dismissed L-1A Case: Restaurant

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U.S. Department of Homehnd Security 
20 Massachusetts Ave., N. W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 07 2 12 50839 Office: CALIFORNIA SERVICE CENTER Date: AU6 0 1 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(l5)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Ths 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 inqu j must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 07 212 50839 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Adrmnistrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seelung to employ the beneficiary as its kitchen 
operations manager as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation 
organized under the laws of the State of California and allegedly operates restaurants serving Filipino style 
food. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred and that 
the beneficiary's duties were primarily those of a manager. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 8 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)( 1 )(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization withn the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work whch the alien performed abroad. 
The primary issue in the present matter is whether the beneficiary was employed abroad in a primarily 
WAC 07 212 50839 
Page 3 
managerial or executive capacity.' 
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 with 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 hction 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. § 1 101 (a)(44)(B), defines the term "executive capacity" as 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 
'It is noted that, in her decision, the director cited the regulation 8 C.F.R. 5 214.2(1)(3)(~). This regulation 
pertains to beneficiaries who will be employed in "new offices," which are defined as "an organization whch 
has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one 
year." 8 C.F.R. 5 214.2(1)(l)(ii)(F). However, the petitioner in this matter does not meet the definition of a 
"new office," and the director's decision will be partly withdrawn to the extent she applied the more lenient 
criteria at 8 C.F.R. 5 214.2(1)(3)(~) to the instant petition. The petitioner asserts that it has been in operation 
since 2004 and does not claim in the L Classification Supplement to the Form 1-129 that the beneficiary will 
be employed at a "new office." Accordingly, the petitioner should be treated as a fully formed entity and, 
thus, is obligated under the regulations to establish that the beneficiary will perfom qualifying duties 
immediately upon his employment by the petitioner in the United States. 
WAC 07 212 50839 
Page 4 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
Although the petitioner does not clarify in the initial petition whether the beneficiary primarily performed 
managerial duties under section 1 0 1 (a)(44)(A) of the Act, or primarily executive duties under section 
101 (a)(44)(B) of the Act, the petitioner appears to restrict the beneficiary to the managerial classification on 
appeal. Given the lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary was 
employed in either a managerial or an executive position and will consider both classifications. 
Counsel describes the beneficiary's foreign employment in a letter dated July 2,2007 as follows: 
Beneficiary holds the position of Kitchen Operations Manager in the foreign corporation's 
biggest outlet out of the 29 restaurants. The food service business of these 29 restaurants 
refer to only one trade name of "Gerry's Grill" all doing business as "Gerry's Grill[."] 
Beneficiary has been with the business since February, 1997 up to the present. As of today, 
Beneficiary supervises chefs, assistant chefs and all the head cooks and about 4 line cooks 
and all other employees in the kitchen of the biggest outlet, including the overall supervision 
of all the 29 "Gerry's Grill" lutchen outlets in the Philippines. 
The petitioner also submitted an organizational chart for the foreign employer. However, the chart does not 
specifically identify any of the employees and fails to include the beneficiary's "kitchen operations manager" 
, position. 
Finally, the petitioner describes the beneficiary's duties abroad in as follows: 
In-charge and commands the performance of kitchen personnel including chefs, Sous 
chefs and other cooks; 
Plans sequence and time of cooking operations relying on his extensive experience 
and judgment to ensure consistent hlgh quality and to minimize food costs and 
exercises portion control over all dishes in the kitchen; 
Evaluates food products to ensure that quality standards are consistently attained and 
solves problems encountered such as substituting items on menus, re-using cooked 
food and reducing excess waste and spoilage; 
Schedules and coordinates the work of chefs, cooks and other kitchen employees to 
ensure that food preparation is economical and technically correct; 
Consults with catering staff about food production aspects of special events being 
planned and serviced; 
Prepares necessary data for the budget in area of responsibility, projects annual food 
and labor costs and monitors actual financial results; takes corrective action where 
necessary to help ensure that financial goals are met; all in cooperation and 
collaboration with the Executive Chef; 
Safeguards all food preparation employees by implementing training to increase their 
knowledge about safety, sanitation and accident prevention; 
Ensures that high standards of sanitation and cleanliness are maintained throughout 
WAC 07 212 50839 
Page 5 
the kitchen areas at all times[;] 
9. 
 Hires, trains and supervises the work of assistant chefs, cooks and other food 
production stafq; and] 
10. 
 Manages the Kitchen operations at all times. 
On July 19, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed organizational chart for the foreign employer describing its managerial hierarchy and staffing levels; 
job descriptions for all employees under the beneficiary's supervision; and a more detailed description of the 
beneficiary's duties abroad, including a breakdown of the number of hours the beneficiary devotes to each of 
his ascribed duties. 
