dismissed EB-1C Case: Restaurant Management

MATTER OF S-R- LLC 
'--
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an Indian restaurant, seeks to permanently employ the Beneficiary as its manager 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 an 
executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that: (1) the Beneficiary would be employed in the United States in a managerial 
capacity; and (2) the Beneficiary was employed abroad in a managerial capacity. 
On appeal, the Petitioner submits a brief asserting that the Beneficiary has been and would be 
employed in a managerial capacity. The Petitioner lists the Beneficiary's duties with both entities 
and contends that the Beneficiary assumed and would continue to assume the role of a function 
manager focusing on the business development 'and financial management functions. 
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 who 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. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The Form I-140 must be accompanied by 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 corning to work in the United States for the same employer or a 
Matter ofS-R- LLC 
subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least 1 year. 8 C.F.R. § 204.5G)(3). 
II. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that the Beneficiary has been and would 
be employed in a managerial capacity. 1 
The term "managerial capacity" is defined as "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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). Further, "[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." !d. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 1 01 (a)( 44 )(C) of the Act. 
A. U.S. Employment 
The first issue we will address is whether the Petitioner provided sufficient evidence to establish that 
it would employ the Beneficiary in a managerial capacity. 
1 
The Petitioner does not claim that the Beneficiary was employed abroad, or would be employed in the United States, in 
an executive capacity. 
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Matter ofS-R- LLC 
1. Duties 
When examining whether a Beneficiary will be employed in a managerial capacity, we will look first 
to the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Based on the statutory 
definition of managerial 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). Second, 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); 
Champion World, 940 F.2d 1533. 
The Petitioner filed a Form I -140 claiming that the Beneficiary would be employed in the position of 
"manager." In a supporting letter, the Petitioner referred to the offered position as "Business 
Development Manager" and described it as "a functional [ m ]anagerial position within the company 
because the job duties involve management of the business development function and does not 
involve supervision of other employees." The Petitioner provided a corresponding list of job duties, 
which included leading the business development strategy by interacting with brand owners and 
franchises, tracking progress of the strategy using "tools and technologies," gathering and relaying 
market data, developing menus according to the franchise guidelim~s, creating marketing 
opportunities through business relationships with corporate partners and caterers, arranging for 
catering opportunities with local businesses, generating advertising opportunities, and working with 
real estate developers "to create visually appealing'eating spaces" to attract customers. 
The Petitioner also provided the Beneficiary's resume, which states that he has been working for the 
Petitioner as its business development specialist since 2005. The resume lists the Beneficiary's 
duties, which overlap somewhat, but not entirely, with the duties described above. The job 
description in the resume indicated that the Beneficiary's position of business development specialist 
is subordinate to a business development manager to whom the Beneficiary reports his market 
research findings. The Beneficiary stated in his resume that he performs feasibility studies on 
expanding with new restaurants and works with "marketing, sales, food design and process team to 
implement business development strategies." 
After reviewing the record, the Director issued a request for evidence (RFE), observing that the list 
of job duties provided in support ofthe petition lacked sufficient detail about the Beneficiary's daily 
job duties. The Director instructed the Petitioner to list the Beneficiary's specific daily job duties 
and the percentage of time the Beneficiary would allocate to each duty. The Director cautioned the 
Petitioner against grouping multiple tasks together into categories. 
In response, the Petitioner provided a statement claiming that the Beneficiary has served as its 
business development manager for the past 11 years and that in this position he has trained an 
executive chef and so us chef, developed training programs for kitchen staff, recruited staff to ensure 
conformance with the Petitioner's culinary standards, and "developed inventory standards" to cut 
costs. The Petitioner also stated that the Beneficiary "leads the team in designing community 
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Matter ofS-R- LLC 
programs" to promote its restaurant and is in charge of all activities associated with planning special 
events "right down to the last details," including making arrangements to make sure there is 
sufficient seating during the events. The Petitioner further stated that the Beneficiary heads the 
marketing efforts by inviting food critics and food editors to review the dining facility, publicizing 
the restaurant by working with vendors and, contacting "local, regional, and national magazines with 
feature ideas," and encouraging local businesses to! hold their events at the Petitioner's restaurant. 
