dismissed L-1A Case: Rice Milling

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U.S. Department of Homeland Security 
U.S. Citizenship and Irrunigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529·2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: NOV 0 ! 2011 Office: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOJ(a)(IS)(L) of the Immigration 
and Nationality Act, 8 U,S.C. § I 10 I (a)(1S)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.S. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $S8S. Please be aware that 8 C.F.R. § 103.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
',- Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 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 extend the employment of its operating manager as 
an L-IA nonimmigrant intracompany transferee pursuant to section IOI(a)(IS)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § I 10 I (a)(lS)(L). The petitioner is an Indian engaged in rice 
milling. It claims to be the parent company of imited liability~, 
which in tum is claimed to have a majority-owned U.S. subsidiary, , a_ 
corporation. The beneficiary was initially granted one year in L-I A classification in order to open a new 
office in the United States and has received a one-year extension of status. The petitioner now requests that 
she be granted three additional years in L-IA status so that she may continue to manage both U.S. companies. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that the director applied an inappropriate 
standard of review and erroneously denied the petition without challenging the credibility, relevance or 
probative value of the submitted evidence. Counsel suggests that the director placed undue emphasis on the 
size of the U.S. operations, and overlooked the petitioner's description of the beneficiary's duties. Finally, 
counsel cites to a 2004 USCIS policy memorandum in support of his assertion that the director should have 
given deference to the prior determination that the beneficiary is eligible for L-I A classification. 
Counsel indicated on the Form I-290B, Notice of Appeal or Motion, that he would submit a brief or evidence 
to the AAO within 30 days of filing the appeal. The appeal was filed on October 23, 2009 and no brief or 
additional evidence has been received as of this date. Accordingly, the record will be considered complete. 
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section IOI(a)(IS)(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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. § 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 (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. 
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 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. 
I. Employment in a Managerial or Executive Capacity 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the United States entity in a qualifying managerial or executive capacity. 
Section lOI(a)(44)(A) of the Act, 8 U.S.c. § IIOI(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. § I 101 (a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
Page 4 
(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 petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on July 31, 2009. In a letter dated 
July 28, 2009, the petitioner stated that the beneficiary, in her role as operating manager, will continue to 
oversee the operations of its U.S. subsidiary, liability company 
established in June 2007. The petitioner indicated that the U.S. and 
_ franchise in early 2009. In addition, the stated that owns a 51 percent interest 
corporation, The petitioner stated that 
has seven employees and has three employees. 
With respect to the beneficiary's job duties, the petitioner stated: 
She will identify, develop and direct operational activities and oversee the training and hiring 
and it [sic] necessary firing of U.S. staff for executive and supervisory positions. She will 
oversee the financial development including sales and marketing. [The beneficiary] will 
continue to be responsible for planning internal communications, developing an awareness of 
corporate direction, mission, aims and activities. She will negotiate contracts and agreements 
with clients and suppliers and review budgets prepared by her staff. She will report to [the 
Indian parent company] on organizational plans and performance. 
The petitioner's supporting evidence included IRS Forms 941, Employer's Quarterly Federal Tax Return, and 
state quarterly wage reports for both U.S. entities for the first two quarters of 2009. The 
reported seven employees as of June 2009, while 
emlpl()yees, including the beneficiary. The beneficiary was not on 
the indicated on the Form 1-129 that the beneficiary's work site is in 
operates the franchise. 
The director issued a request for additional evidence ("RFE") on August 7, 2009. The director instructed the 
petitioner to submit, inter alia, the following: (1) a more detailed description of the beneficiary's duties in the 
United States, including the percentage of time spent performing each specific duty; (2) an organizational 
chart for the U.S. entity which clearly identifies the beneficiary's position and the names and job titles of her 
subordinates; (3) a detailed description of the job duties, educational level, annual salaries/wages and 
immigration status for all employees under the beneficiary's supervision; (4) copies of state quarterly wage 
reports for the last four quarters; and (5) copies of the U.S. company's payroll summary, Forms W-2 and W-3 
evidencing wages paid to employees. 
