dismissed L-1A Case: Restaurant

PWC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
cu 
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FILE: EAC 07 247 5 1247 Office: VERMONT SERVICE CENTER Date: 'a 8 9 2008 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( 1 5)(L) of the Immigration 
 . 
and Nationality Act, 8 U.S.C. 5 1 10 1(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
Administrative Appeals Office 
EAC 07 247 51247 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 9 1101(a)(15)(L). The petitioner, a Georgia corporation, operates an Indian specialty restaurant. The 
petitioner states that it is a subsidiary of Hotel Saravana Bhavan, located in Chennai, India. The petitioner 
seeks to employ the beneficiary in the position of management consultant/operations manager for a three-year 
period. 
The director denied the petition concluding that the petitioner did not establish: (1) that the beneficiary had 
been employed by the foreign entity in a primarily managerial or executive capacity; (2) that the beneficiary 
would be employed by the U.S. company in a primarily managerial or executive capacity; or (3) that the U.S. 
company and the beneficiary's foreign employer have a qualifying relationship. 
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, counsel for the petitioner asserts that the petitioner 
previously provided sufficient evidence to establish that the beneficiary has been and would be employed in a 
primarily managerial capacity. Counsel further asserts that the director overlooked previously submitted 
evidence demonstrating that the foreign entity purchased the U.S. company in December 2006, and therefore 
established the claimed parent-subsidiary relationship. Counsel submits a brief and documentary evidence in 
support of the appeal. 
To establish eligibility for the L-1 nonimmigrant 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. 5 214.2(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 (l)(l)(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 within the three years preceding the filing of 
the petition. 
EAC 07 247 5 1247 
Page 3 
(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 which the alien performed abroad. 
The first issue in the present matter is whether the petitioner established that beneficiary has been employed 
by the foreign entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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 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. 5 1101(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 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimmigrant visa petition was filed on August 28, 2007. In a letter dated July 6, 2007, the petitioner 
described the beneficiary's position with the foreign entity as follows: 
EAC 07 247 5 1247 
Page 4 
[The beneficiary] is serving as our Manager, Marketing Development where he has been 
managing all the crucial functions to our operations. The quality of our products which to a 
greater degree (more than 90%) determines how much sustained clientele we can generate 
depends on these functions. He has authority to make strategies decisions [sic] so that he can 
create that significant impact we know is possible on operations. His day-to-day decisions are 
key to our success. He has been Management Consultant/Operations Manager who will be 
responsible for the production of food which meets the quality standards for food service and 
procurement of food products including purchasing, ordering, receiving, storing and unit 
inventory quantities of food and supplies necessary for menus. He is also [sic] 
Responsible for designing and implementing marketing and sales strategies targeted at our 
customers and the hospitality industry as a whole. He has definitely been conducting analysis 
of our customers' demands and specifications to suggest the most appropriate hospitality 
service, as well as recommend modification to our recipeslfood to increase marketability and 
to broaden the niche in the hospitality industry. He has been developing plans to expand into 
various national and international markets. He continues to develop services designed to more 
effectively manage cost, quality and services resulting in improved customer service and/or 
continuous improvement. 
He has conducted research, gathering data on customer preference, guiding setting of 
competitive pricing and implementing market strategies. He has studied market research 
results in order to identify and capitalize on market trends in specialty food industry. He will 
also design and implement strategies to increase and broaden the customer base. 
He has also been responsible for co-ordination of food services at the restaurant, estimation of 
food and beverage costs; hire and assign personnel; investigate and resolve food quality and 
service complaints, review financial transactions and monitor budget to ensure efficient 
operation and to ensure that expenditures stay within the budget limitations; coordinate 
activities of and direct indoctrination and training personnel in the restaurant to ensure an 
efficient and profitable food service; direct marketing plans and promote popularity of 
various dishes; review menu, analyze recipes, determine food, labor and overhead costs, 
ensure that food preparation and cooking, sizes of portions, and garnishing of foods meets 
prescribed manner; establish and enforce nutrition and sanitation standards for restaurant, etc. 
