dismissed EB-1C Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-D-R- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 9, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant, seeks to permanently employ the Beneficiary as chief executive officer 
(CEO) under the first preference immigrant classification for multinational executives or managers. 
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 an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition , concluding that the record did not 
establish, as required, that Beneficiary would be employed in a managerial or executive capacity in 
the United States. The Director also determined that the Petitioner did not demonstrate that the 
Beneficiary had been employed in a managerial or executive capacity abroad . 
On appeal, the Petitioner contends that the Beneficiary would be employed primarily in an executive 
capacity in the United States. The Petitioner does not address the Beneficiary's foreign employment 
on appeal. 
Upon de nova 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)(l)(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(j)(3) . 
Matter of H-D-R-LLC 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
an executive capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in a managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary 
would be employed in an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
When examining the executive 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 an executive capacity. 
8 C.F.R. § 204.5(i)(5). Beyond the required description of the job duties, we examine the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a 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. 
A. Duties 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the Beneficiary 
will be primarily engaged in executive 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); 
Champion World, 940 F.2d 1533. 
In a letter submitted with the petition filed on February 27, 2018, the Petitioner stated that its purpose 
is to diversify the international investments and presence of I I, a foreign entity 
owned 60% by the Beneficiary and 40% by his father. The Petitioner stated in its supporting letter 
that the Beneficiary will serve as its managing member and CEO, "responsible for determining 
company growth, fiscal and expansion policies and goals, as well as executive oversight for HR and 
marketing operations and their im lementation, though subordinate staff." The Beneficiary was 
transferred from to the United States in February 2017 to work for~ 
~---------in L-lA nonimmigrant status. The Beneficiary organizedc=Jn May 2015 
and he is the 100% owner of c=J In Jaluary 
1
2018, c=J and the Beneficiary purchased the 
Petitioner's membership interests and assets. owns 49% of the Petitioner and the Beneficiary 
owns the remaining 51 %. 
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Matter of H-D-R- LLC 
In a request for evidence (RFE), the Director stated that the Beneficiary's job description submitted 
with the initial petition was overly broad and too brief, noting that it did not clearly establish his day­
to-day tasks. The Director requested that the Petitioner submit a letter clearly describing the 
Beneficiary's proposed job duties, including his specific daily tasks. 
In response to the RFE, the Petitioner stated that the Beneficiary's "current (as well as proposed) 
duties" include devoting 45% of his time to formulating and implementing marketing strategies and 
opportunities for future growth, and negotiating and executing vendor contracts and service 
agreements. Specifically, his responsibilities include reviewing and analyzing marketing trends to 
identify markets for expansion; establishing and monitoring short and long term business plans; 
providing guidance and advice to lower-level management to reach these goals; expanding the brand 
in the U.S. market; negotiating prices for high quality ingredients, supplies, and equipment; meeting 
with the marketing manager on a weekly basis to discuss marketing strategies, channels, and products; 
and conducting weekly reviews with the accounting assistant regarding costs. 
The Petitioner farther indicated that the Beneficiary spends 30% of his time monitoring and analyzing 
the current operation of the company and overseeing fiscal operations and investment strategies. It 
stated that the day-to-day operations of the restaurant are supervised by the general manager and the 
marketing and catering managers. It stated that the Beneficiary meets with the general manager three 
to four times per week to review items such as licensing, inventory, delivery service, maintenance, 
customer satisfaction, menus, and employee performance. It also stated that he meets with the 
marketing manager once per week to review marketing efforts and strategies, and that he meets with 
the catering manager/accounting assistant each week to review catering ideas and progress, oversee 
payroll reporting, review bank statements and deposit receipts, review financial statements, formulate 
revenue targets and cash flow projections, approve/decline major expenditures, and ensure licensing 
compliance. 