The Petitioner also provided a separate list of job duties, which were grouped into four categories. 
Briefly, the Petitioner stated that the Beneficiary would allocate 20% of this time to personnel duties; 
25% of his time to marketing duties; 45% of his time to financial duties; and 10% of his time to 
operational duties. 2 · 
We note that the Petitioner did not comply with the Director's RFE instructions, which expressly 
asked the Petitioner to refrain from grouping multiple tasks together and instead to list the 
Beneficiary's job duties and assign a time allocation ,to each individual duty to indicate the 
percentage of time the Beneficiary would spend on each component of the proposed position. The 
format in which the Petitioner provided the percentage breakdown precludes us from gaining an 
understanding as to the amount of time the Beneficiary would allocate to individual job duties. 
Further, rather than submitting a job description that expanded upon the initial list of duties, the 
Petitioner provided, without explanation, a significantly different posttion description in response to 
the RFE. Namely, the initial job description and the Beneficiary's resume focused on his role in 
marketing and business development, indicating that the Beneficiary took an active marketing role in 
order to expand the Petitioner's restaurant business. Neither set of job duties indicated that the 
Beneficiary had or would have any personnel management duties, and, as noted, the Petitioner stated 
at the time of filing that the Beneficiary does not supervise other employees. In fact, the 
Beneficiary's resume actually indicates that the Beneficiary is accountable to other managerial 
employees within the organization to the extent that he compiles data for review by his manager. 
Conversely, the job descripticm the Petitioner provided in response to the RFE contains repeated 
references as to the Beneficiary's role in overseeing others, claiming that the Beneficiary leads "the 
management team" in enforcing personnel policies, plans and directs the work of a "managerial 
staff," leads a team "on operational cost-cutting strategies," and supervises a managerial staff to 
ensure the Petitioner meets various legal requirements. · In addition, the initial job description listed 
no finance-related duties while the Petitioner stated in response to the RFE that financial duties will 
require 45% of his time. The Petitioner must resolve these 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). 
In denying the petition, the Director determined that the Petitioner provided a deficient job 
description that made vague references to the Beneficiary's claimed managerial capacity, while 
2 
As the Director restated the complete list of job duties in the denial, we will not repeat this information in our decision. 
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Matter ofS-R- LLC 
indicating that the Beneficiary would be directly involved in various non-managerial functions, 
despite having some discretionary authority over the entity. 
On appeal, the Petitioner contends that the Beneficiary spends his time primarily performing "high­
level, managerial responsibilities," including job duties that require the Beneficiary to supervise and 
direct "mid-level personnel," and manages the company's key functions, including marketing, 
business development, and financial management. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential 
function, a petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, or more specifically, identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of a 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 204.50)(5). 
In addition, a petitioner's description of a beneficiary's daily duties must demonstrate that the 
beneficiary will manage the function rather than perform duties related to the function. See Matter 
ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
In this matter, the Petitioner has not provided evidence that the Beneficiary will manage an essential 
function. As previously noted, the initial list of job duties indicates that the Benet1ciary carries out a 
number of operational tasks in order to meet the goals of the business development function. 
Namely, the Petitioner stated that the Beneficiary was directly involved in interacting with brand 
owners and franchises, gathering and relaying market data, developing menus according to the 
franchise guidelines, and contacting businesses and caterers to create opportunities to market and 
advertise the Petitioner's restaurant. While we do not dispute their value to the overall success of the 
Petitioner's business, we find that these job duties are not managerial, but rather that they are more 
akin to duties performed by a marketing employee. We also do not find that meeting with real estate 
developers "to create visually appealing eating spaces" to draw customers, one ofthe elements of the 
original job description, is a managerial duty. Lastly, the same job description contains a vague 
reference to the Beneficiary's use of "tools and technologies" to track the progress of marketing 
strategies. However, the Petitioner did not clarify what these "tool and technologies" are to clarify 
the nature of the Beneficiary's tracking responsibility. 
