dismissed EB-1C Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 8100783 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 24, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a gas station and convenience store, seeks to permanently employ the Beneficiary as 
its "operations manager" under the frrst preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(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 Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that it formed a qualifying relationship with the Beneficiary's foreign employer 
and that the Beneficiary was employed abroad and would be employed in the United States in a 
managerial or executive capacity. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not establish that the Beneficiary was employed abroad in a managerial capacity. 1 
Since the identified basis for denial is dispositive of the appeal, we decline to reach and hereby reserve 
the Petitioner's appellate arguments regarding the remaining issues. 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). 
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 )(1 )(C) of the Act. 
1 The Petitioner claims that the Beneficiary was employed abroad and would be employed in the United States in a 
managerial capacity. The Petitioner does not claim that the Beneficiary has been or would be employed in an executive 
capacity . 
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). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
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. 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. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The issue to be addressed is whether the Petitioner provided sufficient evidence establishing that the 
Beneficiary's position with the foreign entity was in a managerial capacity. 
To be eligible for immigrant visa classification as a multinational manager, the Petitioner must show 
that the Beneficiary performed the high-level responsibilities set forth in the statutory definition at 
section 10l(a)(44)(A)(i)-(iv) of the Act. If the record does not establish that the Beneficiary's position 
abroad met all four of these elements, we cannot conclude that it was a qualifying managerial position. 
If the Petitioner establishes that the position in question met all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary primarily performed managerial duties, as 
opposed to ordinaiy operational activities alongside other employees within the foreign entity. See 
Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether a given 
beneficiary's duties were primarily managerial, we consider the Beneficiary's job duties, the 
employer'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 
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business, and any other factors that will contribute to understanding a beneficiary's actual duties and 
role in a business. 
Therefore, the first question before us is whether the Petitioner established that the Beneficiary's 
position abroad met all elements of the statutory definition of "managerial capacity" at section 
10l(a)(44)(A) of the Act. 
The Petitioner claims that the Beneficiary "controlled the work of a subdivision" of the foreign entity 
by managing its I I restaurant, had the authority to hire and fire employees 
and take other personnel actions, and had discretion over the restaurant's day-to-day operations, 
consistent with section 101(a)(44)(A)(i), (iii), and (iv) of the Act. However, we agree with the 
Director's determination that the record does not establish that the Beneficiary's position abroad 
involved either supervision of subordinate supervisory, professional, or managerial employees or 
management of an essential function, as required by section 10l(a)(44)(A)(ii). 
First, the Petitioner has not adequately articulated a claim that the Beneficiary managed an essential 
function of the organization. See Matter of G-, Inc., Adopted Decision 2017-05, *3 (AAO Nov. 8, 
2017). Although the Petitioner claimed that the Beneficiary "supervised and controlled the work of an 
essential function," it did not establish that the restaurant operation, which was the foreign entity's 
only business endeavor, is a component of the organization and as such qualifies as an essential 
function or component of the organization. As the Director correctly determined, the Petitioner did 
not describe the foreign entity's overall organizational structure or establish that the restaurant can be 
classified as a subdivision or an activity of the organization when the organization's only business 
concern is the operation of that restaurant. 
Furthermore, the Petitioner provided an organizational chart, which shows the company's president at 
the top of the organizational hierarchy and depicts the Beneficiary's position of "Lead Supervisor" as 
subordinate to the president. Although the chart shows the Beneficiary directly supervising three shift 
managers while only indirectly overseeing one part-time and four full-time .__ _____ __.' who 
are depicted as the shift mangers' direct subordinates, the Beneficiary's job duty breakdown states that 
the Beneficiary trained sta±r: assigned duties to individual employees, and created staff schedules. In 
addition, the job description of the shift managers states that they were responsible for performing "all 
tasks and responsibilities of a.__ _____ ~ which detracts from the organization chart's depiction 
of these positions as managerial or supervismy. In addition, because the Petitioner has not established 
that a bachelor's degree was required to enter the position of a shift manager or a ..._ _____ .,... 
we cannot conclude that the subordinates who occupied these positions were professional employees.2 
Accordingly, the evidence indicates that the Beneficiary acted as a first-line supervisor, was subject 
2 To determine whether a beneficiary manages professional employees, we must evaluate whether the subordinate positions 
require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) (defining 
"profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation"). Section 101 ( a)(32) of the Act, states that "[t ]he term profession shall include 
but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academies, or seminaries." Therefore, we must focus on the level of education required by the positions, rather 
than the degrees held by the subordinate employees. 
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to the authority of the president, and primarily focused on superv1smg non-professional, non­
supervisory restaurant employees. 
For the reasons discussed, the Petitioner has not established that the Beneficiary supervised and 
controlled the work of other supervisory, professional, or managerial employees, or managed an 
essential function within the organization, or a department or subdivision of the organization, as 
required by section 10l(a)(44)(A)(ii) of the Act. Accordingly, the Petitioner did not establish that the 
position abroad was in a "managerial capacity" as defined in the statute governing this classification. 
As the Petitioner did not establish that the position abroad was in a managerial capacity, we will not 
conduct a full analysis of the remaining evidence related to that position. Nevertheless, we find that 
the submitted job description does not support a finding that his duties were primarily managerial in 
nature. The Petitioner indicates that the Beneficiary spent 25% of his time maintaining and overseeing 
"all financial activity," which included reporting the restaurant's daily sales, cash, inventory, 
deliveries, and coupon redemption logs, pre
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aring bank deposits, tracking "pre-authorized 
transactions" and sales and redemptions o~.__ _ ___. gift cards, maintaining accurate employee records, 
maintaining an expired food log, and ensuring that bills and invoices are paid timely. The Petitioner 
stated that another 22% of the Beneficiary's time was spent managing inventory and equipment and 
that 18% was allocated to human resources tasks, such as recruiting and training employees, 
communicating with employees and assigning employee schedules and job duties, and reporting 
employee payroll. None of these duties, as described, can be classified as managerial in nature. 
Further, there are other non-managerial tasks included in the Beneficiary's foreign job description, 
such as supporting marketing initiatives, distributing coupons, identifying prospective customers, 
promoting the restaurant's catering products and services, and addressing customer complaints. 
On appeal, the Petitioner argues that as "Lead Supervisor," the Beneficiary reported directly to the 
company's president and was "in charge of most of the company's operations." However, the record 
shows that more than half of the Beneficiary's time was spent performing job duties that are non­
managerial in nature. 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 capacity. See, 
e.g., section 101(a)(44)(A) of the Act (requiring that one "primarily" perform the enumerated 
managerial duties); Matter of Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). By 
statute, eligibility for immigrant classification in a managerial capacity requires that the duties of a 
position be "primarily" managerial. Section 101(A)(44)(A) of the Act. 
While the Beneficiary may have exercised discretion over the day-to-day operations of the foreign 
entity's restaurant, the Petitioner must still establish that the position meets all elements of the statutory 
definition of managerial capacity and that the Beneficiaiy perfmmed primarily managerial duties. 
Here, the Petitioner did not meet that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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