The Petitioner also stated that the Beneficiary spends 25% of his time in human resources 
management. It stated that the Beneficiary interviews and hires managerial candidates, while the 
general manager interviews and hires other employees only after the Beneficiary's review and 
approval. It farther stated that the Beneficiary, in his capacity as CEO of D is "undertaking 
extensive market research to seek investment opportunities, and is undergoing negotiations for the 
purchase of additional restaurant locations" to expand the business. 
The RFE response included a separate letter from the foreign enTy <lard February 23, 2016,. In the 
letter, the Beneficiary's proposed duties in the United States with were detailed as follows: 40% 
of his time would be "devoted to developing and implementing the company's 5-7 year strategy;" 15% 
of his time would include setting guidelines for accounting, finance, sales, marketing operations and 
administration management; 15% of his time would include directly supervising and reviewing how 
closely these guidelines are being followed; and 30% of his time would include "exercising near total 
discretion and supervision over the company's finance and accounting practices, including analysis 
and determination of investments, partnerships and acquisition of additional retail and office space to 
accommodate the projected growth of the company." 
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Matter of H-D-R- LLC 
In its RFE response, the Petitioner also stated that the Beneficiary "is still CEO of D-the current 
management and affiliate company for our business - pursuant to his L-lA application, and has also 
recently focused on directly developing our operations since the issuance of his employment 
authorization card in May of 2018." It stated that as the CEO ofc=] the Beneficiary "provides 
executive management" pursuant to the terms of a logistics services agreement. It further stated that 
as CEO of the Petitioner, the Beneficiary "has taken a more direct CEO-executive control of our 
enterprise, managing and implementing our business activities from the very top of our organizational 
structure." 
The Petitioner also provided a logistics services agreement dated February 1, 2018, betweenOand 
the Petitioner. It states that D has "expertise in managing the business operations and marketing of 
restaurants" and that it will perform "logistical services ( e.g. organizing and reporting on inventory 
[current and needed], research and assembly of vendor lists to ensure best quality at most reasonable 
process; research and assembly of list of contractors for repair needs, including plumber, electrical, 
mechanical, AC, heating; advise on sourcing resources for new employees, etc.)" with regard to the 
Petitioner's food and dining industries. It further states that Owill "provide advisory and logistics 
services" to the Petitioner and assist in the Petitioner's "marketing and Logistics activity." For these 
services,~harged the Petitioner $3,500 per month. The agreement states that it "shall terminate 
on the 23rd day of January, 2019, if not renewed." Pursuant to an addendum, the agreement was 
renewed until January 22, 2020, at a monthly rate of $3,800. The record does not indicate how many 
hours c=]devotes to the Petitioner each month. 
In a letter dated January 16, 2019, from the Beneficiary submitted with the RFE response, the 
Beneficiary stated that he has been CEO ofD since February 5, 201 7; and that he has been CEO of 
the Petitioner since June 1, 2018. He stated that he formulates and executes "both companies' fiscal 
and expansion policies and goals, as well as HR and marketing operations;" negotiates and executes 
leases and contracts on behalf of both companies; promotes "advertisement channels to boost our 
presence in the marketplace;" manages and assesses "our companies' personnel;" provides 
"hiring/training/firing services;" and maintains a "central role in the overall management of all key 
activities." He stated that the foreign company was "engaged in the purchase, sale and exchange of 
foreign currencies, Travel & Tourism and Textile Industry." 
In his decision, the Director noted the February 23, 2016, letter from the foreign entity and stated that 
he could not determine whether the Beneficiary completes the duties listed in the letter as CEO of the 
Petitioner or CEO of O He found that the initial job descriptions were vague and generalized and 
were primarily based on broad tasks that fail to convey what the Beneficiary would be doing on a daily 
basis. He noted the Petitioner's job description in its RFE response and stated that the Petitioner has 
not resolved the inconsistencies between the duties as CEO of the Petitioner listed in the RFE response 
and those as CEO of0 listed in the foreign entity's February 23, 2016, letter. He further noted that 
the Petitioner only has three full-time employees and eight part-time employees, so it was unclear how 
he would devote 25% of his time to human resources management as detailed in the RFE response. 