In response, the petitioner submitted an organizational chart for the foreign employer that bears virtually no 
resemblance to the organizational chart originally submitted in support of the petition. The new 
organizational chart shows the beneficiary at the top of the organization supervising 29 "htchen managers" of 
29 different branches of the foreign employer. Each "kitchen manager" is portrayed as supervising 
dispatchers and stockmen. The "kitchen managers" are described as being " [i]n charge of the implementation 
of Gerry's Grill Standard Kitchen Operating Procedures in the assigned branch." The dispatchers are 
described as dispatching and inspecting food, and the stockmen are described as administering inventory. 
The chart does not explain whom the beneficiary supervises in his claimed management of the foreign 
employer's "biggest outlet out of the 29 restaurants." 
The petitioner also submitted a breakdown of the number of hours the beneficiary devotes to each of his 
duties as follows: 
I - Quantity of food stock purchases. 1 I 
Work to be Performed or Specific Duties 
Check, monitor and reviews the outlets Kitchen Managers reports i.e. 
- 
 5 days par stock projections[.] 
- Inventory and Receiving reports. 
- Production and Yield Reports[.] 
- 
 Track Sheet Report (detailed quantities of deliveries vs. actual production and 
Percentage of Time 
to be Spent (Hours 
per Week) 
18 hrs. 
30% 
Interviews, qualifies, and hires applicants in the following positions; 
- Kitchen Managers 
- Stockman 
- Food Checkers/Dispatchers 
yield to ensure that standards and target food cost is achieved)[.] 
- 
 Kitchen Manning budget and schedules[.] 
Conducts meetings and briefings to all kitchen personnel 
 3 [hrs.] 
5% 
I breakdowns for newly hired kitchen personnel's [sic]. 
 1 8% 1 
- Kitchen StewardskIelpers 
Conducts training, orientations and briefings on job responsibilities and task 
 5 hrs[.] 
WAC 07 212 50839 
Page 6 
On October 17, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad primarily in a managerial or executive capacity. 
Formulate corrective measures and takes action where necessary to help ensure that 
financial goals are met. 
- Kitchen Payroll cost[.] 
- Kitchen Supplies cost[.] 
- 
 Kitchen Maintenance and equipments cost. 
- Other Kitchen Miscellaneous expenses. 
Check and monitor btchen standards on 
- 
 Food quality, presentation and portion size. 
- Kitchen safety and sanitation. 
- 
 Storage procedures and stocking level. 
In charge and commands the performance of Kitchen personnel by formulating 
guidelines and procedures as approved by the Director of Operations and Management 
Committee. 
- Operations flowcharts[.] 
- 
 Standard operating procedures on food handling, receiving, and storage[.] 
- 
 Shelf life or production items. 
- Product yields and preparation[.] 
Regularly update cost tracking sheet and recipe maintenance[.] 
Formulate & Cost new approved recipes and propose selling price. 
Participate in the planning, design and layout of lutchen for new project restaurant 
branches. 
On appeal, the petitioner asserts that the beneficiary's duties were primarily those of a manager. 
6 hrs[.] 
10% 
6 hrs[.] 
10% 
2 hrs[.] 
3% 
2 hrs[.] 
3% 
4 hrs[.] 
6% 
6 hrs[.] 
10% 
Upon review, the petitioner's assertions are not persuasive. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties performed by the beneficiary and indicate whether such duties were 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entailed executive responsibilities, while other duties were managerial. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
acted "primarily" in a managerial or executive capacity. In support of the petition, the petitioner has 
submitted vague job descriptions which fail to sufficiently describe what the beneficiary did on a day-to-day 
basis. For example, the petitioner states that the beneficiary "supervises chefs, assistant chefs and all the head 
cooks and about 4 line cooks and all other employees in the kitchen of the biggest outlet, including the overall 
supervision. of all the 29 'Geny's Grill' kitchen outlets in the Philippines." However, the organizational chart 
submitted in response to the Request for Evidence fails to identify or describe any of these claimed 
WAC 07 212 50839 
Page 7 
subordinate workers and instead portrays the beneficiary as supervising "kitchen managers" at all 29 
restaurants in the Philippines. Likewise, while the petitioner submitted a breakdown of the number of hours 
devoted by the beneficiary to each of his duties, this breakdown fails to explain which duties pertain to his 
claimed "management" of kitchen operations at all 29 restaurants and which duties pertain to his claimed 
"management" of the lutchen of the foreign employer's "biggest outlet." For example, the petitioner claims 
that the beneficiary devoted 20% of his time to formulating corrective measures relating to kitchen costs and 
monitoring kitchen safety, sanitation, storage, stocking, and food quality. However, the petitioner fails to 
explain whether these duties pertain to the beneficiary's management of all 29 kitchens, pertain only to hs 
management of the lutchen in the "biggest outlet," or are split to some degree between his management of all 
the kitchens and his management of the kitchen in the petitioner's "biggest outlet. " Finally, the petitioner fails 
to clearly explain how, exactly, the beneficiary "supervised" all 29 kitchens while, at the same time, 
supervised the foreign employer's "biggest outlet." The beneficiary's job description fails to allocate any time 
for travel between branches and, instead, vaguely describes the beneficiary as formulating guidelines, recipes, 
and procedures, reviewing reports, and participating in designing new restaurants. However, the petitioner 
has failed not only to explain whether any of these duties actually pertains to the "management" of all 29 
branches, the petitioner has failed to establish that these vague duties are indeed qualifying managerial or 
executive duties. To the contrary, these duties appear to be design and analytical tasks necessary to the 
provision of a service or the production of a product. 
