dismissed EB-1C Case: Retail Food

U.S. Department of IIomeland Security 
20 Mass Ave . N W . Rm 3000 
Wash~ngton, DC 20529-2090 
U.S. Citizenship 
i~e~.t~~t.;i~~ .. ., 2:,:,~. de{&d to and Immigration 
, . 
p-gven ys:i ::+.ii-j i;n:.vanan;ed Services 
OFFICE: NEBRASKA SERVICE CENTER 
LIN 06 244 52835 
 DatF~~ z 5 2009 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. fj 1153(b)(l)(~) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
dministrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Massachusetts corporation claiming to be in the business of operating a retail food 
market specializing in meats, produce, and Middle East specialties. The petitioner seeks to employ 
the beneficiary as its president. Accordingly, the petitioner endeavors to classify the beneficiary as 
an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: 
 1) the 
beneficiary would not be an "employee" of the petitioning entity; 2) the petitioner failed to establish 
that the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 3) 
the petitioner failed to establish that it would employ the beneficiary in a managerial or executive 
capacity. 
On appeal, counsel disputes the director's findings and submits a brief in support of his arguments. 
A full discussion of the petitioner's submissions and the director's analysis will be provided below. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
I year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
The first issue in this proceeding is whether the beneficiary will be an employee of the petitioning 
entity given his ownership interest in the petitioning entity at the time of filing.' The petitioner 
indicated, and the evidence clearly established, that the beneficiary was the sole owner of the 
petitioning corporation, leading the director to question whether there was an actual employer- 
employee relationship between the petitioner and the beneficiary. If there is no employer-employee 
relationship, then the beneficiary's services will not satisfy the statutory definition of managerial or 
executive capacity. 
The director concluded that the petitioner and beneficiary did not have an employer-employee 
relationship as required by the relevant statutory provisions. See sections 10 1 (a)(44)(A) and (B) of 
the Act (referring to the beneficiary as an employee). In support of the decision, the director cited to 
a United States Supreme Court decision, Nationwide Mutuul Ins. Co. v. Darden, 503 U.S. 318 
(1992) (hereinafter "Darden"), that defined "employee" in terms of the common-law master-servant 
relationship. 
On appeal, counsel argues that the director's reasoning is contrary to existing case law precedent, 
citing Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980) (hereinafter 
Aphvodite) and Matter of M--, 8 I&N Dec. 24 (BIA 1958) in support of his reasoning. 
In Matter of Aphrodite, the Immigration and Naturalization Service (INS) Commissioner addressed 
whether a petitioner may seek to classify a beneficiary as an intracompany transferee even though 
the beneficiary was a part owner of the foreign entity and, apparently, not an "employee" of either 
the foreign entity or the petitioner. The district director and regional commissioner had determined 
that the beneficiary could not be classified as an intracompany transferee because "he is 'an 
entrepreneur, a speculative investor, and not an employee of an international company."' 17 I&N 
Dec. at 530. Relying on Matter of M--, the Commissioner disagreed, declined to require that 
intracompany transferees be "employees," and specifically noted that the word "employee" is not 
used in section 101(a)(15)(L), 8 U.S.C. 9 1 101(a)(15)(L). 17 I&N Dec. at 53 1. The Commissioner 
further reasoned that adopting the word "employee" would exclude "some of the very people that the 
statute intends to benefit: executives" and noted that the Webster's New Collegiate Dictionary did 
not define "employee" to include "executives." Id. 
Upon review, counsel's reliance on Aphrodite and Matter of M-- is insufficient to overcome the 
director's basis for denying the petition on this ground. The 1980 Aphrodite and the 1958 Matter of 
M-- decisions, while otherwise sound, predate the 1990 codification of the definitions of "managerial 
capacity" and "executive capacity" in 8 U.S.C. 4 1 101(a)(44), Pub. L. No. 101 -649, 5 123, 104 Stat. 