On appeal, the Petitioner asserts that the Beneficiary "has been directing the petitioner as its highest 
level executive by performing not only the duties first presented when his initial L-lA petition was 
approved, but his expanded duties since that time, as described in the petitioner's detailed RFE 
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Matter of H-D-R- LLC 
response in this case." It states that the Beneficiary's duties are primarily executive and "consist solely 
of executive decision- and policy- making." It provides examples of those duties, including the 
expansion of the Petitioner's business operations from two locations to three; 1 determining how to 
incorporate outsourced accounting functions into the Petitioner's organizational structure; and 
formulating and implementing marketing, sales, and diversification strategies. It states that the 
Petitioner's employees perform the day-to-day operations of the Petitioner and that the Beneficiary is 
"relieved from performing non-qualifying tasks." 
However, the Petitioner has not adequately resolved the ambiguities in record regarding the 
Beneficiary's role withC7md his role with the Petitioner. A petitioner must resolve inconsistencies 
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). With its initial submission, the Petitioner did not submit a 
sufficiently detailed duty description describing the Beneficiary's day-to-day executive-level duties 
that credibly establishes he would devote his time primarily to qualifying tasks. In response to the 
RFE, it provided a more detailed description of the Beneficiary's performance of qualifying duties, 
but it failed to resolve the ambiguities regarding the Beneficiary's proposed concurrent duties as CEO 
ofOand as CEO of the Petitioner. 
Pursuant to a management agreement dated February 1, 2018, c=Jcurrently performs marfeting
1
and 
logistics services for the Petitioner. 2 The record does not contain any evidence that has 
employees other that the Beneficiary who perform services to the Petitioner pursuant to the 
management agreement. Therefore, it appears that the Beneficiary is currently performing, and will 
continue to perform, marketing, advisory, and logistical services to the Petitioner in his role as CEO 
ofc=J The record does not indicate if he is working foll-time or part-time in that capacity, but his 
duties as CEO of c=Jaffect the time he can devote to his duties with the Petitioner. The Petitioner 
asserts that he will serve concurrently in both roles, but it does not indicate how he will split his time 
between the businesses. Therefore, we cannot determine if his role with the Petitioner is a primarily 
executive one. 
As noted by the Director in his decision, the Beneficiary's job description states that he spends 25% 
of his time in human resources management. On appeal, the Petitioner states the Beneficiary oversees 
and manages a staff of 11. It states that the Beneficiary "directly manages and directs these managers." 
It farther asserts that the Beneficiary "does not manage the staff of the restaurant locations managed 
by the petitioning management company." Instead, it states that he supervises the general manager 
"who functions as an intermediate manager between [the Beneficiary] and the restaurant's staff'' and 
the marketing manager who is "in charge of implementing and supervising all marketing and 
advertising operations as conceived by [the Beneficiary]." It additionally states that the staff are 
employed by the Petitioner "under the directorship of [ the Beneficiary], who oversees the personnel's 
performance and makes hiring, training, promotion and firing decisions." 
1 On appeal, the Petitioner submits a Bill of Sale, Asset Purchase Agreement, and Sublease dated May 21, 2019, between 
the Petitioner and a separate business for the Petitioner's purchase of another restaurant franchise in Arizona. The purchase 
of a third location has not been documented in the record. 
2 AlthoughOappears to have been established in 2015 to expand the foreign entity's business related to the purchase. 
sale and exchange of foreign currencies; travel and tourism; and textiles, the record is not clear that it ever engaged in 
those businesses in the United States. 
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Matter of H-D-R- LLC 
However, these assertions contradict each other. The Petitioner asserts that the Beneficiary does not 
manage the cashiers or chefs, while also asserting that he oversees their performance and makes hiring, 
firing, training and promotion decision related to them. His job description states that he interviews 
and hires managerial candidates, while the general manager interviews and hires other employees only 
after the Beneficiary's review and approval. A petitioner must resolve inconsistencies in the record 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec.at 
591-92. 
