remanded EB-1C Case: Restaurant Industry

(b)(6)
Date: DEC t 1 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. All of the documents related to this matter have been returned to the 
office that originally decided your case. Please be advised that any further inquiry that you might have 
concerning your case must be made to that office. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Non-Precedent Decision 
Page 2 
DISCUSSION: The preference visa petition was denied by the Texas Service Center Director. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. We will withdraw the decision of the 
director and remand the matter for further action. 
The petitioner seeks to classify the beneficiary as a multinational executive or manager pursuant to section 
203(b)(l )(C) of the Immigration and Nationality Act (the Act), 8 U. S.C. § 1153 (b)(1)(C). The petitioner, a 
Florida corporation, is part of the restaurant industry. It claims to be an affiliate of the beneficiary's foreign 
employer, located in Pakistan. The petitioner seeks to employ the beneficiary 
as its President. 
On August 27, 2013, the director denied the petition concluding that the petitioner is a mere agent of another 
company and is not considered to be doing business. 
On appeal, counsel asserts that the denial is based on irrelevant authority and a misapplication of the law. 
Counsel submits a brief and additional evidence in support of the appeal. 
I. THELAW 
Section 203(b) of the Act states in pertinent part (with emphasis added): 
(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 1 year by a firm or 
corporation or other legal enti ty 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 been employed by 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 Form 1-140 to seek classification of an alien under section 203(b)(l) (C) 
of the Act as a multinational executive or manager. 8 C.F.R. § 204.5(j)( l) . 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. See section 101(a)(44) of the Act. Such 
a statement must clearly describe the duties to be performed by the alien. Id. 
(b)(6)
Non-Precedent Decision 
Page 3 
With respect to managerial and executive capacity, section lOl(a)( 44) of the Act defines the terms as follows: 
(A) . 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; 
(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. 
(B) 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 or ganization; 
(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. 
8 U.S.C. § 11 01(a)(44) (emphasis added). 
II. ISSUES ON APPEAL 
A. The Petitioner Doing Business 
(b)(6)
Non-Precedent Decision 
Page 4 
The director denied the petition, concluding that the record lacks sufficient evidence to establish that the 
petitioner is doing business in the U.S. The regulation at 8 C.F.R. § 204.50)(2) states that doing business means 
"the regular, systematic, and continuous provision of goods and/or services by a fmn, corporation, or other entity 
and does not include the mere presence of an agent or office." The director noted that the "petitioning 
corporation will be run through the foreign company since both businesses will have the same controlling 
individual at their highest positions within their respective businesses [and] such an arrangement establishes 
the united States corporation as a mere agent of the foreign company." 
The director's finding that the petitioner did not submit evidence of doing business with independent 
corporations or entities implies a requirement that a petitioner must transact directly with an unaffiliated third 
party. However, the definition of "doing business" at 8 C.F.R. § 204.50)(2) contains no requirement that a 
petitioner for a multinational manager or executive must provide goods and/or services to an unaffiliated third 
party. Neither the plain language nor the regulatory history of the "doing business" provision supports such a 
requirement. 
Here, the petitioner has provided sufficient evidence to establish that it is doing business. For example, the 
petitioner provided several invoices; bank statements; lease agreements; Form 1120, U.S. Corporation Income 
Tax Return for 2011 ; balance sheet and profit and loss statement; and, Form 941, Quarterly Employer's Quarterly 
Federal Tax Return for the fourth quarter of 2012. The petitioner provided sufficient evidence to establish that 
it is doing business in the United States, and we will withdraw the director's decision. 
B. Additional Issue 
Although the director's original basis for denial will be withdrawn, there are additional deficiencies in the 
record which prevent a finding that the petitioner and beneficiary are qualified for the benefit sought, and the 
appeal cannot be sustained based on the record as presently constituted. 
The record contains insufficient evidence to establish that the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity. 
The petitioner's descriptions of the beneficiary's job duties are vague and unclear. The petitioner described 
the beneficiary's job duties in overly broad terms such as the beneficiary will "plan, organize, direct and 
control the organization's major functions through the business's employees;" "review activity reports and 
financial statements to determine progress and status in attaining objectives and will revise objectives and 
plans in accordance with current conditions;" and, "direct and coordinate formulation of financial and sales 
programs to provide new sources of income, to maximize returns on investments, and to increase sales." This 
description provides little insight into what the beneficiary primarily would do on a day-to-day basis and does not 
explain the corporate financial goals and objectives. In addition, the petitioner stated that the beneficiary would 
review several reports but did not explain who in the company would handle the market research, the marketing 
program, the sales program, the negotiations and the fmancial operations and prepare the reports for the 
beneficiary's review. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives 
is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course of his 
(b)(6)
Non-Precedent Decision 
Page 5 
daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 11 08. Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. The actual duties themselves will reveal the true nature of the 
employment. !d. 
Furthermore, the petitioner has failed to provide any detailed explanation, along with credible and probative 
supporting documentation, establishing the U.S. entity's overall organizational structure, staffing levels, and 
the scope of its business activities at the time of filing. Based on the evidence in the record, it appears that the 
petitioner and its claimed subsidiary, run two different stores. The 
petitioner stated that the beneficiary would be President of both stores and would manage the 
employees of each store. However, the record lacks any documentation evidencing that the beneficiary is 
authorized to run the two stores such as a management agreement. Although the petitioner owns 
51% of , the petitioner did not provide evidence that the beneficiary will be the 
President for that company. 
Regarding the petitioner's staffing, the record does not contain Forms W-2 for all employees for 2013 . In 
addition, the petitioner lacks a work schedule for all employees for the two · stores. It is also not clear 
why one store would need a President, a General ManagerNice President, a Manager, an Assistant 
Manager and a Shift Supervisor to supervise four sandwich artists/cashiers. 
Overall, the record is insufficient to establish that the beneficiary will be employed in a primarily managerial 
or executive capacity. 
III. CONCLUSION 
Based on the foregoing discussion, the director's decision will be withdrawn and the matter will be remanded 
for review and entry of a new decision. The director may issue a notice requesting any additional evidence he 
deems necessary in order to determine the petitioner's eligibility for the benefit sought. 
ORDER: The decision of the director dated August 27, 2013 is withdrawn. The matter is 
remanded for further action and consideration consistent with the above discussion 
and entry of a new decision. If the new decision is adverse to the petitioner, the 
director shall certify his decision to the AAO.