Accordingly, absent a specific description of his duties, along with a clear explanation of how his time was 
allocated, it cannot be concluded that the beneficiary was employed "primarily" in a managerial or executive 
capacity. 
 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). 
The fact that the petitioner has given the beneficiary a managerial or executive title and has prepared a vague 
job description which includes inflated job duties does not establish that the beneficiary actually performed 
managerial or executive duties. Specifics are clearly an important indication of whether a beneficiary's duties 
were primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter 
of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 
F.2d 4 1 (2d. Cir. 1990). Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of Calgornia, 14 
I&N Dec. 190 (Reg. Comrn. 1972). 
Furthermore, the petitioner has also failed to establish that the beneficiary supervised and controlled the work 
of other supervisory, managerial, or professional employees, or managed an essential function of the 
organization. As noted above, the petitioner claims the beneficiary supervised "chefs, assistant chefs and all 
the head cooks and about 4 line cooks and all other employees in the kitchen of the biggest outlet" as well as 
supervised the "latchen managers" at all the foreign employer's other restaurants in the Philippines. The 
"lutchen managers," in turn, allegedly supervised other subordinate workers. However, the record is not 
persuasive in establishing that the beneficiary supervised and controlled supervisory, managerial, or 
professional workers. First, the record is not persuasive in establishing that the beneficiary truly "supervised" 
the "latchen managers," and their claimed subordinate workers, at the foreign employer's other restaurant 
locations. The beneficiary's job description fails to describe the beneficiary as having supervisory control 
WAC 07 212 50839 
Page 8 
over these employees. The beneficiary's breakdown of duties fails to include any time for travel between the 
restaurants, and the record is devoid of evidence explaining what, exactly, the beneficiary did to "supervise" 
these workers or how he fit into the overall management of each restaurant's operation. Instead, the 
beneficiary is described vaguely as formulating recipes, reviewing reports, and preparing guidelines and 
procedures. An employee will not be considered to be a supervisory worker simply because of a job title, 
because he or she is arbitrarily placed on an organizational chart in a position superior to another employees, 
or even because he or she supervises daily work activities and assignments. Rather, the employee must be 
shown to possess some significant degree of control or authority over the employment of subordinates. See 
generally Browne v. Signal Mountain Nursery, L.P., 286 F. Supp. 2d 904, 907 (E.D. Tenn. 2003) (cited in 
Hayes v. laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11, 2007)). In this matter, the 
beneficiary's job duties do not establish that he could truly be characterized as a "supervisor" of the "kitchen 
managers" at the foreign employer's 29 locations. 
Second, even if it was established that the beneficiary truly "supervised and controlled" the "kitchen 
managers" and the subordinate employees working at the other locations, it has not been established that any 
of these employees, as well as any of the chefs, assistant chefs, head cooks, and line cooks working in the 
kitchen of the foreign employer's "biggest outlet," is a supervisory, managerial, or professional employee. 
The petitioner failed to describe the subordinates' duties or the organizational structure of the "biggest outlet," 
and the vague description of the "kitchen managers" fails to establish that these workers were truly 
supervisory, managerial, or professional in nature. Once again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190. 
In view of the above, the beneficiary would appear to have been primarily a first-line supervisor of non- 
professional workers, the provider of actual services, or a combination of both. A managerial employee must 
have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless 
the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills and 
education required to perform the duties of the subordinate positions, the petitioner has not established that 
the beneficiary managed professional employees.2 Therefore, the petitioner has not established that the 
2 
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1 101 (a)(32), states that lt[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." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Cornrn. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. The possession of a bachelor's 
degree by a subordinate employee does not automatically lead to the conclusion that an employee was 
employed in a professional capacity as that term is defmed above. In this matter, the petitioner has not 
WAC 07 212 50839 
Page 9 
beneficiary was employed primarily in a managerial capacity.' 