4978, 5 123 (1990), and the Supreme Court's decision in Darden. As the definitions of both 
"managerial capacity" and "executive capacity" now clearly use the word "employee" in describing 
intracompany transferee managers and executives, the Commissioner's decision in Aphrodite 
' The record contains documentation indicating that the beneficiary transferred his ownership interest to his 
brother on October 11, 2007. However, a petitioner must establish eligibility at the time of filing; a petition 
cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
 Therefore, the AAO will not take into 
account the petitioner's new ownership scheme, which was only implemented after the Form 1-140 was filed. 
Page 4 
declining to impose an employment requirement upon intracompany transferees, while correct at the 
time, ceased being a valid approach to determining an alien's eligibility for L-1 classification in 
1990.~ Furthermore, as discussed in the director's decision, given that Congress did not define the 
term "employee" in codifying the definitions of "managerial capacity" and "executive capacity," the 
Supreme Court instructs that one should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." Darden, 
503 U.S. at 322-323. 
Therefore, while the Aphrodite decision remains instructive as to whether a petitioner may seek L- 1 
classification for a beneficiary who has a substantial ownership interest in the organization, the 
determination that an intracompany transferee employed in an executive capacity need not be an 
"employee" has been superseded by statute. Intracompany transferees, by definition, must now be 
"employees" in order to be eligible for classification as a managerial or executive employee pursuant 
to section 101(a)(15)(L) of the Act. As the preference immigrant classification sought in the present 
matter relies on the same statutory definitions of "managerial capacity" and "executive capacity," the 
same reasoning would apply to the petitioner under section 203(b)(l)(C) of the Act. 
On appeal, neither the petitioner nor counsel attempted to articulate how the beneficiary would be 
considered an employee under terms of the common-law master-servant relationship in light of the 
Darden decision. Accordingly, the petitioner has conceded the issue and the AAO will uphold the 
decision of the director. 
The two remaining issues in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he would be employed in the United States in a qualifying managerial or 
executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
2 
 The INS adopted regulations substantially similar to the definitions of "managerial capacity" and "executive 
capacity" ultimately codified in 1990 at 8 U.S.C. 9 1 101(a)(44). See 8 C.F.R. $9 214.2(1)(1)(ii)(B)-(C); 52 
F.R. 5738-01 (Feb. 26, 1987). These regulations, which also require that L-1 managers and executives be 
employees, were generally upheld as consistent with the Act even prior to the 1990 codification of these 
definitions. See National Hand Tool Corp. v. Pasqz~arell, 889 F.2d 1472 (5'" Cir. 1989). Therefore, an 
employment requirement was arguably imposed upon managers and executives seeking L-1 classification as 
early as 1987. 
Page 5 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or 
function of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated August 3, 2006, which provided 
the beneficiary's position titles in his foreign and proposed positions, respectively, and discussed the 
beneficiary's ownership interests in each of the respective entities. However, the petitioner did not 
provide a description of the job duties for either of the beneficiary's positions. 
Accordingly, the director issued a request for additional evidence (RFE) dated October 24, 2007, 
addressing the deficiency noted above. Specifically, the director instructed the petitioner to provide 
U.S. Citizenship and Immigration Services (USCIS) with detailed job descriptions for the 
beneficiary's foreign and proposed positions, listing the beneficiary's specific daily job duties with 
each entity and assigning an estimate of time to each of the listed tasks. The director also asked that 
the petitioner provide organizational charts for each entity illustrating the beneficiary's position with 
respect to other employees within each organization. 
