dismissed L-1A Case: Restaurant Business

PUBLIC COpy
identifyingdatadeletedto
preventclearlyunwarr~ted
invasionof personalpnvacy
U.S.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: WAC 06 11452638 Office: CALIFORNIA SERVICE CENTER Date: APR 10 2007
INRE:
PETITION:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This 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 inquiry must be made to that office.
A·i /
~// , ... '
{//jt4~ iJa'b~
cIRobert P. Wk~ann, Chief
f Administrative Appeals Office
www.useis.gov
· WAC 0611452638
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa.
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be
dismissed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-l A
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a Nevada company, states that it is
engaged in the restaurant business. The petitioner claims that it is an affiliate of the subsidiary of Si
Senores Retaurantes, EIRI, located in Peru. The beneficiary was initially granted L-l A status for a three­
year period and the petitioner's subsequent request to extend the beneficiary's L-IA status was denied.
The petitioner now seeks to employ the beneficiary in the position of chief financial manager for a two­
year period.
The director denied the petition on June 14, 2006, concluding that there is insufficient evidence to
demonstrate that the beneficiary will serve in a primarily managerial or executive capacity in the United
States.
The petitioner subsequently filed an appeal on July 10, 2006. 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
decision is "unsubstantiated and most likely based on a critical oversight of the submitted
documentation." The petitioner asserts that the position offered to the beneficiary satisfies the criteria for
a position in a managerial and executive capacity. The petitioner contends that the beneficiary has a
direct interest in running every aspect of the business as a "chief decision maker" for the company. The
petitioner also states that the beneficiary has previously been granted L-IA status. The petitioner submits
a brief and documentation in support of the appeal.
To establish eligibility under section 101(a)( 15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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. § 214.2(1)(3)further 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 (1)(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.
· WAC 0611452638
Page 3
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within 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 him/her to perform the
intended services in the United States; however, the work in the United States
need not be the same work which the alien performed abroad.
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary
will be employed in a primarily managerial or executive capacity by the U.S. entity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides:
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.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides:
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
organization;
(ii) establishes the goals and policies of the organization, component, or function;
· WAC 06 11452638
Page 4
(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.
The nonimmigrant petition was filed on February 27, 2006. The Form 1-129 indicates that the beneficiary
will be employed in the position of chief financial manager. In a letter of support dated January 27, 2006, the
beneficiary's proposed duties in the United States, and the duties of the U.S. entity's employees, are
described as the following:
As Chief Financial Manager, [the beneficiary] is responsible for directing the preparation of
financial reports that summarize and forecast the organization's financial position. [The
beneficiary] analyzes the financial information prepared by seven different supervisory
employees.... Most full-service restaurants contain a management team of a general
manager (Operations Manager in [the U.S. entity]), one more assistant managers (Restaurant
Manager in [the U.S. entity]), executive chefs, (Kitchen Chief at [the U.S. entity]) and shift
supervisors (Dining Saloon Chief). Each position has varying degrees of responsibilities and
functions.
Dining Saloon Chiefs (shift supervisors) are responsible for training and supervising the
activities of the wait staff. They micro-manage the wait staff during restaurant hours by
ensuring that the employees work as a team to meet restaurant standards are met [sic]. They
are responsible for monitoring orders in the kitchen and solve problems with food delays.
They are also responsible for monitoring the wait staff, and referring them to the Restaurant
Manager for praise or criticism. Each Dining Saloon Chief is also required to submit to the
Restaurant Manager financial tools of each waiter/waitress at the end of their shift.
Restaurant Manager (assistant manager) oversees the activities of the dining saloon
chiefs. The restaurant manager is responsible for the adequate training and supervising of
wait staff, as well as the Dining Room Chiefs. The restaurant manager must analyze,
complete, or correct the financial information submitted by the Dining Saloon Chiefs before
preparing daily reports that are submitted to the Operating Manager.
Operating Manager (General Manager) is responsible for the day-to-day activities of the
restaurant. The operating manager is responsible for hiring and firing wait staff, chefs, and
other personnel in the restaurant. The operating manager evaluates the Executive Chefs
requests for supplies, suggestions for menu options, and proposes various specials or limited
time specials. The operating manager oversees scheduled deliveries and plans routine
services for the dining room areas. The Kitchen Chief reports directly to the Operating
Manager.
Kitchen Chief (Executive Chef, Head Chef, Head Cook) is responsible for managing, and
supervising 8 cooks and 3 dishwashers. The kitchen chief monitors and maintains a highly
efficient kitchen by training new cooks and dishwashers, maintaining a high standard of
excellent cooking, and keeping a well stocked, but not overstocked, kitchen. The kitchen
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chief prepares and submits inventory requests to the Operating Manager, who reviews and
revises the requests before submitting the requests to the Warehouse Manager.