Further, the Petitioner's restaurant is al Is franchise. Therefore, the Petitioner pays fees 
that help pay for brand building and national and local marketing. 3 Since the franchise's marketing 
team creates advertising and provides marketing initiatives for the Petitioner, it is not clear why the 
Beneficiary, in his capacity as CEO of the Petitioner, spends up to 45% of his time formulating and 
implementing marketing strategies, and up to 30% of his time meeting with the marketing manager to 
review marketing efforts and strategies. It is also not clear why the Petitioner requires a marketing 
manager who is solely devoted to marketing the Petitioner's business given the franchise's marketing 
responsibilities and the amount of time devoted by the Petitioner's CEO to marketing. Additionally, 
pursuant to the management agreement between~ and the Petitioner, D purportedly performs 
the marketing services for the Petitioner. Thus, it is not clear why the Petitioner requires a marketing 
manager who is "in charge of implementing and supervising all marketing and advertisi~erations" 
or why its CEO formulates and implements marketing strategies given that it is paying LJ to handle 
its marketing that is created and directed by the franchise. Doubt cast on any aspect of the petitioner's 
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 I&N Dec.at 591-92. Further, part of the Beneficiary's duties 
include negotiating and executing vendor contracts, including negotiating prices for high quality 
ingredients. However, the franchise's purchasing and supply chain management team would generally 
be responsible for negotiating prices and supplying food to its restaurants. 4 Id. 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct a business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section 101 (a)( 44 )(B) of the Act. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" executive in nature. Id. 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, {he 
1
osition 
description alone, without clarity regarding the Beneficiary's duties for the Petitioner and and the 
services provided by the franchise, is insufficient to establish that his actual duties for the Petitioner 
would be primarily executive in nature. 
3 See.__ _____ ~-----' Franchise FAQs, https:/l lrranchise.com/about-us/faqs/ (last visited Sept. 
30,20~1~9~. -------~ 
4 See Franchise Training and Support, https:/,___ __ __.franchise.com/whyl 
raining-and-support/ (last visited Sept. 30, 2019). ~-~ 
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Matter of H-D-R- LLC 
B. Staffing 
As noted above, beyond the required description of the job duties, we also examine the company's 
organizational structure, the duties of the Beneficiary's subordinate employees, the presence of other 
employees to relieve the Beneficiary from performing operational duties, and the nature of the business 
along with any other factors that will contribute to understanding the Beneficiary's actual duties and 
role within the petitioning organization. If staffing levels are used as a factor in determining whether 
an individual is acting in an executive capacity, we take into account the reasonable needs of the 
organization, in light of its overall purpose and stage of development. See section 10l(a)(44)(C) of 
the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
a complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, 
a beneficiary must have the ability to "establish the goals and policies" of that organization. Inherent 
to the definition, the organization must have a subordinate level of employees for a beneficiary to 
direct and they must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as the owner 
or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary decision 
making" and receive only "general supervision or direction from higher-level executives, the board of 
directors, or stockholders of the organization." Id. 
The record contains an organizational chart for the Petitioner submitted in response to the RFE. It 
shows that the Beneficiary, as CEO, oversees a catering manager/accounting assistant and marketing 
manager. These two managers do not oversee other employees. The Beneficiary also oversees a 
general manager who oversees five cashiers and two chefs. The Petitioner provided job descriptions 
for the positions, and stated that the general manager is a full-time employee, while the marketing 
manager and the catering manager/accounting assistant are part-time employees. Two chefs are full­
time employees, while the cashiers are part-time. 
In his decision, the Director noted that the Petitioner only has three full-time employees and eight part­
time employees. He stated that when "an organization has a limited number of employees, it becomes 
questionable as to whether the beneficiary is acting primarily in an executive or managerial role." 
