dismissed EB-1C Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
In Re: 18129412 Date : AUG . 03, 2021 
Appeal of Texas Service Center Decision 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a company owning and operating a bar and restaurant , seeks to 
employ the Beneficiary as its president under the first preference immigrant 
multinational executives or managers. Immigration and Nationality 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
classification for 
Act ( the Act) 
The Director of the Texas Service Center denied the petition on multiple grounds, concluding the 
Petitioner did not establish that: 1) there is a qualifying relationship between it and the Beneficiary's 
former foreign employer, 2) the Beneficiary was employed in a managerial or executive capacity 
abroad prior to his entry into the United States as a nonimmigrant, and 3) the Beneficiary would be 
employed in a managerial or executive capacity in the United States. 
On appeal, the Petitioner asserts that it and the foreign employer are maJonty owned by the 
Beneficiary, thereby qualifying them as affiliates according to the regulations. The Petitioner further 
submits additional supporting evidence on appeal, including an expert opinion, it contends 
demonstrates that the Beneficiary acted in an executive capacity in his former position abroad and that 
he would act in the same qualifying position in the United States. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. The 
Petitioner did not sufficiently establish that the Beneficiary would be employed in a managerial or 
executive capacity in the United States. Since this identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve its appellate arguments regarding whether 
it had a qualifying relationship with the Beneficiary's former foreign employer and whether he was 
employed abroad in a managerial or executive capacity . See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 1 
1 We acknowledge that United States Citizenship and Immigration Service (USCIS) records indicate that the Beneficiary 
was previously approved for L-lA intracompany transferee nonimmigrant visas filed by the Petitioner , a category largely 
mirroring the immigrant classification for multinational executives or managers. However , each petition filing is a separate 
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 I-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). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in an executive capacity in the United States. The Petitioner does not claim on appeal that 
the Beneficiary would be employed in a managerial capacity in the United States. 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 exammmg 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(j)(5). 
A. Duties 
To be eligible as a multinational executive, the Petitioner must show that the Beneficiary will perform 
the high-level responsibilities set forth in the statutory definition at section 101 ( a)( 44 )(B)(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 executive position. 
proceeding with a separate record and a separate burden of proof In making a detennination of statutory eligibility, USCTS 
is limited to the information contained in that individual record of proceeding. 8 C.F.R. § 103.2(b )(16)(ii). The Director's 
decision does not indicate whether they reviewed the prior approvals of the other nonimmigrant petitions. Tfthe previous 
nonimmigrant petitions were approved based on the same evidence contained in the current record, their approval would 
constitute an error on the part of the Director. We are not required to approve applications or petitions where eligibility 
has not been demonstrated, merely because of prior approvals that may have been erroneous. Matter of Church Scientology 
Int'!, 19 l&N Dec. 593, 597 (Comm'r 1988). 
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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 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). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the job 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 it operates a bar and restaurant, and in response to the Director's request for 
evidence (RFE) and now on appeal, indicates that it had expanded into providing heating and air 
conditioning (HV AC) services. In support of the petition, the Petitioner listed some of the following 
duties for the Beneficiary: 
• Direct and plan policies, objectives, activities of the Petitioner to ensure effective 
operations, maximize returns on investment and expand operations, 
• Approve a growth strategy for the Petitioner with the objective of making it an 
independent profitable outfit, 
• Ensure that new programs and strategies are effectively communicated, 
• Approve long and short-term business goals for the executive vice president in 
regard to sales, service, finance, business partners, recruiting etc., 
• Approve required operations to evaluate performance of senior management in 
meeting objectives, 
• Lead the executive vice president in determining areas of potential cost reduction, 
program improvement or policy change, 
• Attend business meetings to establish new business contracts and maintain long­
term collaborative relationships with key stakeholders, vendors and related 
organizations with the objective of expanding the number ofrestaurants, 
• Oversee the Petitioner's business relationships and build and strengthen alliances 
and partnerships, 
• Supervise implementation of good corporate governance practices and procedures, 
• Monitor and enforce accounting/finance policies and procedures, 
• Direct and coordinate the Petitioner's financial and budget activities and maximize 
investments, 
• Ensure that the planned profitability of all products and services sold by the 
Petitioner is realized by enforcing sound financial management principals, 
• Authorize funds to implement macro level policies and programs, 
• Direct and oversee marketing, brand positioning, advertising and communication 
strategies, and 
• Lead and development of marketing strategies. 