Warehouse Manager is responsible for the regular maintenance and functioning of the
warehouse. Once a request for inventory is submitted, the warehouse manager determines
which products are stored and which products must be re-order [sic]. The warehouse
manager analyzes and revises the acquisition request and submits the order to the Financial
Manager.
Financial Manager (Chief Financial Manager) is responsible for approving all financial
transactions of the company as reported through the various activities described above. The
financial manager reviews all financial documents, from payroll to purchasing inventory,
and makes recommendations or approves the requests. The financial manager analyzes the
flow of cash and receipts and disbursements to meet the business's financial goals. The
financial manager reviews all requests for finances support from the Marketing Director to
determine the viability of any marketing schemes. Basically, the financial manager directs
and supervises the financial activities of the restaurant focusing on maximizing income
while reducing expenditures.
The Chief Financial Manager does not produce or manage a product of the company. The
duties of providing forecasts, financial goals, analyzing reports, adjusting budgets, and
preparing financial reports in combination with the duty of training all high-level managers
on bookkeeping procedures, payroll, and budgeting go above and beyond simply performing
tasks necessary to produce a product or provide services.
* * *
Our Chief Financial Manager has the authority to hire and fire personnel or recommend
other employees who are responsible for any cash or credit financial transactions. The Chief
Financial Manager does not train wait-staff on proper procedures for serving food, but the
Chief Financial Manager implements policies of financial transactions and record keeping
that are then conveyed to the other manager for carrying out training and management. The
Chief Financial Manager is solely responsible for the day-to-day financial operations that
cannot be done by a Marketing Manager, Shift Manager, General or Assistant Manager.
The Chief Financial Manager is far from a front-line manager, and does in fact manage the
work of professionals.
The petitioner also submitted a letter stating that the U.S. entity plans to open a second restaurant and
the beneficiary will assist with this process.
The petitioner submitted an organizational chart of the U.S. entity. The chart indicated that the
president of the company supervises the beneficiary as the financial manager and treasurer. The
chart also indicated that the beneficiary will supervise one warehouse employee and one secretary.
The chart also shows that the beneficiary will assist the president in supervising the marketing
manager, the operating manager, who in tum supervises the restaurant manager, who supervises the
WAC 0611452638
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three dining saloon chiefs, mne waiters, and the kitchen chief who supervises 8 cooks and 3
dishwashers.
The petitioner also submitted a document outlining the beneficiary's responsibilities as Chief
Financial Manager as follows:
1. Elaborating and updating of the company's Financial Plan (25% of her working time).
[The beneficiary] provides the five-year forecast for income, expenses, and funding
sources. She has to continuously adjust her planning to allow for the funding at various
stages of the company's growth. She has to explain the rationale and assumptions used
to determined [sic] the estimates. She based her assumptions on industry/historical
trends.
2. . (50% of her working
and the other member
of the management team, as nd, with the main
financial goal for the next year. Every week, each department manager has to provide
[the beneficiary] with a report of occurrences in his department, and also with the
financial requariment [sic] for his department for the next week or month. [The
beneficiary] analyses the reports and decide whether to approved [sic] or not the
purchase. She also provides the month by month forecasted sales and expenses for
reaching the main goal for the year. Every month, she adjusts her forecasts accordingly
to the actual result of the past month. Based on those results [the beneficiary]
establishes the new monthly objectives, or the new policies for reaching the main goal.
3. Establishment of the Strategic Planning. (250/0 of her working time). Together with the
Company's Financial Plan and the establishment of the financial goals and policies of
the company, [the beneficiary] is responsible for determining the strategies for obtaining
and using resources to achieve those goals. [The beneficiary] determines the best way to
use resources. She has the power of decision to adjust the budgets or to redirection
funds to different areas of the company. She decides whether the company needs to
spend more money in Marketing (advertising or promotional material) or to spend more
money in quality and cost control.
4. Elaboration of Financial Reports. At the end of the year, [the beneficiary] has to provide
the Presidence [sic] of the corporation a complete Financial Report. It includes a
complete analisys [sic] of the Balance Sheet, the Financial Statements, and a cash flow
report.