In response, the petitioner provided a letter from counsel dated November 29, 2007 in which counsel 
provided two separate hourly breakdowns representing the beneficiary's responsibilities abroad in his 
prior position as chief managing officer as well has his current position with the foreign entity as the 
Page 6 
assistant manager in support of the chief managing officers. The following is the hourly breakdown 
of the former position: 
Executive duties (meetings with accountants, bankers, lawyers, actual and potential 
business associates; general communications with managers) 
 8 hrslwk 
Staff management duties-with managers (recruiting/coaching/disciplining staff, 
controlling payroll and baking operations, property management and licensing) 
10 hrslwk 
Line management duties-with managers (Directing purchase and inventory 
operations, establishing quality control in the meat & deli and the fresh produce 
departments, customer service) 14 hrslwk 
General supervisory duties (trouble shooting, staff complaints, customer relations, 
cleanliness), travel and varia [sic]. 4 hrslwk 
The following hourly breakdown addresses the beneficiary's current position with the foreign entity: 
Executive support duties: (meetings with accountants, bankers, lawyers, actual and 
potential business associates; general communications with managers) 8 hrslwk 
Staff management support duties-replace the [clhief [mlanaging [olfficers when 
they is away from the store (vacation, sick leave, inventory, . . .) 6 hrslwk 
Line management support duties-replace the [clhief [mlanaging [olfficers when 
they is away from the store (vacation, sick leave, inventory, . . .) 4 hrslwk . . . . 
With respect to the beneficiary's proposed position with the petitioning entity, counsel stated that the 
beneficiary would assume the position of chief managing officer for 28 hours per week and he would 
assume the position of vice president for eight hours per week. Counsel explained that these duties 
would be identical to those the beneficiary performed in his former position with the foreign entity 
as described above. 
The petitioner provided the organizational charts that were requested in the WE. 
 The foreign 
entity's organizational chart illustrates the staffing levels that were in place from October 2001 
through June 2005. The petitioner did not explain what changes took place after 2005 or what affect 
the changes may have had on the entity's organizational hierarchy. As such, the AAO is unclear as 
to the foreign entity's staffing as of the date the Form 1-140 was filed. The chart shows the 
beneficiary as the president, owner, and chief managing officer, all positions at the highest level of 
the organizational hierarchy. The chart indicates that the beneficiary's subordinates included an 
assistant manager, supervisor of the meat and deli department, supervisor of the fresh produce 
department, and supervisory of the cashiers and store clerks. The chart shows that each of the first 
two departments had five customer service subordinates and that the third department had six 
cashiers subordinate to the supervising cashierlclerk. It is noted that the subordinates at the bottom 
tier of the chart are not identified by name. 
The petitioning entity's organizational chart depicts the beneficiary in two different positions that are 
second and third from the top-most position in the hierarchy. Specifically, the beneficiary is 
identified as both the vice president and the chief managing officer with the exact same set of 
subordinate positions as those listed in the foreign entity's organizational chart. The petitioner's 
chart shows that the meat and deli and fresh produce departments would each have four customer 
service subordinates and that the supervising cashierlclerk would have five subordinate cashiers. As 
with the foreign entity's organizational chart, the petitioner's chart also fails to identify by name the 
subordinates at the bottom tier of the chart. 
In a decision dated April 3, 2008, the director found that the job descriptions offered by counsel in 
response to the WE are overly vague and fail to specify actual job duties performed abroad and 
those that would be performed in the prospective position with the U.S. entity. 
On appeal, counsel asserts that given the nature of the petitioner's business and the beneficiary's 
position therein, a detailed job description is not necessary. Counsel's argument, however, is 
inherently flawed, as it is inconsistent with relevant regulatory requirements. Namely, 8 C.F.R. 
5 204.5(j)(5) requires the petitioner to furnish a job offer clearly describing the job duties the 
beneficiary would perform in his proposed position. In fact, this information is generally the first 
element to be examined by the AAO when determining the beneficiary's prospective employment 
capacity. 