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position withn a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction f?om higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary acted primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary was primarily employed as a first-line 
supervisor and performed the tasks necessary to produce a product or to provide a service. Finally, as it 
appears that the beneficiary as "kitchen operations manager" reported to a variety of superiors in the 
Philippines, it is more likely than not that any authority to the direct the organization was vested in these 
established that a bachelor's degree is necessary for any of the positions allegedly subordinate to the 
beneficiary. 
3 
While the petitioner has not argued that the beneficiary managed an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
 . 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
hnction with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 8 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties were primarily managerial. Also, as explained 
above, the record establishes that the beneficiary was primarily be a first-line supervisor of non-professional 
employees andlor performed non-qualifying operational or administrative tasks. Absent a clear and credible 
breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine what 
proportion of his duties were managerial, nor can it deduce whether the beneficiary primarily performed the 
duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
WAC 07 212 50839 
Page 10 
workers and not in the beneficiary. Therefore, the petitioner has not established that the beneficiary was 
employed primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary was primarily performing managerial or 
executive duties abroad, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary will be employed in 
the United States in a primarily managerial or executive capacity. 8 C.F.R. $8 2 14.2(1)(3)(ii). 
The petitioner described the beneficiary's proposed duties in the United States in a document titled "Job 
Description of Kitchen Operations Manager" as follows: 
Hires, trains and supervises the work of chefs, assistant chefs, sous chefs [sic] and 
line cooks and other food production staff; 
Oversees the daily food production of all menu recipes; 
Directly supervises the cooking of items served that require skillful preparation and 
presentation; 
Makes certain that par stocking level in the lutchen, food and equipments, are always 
maintained to prevent out of stock items; 
Makes certain that proper staff scheduling is observed daily; 
Monitors and ensures that the kitchen standards on food quality, quantity portioning, 
safety and cleanliness, hygiene and grooming are observed at all times; 
Ensures that the kitchen is maintained clean, orderly and organized and that proper 
storage procedure is observed at all times; 
Ensures that department expenses are within the approved budget; 
Examines and approves all kitchen reports from the other Executive Chefs, chefs and 
sous chefs. 
Counsel further explained in a letter dated September 10,2007 that the beneficiary will be responsible for the 
administrative and quantitative aspects of the latchen while the executive chef, who is "second in command in 
the kitchen," will be responsible for the production of food. 
The petitioner also submitted organizational charts showing the beneficiary reporting to a director of 
operations and directly supervising an executive chef who, in turn, is portrayed as supervising all subordinate 
kitchen employees including sous chefs, cooks, and dispatchers. 
Finally, the petitioner submitted a breakdown of the number of hours the beneficiary will devote to each of 
his ascribed duties on a weekly basis. As the breakdown of duties is virtually identical to the breakdown 
submitted for the beneficiary's position abroad, with the exception of the percentages of time allocated to each 
duty (see supra), the breakdown will not be repeated here. 
Upon review, the petitioner has failed to establish that the beneficiary will be employed in a primarily 
managerial or executive capacity in the United States. The record is not persuasive in establishmg that the 
beneficiary will supervise and control the work of other supervisory, managerial, or professional employees, 
WAC 07 212 50839 
Page 11 
or will manage an essential function of the organization. While the petitioner claims that the beneficiary will 
directly supervise the executive chef who, in turn, will supervise all subordinate kitchen personnel, this 
assertion is not persuasive. The beneficiary is described as being in charge of the administrative and 
quantitative aspects of the kitchen. He allegedly formulates and implements systems, policies, and 
procedures pertaining to kitchen costs, inventory, safety, and health. In performing this function, it has not 
been established that the beneficiary will truly "supervise and control" the executive chef and, indirectly, a 
subordinate tier of food production employees. To the contrary, it appears that the beneficiary will primarily 
perform tasks necessary to the operation of the restaurant or will act as a first-line supervisor of subordinate 
pantry and storekeeper employees, and the chef and food preparation employees will more likely than not 
report directly to the overall manager of the operation. As noted above, an employee will not be considered 
to be a supervisory worker simply because of a job title, because he or she is arbitrarily placed on an 
organizational chart in a position superior to another employees, or even because he or she supervises daily 
work activities and assignments. Rather, the employee must be shown to possess some significant degree of 
control or authority over the employment of subordinates. See general& Browne v. Signal Mountain Nursery, 
L.P., 286 F. Supp. 2d at 907 (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16). Once again, a 
managerial employee must have authority over day-to-day operations beyond the level normally vested in a 
first -line supervisor, unless the supervised employees are professionals. 1 0 1 (a)(44)(A)(iv) of the Act; see 
also Matter of Church Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to 
establish the skills and education required to perform the duties of the subordinate positions, the petitioner has 
not established that the beneficiary will manage professional employees. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, and the petition may not be approved for this reason. 
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, kc. 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.