On March 8, 2006, the director requested additional evidence to establish that the beneficiary will be
performing the duties of a manager or executive with the U.S. company. Specifically, the director requested:
(1) a copy of the U.S. company's organizational chart indicating the current names of all executives,
managers and supervisors, and the names, job titles, job duties, educational level, annual salaries/wages for
all employees under the beneficiary's supervision; (2) a copy of the diplomas for the employees who have a
bachelor's degree or higher, and an explanation as to how their education is related to the duties performed;
· WAC 06 11452638
Page 7
(3) a more detailed description of the beneficiary's proposed duties in the U.S., including an explanation as to
who is responsible for the actual preparation of the financial reports; (4) copies of all financial reports for
2004 and 2005; and, (5) copies of the U.S. company's payroll summary, Forms W-2 and W-3 for 2005.
In its response dated May 31,2006, the petitioner submitted a letter in response to the director's request for
evidence and reiterated the proposed job duties to be performed by the beneficiary. In addition, the petitioner
stated that the U.S. entity has opened a second restaurant in Las Vegas, Nevada. The petitioner re-submitted
the original organizational chart for the U.S. entity. The petitioner also submitted a list of employees
supervised by the beneficiary that includes the secretary/office assistant, one employee in warehouse and
purchasing, one operating manager and one employee in marketing.
On June 14, 2006, the director denied the petition. The director noted that the petitioner did not respond to
the request for evidence regarding the issue as to who is actually responsible for the preparation of the
financial reports. The director stated "as there is no employee responsible for preparing budget, financial
reports, investment of funds, managing associated risks and cash flow and execution of capital-raising
strategies, these duties must be performed by the beneficiary herself." In addition, the director noted that it
did not appear that the beneficiary supervises a staff of professional, managerial, or supervisory personnel
who will relieve the beneficiary from performing non-qualifying duties, and thus the beneficiary will be
primarily involved in performing the day-to-day financial services for the business.
On appeal, the petitioner further explains how the position offered to the beneficiary is executive and
managerial in nature and is not a first-line supervisor position. The petitioner asserts that the beneficiary is
responsible for "managing the entire organization" and directly supervises three managers who are
responsible for "three distinct departments of the restaurant." In addition, the petitioner states that the
beneficiary has the "final say in all personnel actions based on reporting and recommendations from each of
the section managers." The petitioner further states that the beneficiary "establishes all goals for the
organization, ranging from sales targets to timeliness in service to service quality and customer satisfaction,"
and she is the "top level executive after [the president]." The petitioner also states that the beneficiary is a
"chief decision maker" of the U.S. entity. In addition, the petitioner contends that CIS should not
discriminate against small and medium sized companies. The petitioner also states that the beneficiary has
already been approved for L-1A classification and satisfied all the requirements at that time.
On appeal, the petitioner submitted an expert opinion letter regarding the position of Chief Financial
Manager; copies of the lease contract for the second restaurant; copy of the first sales tax payment for the new
restaurant location; and, a copy of a temporary liquor license for the second restaurant location.
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be
employed in a managerial or executive capacity. 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. §
214.2(l)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be performed
by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id.
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
WAC 06 11452638
Page 8
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
In the instant matter, the job description submitted by the petitioner provides little insight into what tasks
the beneficiary will perform or how the beneficiary will allocate her time among various responsibilities
on various duties. While the petitioner has provided a breakdown of the percentage of time the
beneficiary will spend on various duties, the petitioner has not articulated whether each duty is managerial
or executive. Thus, the AAO must attempt to glean the nature of the beneficiary's proposed duties from
the vague descriptions submitted.
The petitioner indicated that the beneficiary will spend 25 percent of her time to "elaborating and updating
of the company's Financial Plan;" and provide the "five-year forecast for income, expenses, and funding
sources;" "adjust her planning to allow for the funding at various stages of the company's growth;" and
"explain the rationale and assumptions used to determined [sic] the estimates." According to the evidence
submitted by the petitioner, it does not appear that the U.S. company has hired any employees to handle
the accounting and prepare the financial plan and reports for the company. Since the U.S. company lacks
employees to handle the financial development functions, and for the beneficiary to direct and coordinate,
the record raises questions as to whether the beneficiary is managing these activities or actually
performing the petitioner's finance duties such as the accounting, financial statements and reports, and
forecast duties. Instead, it appears that the beneficiary is performing all aspects of the petitioner's day-to­
day financial function, duties which have not been shown to be managerial or executive in nature. An
employee who "primarily" performs the tasks necessary to produce a product or provide a service 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 ofChurch Scientology International, 19 I & N Dec. 593,604 (Comm. 1988).