In summary, the beneficiary's duties can be grouped thus: 
Strategic planning, marketing research including market expansion; develop position control 
system to contain labor cost; coordinate the resources and activities required to meet demands 
of customers; supervise/perform business functions; (60%) 
Market strategies, promotional efforts, market comparison, etc. (40%) 
EAC 07 247 5 1247 
Page 5 
The director issued a request for additional evidence on September 11, 2007. The director requested, inter 
alia, additional evidence to establish that the beneficiary was employed by the foreign entity in a primarily 
managerial or executive capacity. Specifically, the director requested that the petitioner provide information 
regarding: the job titles and duties of the beneficiary's subordinates; the amount of time he devoted to 
managerial or executive duties while employed by the foreign entity; and the degree of discretionary authority 
he had over day-to-day operations. The director also requested an organizational chart depicting the 
management structure of the foreign company. 
The petitioner responded to the director's request on October 26, 2007. 
 The petitioner submitted an 
organizational chart for the foreign entity which depicts employees by surname only. It appears that the 
 . 
beneficiary is identified as "Management/Operations/Marketing" in the "Production & Sales" department 
which is notated "currently 52 branches." The employees who are listed under the position include a kitchen 
manager, a deputy manager, an assistant manager, a kitchen supervisor, and an "FSD/Floor Manager." The 
floor manager is depicted as supervising four chefs, an assistant cook, a head baker, a pantry man, and a 
helper. 
The director denied the petition on November 6, 2007, concluding that the petitioner had not established that 
the beneficiary was employed by the foreign entity in a primarily managerial or executive capacity. In 
denying the petition, the director noted that "no position description, delineation of duties or other supporting 
documentation was submitted to demonstrate the position and capacity that the beneficiary may have worked 
in the foreign company." 
On appeal, counsel for the petitioner asserts that the company's initial submission contained information 
regarding the beneficiary's position with the foreign entity, and such information demonstrates that the 
position is "managerial in scope and character." Counsel asserts that the petitioner also submitted the foreign 
entity's organizational chart, which corroborates its claim that the position is managerial in nature. Counsel 
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contends that the petitioner's claims are substantiated with evidence that the beneficiary's duties are 
"sufficiently managerial to be qualifying duties as required by the regulations." 
Upon review of the petition and the evidence, the petitioner failed to establish that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look fust to the 
petitioner's description of the job duties. See 8 C.F.R. tj 214.2(1)(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. 
While the petitioner submitted a lengthy description of the beneficiary's alleged position of "Manager, Market 
Development," the duties listed appear to be an amalgamation of two to three different positions, and the 
letter in fact contains references to a "Manager, Food Production" position and indicates that the beneficiary 
"has been Management Consultant/Operations Manager." Based on these discrepancies, it is difficult to 
 . 
determine which duties the beneficiary actually performs with the foreign entity or where his position lies 
within the company's organizational hierarchy. Some of the listed duties relate to marketing and promotion, 
some duties relate to supervision of food production activities, and some duties relate to purchasing and 
inventory functions. It has not been established that all of these duties would in fact be combined into one 
EAC 07 247 5 1247 
Page 6 
position, particularly since the petitioner goes on to state that the beneficiary devotes 60 percent of his time to 
strategic planning, marketing research, coordinating resources and supervising/performing business functions, 
and 40 percent of his time to "market strategies, promotional efforts, market comparison, etc." The general 
breakdown of the beneficiary's duties therefore does not appear to include the food production management 
and procurement functions which figured prominently in the more detailed description provided by the 
petitioner within the very same letter. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Id. at 59 1. 
Furthermore, even assuming that the position description included in the petitioner's letter dated July 6, 2007 
presented a complete and accurate account of the beneficiary's duties, the listed responsibilities have not been 
shown to be managerial or executive in nature. The claimed managerial responsibilities are described in vague 
and non-specific terms that fail to identi@ what the beneficiary does on a day-to-day basis. For example, the 
petitioner stated that the beneficiary "has been managing all the crucial functions of our operations," "has 
authority to make "strategi[c] decisions," and "has been developing plans" for expansion. The petitioner 
failed to explain what specific "crucial functions" the beneficiary manages or how he manages them, or what 
"strategic decisions" are within his power to make. 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 daily routine. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 
F.2d 4 1 (2d. Cir. 1990). 