Thus, regardless of whether counsel thinks that the beneficiary's job duties are obvious, the 
regulations clearly require that this information be expressly provided. The general description from 
the Department of Labor's occupational titles is insufficient and does not comply with the 
requirements of 8 C.F.R. 5 204.5(j)(5), which require that the petitioner specifically state what duties 
the beneficiary would perform under an approved petition. The AAO is unable to determine what 
specific tasks are involved in controlling payroll and banking operations, property management, 
directing purchases and inventory operations, establishing quality control, and customer service. For 
instance, because the petitioner broadly states that the beneficiary controls payroll, the AAO is left to 
question whether the beneficiary does the underlying bookkeeping. Similarly, it is unclear whether 
directing purchases means that the beneficiary would find and negotiate with suppliers of the store's 
inventory. Any or all of these responsibilities may mean the performance of the underlying non- 
qualifying tasks. However, based on the vague information provided by the petitioner, the AAO 
cannot conclude with any degree of certainty what job duties the beneficiary performs and how 
much of his time has been and would spent performing them. 
Additionally, counsel makes numerous references to the organizational structures illustrated, stating 
that the organizations have ample support staff to carry out the daily operational tasks. However, the 
record lacks evidence to establish whom the petitioner actually employed at the time the Form 1-140 
was filed. It is noted that the unsupported assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Furthermore, the daily operational tasks are not limited to only the tasks performed by the in-store 
personnel. Rather, there are numerous administrative tasks that are also performed to ensure a retail 
business's continued operation. 
 Although the beneficiary may be indispensable for the crucial 
administrative tasks he performs, the petitioner has not established that these tasks fall within the 
definitions of managerial or executive capacity. It is the petitioner's burden to establish that the 
primary portion of the beneficiary's time is attributed to job duties that are within a qualifying 
managerial or executive capacity, as an employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). As indicated above, the petitioner 
has not complied with the director's request for a detailed description of job duties, thereby 
precluding the AAO from gauging how much of the beneficiary's time was spent in the position 
abroad and how much of his time in the proposed position would be spent performing duties within a 
qualifying capacity. 
Lastly, counsel asserts that the Adjudicator's Field Manual states that courts view prior approvals of 
L-1A nonimmigrant petitions as a presumption that the petitioner has already met analogous 
requirements. However, the Adjudicator's Field Manual is an internal instructional aid for USCIS 
officers and in no way binds the AAO as would a statute, regulation, or published case law 
precedent. Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding 
with a separate burden of proof; each petition must stand on its own individual merits. The approval 
of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant petition 
filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions after 
approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). In fact, because USCIS generally spends less 
time reviewing Form 1-129 nonimmigrant petitions than Form 1-140 immigrant petitions, some 
nonimmigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25, 29-30 (D.D.C. 2003) (recognizing that USCIS approves some petitions in error). It 
would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding 
precedent. Sussex Engg. Ltd. v. Montgomevy, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). 
The director's decision does not indicate whether he reviewed the prior approvals of the other 
nonimmigrant petitions. Upon review, the AAO notes that if the previous nonimmigrant petitions 
were approved based on the same unsupported and contradictory assertions that are contained in the 
current record, the approval would constitute material and gross error on the part of the director. 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. at 597. 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
In summary, the petitioner has failed to overcome the director's adverse findings regarding the (1) 
lack of an employer/employee relationship between the U.S. employer and the beneficiary, (2) the 
failure to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity, and (3) the failure to establish that the beneficiary will be employed in a qualifying 
managerial or executive capacity in the United States. Therefore, based on these three independent 
grounds of ineligibility, this petition cannot be approved. 
Finally, the record precludes the AAO from finding in favor of the petitioner based on at least one 
additional ground of ineligibility that was not previously addressed in the director's denial. Namely, 
8 C.F.R. 5 204.50)(3)(i)(D) states that the petitioner must establish that it has been doing business 
for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.50)(2) states that 
doing business means "the regular, systematic, and continuous provision of goods andlor services by a 
firm, corporation, or other entity and does not include the mere presence of an agent or office." In the 
present matter, the petitioner claims to operate a retail business. Although the petitioner has 
provided a 2005 tax return, such a document cannot be relied upon to determine whether an entity is 
conducting business on a "regular, systematic, and continuous" basis. See id. Therefore, the AAO 
cannot conclude that the petitioner has met the requirements specified in 8 C.F.R. 4 204.5Cj)(3)(i)(D). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.