The petitioner also indicated that the beneficiary will spend 50 percent of her time to the "establishment of
the financial goals and policies of the company." This responsibility includes informing the president and
other managers of the "main financial goal for the next year;" review and analyze the department financial
reports and "decide whether to approve or not purchase;" "provides the month by month forecasted sales and
expenses for reaching the main goal for the year" and "establishes the new monthly objectives, or the new
policies for reaching the main goa1." This description, while it describes the beneficiary's broad
responsibilities, does not provide an understanding of what duties the beneficiary performs on a daily basis.
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. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d.
Cir. 1990). Again, as the beneficiary is the only employee in the petitioner's finance department, it is
reasonable to assume that her duties include a number of non-managerial tasks involving accounting,
financial analysis, and preparation of financial reports.
Furthermore, the director specifically requested that the petitioner provide a detailed job description,
including the beneficiary's specific duties to be performed in the United States. The petitioner did not
submit the requested job description as requested by the director. Instead, the petitioner reiterated the job
duties described in the original job description. Failure to submit requested evidence that precludes a
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). The petitioner
WAC 06 11452638
Page 9
was put on notice of required evidence and given a reasonable opportunity to provide it for the record
before the visa petition was adjudicated. For this reason alone, the appeal will be dismissed.
The record shows that as of the date of filing, the petitioner asserts that the beneficiary will control and
direct subordinate managerial staff. The petitioner claims that the beneficiary will supervise the
warehouse employee, the office secretary, the operating manager, the restaurant manager, the marketing
manager, and the restaurant staff. Although the beneficiary is not required to supervise personnel, if it is
claimed that his duties involve supervising employees, the petitioner must establish that the subordinate
employees are supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) of the Act.
In evaluating whether the beneficiary manages 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. § 1101(a)(32), 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." 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 ofSea, 19 I&N Dec. 817 (Comm. 1988);
Matter ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 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 is employed in a professional capacity as that term
is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary, for example, to perform the marketing, operational, administrative, warehouse and
restaurant management functions of the employees of the restaurant, who will be among the beneficiary's
subordinates. Thus, the petitioner has not shown that the beneficiary's subordinate employees are
supervisory, professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act.
The petitioner claims that the beneficiary supervises the operations manager, the restaurant manager and
the marketing manager. The petitioner also indicated that the U.S. entity has a president as the top
manager of the organization, however, the petitioner did not describe the duties of the president who
supervises all of the employees of the restaurant. Thus it is not clear how much of the beneficiary's time
is actually spent on supervising the three managers when the president is also supervising the same
employees. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In addition, according to the beneficiary's original job description, it appears that the beneficiary manages
the financial functions of the company and will supervise the other managers regarding their financial
reports, expenses, budget and accounting. As noted by the job description, the beneficiary is responsible
for "providing forecasts, financial goals, analyzing reports, adjusting budgets, and preparing financial reports
in combination with the duty of training all high-level managers on bookkeeping procedures, payroll, and
budgeting," and is "solely responsible for the day-to-day financial operations that cannot be done by a
Marketing Manager, Shift Manager, General or Assistant Manager." However, on appeal, the petitioner
WAC 06 11452638
Page 10
indicates that the beneficiary is the "Chief Decision Maker" and "top level executive" of the company, and
"directs the management of the entire organization." Thus, on appeal, it appears that the beneficiary's duties
have been elevated from managing all financial functions of the company to managing the entire
organization. On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a
position's title, its level of authority within the organizational hierarchy, or· the associated job
responsibilities. The petitioner must establish that the position offered to the beneficiary when the petition
was filed merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17
I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a petition in an
effort to make a deficient petition conform to CIS requirements. See Matter ofIzummi, 22 I&N Dec. 169,
176 (Assoc. Comm. 1998).
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, 8 U.S.C. § 1101(a)(44)(A)(ii). 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 function 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. § 214.2(l)(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. An employee who primarily performs the tasks necessary to
produce a product or to provide services is not considered to be employed in a managerial or executive
capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner
has not provided evidence that the beneficiary manages an essential function.
Beyond the required description of the job duties, CIS reviews the totality of the record when examining
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to
relieve the beneficiary from performing operations duties, the nature of the petitioner's business, and any
other factors that will contribute to a complete understanding of a beneficiary's actual duties and role in a
business. In the case of a function manager, where no subordinates are directly supervised, these other
factors may include the beneficiary's position with in the organizational hierarchy, the depth of the
petitioner's operations, the indirect supervising of employees within the scope of the function managed,
and the value of the budgets, products, or services that the beneficiary manages.