While we acknowledge that the record contains other job descriptions in the Beneficiary's resume 
and in the Petitioner's RFE response, neither is consistent with the above job duties that the 
Petitioner enumerated in a list that corresponds with the initial supporting statement. The list of 
duties included in the Beneficiary's resume seem to apply to an entirely different position than the 
one the Petitioner is currently seeking to fill, as it indicates that the job duties are those of a business 
development "specialist" rather than those of a business development "manager." The Petitioner did 
not explain why it responded to the RFE with a statement claiming that the Beneficiary "has served 
as Business Development Manager of [the U.S. entity] for the past eleven years," which is 
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inconsistent with the job duties and position title in the Beneficiary's resume, which refers to the 
same time period and indicates that he has performed in the capacity of a "Business Development 
Specialist," whose job duties are largely non-managerial and are also inconsistent with the list that 
corresponds with the initial supporting statement and with the job duties provided in the RFE 
response statement. The evidence submitted on appeal does not acknowledge or resolve these 
inconsistencies with independent, objective evidence pointing to where the truth lies. Ho, 19 I&N. 
Dec. at 591-92. · 
The Petitioner also challenges the Director's characterization of the Beneficiary's job description as 
vague, asserting that references to the Beneficiary's leadership with regard to subordinates and 
business functions "make it clear" that the Beneficiary does not carry out the underlying support 
tasks that are related to those functions. The Petitioner goes on to address each prong of the four­
prong statutory definition of managerial capacity, relying on elements of the job description 
contained in the RFE response to demonstrate that the Beneficiary's proposed position meets the 
relevant statutory criteria. 
We disagree and find that the Petitioner's argument does not address or resolve the inconsistent 
information in the record regarding the Beneficiary's job duties. Although the Petitioner is correct in 
pointing out that the job description provided in the RFE response indicates that the Beneficiary 
directs and manages support personnel in the course of managing several key functions, we cannot 
overlook the incongruity between the original list of job duties and those provided in the RFE 
response, after the Petitioner was notified of the non-managerial components in the original job 
description. 
In sum, the initial description appeared to have the Beneficiary performing primarily non-managerial 
operational duties, while the second duty description has the Beneficiary tasked with more 
managerial functions. We note, however, that the purpose of the RFE is to elicit further information 
that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). 
Therefore, when responding to an RFE, a petitioner cannot offer a new position to a beneficiary, or 
materially change a position's title, its level of authority within the organizational hierarchy, or its 
associated job responsibilities. A petitioner must establish that the position offered to a beneficiary, 
when the petition was filed, merits classification as a managerial or executive position. See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). If a petitioner makes 
significant changes to the initial request for approval, it must file a new petition rather than seek 
approval of a petition that is not supported by the facts in the record. 
Here, the information provided by the Petitioner in its RFE response did not clarify or provide more 
specificity about the original duties, but rather added new generic duties to the job description. A 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 
1998). Given the lack of evidence resolving the inconsistencies in job duties, we find that claims 
made in the job description contained in the RFE response lack credibility and thus the probative 
value ofthe more recent job description is limited, at best. 
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Matter ofS-R- LLC 
As noted, the Petitioner's original job description indicates that the Beneficiary's proposed 
employment would involve primarily non-managerial functions. While no beneficiary is required to 
allocate 100% of his time to managerial~level tasks, a petitioner must establish that the non­
managerial tasks the beneficiary would perform are only incidental to the proposed position. 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, e.g, 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 
(Comm'r 1988). Here, rather than being merely incidental, we find that the non-managerial tasks 
would be central to the Beneficiary's proposed position. Therefore, the Beneficiary's job duties do 
not establish that he would be employed in a managerial capacity. 
2. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial capacity of a beneficiary, including 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 an understanding of a beneficiary's actual duties and role in a business. 