In response to the Director's RFE, indicating that the Beneficiary's duty description was overly broad, 
the Petitioner provided a different duty description emphasizing the Petitioner's main focus to 
"revitalize the business through [the] expansion of products and services," specifically through the 
provision of "HVAC and appliances repair services." However, it is notable that the Beneficiary's 
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initial duty description, and the evidence provided in support of the petition, did not discuss the 
Petitioner's provision of HVAC, and related services, suggesting that it and the Beneficiary were not 
performing tasks specific to this claimed expansion at the time the petition was filed in April 2020. 
We note that the Petitioner must demonstrate the Beneficiary's eligibility as of the date the petition 
was filed, as such, we will primarily look to his stated duties at this time. The Petitioner must establish 
that all eligibility requirements for the immigration benefit have been satisfied from the time of the 
filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
Beyond the Petitioner's discussion of its new HVAC services, the Petitioner provided duties in 
response to the RFE largely similar to those provided in support of the petition. For instance, the RFE 
duties discussed the Beneficiary "exploring new business opportunities," cultivating "relationships 
with key stakeholders," working with the executive vice president on "potential cost reduction and 
program improvement plans" and "long and short-term goals," amongst other similar tasks. 
The Petitioner submitted a U.S. duty description for the Beneficiary that does not credibly establish 
he would have been primarily engaged in the performance of qualifying executive-level duties as of 
the date the petition was filed. The Petitioner submitted generic executive-level tasks and 
responsibilities that did not sufficiently substantiate his actual daily tasks and his duty description 
could apply to nearly any executive acting any company within any industry. For instance, the 
Petitioner provided few specifics and little supporting documentation to corroborate the "plans, 
policies and objectives" the Beneficiary directed, the investments he oversaw, "new programs and 
strategies" we was coordinating at the time of the petition, or areas of "cost reduction, program 
improvement, or policy change" he implemented. Likewise, the Petitioner did not detail or document 
the problems the Beneficiary resolved through the executive vice president, "new business contracts" 
he put in place near to the date the petition was filed, "key stakeholders, vendors, and related 
organizations" he collaborated with, or "business relationships," "alliances," or "partnerships" he 
oversaw. 
In fact, the Beneficiary's duty descriptions include little discussion of the business the Petitioner was 
operating as of the date the petition was filed, its bar and restaurant location. For instance, the 
Petitioner stated that the Beneficiary would devote 15% of his time to overseeing, directing, and 
monitoring marketing policies, including developing marketing strategies. However, the record 
includes no evidence of substantial marketing activities on the part of the Petitioner; in fact, its 2019 
IRS Form 1065 U.S. Return of Partnership Income listed no expenses for marketing related activities, 
such as advertising or sales. Similarly, the Petitioner's 2018 IRS Form 1065 reflected that it only 
spent $100 on "advertisement," and it included no other discemable expenses for marketing activities. 
Further, the Petitioner did not describe or document the marketing, "brand positioning," "advertising," 
and "communication strategies," the Beneficiary would be, or was, responsible for in his proposed 
role. In addition, the Petitioner stated that the Beneficiary would devote 15% of his time to overseeing 
and monitoring "finance policies," but again, there is little indication what "policies and procedures," 
"financial and budget activities," and "macro level policies and programs" he would direct related to 
one bar and restaurant location. 