In a letter dated September 15, 2009, counsel submitted the following description of the beneficiary's duties as 
operating manager: 
Page 5 
50 percent of daily duties (25 hours per week) are a combination of: 
• Continue to oversee start-up operations in the U. S. - banking, meeting with professionals 
- accountants, attorneys, real estate and others. 
• Meet with representatives and agents of 
-• Plan, develop and establish strategic goals, objectives and policies 
employees to follow. 
• Develop merger and acquisition opportunities for expansion of the company into the U.S. 
market. Meet with executives of companies to discuss a possible partnership. Participate 
in business development opportunities. 
• Oversee human resource issues including hiring and if necessary firing of employees. 
• Responsible for initializing and completing contract negotiations including financial debt 
instruments. 
30 percent of daily duties (15 hours per week) are a combination of: 
• Review sales reports to detennine sales potential and customer preferences for _ 
• Review weekly financials reports and other performance data written by Manager. 
• Detennine areas needing cost reduction and program improvement and report finding to 
parent company's management. 
• Review payroll and expense reports and make changes or ensure compliance. 
20 percent of daily duties (10 hours per week) are a combination of: 
• Oversee marketing and sales campaigns. Work to develop Public Relations opportunities 
and press opportunities. 
• Maintain communication links with [the parent company 1 in India. 
The petitioner stated that employs nine employees, including the beneficiary, and that the staff 
includes a manager, three sandwich artists, two slicers, one cleaner and one delivery person. The petitioner 
indicated that all employees work at least 40 hours per week. The petitioner provided a detailed position 
description for each worker. 
The petitioner provided copies of Quarterly Wage Report for the first two quarters of 
2009, along with the company's payroll summary through August 2009. This documentation confinned the 
employment of seven of the beneficiary's eight subordinates, but did not support the petitioner's claim that it 
employs full-time workers. One of the petitioner's sandwich makers_ was not named on any 
quarterly report or in the payroll summary. The remaining two sandwich makers appear to have been hired in 
July or August of 2009, perhaps after the petition was filed. One worked a total of 45.5 hours through August 
31,2009, while the other worked a total of 34 hours. The petitioner's slicers and delivery person, based on the 
evidence submitted worked more hours (between 910 and 1042 hours each) in the first eight months of 2009, 
but not on a full-time basis. The individual identified as a full-time cleaner worked only 223 hours through 

Page 6 
August 2009. The evidence shows that the manager is a salaried employee who presumably works on a full­
time basis. 
With respect to . counsel stated that the company has three employees, including the 
beneficiary. The petitioner indicated that the company currently has a vacancy for a clerk and employs a full­
time manager. The company's New York state quarterly wage reports indicate that the beneficiary and the 
manager are the company's only current employees. 
The petitioner's organizational chart indicates that the beneficiary oversees the managers of both __ 
_ and 
The director denied the petition on September 26, 2009, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a qualitying managerial or executive capacity under the extended 
petition. In denying the petition, the director determined that the beneficiary's position description includes a 
combination of vague and non-qualitying duties and is insufficient to establish that she would be engaged in 
primarily qualitying tasks. In addition, the director observed that the petitioner's payroll and quarterly wage 
records do not support its claims regarding the number of employees working for the two U.S. companies or 
the petitioner's claims that its employees work on a full-time basis. 
On appeal, counsel for the petitioner asserts that the beneficiary "does in fact hold a managerial position in 
that she is the person making personnel decisions and all decisions regarding strategy and economic risks." 
Counsel contends that the position description submitted was sufficiently detailed to establish that the 
beneficiary will be employed in a primarily managerial position, and the fact that the petitioner operates a 
small business should not prohibit a finding that the beneficiary is employed as a manager or executive. 
Counsel further asserts that the director erroneously denied the petition without challenging the credibility, 
relevance or probative value of any of the submitted evidence. Counsel specifically refers to a 2004 USCIS 
memorandum to support his assertion that it is USClS policy that prior approvals should be given deference. 