The Petitioner did not provide an organizational chart at the time of filing, and expressly stated that 
the employment offer is for a function manager position that "does not involve supervision of other 
employees." However, the organizational chart submitted in response to the RFE depicted the 
Beneficiary as directly or indirectly supervising every employee in the Petitioner's business except 
for his supervisor, identified on the chart as the owner of the company. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory; professional, or 
managerial employees. 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." Section 101(a)(44)(A)(iv) of the Act. 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. Section 
101(a)(44)(A)(iii) ofthe Act. 
In the present matter, despite initially claiming that the Beneficiary's primary focus would be 
managing the business development function, the organizational chart submitted with the RFE 
response depicted the Beneficiary as overseeing a subordinate staff of 22 employees; the chart did 
not expand on the Beneficiary's role as manager of the business development function or show who 
within the organization would support the Beneficiary in his management of that function. 
Therefore, the chart, like the subsequent job description that the Petitioner provided in response to 
the RFE, was inconsistent with the Petitioner's original claim regarding the Beneficiary's function' 
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Matter ofS-R- LLC 
management role. As the record does not contain independent, objective evidence that resolve these 
inconsistencies, the probative value of the chart is greatly diminished. See Ho, 19 I&N Dec. at 591-
92. 
Given that the Petitioner provided inconsistent information as to Beneficiary's job duties and 
position title and did not consistently state that the Beneficiary would assume the role of a personnel 
or a function manager, we cannot conclude that the Petitioner would employ him in a managerial 
capacity. 
B. Employment Abroad 
Next, we will examine the record to determine whether the Petitioner provided sufficient evidence to 
establish that the Beneficiary was employed abroad in a managerial capacity. 
1. Duties 
Similar to the analysis of the Beneficiary's proposed employment, we look to the Beneficiary's 
assigned job duties to help· determine whether the Beneficiary was employed abroad in a managerial 
capacity. A 2005 statement from the foreign entity's managing director, confirmed 
the dates of the Beneficiary's employment abroad and stated that he performed the following duties as 
business development manager/general manager: 
He performed analysis of sales results for new business clients and prepared concise 
follow-up rep [sic] assisted with the presentation of budgets and reports. Responsible 
for the analysis of financial transactions, and recommend feasible financial options for 
the company in order to maximize revenue and minimize costs. Conduct market 
surveys for the feasibility of new ventures taking to consideration of the demo graphical 
conditions in respective states and analyze potential expansion plans. Improve customer 
service based on client feedbacks to meet customers' needs. 
did not specify who the foreign entity's "business clients" were or explain the 
relevance of this reference within the context of a restaurant. He also did not explain what types of 
financial transactions the Beneficiary analyzed or clarify how conducting market surveys and using 
customer feedback to improve the restaurant could be deemed as duties performed in a managerial 
capacity. 
In the RFE, the Director asked the Petitioner to clarify the Beneficiary's job duties abroad by providing 
a statement from the foreign entity specifically identifying the Beneficiary's daily tasks and assigning a 
quantitative component to indicate the percentage of time the Beneficiary allocated to each of his 
assigned job duties. The Petitioner was again asked to refrain from grouping multiple tasks together, 
but rather to assign a time component to each individual job duty. 
8 
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Matter ofS-R- LLC 
In response, the Petitioner submitted an updated statement from the foreign entity's administrative 
office manager, who restated elements of the previously provided job description and listed 
additional duties, using the five previously listed job duties as category headings with a percentage of 
time assigned to each category rather than the individual job duties. stated that 20% of the 
Beneficiary's time was allocated to analyzing sales results for new business clients and preparing 
reports to update "the progress of our partnerships." He further stated that this group of responsibilities 
included leading "the team" in implementing the "latest food products and offerings" and ensuring 
satisfaction for "outside parties who held a stake in the promotional or permanent partnerships." He did 
not specify who "the team" included, nor did he clarify the types of people or businesses that included 
the foreign entity's "new business clients." 
