petitioner indicated in a letter, dated February 14, 2002, that the foreign entity owns 
51% of the petitioner's issued stock. Pad IV of the petitioner's Articles of Incorporation, also submitted with 
the petition, indicates that the petitioner authorized the issue of 10,000 shares of common stock whose par 
value is $100 per share. Although a photocopy of Stock Certificate No. 2, dated August 27, 1998, indicates 
that the foreign entity owns 5100 shares of the petitioner's stock, this claim is not supported by the 
petitioner's income tax return for the year 2000. Schedule L, No. 22(b) of that tax return indicates that only 
$14,000 worth of the petitioner's common stock was sold. If the petitioner issued at least 5100 shares of its 
common stock to the foreign entity, it would have received at least $510,000 in return. To add to the 
confusion, the petitioner also submitted what appears to be a receipt, dated August 15, 1998, issued to the 
foreign entity showing its purchase of $25,000 worth of stock. Although the petitioner submitted a letter, 
dated July 18, 2002, reaffirming its prior claim regarding the foreign entity's 51% ownership of the 
petitioner's issued stock, the petitioner did not reconcile the considerable inconsistencies between the 
petitioner's claim, its 2002 tax return, and the copy of Stock Certificate No. 2. 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, 591-92 (BIA 1988). In the instant 
case, counsel neither reconciles, nor even acknowledges the existence of the considerable inconsistencies 
regarding the ownership and value of the petitioner's stock. 
It is noted that 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), afd. 
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). Thus, for the additional ground discussed in this paragraph, this 
petition cannot be approved. 
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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. § 1361. The petitioner has not sustained that burden. 
ORDER: The AAO affirms its prior decision dismissing the appeal.