On appeal, the Petitioner submits a Bill of Sale, Asset Purchase Agreement, and Sublease dated May 
21, 2019, between the Petitioner and a separate business for the Petitioner's purchase of a restaurant 
franchise in Arizona. It also submits a revise! organyational chart showing the Beneficiary as CEO 
overseeing the 'I I Location" and the Location." The revised chart shows that the 
Beneficiary oversees a store manager for each of the two locations, and a marketing and administration 
manager. The store manlager fir thel I location oversees five cashiers and three chefs, while 
the store manager for the location oversees four cashiers and three chefs. However, the second 
restaurant was purchased after filing the instant petition. 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. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
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Matter of H-D-R- LLC 
On appeal, the petitioner cites Matter of Leacheng, 26 I&N Dec. 532 (AAO 2015), and asserts that the 
Director failed to take into account the reasonable needs of the foreign affiliate, which "invested 
substantial amounts of capital into this enterprise and requires [the Beneficiary] to direct the U.S. 
businesses it has invested in." Thus, the Petitioner asserts that the Director's decision violates binding 
AAO precedent. We disagree. In Matter of Leacheng, we determined that a petitioner may establish 
that it is doing business by demonstrating that it is providing goods and/or services in a regular, 
systematic, and continuous manner to related companies within its multinational organization. 5 We 
did not find that a foreign entity's investment into a U.S. company constitutes a "reasonable need" 
justifying approval of an immigrant visa petition on behalf the individual tasked with directing the 
investment. 
On appeal, the Petitioner also cites Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 
2016), for the proposition that a Petitioner's small payroll does "not necessarily compel a conclusion 
that the beneficiary performs day-to-day operational duties." In Matter of Z-A-, we found that when 
determining whether an L-lA beneficiary will primarily manage an essential function, "the petitioner 
bears the burden of submitting probative evidence to establish the reasonable staffing needs of the 
organization and how those needs are material to whether the beneficiary will act as a manager" and 
that we must "assess all relevant evidence in the record concerning the beneficiary's position within 
the wider 'qualifying organization' in determining whether the petitioner has satisfied that burden." 
Id. at 5. As described above, given the ambiguities in the Beneficiary's division of duties between 
~ and the Petitioner and the services provided by the franchise, we cannot determine whether his 
actual duties for the Petitioner would be primarily executive in nature. 
We have considered the Petitioner's staffing needs within the scope of its restaurant operations; 
however, based on the deficiencies and inconsistencies addressed above, the Petitioner has not 
established that it will employ the Beneficiary in an executive capacity. 
III. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director also denied the petition finding that the Petitioner did not establish that the Beneficiary had 
been employed in a managerial or executive capacity abroad. In denying the petition, the Director found 
inconsistencies in the two descriptions of the Beneficiary's foreign position provided by the foreign entity. 
In addition, he found that the descriptions were overly generic and vague and failed to establish his day­
to-day duties abroad. 
On appeal, the Petitioner does not address the Beneficiary's foreign employment. Therefore, we 
consider this issue to be abandoned. See Sepulveda v. US. Atty Gen., 401 F.3d 1226, 1228 n.2 (11th 
Cir. 2005); see also Hristov v. Roark, No. 09-CV-2731, 2011 WL 4711885, at *1, *9 (E.D.N.Y. 2011) 
(plaintiff's claims found to be abandoned when not raised on appeal to the AAO); see also Greenbriar, 
Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (stating that passing references to 
issues are insufficient to raise a claim for appeal, and such issues are deemed abandoned). The 
5 See 8 C.F.R. § 204.5(j)(2) (doing business means the regular, systematic, and continuous provision of goods and/or 
services and does not include the mere presence of an agent or office). 
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Matter of H-D-R- LLC 
Petitioner has not demonstrated that the Beneficiary acted in a managerial or executive capacity 
abroad. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofH-D-R-LLC, ID# 6224168 (AAO Oct. 9, 2019) 
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