dismissed EB-1C Case: Restaurant Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PuJ3LIC COPY 
US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
LIN 07 253 55250 
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. 5 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
U 
Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Georgia corporation that seeks to employ the beneficiary as its presidenumanaging 
director. 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. 5 1153(b)(l)(C), 
as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 2) 
the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel submits an appellate brief disputing the director's conclusions. 
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 
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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
would be employed in the United States in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A), provides: 
Page 3 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1(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 support of the Form 1-140, the petitioner submitted an undated letter from the beneficiary's partner, who 
stated that the beneficiary would be responsible for "directing and developing the growth of a new 
establishment." No further information was submitted about the beneficiary's proposed employment, nor was 
any information provided with regard to the beneficiary's employment abroad. 
Accordingly, on November 21, 2008, the director issued a request for additional evidence (RFE) instructing 
the petitioner to provide more detailed descriptions of the beneficiary's foreign and proposed employment. 
Namely, the petitioner was asked to provide a list of the beneficiary's specific job duties and to include the 
percentage of time that was attributed and would be attributed to each of the duties the beneficiary performed 
during his employment abroad and would have during his proposed employment. The petitioner was also 
asked to provide organizational charts illustrating the staffing hierarchies of the beneficiary's foreign and 
proposed employers. 
In response, the petitioner provided daily schedules that describe in detail the tasks that consumed the 
beneficiary's time during his employment abroad and the tasks that would consume the beneficiary's time 
during his proposed U.S. employment. Both job descriptions indicated that the beneficiary's focus has been 
and would be placed on his interaction with customers and on ensuring customer satisfaction for 70% of the 
time with the remaining 30% of his time devoted to administrative tasks. The petitioner stated that the 
beneficiary's tasks included of the following: opening and setting up the restaurant daily, including checking 
stock and making certain menu-related decisions, assigning wait sections to the wait staff and informing them 
about the restaurant's daily specials, and after opening, the beneficiary is responsible for greeting customers, 
taking initial drink orders, and helping customers make menu choices. The beneficiary also checks every 
entree to ensure customer satisfaction. The beneficiary would perform the same tasks in his position with the 
U.S. entity. 
In addition to the tasks related to food service, the beneficiary performed and would perform administrative 
tasks, including fielding phone calls and emails, accepting and paying for deliveries, addressing sales calls, 
developing employee training programs, developing and planning updates to the restaurant's menu and wine 
list, purchasing equipment, and performing various bookkeeping and accounting tasks. 
The petitioner provided the foreign entity's organizational chart, which named the beneficiary as one of two 
ownerlmembers. Two bar managers were listed under the beneficiary's supervision, followed by a marketing 
and entertainment employee and a growth and development employee. Aside from the beneficiary and his 
partner and their respective subordinates, the chart also listed an accounting officer, a housekeeping 
employee, and a staff welfare employee. 
The petitioner also provided its own organizational chart, which depicted the beneficiary at the top of the 
hierarchy, with an assistant managerlexecutive chef, an accountant, a front house assistant manager, and a 
front house assistant managerlhost as his subordinates. 
On January 24, 2009, the director issued a decision denying the petition. The director briefly reviewed 
information presented in the organizational chart of each entity and assessed the sufficiency of support 
personnel on the basis of the 2007 IRS Form W-2s that were issued to the petitioner's employees the year the 
Form 1-140 was filed. 