Many of the more specific duties listed in the beneficiary's position description do not rise to the level of 
managerial or executive in nature. For example, duties such as holding responsibility for "purchasing, 
ordering receiving, storing and unit inventory quantities of food and supplies," "conducting analysis of our 
customers' demands," conducting research, gathering data, studying market research results, coordinating 
food services, estimating food and beverage costs, resolving customer complaints, training personnel, 
reviewing menus, analyzing recipes, and overseeing cooking, portion sizes and garnishes are not duties that 
have been shown to be managerial or executive in nature. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 10 l(a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to sufficiently document what proportion of the beneficiary's duties 
would be managerial functions and what proportion would be non-managerial. As noted above, the general 
breakdown provided by the petitioner is of little probative value as it does not encompass all of the areas of 
responsibility claimed to be under the beneficiary's supervision. The petitioner lists the beneficiary's duties as 
including both managerial and administrative tasks,'but fails to adequately quantify the time the beneficiary 
spends on them. This failure of documentation is important because several of the beneficiary's daily tasks do 
not fall directly under traditional managerial duties as defined in the statute. For this reason, the AAO cannot 
determine whether the beneficiary is primarily performing the duties of a manager. See lKEA US, he. v. US. 
Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
EAC 07 247 5 1247 
Page 7 
Upon review of the initial evidence, the director specifically requested additional evidence regarding the 
management and personnel structure of the foreign entity, including the number of subordinate supervisors, 
their job titles and duties, the amount of time the beneficiary allots to manageriaVexecutive duties, and his 
degree of discretionary authority. The regulation states that the petitioner shall submit additional evidence as 
the director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established. See 8 C.F.R. 
$5 103.2(b)(8) and (12). 
 The only evidence submitted in response to the director's specific request is an 
organizational chart which depicts a as "Mgmt/Operations/Mktg," and shows that he supervises 
various kitchen staff. 
 The petitioner failed to provide the requested position descriptions for the staff 
reporting to the beneficiary, nor did it provide the requested information regarding how the beneficiary 
divides his time between qualifying and non-qualifying duties. The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. $j 103.2(b)(14). The 
petitioner also failed to explain the introduction of what appears to be yet another job title for the beneficiary. 
Again, it is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
at 591-92. Further, given the petitioner's claim in its initial letter that the beneficiary's job title is Manager, 
Marketing Development, it is not entirely credible that he supervises kitchen staff in the performance of his 
duties. 
The beneficiary will not be considered to be employed in a managerial capacity simply because he has been 
given various managerial job titles and placed at a senior level in the foreign entity's organizational chart. The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
at 1108. Based on the petitioner's failure to provide a clear and credible account of the beneficiary's current 
job title, duties and the amount of time he devotes to his duties, and its failure to provide the requested 
information regarding the beneficiary's subordinate staff, the AAO cannot discern with any degree of 
certainty what position the beneficiary holds or what constitutes his day-to-day duties. Therefore, the 
petitioner has failed to establish that the beneficiary performed primarily managerial or executive duties in his 
current role with the foreign entity. The petitioner has not submitted additional evidence on appeal to 
overcome the director's determination. Accordingly, the appeal will be dismissed. 
The second issue in this matter is whether the petitioner established that the beneficiary will be employed by 
the United States entity in a primarily managerial or executive capacity. 
In its letter dated July 6, 2007, the petitioner stated that it seeks to employ the beneficiary as the management 
consultant/operations manager for its Atlanta branch. Although the beneficiary has not previously been 
granted L-1 status to work for the petitioning organization in the United States, the petitioner stated that it is 
"constrained to request the extension of the services of the beneficiary who has clear knowledge, expertise 
and experience with our unique recipes which he has protected over the years." In the same letter, the 
petitioner also referenced the beneficiary's transfer from California to New York. Again, it is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BLA 1988). Since the 
beneficiary in this matter is clearly being transferred from India and does not currently hold L-1 status, it 
EAC 07 247 5 1247 
Page 8 
appears that the petitioner is simply re-using a letter submitted in support of another employee's petition and 
substituting the beneficiary's name, thus raising questions regarding the accuracy of the submitted 
information in describing the beneficiary's actual role within the petitioner's organization. 