also stated that the Beneficiary allocated 20% of his time to developing and helping to 
present budgets through activity reports, spreadsheets, and financial analysis reports to company 
executives. It is unclear, however, that these job duties were managerial in nature. Likewise, while 
indicated that the Beneficiary allocated another 20% of his time to handling public relations by 
reviewing customer feedback to improve customer service and drafting and presenting progress reports 
on community outreach projects, it is unclear how these customer service-driven duties, which are 
indicative of providing operational services for the foreign entity, qualify as managerial tasks. Lastly, 
claimed that the Beneficiary hired outside agencies. to conduct surveys to put menu 
changes in place, but he also stated that the Beneficiary actually "[h]elped conduct surveys and organize 
data to deliver consumer reports," thereby indicating, again, that the Beneficiary spent additional time 
· carrying out the foreign entity's operational tasks. Finally, stated that the Beneficiary 
"directly supervised seven managers," and indirectly supervised the entire staff of the foreign entity's 
main branch. 
In denying the petition, the Director concluded that the record indicated that the Beneficiary was 
directly involved in marketing and promoting the foreign entity and that he was therefore carrying 
out the foreign entity's operational functions. 
On appeal, the Petitioner contends that the RFE response "clearly" established that the Beneficiary 
was employed in a managerial capacity based on the claim that the Beneficiary was responsible for 
overseeing the foreign entity's food production, hospitality, and business development services . 
Similar to its claim regarding the Beneficiary's proposed employment, the Petitioner asserts that the 
Beneficiary managed two essential functions - that of financial management and marketing , and 
business development - and reiterated portions of the previously provided job description , claiming 
that 55% of the Beneficiary's time was spent on "finance-related duties." 
As noted earlier in our discussion, the Beneficiary's former duties with the foreign entity must 
demonstrate that the Beneficiary managed an essential function(s) rather than perform duties related 
to the function(s). See Matter of Z-A-, Inc., Adopted Decision 2016-02 . Here, the record lacks 
suffiucient evidence to establish that the Beneficiary's duties were primarily indicative of managing 
an essential function rather than performing the underlying duties of the function. A petitioner's 
unsupported statements are of very limited weight and normally will be insufficient to carry its 
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Matter ofS-R- LLC 
burden of proof, particularly when supporting documentary evidence would reasonably be 
available. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Merely pointing to a 
previously submitted job description, which the Director found to be insufficient and involving non­
managerial job duties, will not overcome the Director's conclusion regarding the Beneficiary's 
employment with the foreign entity. 
2. Staff 
Finally, as in our analysis of the Beneficiary's proposed employment, we will address the available 
evidence regarding the foreign company's organizational structure and the employees that comprised 
that structure. Although the RFE instructed the Petitioner to submit employee job duties and payroll 
evidence to provide an understanding of who was carrying out the organization's operational tasks, 
the Petitioner did not submit the requested information, claiming that the payroll evidence was no 
longer available, while providing no reason as to why it neglected to provide job descriptions for the 
seven managers the Beneficiary is claimed to have been overseeing during his employment abroad. 
We note that failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.P.R. § 103.2(b)(14). Therefore, while the Petitioner submitted 
the foreign entity's organizational chart show~ng the Beneficiary as the direct supervisory authority 
over seven managerial positions, we are unable to determine what job duties they performed or how 
they may have contributed to supporting the Beneficiary in a managerial capacity and relieving him 
from having to allocate his time primarily to operational tasks, as his job description suggests. 
Furthermore, the organizational chart is inconsistent with the Beneficiary's job description, which 
indicates that he spent approximately 60% of his time on duties that were associated with analyzing 
sales results for new business clients and preparing reports, developing and helping to present 
budgets, and improving customer service through public relations. None of the job descriptions that 
the Petitioner submitted were consistent with the organizational chart, which depicted the 
Beneficiary as an employee who oversees every aspect of the foreign entity's business. 