See Memorandum of William R. Yates, Associate Director for Operations, USCIS: The Significance of a 
Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding 
Eligibility of Petition Validity (April 23, 2004)("Yates Memorandum"). The memorandum provides that 
exceptions to this policy should be made where: (1) it is determined that there was a material error with regard 
to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new 
material information that adversely impacts the petitioner's or beneficiary's eligibility.ld 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in the United States in a primarily managerial 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(I)(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. ld 
While the petitioner has provided a list of eleven duties performed by the beneficiary and the amount of time 
she will devote to three areas of responsibility, the petitioner failed to provide the detailed description of the 
Page 7 
position requested by the director in the RFE and required by regulation. The petitioner indicates that the 
beneficiary will devote 50 percent of her time to duties that include "oversee start-up operations," "plan 
develop and establish strategic goals, objectives and policies," "oversee human resources," and "initializing 
and completing contract negotiations." The petitioner offered no explanatory information regarding the 
objectives and policies that must be established on an ongoing basis, the nature of the beneficiary's contract 
negotiations, or clarification as to why the beneficiary is still required to oversee "start-up operations" two 
years after establishment of the U.S. operations. The petitioner's statements provide little insight into the 
specific tasks the beneficiary will perform on a day-to-day basis, such that they could be classified as 
managerial or executive in nature. 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). 
Based on the petitioner's description of the beneficiary's duties, much of the remainder of the beneficiary's 
time is devoted to either reviewing financial and sales reports prepared manager and 
overseeing sales and marketing campaigns with the assistance of the manager. As discussed further below, a 
review of the evidence as a whole raises questions as to how much time the manager actually devotes to 
writing reports or to design sales and marketing materials. 
The AAO's review of the beneficiary's job description is complicated by the petitioner's failure to clearly 
establish the beneficiary's role with respect to the petitioner's affiliate, The 
petitioner's organizational chart depicts as the operating manager of both U.S. entities; her 
••••• is located in _ and_ 
is located in 2009, the month before the petition was filed, the 
receiving wages from the corporation, and not the _ limited liability 
company; the petitioner indicates that the beneficiary's worksite will be working at ••••••••• 
retail location under the extended petition. Regardless of the beneficiary's actual location, the petitioner has 
not clarified how the beneficiary will manage two businesses in two different geographic locations, nor has it 
identified the beneficiary's duties with respect and the amount of time to be allocated 
to such duties. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soifici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Overall, while the record shows that the beneficiary is the majority owner of both U.S. entities, the definitions 
of executive and managerial capacity each 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 show 
that the beneficiary primarily performs these specified responsibilities and does not 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). 
The fact that the beneficiary manages or directs a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
Page 8 
sections 101(a)(15)(L) of the Act. By statute, eligibility for this classification requires that the duties ofa 
position be "primarily" of an executive or managerial nature. Sections 10 I (A)( 44)(A) and (B) of the Act, 8 
u.s.c. § 110 I (a)( 44). Pursuant to the strict statutory definitions, section 101(a)(15)(L) of the Act does not 
include any and every type of "manager" or "executive," such as staff officers or specialists, self-employed 
persons who perform the management activities involved in practicing a profession or trade, or a first-line 
supervisor of non-professional employees. See section 101 (a)( 44)(A)(iv) of the Act; see also 52 Fed. Reg. 
5738,5740 (February 26, 1987)(available at 1987 WL 127799). While the AAO does not doubt that the 
beneficiary exercises discretion over the U.S. company's day-to-day operations and possesses the requisite 
level of authority with respect to discretionary decision-making, the petitioner has failed to show that the 
beneficiary's duties as of the date of filing were primarily managerial or executive in nature. 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) 
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. The petitioner indicates that the beneficiary directly 
oversees the managers of and . and is thus relieved from performing 
first-line supervisory duties as well as from performing the day-to-day operations of each business. 
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. § IIOl(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 
101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 214.2(1)(1)(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. § 214.2(1)(1 )(ii)(B)(3). 