The petitioner described the offered position as follows: 
At this time, we have the need for a Management Consultant/Operations Manager who will 
be responsible for the production of food which meets the quality standards for food service 
and procurement of food products including purchasing, ordering, receiving, storing and unit 
inventory quantities of food and supplies necessary for menus. He will also [sic] 
Examine and study the potential for expansion into newer markets in Atlanta metropolis and 
vicinity. Plan services designed to provide clearer, more effective and focused strategic and 
tactical business operations. 
Conduct cost comparisons with competitors in the food industry and develop an optimal 
project margin. 
Design training and development programs that result in improved management, 
communication and productivity skills. 
Continuously develop services designed to more effectively manage cost, quality and services 
resulting in improved customer service and/or continuous improvement. 
Work with management to introduce newhmproved products/services to cater not just the 
Asian population already familiar with the quality of our products and services but to the 
broader American publics. This is crucial to the business growth. 
Advise company on promotional strategies to target both American and other ethnic markets. 
Project long & short term business goals and create unique marketing strategies and tactics to 
support the achievement of these business goals. 
Analyze competitors' positioning in the market relative to ours, including detailing their 
services, products, price strategies, affiliations, and promotional efforts and a comparison of 
their marketing efforts, assessment of the strengths, weaknesses, opportunities and threats. 
Identify potentially profitable market segments and perform feasibility analysis and 
demographic analysis of the geographic sites to be able to develop a demand and service 
needs analysis, establishing the needs for additional services in any locale and the most 
appropriate means of providing the services for that community including mobile units or 
store front offices. 
Provide continuing services to the company in implementing and improving upon business 
strategies in the different markets. 
EAC 07 247 5 1247 
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The individual will develop plans to operate new locations, supervise and direct personnel 
program and training. The individual will negotiate contracts; coordinate production, and 
product quality in accordance with policies, principles, and procedures established by the 
business owner; 
Drawing on his theoretical and practical knowledge and experience of the industry, [the 
beneficiary] will make recommendations to enhance and streamline operations of the 
company. He will initiate audits of operations, structure, and process to make policy 
recommendations and implement solutions and/or improvements. He will continue to rely on 
his sophisticated managerial background to make operational decisions in issues outlined by 
laws, guidelines, board directives or other written documents to increase the company's 
business process, inventory and ultimately, profitability. He will draw on his prior 
management experience to resolve personnel problems, handle complaints, infractions, and 
ensure professional execution of responsibilities. Furthermore [the beneficiary] will represent 
the company to third parties, including government agencies. 
In the request for evidence issued on September 11, 2007, the director requested additional evidence to 
establish that the beneficiary would be employed in a primarily managerial or executive capacity with the 
U.S. entity. Specifically, the director requested: (1) a comprehensive description of the beneficiary's proposed 
duties, including the approximate percentage of time he would spend on each duty to be performed; (2) 
documentation of how many other individuals in the company are or would be employed in the same position 
or similar positions; (3) brief job descriptions for other employees in the organization, including job titles, 
duties and education requirements; (4) information regarding the number of supervisors under the 
beneficiary's management and their job titles and duties; (5) the amount of time the beneficiary will devote to 
managerial/executive duties; (6) the degree of discretionary authority the beneficiary will have in the 
company's day-to-day operations; and (7) an organizational chart for the petitioner which depicts the 
management structure of the organization. 
In response, the petitioner submitted a letter dated October 22, 2007, in which it further described the 
beneficiary's proposed duties as follows: 
The job duties are peculiar and complex with respect to the restaurant business. The 
Product/Service Management Consultant will examine and study the potential for expansion 
into newer markets in South Eastern United States and vicinity. 
Proactively identify growth opportunities by category, customer and brand and communicate 
action plan to address each. 
Customize strategic business initiatives such as new item launches or strategies to ensure 
executional [sic] excellence at the customer/market level. 