Likewise, this chart, which indicates that the Beneficiary assumed the role of a personnel manager, is 
inconsistent with the Petitioner's claims on appeal, where the Petitionerclaims that the Beneficiary 
managed multiple functions. As noted earlier, the term "function manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. Here, the Petitioner does 
not clarify or provide sufficient evidence to discern the Beneficiary's employment abroad as 
primarily being that of a function manager or that of a personnel manager. As noted earlier, any 
ambiguities in the record must Jbe resolved through the submission of independent, objective 
evidence. Matter of Ho, 19 I&N Dec. at 591-92. 
In sum, the record contains a job description that indicates that the Beneficiary was directly involved 
in carrying out the foreign entity's marketing and business development tasks and the Petitioner has 
not provided sufficient evidence to show that the foreign entity had employees, other than the 
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Matter ofS-R- LLC 
Beneficiary, to carry out those non-managerial functions such that the Beneficiary's role could be 
limited to that of managing, rather than carrying out the duties of the function. Given the lack of 
sufficient supporting evidence and inconsistencies in the record, the Petitioner has not established 
that the Beneficiary was employed abroad in a managerial capacity .. 
III. QUALIFYING RELATIONSHIP 
Lastly, while not addressed in the Director's decision, we find that the record lacks sufficient 
evidence to establish that the Petitioner has a qualifying relationship with the Beneficiary's former 
employer abroad. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., 
a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally section 203(b)(l)(C) ofthe Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The term "affiliate" means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; [or] 
(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 .... 
8 C.F.R. § 204.5(j)(2). 
The same regulation defines a "subsidiary" as: 
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. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See. 
e.g., Matter ofChurch Scientology Int'l, 19 I&N Dec. 593; Matter of Siemens Med. Sys., Inc., 19 
I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). Ownership 
refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the 
establishment, management, and operations of an entity. Matter o.fChurch Scientology Int'l, 19 I&N 
Dec. at 595. 
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Matter ofS-R- LLC 
In the present matter, the record shows that the Petitioner is owned by six partners with no one 
partner owning a majority of its shares. Namely, the ownership breakdown shows that the 
and each owns 22.5% of the Petitioner; 
and each owns 12.5% of its shares, with 
owning the remaining 7.5% of the shares. The record also contains a deed of partnership pertaining 
to the Beneficiary's foreign employer, showing that is the 
majority owner of the foreign entity with a 90% ownership interest. 
The Petitioner relies on a series of franchising and licensing agreements that it claims provide the 
necessary relationship between the entities. Specifically, the Petitioner claims to be a successor-in-
interest to another U.S. entity, which has a licensing agreement with a foreign 
holding company, which, in tum, holds an international franchising 
agreement with the Beneficiary's foreign employer in India. The Petitioner also points out that one 
individual holds a minority interest in both entities. However, neither factor is sufficient to confirm 
the existence of a qualifying relationship. 
In light of the ownership structures documented in the record, the Petitioner and foreign entity do not 
have either an affiliate or a parent-subsidiary relationship based on common ownership and control. 
An association between a foreign and U.S. entity based on a franchise agreement or a license is 
insufficient to establish a qualifying relationship. See 8 C.F.R. § 214.2(1)(1)(ii)(G) (defining the 
term "qualifying organization"). Franchise and licensing agreements are agreed upon between two 
parties acting at arm's length, and are not typically reflective of these entities sharing common 
ownership and control. See Matter of Schick, 13 I&N Dec. 647 (Reg'l Comm'r 1970) (finding that 
no qualifying relationship exists where the relationship between the foreign and U.S. entities was 
"purely contractual," or based on a license and royalty agreement subject to termination and not 
reflective of common ownership and management). 
Because a qualifying relationship is a fundamental criterion for establishing eligibility to classify the 
Beneficiary as a multinational manager or executive, the petition cannot be approved. 
IV. CONCLUSION 
For the reasons discussed above, the evidence submitted does not establish that the Petitioner has a 
qualifying relationship with the Beneficiary's foreign employer or that the Beneficiary was 
employed abroad and would be employed in the United States in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-R- LLC, ID# 414951 (AAO May 31, 2017) 
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