Although we did not expect the Petitioner to articulate and document every executive-level task to be 
performed by the Beneficiary, it is reasonable to expect that it would provide sufficient detail and 
documentation to sufficiently corroborate his performance of qualifying duties, particularly since it 
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asserts he acted in this role in the United States as an L- lA nonimmigrant for approximately four 
months prior to the date the petition was filed. As such, it would be reasonable to expect that there 
would be sufficient details and supporting documentation to substantiate the Beneficiary's executive­
level tasks during this time, such as his direction of and delegation to his claimed managerial 
subordinates. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive in nature, otherwise meeting the definitions would simply be a matter ofreiterating 
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). 
On appeal, the Petitioner provides additional supporting documentation it claims demonstrates the 
Beneficiary's executive-level duties. However, this evidence is more reflective of the Beneficiary's 
substantial involvement in non-qualifying operational tasks directly related to the provision of goods 
and services rather than a focus on the broad goals and policies of the organization. For example, the 
Petitioner submits two checks written by the Beneficiary for just over $500 paying for "wine" in 
February 2020 and another from January 2020, just prior to the date the petition was filed, paying for 
"beer." These checks suggest the Beneficiary's direct involvement in the operation of the Petitioner's 
bar and are particularly notable since its organizational chart as of the date the petition was filed 
included no staff devoted to its bar operations. Beyond this, the Petitioner provided little other 
supporting documentation related to the Beneficiary's activities near to the date the petition was filed. 
In addition, the Petitioner provided substantial documentation indicating the Beneficiary's direct 
engagement in non-qualifying duties related to its new HV AC business after the date of the petition 
was filed. For instance, it submits a vendor application form executed by the Beneficiary listing the 
him as the contact within its billing department, as well as a another "Service Provider Information" 
sheet again showing him as the company's primary contact for services. Likewise, the Petitioner 
submitted screenshots of its website which also list the Beneficiary as the primary contact for 
customers seeking HV AC services. This additional documentation provided on appeal only leaves 
further uncertainty as to whether the Beneficiary would primarily perform qualifying executive-level 
duties related to broad goals and policies under an approved petition. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 10l(a)(44)(B) of the Act. 
Here, the Petitioner does not credibly articulate and document what proportion of the Beneficiary's 
duties would be executive functions and what proportion would be non-qualifying. The Petitioner 
submits evidence indicating the Beneficiary's duties as including both executive tasks and 
administrative or operational tasks but does not quantify the time he spends on these different duties. 
For this reason, we cannot determine whether the Beneficiary is primarily performing the duties of an 
executive. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a valuable position within the organization, the fact that he will 
manage or direct a portion of the business does not necessarily establish eligibility for classification 
as a multinational executive within the meaning of section 101 (a)( 44 )(B) of the Act. The Beneficiary 
may exercise discretion over some of the Petitioner's day-to-day operations and possess some requisite 
level of authority with respect to discretionary decision-making; however, the position description 
alone is insufficient to establish that his actual duties would be primarily executive in nature. 
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B. Staffing and Executive Capacity 
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 101 (a)( 44 )( C) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function 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. 
In support of the petition, the Petitioner provided an organizational chart showing that the Beneficiary 
would oversee an executive vice president supervising a "Vice President Planning" and a "Vice 
President Sales & Marketing." The vice presidents were in tum shown to oversee another level of 
managers, including a general manager and a sales promotion manager. Below this level, the chart 
reflected yet another level of managers, including a "senior supervisor server" overseeing a 
subordinate and a "senior supervisor food runner" supervising an unidentified subordinate. Further, 
the chart showed a senior executive chef and catering manager overseeing a chef, assistant chef, cook 
assistant, and dishwasher. 