Plan services designed to provide clearer, more effective and focused strategic and tactical 
business operations. 
EAC 07 247 5 1247 
Page 10 
Examining and studying potential for expansion into new business areas. Identifying 
company's requirements to expand into new markets. Studying all functional areas including 
service planning, finance, accounting and marketing of the company. 
Conducting cost comparisons with competitions in the food industry and developing and 
optional project margin. Advising on promotional strategies to targeted both American and 
ethnic markets. Providing continuing consultation of the company in implementing and 
improving upon business strategies in the different markets. Providing continuing study and 
information on the feasibility of reaching, implementing and improving business in diverse 
populations in Southeast United States. 
Prepare presentations to corporate consumer business prospects, markets and competitor 
activities for key client services and business development to support efforts to win new 
business. 
Conduct cost comparisons with competitors in the food industry and develop an optimal 
profit margin. 
Working with the marketing and communications personnel, design training and development 
programs that will result in reaching a wider market than the Indian population in the U.S., 
improved management, communication and productivity skills. 
Continuously develop services designed to more effectively manage cost, quality and services 
resulting in improved customer service andlor continuous improvement. 
Work with management to introduce newlimproved productslservices to cater not just the 
Asian population already familiar with the quality of our products and services but to the 
broader American public. This is crucial to the business growth. 
Advise company on promotional strategies to target both American and other ethnic markets. 
Project long & short term business goals and create unique marketing strategies and tactics to 
support the achievement of these business goals. 
Analyze competitors' positioning in the market relative to ours, including detailing their 
services, products, price strategies, affiliations, and promotional efforts and a comparison of 
the marketing efforts, assessment of the strengths, weaknesses, opportunities and threats. 
Identify potentially profitable market segments and perform feasibility analysis and 
demographic analysis for the geographic sites to be able to develop a demand and service 
needs analysis, establishing the needs for additional services in any locale and the most 
appropriate means of providing the services for that community including mobile units or 
store front offices. 
EAC 07 247 5 1247 
Page 11 
Provide continuing services to the company in implementing and improving upon business 
strategies in the different markets. 
The individual will develop plans to operate new locations, and manage personnel programs 
and training. 
In summary, the beneficiary's duties can be grouped thus: 
Planning, study the potential for expansion of the business and devise ways to expand the 
business, provide clearer, more effective and focused strategic and tactical business 
operations, study competition and make recommendations; etc. - 70% 
Profitability and feasibility analysis, pricing, promotional efforts, cost management - 3 0% 
The petitioner enclosed an organizational chart for the U.S. company, and noted that it recently acquired the 
business and is in the process of "completely overhauling" its operations. The petitioner stated that it could 
not provide copies of Forms W-2, as the employees of the previous owner do not work for the petitioning 
company. The petitioner also noted that they have requested that certain key employees be transferred to the 
U.S. from the parent company but that only two or three of them have been able to enter the United States. 
The organizational chart submitted identifies neither the beneficiary nor his proposed position as management 
consultant/operations manager. The chart does depict an open "management analyst" position, which reports 
 . 
to the petitioner's branch manager and has no subordinates. The petitioner provided the requested position 
descriptions for the other employees and open positions within the organization. 
The director denied the petition, concluding that the petitioner had failed to establish that the beneficiary's 
duties would be primarily managerial or executive in nature. The director noted that, in light of the depicted 
staffing and scope of business, it seems probable that the beneficiary will be primarily engaged in the 
performance of non-qualifying duties. 
On appeal, counsel for the petitioner asserts that the director "ignored the important job duties of examining 
and studying potential for expansion into new business areas and identifying company's requirements to 
expand into new markets." Counsel emphasizes that the position "is to study all functional areas including 
service planning, finance, accounting and marketing of the company as well as providing continuing study 
and information on the feasibility of reaching, implementing and improving business in diverse populations in 
Southeast United States." 
When examining the executive or managerial capacity of the beneficiary, the AAO will look fvst to the 
petitioner's description of the job duties. See 8 C.F.R. tj 214.2(1)(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. 