As discussed above, the beneficiary's job description is too vague to establish that she would perform
primarily managerial or executive duties, and appears to include non-qualifying duties associated with the
petitioner's day-to-day functions. The petitioner has not provided evidence that it employs any other
employees, subordinate to the beneficiary, who would relieve the beneficiary from performing routine
duties inherent to operating the financial department. The fact that the beneficiary has been given a
managerial job title and general oversight authority over the business is insufficient to elevate her position
to that of a "function manager" as contemplated by the governing statute and regulations. Based on the
foregoing discussion, the petitioner has not established the beneficiary will be employed in the u.S. in a
managerial or executive capacity.
· WAC 06 11452638
Page 11
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 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, 8 U.S.C. §
1101(a)(44)(B). 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 managerial 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-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 from higher level executives, the board of directors, or stockholders of the
organization." Id. A managerial or executive 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. See Matter of Church Scientology International, 19 I&N Dec. at 604. As noted above, the
beneficiary will supervise the finance department and assist the president in supervising the operational
functions of the restaurant, however, the beneficiary lacks the subordinate level of employees to direct
and perform the non-managerial functions of the finance department. In the instant matter, the petitioner
has not established evidence that the beneficiary will be employed in an executive capacity with the U.S.
entity.
A company's size alone may not be the determining factor in denying a visa to a multinational manager or
executive. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are
used as a factor in determining whether an individual is acting in a managerial or executive capacity, CIS
must take into account the reasonable needs of the organization, in light of the overall purpose and stage
of development of the organization.
Furthermore, it is appropriate for CIS to consider the size of the petitioning company in conjunction with
other relevant factors, such as a company's small personnel size, the absence of employees who would
perform the non-managerial or non-executive operations of the company, or a "shell company" that does
not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp.
2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes discrepancies
in the record and fails to believe that the facts asserted are true. Id.
At the time of filing, the petitioner was operating as a restaurant with a gross annual income of
$751,320.58. The U.S. company employed the beneficiary as the chief finance manager who supervises a
warehouse employee and one secretary within the treasury department. In reviewing the brief job
descriptions of the employees at the U.S. entity, it appears that the beneficiary's subordinates are engaged
in all of the administrative and operational tasks in preparing the specific departmental reports for the
business. Based on the record of proceeding, the beneficiary's job duties include a number of non­
qualifying duties that would reasonably preclude her from functioning in a primarily managerial or
executive role. It does not appear that the reasonable needs of the petitioning company might plausibly be
met by the services of the beneficiary as the only employee in charge of managing the finance operations
for the business. Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating
the lack of staff in" the context of reviewing the claimed managerial or executive duties. The petitioner
must still establish that the beneficiary is to be employed in the United States in a primarily managerial or
· WAC 06 11452638
Page 12
executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the
petitioner has not established this essential element of eligibility.
On appeal, the petitioner submitted an opinion letter from the associate dean of Portland State University
regarding whether the position of Chief Financial Manager in the restaurant industry is an executive or
managerial position. The expert opinion does not establish that the decision was based on an incorrect
application of law or CIS policy. Instead, the letter states an opinion that is based on a review of the
petitioner's documents. Although the letter indicates that the author reviewed the applicable immigration
regulations, there is no information as to whether the author is an expert in these regulations. The
textbook or common understanding of business tenus will not supersede the statutory definitions; the
applicable definition of manager and executive are contained in the statute at sections 101(a)(44)(A) and
(B) of the Act.
The AAO may, in its discretion, use as advisory opinion statements submitted as expert testimony.
However, where an opinion is not in accord with other information or is in any way questionable, the
AAO is not required to accept or may give less weight to that evidence. Matter of Caron International, 19
I&N Dec. 791 (Comm. 1988). Since the opinion offered here is not based on the critical statutory
definitions, the opinion is not found to be persuasive.
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or
medium size businesses. However, the AAO has also long required the petitioner to establish that the
beneficiary's position consists of primarily managerial and executive duties and that the petitioner has
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks. It is
the petitioner's obligation to establish however, through independent documentary evidence that someone
other than the beneficiary performs the day-to-day non-managerial and non-executive tasks of the
petitioning entity. Here, the petitioner has not met this burden. Accordingly, the appeal will be
dismissed.
Counsel for the petitioner noted that CIS approved other petitions that had been previously filed on behalf
of the beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of
the other nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the
same unsupported and contradictory assertions that are contained in the current record, the approval
would constitute material and gross error on the part of the director. The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals
that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593,
597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors
as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert.
denied, 485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director had approved the nonimmigrant
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). The prior approvals do not preclude CIS
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Page 13
from denying an extension of the original visa based on reassessment of petitioner's qualifications. Texas
A&M Univ. v. Upchurch , 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004).
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with
the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
Accordingly , the appeal will be dismissed.
ORDER: The appeal is dismissed.