However, certain discrepancies on the record leave question as to the credibility of the Petitioner's 
organizational chart and whether it supported a structure including a president, three vice presidents, 
two other senior managers, and yet other supervisors at its one bar and restaurant location. For 
example, as discussed, the organizational chart includes no employees devoted to the Petitioner's bar 
operations, presumably a substantial part of its business given that it operated a "sports bar." In fact, 
the only documentation substantiating the Petitioner's bar operations involves the Beneficiary 
apparently completing rather nominal purchases for beer and wine, leaving uncertainty as to his 
claimed executive-level role. Meanwhile, the Petitioner indicated that the Beneficiary would work 
closely with the executive vice president on higher level matters, yet there is no evidence of him 
coordinating with his subordinate or delegating goals and policies to him. 
In fact, the Petitioner provided an invoice from March 2020 listing the executive vice president's name 
related to approximately $120 worth of pest control services and another invoice from February 2020 
with the executive vice president's name from a cable company totaling nearly $550. Further, the 
duties of the Beneficiary's lone subordinate, the executive vice president, are also generic like the 
Beneficiary's duties, include little detail, again discussing unexplained "strategic plans," 
"organizational management," "policies and procedures," and "product releases." The provided 
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evidence does not credibly demonstrate that the Beneficiary oversees a subordinate vice president 
performing higher level managerial tasks as claimed . 
Furthermore , the chart also included a vice president of sales and marketing and a sales promotion 
manager , as well as a general manager of its bar and restaurant. However, as we noted , the record 
includes no supporting evidence that the Petitioner had substantial marketing or promotional activities 
and its latest IRS Form 1065 reflected that it had no expenses for these claimed operations in the time 
immediately preceding the date the petition was filed . There is also no indication as to the "local-sales 
promotion ," "promotional campaigns, " and marketing program and strategies these asserted 
managers, along with the Beneficiary , would be involved with. In sum, these discrepancies and the 
vague nature of the duties of the Beneficiary's claimed subordinates leaves substantial uncertainty as 
to the credibly of the Petitioner's organizational chart as of the date the petition was filed , a chart 
including a president, three vice presidents, two other senior managers , and at least four other 
supervisors at one bar and restaurant location . 
When considering the provided organizational chart in light of the Beneficiary's generic duties and 
his apparent non-qualifying operational tasks , it appears more likely than not that he was directly 
engaged alongside his colleagues in operating its bar and restaurant location as of the date the petition 
was filed rather than primarily setting goals and policies from an elevated position within the 
organization. The Petitioner must resolve this inconsistencies 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). 
Lastly, the Petitioner submits an expert opinion on appeal it contends supports a conclusion that the 
Beneficiary would act in an executive capacity in the United States. However , upon review of this 
opinion, it provides little additional probative value , as it merely restates the Beneficiary 's duties , the 
applicable regulations , and the other evidence on the record , and generically declares that he qualifies 
as an executive . The provided expert opinion includes little additional insight into the Beneficiary ' s 
actual tasks or role and it is not clear what the asserted expert reviewed in making his conclusions 
about this matter. Further , the opinion does not address the documentation we discuss in this decision , 
including the substantial documentation provided on appeal reflecting the Beneficiary direct 
engagement in non-qualifying operational tasks or the discrepancies in the Petitioner 's provided 
organizational structure. 
We may , in our discretion , use as advisory opm10ns statements from universities , professio nal 
organizations, or other sources submitte d in evidence as expert testimony. Matter of Caron Int 'l, 19 
I&N Dec. 791, 795 (Comm 'r. 1988) . However , we are ultimately responsible for making the final 
determination regarding a beneficiary's eligibility . The submission ofletters from experts supporting 
the petition is not presumptive evidence of eligibility. Id. We may even give less weight to an opinion 
that is not corroborated or is in any way questionable . Id. Furthermore, merely repeating the language 
of the statute or regulations does not satisfy a petitioner's burden of proof. 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). 
For the foregoing reasons , the Petitioner has not demonstrated that the Beneficiary would act in an 
executive capacity in the United States. 
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ORDER: The appeal is dismissed. 
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