Although the petitioner provided a lengthy position description, it fails to demonstrate how the beneficiary's 
duties would be primarily managerial or executive in nature. For example, the petitioner indicated that the 
beneficiary will "proactively identify growth opportunities," "customize strategic business initiatives," "plan 
 . 
EAC 07 247 5 1247 
Page 12 
services," study potential for expansion, study "functional areas," including service planning, finance, 
accounting and marketing," conduct cost comparisons, advise on promotional strategies, prepare 
presentations, develop services, introduce new products and services, analyze competitors' positioning, and 
perform feasibility analysis. The majority of the beneficiary's duties involve research, study, analysis and 
reporting with respect to the petitioner's alleged expansion activities, and the petitioner has not established 
that these duties fall under the statutory definition of either managerial or executive capacity. Rather, the 
beneficiary's duties appear to be more akin to those of a marketing or management analyst who researches a 
problem and provides recommendations to management, rather than those of a manager who supervises and 
controls a staff of subordinate managers, supervisors or professionals, or manages an essential function of the 
business. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Furthermore, although 
the petitioner indicates that that the beneficiary will be employed as management consultant/operations 
manager, it appears that his position is designated on the organizational chart as "management analyst." 
In addition, the petitioner's initial letter indicated that the position of management consultant/operations 
manager "will be responsible for the production of food which meets the quality standards for food service 
and procurement of food products including purchasing, ordering, receiving, storing and unit inventory 
quantities of food and supplies necessary for menus." Further, the petitioner initially indicated that the 
beneficiary would "negotiate contracts" and "coordinate production." These duties, which have not been 
shown to be managerial in nature, were not included in the position description submitted in response to the 
director's request for evidence, and no explanation was provided for their absence. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services or other non-qualifling 
duties 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 Int 'I., 19 I&N Dec. 593, 604 (Comm. 1988). 
Overall, the position descriptions submitted fall significantly short of demonstrating that the beneficiary 
would be employed in a primarily managerial or executive capacity. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. fj 1 10 l(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. fj 2 14.2(1)(l)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 5 2 14.2(1)(1)(ii)(B)(3). 
Here, the petitioner indicates that the beneficiary will be "working with the marketing and communications 
personnel," designing training and development programs," and "managing personnel programs and training." 
However, the petitioner does not indicate that it actually employs or intends to employ any marketing or 
communications personnel, nor does the petitioner's organizational chart indicate that any current or proposed 
employees would report to the beneficiary's proposed position. Therefore, the petitioner has not established 
that the beneficiary qualifies for the benefit sought as a "personnel manager." 
EAC 07 247 5 1247 
Page 13 
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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. § 1 10 1 (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 detailed description of the beneficiary's duties that identifies 
the function with specificity, articulates the essential nature of the function, and establishes the proportion of 
the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 5 214.2(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. 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. Boyang, Ltd. v. INS., 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 operational 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 
within the organizational hierarchy, the depth of the petitioner's organizational structure, the scope of the 
beneficiary's authority and its impact on the petitioner's operations, the indirect supervision of employees within 
 . 
the scope of the function managed, and the value of the budgets, products, or services that the beneficiary 
manages. 
Here, the petitioner has not specifically stated that the beneficiary will be managing a function, nor has it 
provided a detailed position description that is comprised of primarily managerial or executive duties. The 
petitioner refers to the company's "expansion into new business areas," and the beneficiary's responsibility to 
"study all functional areas," but the petitioner's statements fall significantly short of specifically identifying a 
function to be managed by the beneficiary. The petitioner's alleged expansion plans for the southeast United 
States have also not been documented. The petitioner stated in its letter dated October 22, 2007 that "more 
branches are planned for immediate activation in Alpharetta Georgia; Morrow, Georgia; Orlando, Florida; 
Miami, Florida, etc., in the immediate future." The petitioner also stated that its "Vice President, Worldwide 
Operations & Branch Development" is in the United States "furthering this purpose," but this employee does 
not appear on the petitioner's organizational chart. The petitioner provided no supporting evidence to 
corroborate the claimed expansion efforts. Furthermore, the petitioner does not indicate that it intends to 
employ any administrative, market research or other support staff who would assist the beneficiary, either 
 . 
directly or indirectly, with the company's promotion and expansion efforts and all of the inherent study, data 
collection and analysis inherent to the beneficiary's responsibilities. In view of the size and nature of the 
petitioner's purported business, it appears that the beneficiary will more likely than not perform the tasks 
related to his "function" rather than truly "manage" the function. See generally Family, Inc. v. US. 
