remanded EB-1C Case: Restaurant

MATTER OF C-0-B-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 13. 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant business, seeks to permanently employ the Beneficiary as its president 
and CEO under the first preference immigrant classification for multinational executives or 
managers. See Immigration and Nationality Act (the Act) section 203(b )(I )(C). 8 U.S.C. 
§ I 153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a qualitied 
foreign employee to the United States to work in a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition. concluding that the Petitioner did 
not establish, as required, that: (I) the Beneficiary would be employed in the United States in a 
managerial or executive capacity; and (2) a qualifying relationship exists between the Petitioner and 
the Beneliciary' s foreign employer. 
On appeal, the Petitioner disputes the Director's finding that the supporting letter is self-serving 
because it was signed by the Beneficiary. The Petitioner also argues that the Director relied on case 
law that is not applicable to the facts in the instant matter to support his decision. 
Upon de novo review of the record, we find that the Director did not otTer an adequate analysis of 
the evidence submitted so that the Petitioner was afforded a fair opportunity to contest the decision 
and to allow us an opportunity for meaningful appellate review. See 8 C.F.R. § 1 03.3(a)( I )(i): see 
also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) (linding that a decision must fully explain the 
reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the 
determination on appeal). Accordingly, we will withdraw the Director's decision and remand the 
matter for further proceedings consistent with our discussion below. 
I. LEGAL FRAMEWORK 
Section 203(b)(l )(C) of the Act makes an immigrant visa 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 afliliate. 
A United States employer may file Form 1-140. Immigrant Petition for Alien Worker, to classify a 
beneliciary under section 203(b)(l)(C) of the Act as a multinational executive or manager. The petition 
Matter ofC-0-B-S- LLC 
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. S'ee 8 C.F.R. 
§ 204.5(j)(3). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Although we will withdraw the Director's decision, the record as presently constituted is insufficient 
to establish that the Beneficiary has been employed abroad and would be employed in the United 
States in a managerial or executive capacity as defined at sections IOI(a)(44)(A) and (B) of the Act, 
8 U.S.C. §§ 1101(a)(44)(A) and (B). 
With regard to the Beneficiary's U.S. employment, the Petitioner provided two job descriptions­
one contained within a business plan and another in a statement provided in response to a request for 
evidence (RFE). Each job description contains a broad list of the Beneficiary's responsibilities. The 
job description contained in the business plan indicates that the Beneticiary will supervise 
managerial employees. plan and implement policies and strategies to stimulate growth and improve 
company image, estimate the budget based on projected sales goals, authorize purchases, review 
market strategies, and review activity reports. Although the business plan included time allocations 
for these duties. it did not specify how they would apply within the context of a restaurant business. 
The second job description states that the Beneficiary would direct personnel management; ·'oversee 
the overall viability of the company": ··oversee long-term design. branding and renovation of the 
building and restaurant"; review financial risks and responsibilities; conduct market research: and 
assist in creating sales initiatives and programs. These duties, like those contained in the business 
plan, also lack sufficient detail and thus preclude the finding that the Beneficiary would spend the 
primary portion of his time performing in a managerial or executive capacity. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co .. Ltd r. S'ava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989). affd, 905 F.2d 41 (2d. Cir. 1990). 
Further, while the Petitioner stated that the Beneficiary has experience managing teams in the food 
service industry, it did not provide adequate evidence to show that it employed sufficient staff. when 
the petition was tiled, to carry out routine operational tasks and thereby relieve the Beneficiary from 
performing non-qualifying duties. Although the Petitioner asserts that it had I 0 employees at the 
time of filing, the statement it provided in response to the RFE does not include information about 
the positions held or the duties perfonned by these employees: nor did the Petitioner provide 
evidence to show that it actually had the claimed number of employees at the time of tiling. The 
Petitioner must support its assertions with relevant, probative. and credible evidence. S'ee Matter of 
Chmmthe, 25 l&N Dec. 369, 376 (AAO 2010). Moreover, the organizational chart contained in th.e 
Petitioner's business plan lists a total of 13 employees, which is inconsistent with the number of 
employees the Petitioner originally claimed it had at the time of tiling. The Petitioner must resolve 
this inconsistency in the record with independent objective evidence pointing to where the truth lies. 
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Maller ofC-0-B-S- LLC 
Matter of Ho, 19 I&N Dec. 582, 59\-92 (BIA 1988). Further, 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. § I 03.2(b)(l ). That includes evidence to demonstrate 
that the Petitioner was sufficiently staffed at the time of filing such that it was able to relieve the 
Beneficiary from having to allocate his time primarily to non-qualifying tasks. 
The Petitioner also did not provide sufficient evidence to establish that the Beneficiary has been 
employed abroad in a managerial or executive capacity. Although the Petitioner claims that the 
Beneficiary is "head executive·· of the foreign entity. makes its key decisions, and develops and 
implements its sales strategy, the record does not contain a detailed list of the Beneficiary's actual 
duties or an adequate explanation of the foreign entity's business activities to provide a context for 
interpreting the Beneficiary's assigned duties and role within that entity. 
The definitions of executive and managerial capacity have two parts. First, the Petitioner must show 
that the Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. INS, 
940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, \991). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See. e.g., Family Inc. v. 
USC!S. 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. The record as 
presently constituted does not meet these criteria. 
III. DOING BUSINESS 
In addition, while not previously discussed in the Director's decision, the Petitioner did not establish, 
as required, that it had been doing business for one year prior to filing this petition. 8 C.F.R. 
§ 204.5G)(3)(i)(D). A petitioner may establish that it is "doing business'' by demonstrating that it is 
providing goods and/or services in a regular. systematic. and continuous manner. 8 C.F.R. 
§ 204.5(j)(2). 
Although the Petitioner states that it operates a Chinese food and sushi restaurant, the record lacks 
sufficient evidence of its business transactions to show that it had been doing business in a regular. 
systematic, and continuous manner since February 2015, i.e., one year prior to filing the instant 
petition. 
IV. CONCLUSION 
Although the Petitioner did not submit sufficient evidence to meet its burden of establishing that the 
Beneficiary will be employed in a managerial or executive capacity and that it had been doing 
business for one year prior to tiling the instant petition. the Director's decision did not adequately 
analyze the facts of the matter and apply the law. When denying a petition, the Director has an 
affinnative duty to explain the specific reasons for the denial: this duty includes informing a 
petitioner why the evidence did not satisfy its burden of proof pursuant to section 291 of the Act. 
8 C.F.R. § I 03.3(a)(l )(i). As the Director did not satisfy this condition. we will withdraw the 
Matter ofC-0-B-S- LLC 
Director's decision and remand the matter for entry of a new decision. The Director should request 
any additional evidence deemed warranted and allow the Petitioner to submit such evidence within a 
reasonable period of time. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofC-0-B-S- LLC. ID# 838213 (AAO Feb. 13. 20 18) 
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