On appeal, counsel disputes the director's findings, pointing to the beneficiary's two previously approved 
nonimmigrant L-1A visas, which counsel asserts were supported with less evidence than what has been 
offered in the present matter. However, counsel's argument, which is premised on the belief that a previously 
approved L-1A petition serves as prima facie proof of a petitioner's eligibility under section 203(b)(l)(C) of 
the Act, is without merit. Contrary to counsel's belief, each nonimmigrant and immigrant petition is a 
separate record of proceeding with a separate burden of proof; each petition must stand on its own individual 
merits. U.S. Citizenship and Immigration Services (USCIS) is not required to assume the burden of searching 
through previously provided evidence submitted in support of other petitions to determine the approvability of 
the petition at hand in the present matter. The prior nonimmigrant approvals in no way guarantee that USCIS 
will approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 
immigrant petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals 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 USCIS 
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). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the 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.), ajf'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). Additionally, to clarify, the director's decision in the present matter 
does not serve to "overrule" the service center's approvals of the petitioner's previously filed L-1A 
nonimmigrant petitions. As explained earlier, each petition is a separate matter whose merits must be 
determined individually on the basis of the supporting documentation submitted with the respective petition. 
Thus, while the director's determination in the present matter implies that the earlier nonimmigrant petitions 
may have been approved in error, such a determination would have to be made if the merits of each approval 
are revisited in a revocation proceeding. 
Counsel also challenges the director's reference to the beneficiary's job description as vague and inflated, 
pointing to the multi-page job descriptions the petitioner provided earlier in this proceeding. With regard to 
the director's implication that the job descriptions were vague, the AAO agrees with counsel's challenge. In 
reviewing the job descriptions offered by the petitioner in response to the RFE, the AAO finds that the 
petitioner conveyed a meaningful understanding of the tasks the beneficiary performed during his 
employment abroad and those he would perform during his proposed employment in the United States. 
However, simply providing the requested information does not ensure the petitioner that the information 
would warrant approval of the petition. 
In the present matter, the AAO finds that the director properly determined that the description of tasks the 
beneficiary performed abroad and would perform in the proposed position does not establish that the 
beneficiary has been or would be employed in a qualifying managerial or executive capacity. While both job 
descriptions adequately convey the beneficiary's significant role in successfully running a restaurant 
operation, the overwhelming amount of the beneficiary's time has been and would be spent performing 
operational tasks. As properly noted in the director's decision, 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). Thus, regardless of the beneficiary's high-ranking 
positions and the heightened degree of discretionary authority that undoubtedly accompanies his 
organizational placement at the top of each entity's hierarchy, case law has firmly established that the actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). In the present matter, the job descriptions indicate 
that the beneficiary's duties have been and would be heavily focused on customer interaction during each 
restaurant's hours of operation and/or during the beneficiary's shift. While it is likely that the beneficiary is 
relieved from having to perform the duties of a chef, waiter, or bartender, his time has been and would be 
attributed to the long list of non-qualifying operational tasks with emphasis on the food and service that is 
provided to the patrons of each restaurant. 
Lastly, the AAO will address counsel's objection to the director's reference to the petitioner's employment of 
the beneficiary's spouse. Specifically, counsel interprets the director's reference as an adverse finding and 
claims that there is no statute or regulation that prohibits the spouse of a beneficiary from being employed by 
the petitioning organization. However, counsel's interpretation of the director's comments is inaccurate. 
While the director admittedly points out that the beneficiary's spouse is among the petitioner's employees, 
there is absolutely no indication that counsel's comment was anything more than an observation of the 
petitioner's organizational composition. In fact, counsel is strongly urged to review the context of the 
director's observation, which includes a discussion of the petitioner's Form W-2s and the fact that only a few 
of the Form W-2s show full-time employment, among them the Form W-2 that was issued to the beneficiary's 
spouse. The director made no statements to indicate that the petitioner's employment of the beneficiary's 
spouse was being interpreted as some form of impropriety or indication of ineligibility. Rather, the director 
was clear in focusing his adverse findings on the beneficiary's job descriptions with the foreign and U.S. 
entities. The director expressly stated that the petitioner failed to establish that the beneficiary was and would 
be relieved from having to primarily perform non-qualifying tasks during his foreign and proposed 
employment. On the basis of these two conclusions, the director denied the petition. After reviewing the 
record in its entirety, the AAO finds that the director's observations and findings with regard thereto were 
accurate. Therefore, the AAO affirms the director's decision. 
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. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.