Citizenship and Immigration Services, 469 F.3d 13 13, 1316 (9" Cir. 2006). The fact that the beneficiary is 
the only employee charged with duties related to the marketing, promotion and expansion of the business is 
EAC 07 247 5 1247 
Page 14 
insufficient to elevate his status to that of a managerial or executive employee. Again, the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
 , 
the United States in a primarily managerial or executive capacity. 
The third and final issue addressed by the director is whether the petitioner established that there is a 
qualifying relationship between the U.S. and foreign entities. To establish a "qualifying relationship" under 
the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed 
U.S. employer are the same employer (i.e. one entity with "branch" offices), or related as a "parent and 
subsidiary" or as "affiliates." See generally section 10 l(a)(15)(L) of the Act; 8 C.F.R. 5 2 14.2(1). 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzjjing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The petitioner, , indicated on Form 1-129 that it is a subsidiary of Hotel Saravana 
Bhavan, located in Chennai, India. The petitioner stated in its letter dated July 6, 2007 that the U.S. company 
is a wholly-owned subsidiary of the foreign entity. The petitioner submitted the following evidence in an 
effort to establish the requisite relationship between the two companies: 
EAC 07 247 5 1247 
Page 15 
R 
A Certificate of Merger dated October 18, 2003, issued by the Georgia Secretary of 
State, which identifies "Madras Sarvana Bhavan, Inc." as surviving entity and "Pritam 
Restaurants and Catering, Inc." as non-surviving entity; 
A Certificate of Amendment issued by the Georgia Secretary of State on February 28, 
2007, which changes the name of "Madras Sarvana Bhavan, Inc." to "Madras Saravana 
B havan, Inc." 
Articles of Amendment to the Articles of Incorporation of Madras Saravana Bhavan, 
Inc. which removes the original Article 1, which states "The name of the Corporation is 
Madras Saravana Bhavan, Inc." and replaces it with a new Article I which states "The 
name of the Corporation is Asht Vinayak, Inc." The articles are dated February 14, 2008 
and were stamped as received by the Secretary of State on February 28,2007. 
A membership certificate for Saravana Bhavan, LLC, a New York limited liability 
company, issued to Hotel Saravana Bhavan on July 1,2005. 
In the request for evidence issued on September 11, 2007, the director requested that the petitioner submit a 
chart outlining the name changes for the petitioning company, and submit a listing of all locations operated by 
the U.S. company. The director also stated that nothing in the record clearly documented the legal ownership 
of the petitioner by Hotel Saravana Bhavan as claimed on the petition. The director instructed the petitioner to 
submit "legal documentation" to demonstrate that the foreign entity owns 100 percent of the U.S. company as 
claimed. 
In a letter dated October 22, 2007, the petitioner explained that it recently bought the business from Narendra 
Patel, who had been using the petitioner's name to do business. The petitioner submitted the following 
additional evidence: 
An assignment of lease dated December 15, 2006 between Madras Saravana Bhavan, Inc, as 
assignor and Fortune Food, Inc. as assignee. The original lease was signed by Madras Saravana 
Bhavan, Inc. in 200 1. 
Copy of stock certificate number one for Fortune Food, Inc., issuing 500 shares of its authorized 
stock to Hotel Saravana Bhavan Pvt. Ltd. The certificate is dated January 8, 2007 and indicates 
on its face that the company has 500 shares of authorized capital stock. 
The petitioner also indicated that it was submitting a purchase agreement, but this evidence was not included 
in the petitioner's response. 
