remanded EB-1C Case: Restaurant Management

MATTER OF M-H-US LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 23, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant management company, seeks to permanently employ the Beneficiary as 
its managing director under the first preference immigrant classification for multinational executives 
or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ 1153(b )(1 )(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) it has the ability to pay the Beneficiary's proffered wage; (2) the 
Beneficiary would be employed in the United States in a managerial or executive capacity; (3) the 
Beneficiary was employed abroad in a managerial or executive capacity; (4) it has a qualifying 
relationship with the Beneficiary's foreign employer; and (5) the Petitioner and foreign entity were 
doing business as multinational organizations as defined in the regulations. 
On appeal, the Petitioner submits additional evidence and asserts that the Director overlooked 
evidence submitted in support of the petition and in response to a request for evidence (RFE), 
misinterpreted certain evidence, and failed to provide a "comprehensible explanation" of the reasons 
for denial. 
Upon de nova review of the record, we will withdraw the Director's decision and remand the matter 
for entry of a new decision consistent with our discussion below. 
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. 
The Form 1-140, 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 
Matter of M-H-US LLC 
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. § 204.5G)(3). 
II. ANALYSIS 
When denying a petition, a director has an affirmative 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. § 103.3(a)(l)(i); see also Matter of M-P-, 20 l&N Dec. 
786 (BIA 1994) (finding 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). 
Upon review, we find that the Director's decision contains at least error of law and does not reflect 
consideration of all relevant evidence. In addition, as noted by the Petitioner, the reasons given for 
the five grounds for denial were all condensed into a single paragraph. As a result, the decision does 
not adequately articulate the Director's specific reasons for the denial, and the Petitioner was not 
provided with a meaningful analysis of its evidence to serve as a basis for its appeal. We agree with 
the Director's conclusion that the evidence of record does not establish eligibility for the benefit 
sought. However, due to the deficiencies noted, we will withdraw the Director's decision and 
remand the matter for issuance of a new decision. A brief discussion of each issue follows. 
A. Ability to Pay 
With respect to the Petitioner's ability to pay, the Director found that the Petitioner did not establish 
eligibility because the 2016 financial statements it submitted for its parent company were unaudited. 
On appeal, the Petitioner provides new evidence reflecting that the financial statements in question 
were independently audited. 
However, the regulations do not allow for the submission of a foreign parent company's audited 
financial statements as evidence of a Petitioner's ability to pay. Rather, the Petitioner itself must 
show that it can be the Beneficiary's proffered wage, and it must provide a copy of its own annual 
report, income tax returns, or audited financial statements. See 8 C.F.R. § 204.5(g)(2). The record 
as presently constituted does not contain the Petitioner's 2016 income tax return, audited financial 
statements, or annual report, nor does it contain evidence that the Beneficiary was being paid by the 
Petitioner at the time this petition was filed in September 2016. The Director's decision did not 
provide the Petitioner with notice of these deficiencies. 
B. U.S. Employment in a Managerial or Executive Capacity 
The Director determined that the Petitioner did not establish that the Beneficiary would be employed 
in a managerial or executive capacity as defined at section 101(a)(44) of the Act because the 
submitted position description was "not sufficiently specific," and because the Petitioner's 
"organizational chart was too vague." The decision lacked adequate an analysis of most of the 
Petitioner's evidence. 
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Matter of M-H-US LLC 
With respect to the Beneficiary's offered position, the Petitioner initially submitted a list of 13 
duties, many of which indicate that the Beneficiary would be significantly involved in the day-to-day 
operations of the company. For example, the Petitioner stated that the Beneficiary would be: issuing 
and signing checks for payroll, suppliers and service providers; "supervising" the day to day 
business by ordering products, monitoring stock level, employee scheduling and attendance; dealing 
with franchisors, and managing bank accounts. Later, in response to the RFE, the Petitioner 
indicated that the Beneficiary spends more than half is time visiting the company's store operations. 
While the submitted duty descriptions also include some higher level activities, the evidence was 
insufficient to show how the Beneficiary would perform primarily managerial or executive duties. 
Turning to the structure and staffing of the company, the Petitioner stated on the Form I-140 that it 
operates a restaurant management company with 11 employees. The Petitioner claimed to be 
operating three restaurants through two subsidiaries 
two of which were already open, and one slated to open around the time of filing in September 2016. 
The Petitioner provided names, job titles, and duty descriptions for 10 employees - two sales 
representatives, three cashiers, and five line cooks. The Petitioner did not identify any subordinate 
managers or supervisory workers or explain who worked in which restaurant. In addition, the duty 
descriptions for the cashiers were inconsistent with the operation of a restaurant. For example, the 
Petitioner stated that the cashiers' duties include selling tickets, gift wrapping merchandise, 
preparing packages for shipments, and posting charges "against ... patients' accounts." 
The Petitioner provided copies of 2015 IRS Form W-2s showing that most of the identified 
employees were paid by its claimed subsidiary, The only employees who 
worked for the Petitioner in 2015 were the two sales representatives. The Petitioner did not provide 
recent evidence of wages paid to employees in 2016, and did not submit sufficient evidence showing 
that it owns and controls the claimed U.S. subsidiaries. Absent such evidence, we cannot consider 
those employees part of the Petitioner's organizational structure. 
Overall, the evidence lacks evidence of the Petitioner's staffing and structure at the time of filing 
(including evidence of wages paid to employees), credible job descriptions for subordinate staff, a 
sufficient description of the Beneficiary's actual duties at that time, and evidence that the Petitioner 
actually owns its claimed U.S. subsidiaries. The Director's explanation that the Beneficiary's duties 
and the organizational chart were "vague" did not provide the Petitioner with sufficient notice of the 
deficiencies in the record. 
C. Employment Abroad in a Managerial or Executive Capacity 
The Director further found that the Petitioner did not establish that the Beneficiary was employed 
abroad in a managerial or executive capacity. This determination was based on a conclusion that the 
record did not contain a description of the Beneficiary's duties or a list of the personnel he 
supervised. However, the Petitioner's response to the RFE included a letter from the foreign entity's 
human resources director with a description of the duties the Beneficiary performed while employed 
abroad as general manager. In addition, an organizational chart submitted at the time of filing 
showed that the Beneficiary supervised 10 employees with managerial job titles. Therefore, it 
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Matter of M-H-US LLC 
appears that the Director did not consider all relevant evidence in reaching a determination regarding 
this issue. 
D. Qualifying Relationship 
The Director determined that the record contained insufficient evidence of a qualifying relationship, 
noting that the Petitioner submitted a stock certificate bearing an illegible stamp and that it did not 
provide a stock ledger. However, the Director's decision does not mention that fact that the 
Petitioner is a limited liability company, and as such is not authorized to issue stock. The record 
does contain the Petitioner's operating agreement, which identifies the foreign entity as the sole 
member of the company. However, it is unclear whether the Director reviewed this relevant 
evidence. 
E. Doing Business in the United States and Abroad 
Finally, the Director determined that there was insufficient evidence that the Petitioner and its 
claimed parent company are doing business in the United States and abroad, and questioned whether 
the organization qualifies as "multinational." Again, the decision does not sufficiently specify what 
evidence the Director reviewed to reach this conclusion, and therefore did not provide the Petitioner 
with adequate notice of deficiencies in the record. 
We are remanding this matter so that the Director can properly make the initial determination on 
these issues after a thorough review and analysis of the Petitioner's evidence. 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 the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter of M-H-US LLC, ID# 1567024 (AAO Aug. 23, 2018) 
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