The director denied the petition, concluding that the petitioner failed to establish that the petitioner and the 
foreign entity have a qualifjring relationship. In denying the petition, the director stated: 
The petitioner, Madras Saravana Bhavan, Inc. claims to be owned by a Hotel Saravana 
Bhavan. Documentation in the record shows that the United States entity was originally 
formed under another name and through merger in April 2003, was taken over by the United 
States petitioner. No legal documentation was submitted that shows how the foreign company 
owns the United States entity. 
EAC 07 247 5 1247 
Page 16 
On appeal, the petitioner asserts that it has submitted evidence of ownership of the petitioner, in the form of a 
stock certificate which shows that Hotel Saravana Bhavan owns and controls the U.S. entity. The petitioner 
resubmits the assignment of lease and the stock certificate number one issued by Fortune Food, Inc. to Hotel 
Saravana Bhavan. 
The petitioner also provides a "Settlement and Release Agreement" dated December 15, 2006 between 
Saravana Bhavan Holdings, LLC of the United Arab Emirates, Hotel Saravana Bhavan of India, Saravana 
Bhavan USA, Inc., a California corporation, Saravana Bhavan, LLC, a New York Corporation, and Fortune 
Food, LLC, a Georgia limited liability company (collectively referred to as "HSB") and Madras Saravana 
Bhavan, Inc., referred to as "MSB." The agreement indicates that MSB had asserted claims for relief against 
HSB in a civil action alleging trademark infringement. The agreement further indicates that HSB seeks to 
purchase and acquire from MSB its restaurant located at 179 Lawrenceville Highway in Decatur, Georgia and 
the agreement was entered into by the parties "in full settlement and satisfaction of any and all claims." The 
agreement indicates that the purchase price was $1.2 million. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Chmh Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate, 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
Upon review, the petitioner has not established the requisite relationship between the U.S. and foreign 
entities. All evidence submitted with the initial petition would have reasonably led to a conclusion that the 
petitioner in this matter is the Georgia corporation named "Madras Saravana Bhavan, Inc.," and, as noted by 
the director, there is no evidence that the foreign entity, Hotel Saravana Bhavan, owns this Georgia company. 
The introduction of a stock certificate for "Fortune Food, Inc.," without any additional explanation or 
documentation, was not sufficient to establish the qualifying relationship, considering that the name of the 
petitioning company has been consistently identified simply as "Madras Saravana Bhavan," Therefore, the 
record before the director did not establish the requisite parent-subsidiary relationship since there was nothing 
in the record to indicate that the petitioner in this matter and Fortune Food, Inc. were one and the same entity. 
The director's assumption that the petitioner in this matter is "Madras Saravana Bhavan, Inc." was reasonable 
EAC 07 247 5 1247 
Page 17 
given that all documentation in the record, with the exception of the stock certificates issued by Fortune Food, 
Inc., referred to this company and this company alone. 
The Settlement and Release Agreement that has now been entered into the record on appeal does associate 
Fortune Food with the foreign entity as a member of the same group of companies, but does not clearly 
indicate which company purchased the restaurant formerly owned and operated by Madras Saravana Bhavan, 
Inc. Regardless, the petitioner was put on notice of required evidence and given a reasonable opportunity to 
provide it for the record before the visa petition was adjudicated. The petitioner failed to submit the requested 
evidence and now submits it on appeal. However, the AAO will not consider this evidence for any purpose. 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
Furthermore, absent some evidence that Fortune Food, Inc. is doing business under the fictitious name 
"Madras Saravana Bhavan," the record is still insufficient to establish that the beneficiary will be employed 
by a company that has a qualifying relationship with Hotel Saravana Bhavan. It is noted that the petitioner, 
rather than submitting voluminous and irrelevant evidence related to the former owner of the restaurant the 
petitioner now claims to operate, could have greatly simplified matters by using its registered name on the 
petition, and providing its articles of incorporation, the purchase settlement agreement, the assignment of 
lease, its stock certificate, evidence that the purchase was consummated, and evidence that it has registered a 
fictitious name allowing it to operate as "Madras Saravana Bhavan." In light of all of the deficiencies in the 
evidence in the record, the petitioner has not established that it maintains the claimed qualifying relationship 
with the foreign entity. For this additional reason, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.