While the petitioner indicates that the beneficiary will oversee two "managers," the beneficiary's job 
description contains no reference to the beneficiary's duties with respect Given 
that the beneficiary and the manager, based on the evidence of record, are the sole employees of the _ 
_ company, and the petitioner now indicates that the beneficiary will be working in _ it is 
reasonable to conclude that the "manager" o~ and _. operates the business single-handedly, 
and will not be performing managerial or supervisory duties. The manager of based on the 
description submitted, will perform first-line supervisory and administrative tasks. Therefore, the record 
indicates that the beneficiary will supervise one subordinate supervisor. The portion oftime the beneficiary 
will allocate to supervising this employee, however, has not been provided by the petitioner, and the record 
does not support a conclusion that the beneficiary will allocate the majority of her time to supervising this one 
employee. Therefore, the petitioner has not established that the beneficiary will be employed by the U.S. 
entity primarily as a "personnel manager." 
Page 9 
The petitioner has not claimed that the beneficiary will manage an essential function of the U.S. company, 
and the record would not support such a finding even if the petitioner had claimed that the beneficiary 
qualifies as a function manager. 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 IOI(a)(44)(A)(ii) of the Act, 8 u.s.c. § 
llOl(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 position description that 
identifies the duties to be performed in managing the essential function, i.e. 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. § 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. Neither counsel nor the petitioner has 
identified with specificity any essential function to be managed by the beneficiary, nor clearly established 
how much of the beneficiary's time would be devoted to management duties associated with an essential 
function. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Safflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within an 
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. § 110I(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 employees 
for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the 
organization rather thau the day-to-day operations of the enterprise. An individual will not be deemed an 
executive under the statute simply because they have an executive title or because they "direct" the enterprise 
as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization." Id. It is the petitioner's burden to establish that someone 
other than the beneficiary carries out the day-to-day, non-executive functions of the organization. Here, while 
the beneficiary is responsible for the goals and policies of the company as its operating manager, the evidence 
of record fails to demonstrate that these are her primary duties, and, as discussed further below, the record 
does not establish that the U.S. company has sufficient staff to perform all of the non-qualifying duties 
associated with operating the business. 
The AAO acknowledges that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determ ining factor in denying a visa to a multinational manager or executive. 
See § 10I(a)(44)(C) of the Act, 8 U.S.c. § I 101 (a)(44)(C). However, in reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that USCIS "may properly 
consider an organization's small size as one factor in assessing whether its operations are substantial enough 
to support a manager." Family Inc. v. Us. Citizenship and Immigration Services 469 F. 3d 1313,1316 (9,h 
Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. 
Co. v. Sava, 905 F.2d 41, 42 (2d Cir. I 990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 
29 (D.D.C. 2003)). It is appropriate for USCIS 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, IS 
(D.D.C. 2001). 
With respect to the petitioner's claimed subsidiary, we note that the company, 
which operates a retail convenience, card and gift store has documented only two employees, 
including the beneficiary, who is claimed to work in _ Even if the petitioner did establish that the 
beneficiary will be spending a portion of her time in _ as an employee of this company, the 
petitioner did not establish how the store's sole other employee would relieve her from performing non­
managerial duties associated with the operation of the business, or why a store with two employees has a 
reasonable need for an operating manager and a manager, but no clerks, cashiers or other lower-level 
employees. If the beneficiary is working for this company, it is reasonable to conclude that her duties are 
primarily non-managerial in nature. 
The petitioner's other claimed U.S. subsidiary, operates a sandwich store that is likely open for 
business daily for significantly longer than 40 hours per week. 1 The petitioner claims to employ up to eight 
full-time employees subordinate to the beneficiary, but, as noted by the director, the record does not support 
the petitioner's claim that the employees work on a full-time basis. As discussed above, the record documents 
an aggregate of less than 80 hours worked by the company's three "sandwich artists" during the first eight 
months of2009. The company's slicers and sole delivery person worked more hours, but were not employed 
full-time, and the petitioner's sole cleaning person worked less than 250 hours in eight months. While the •. 
_ store does appear to have a full-time salaried manager, the petitioner has not established that he 
would be fully relieved from directly providing the products and services of the business, nor has the 
petitioner established who would perform his administrative and first-line supervisory duties during the 
operating hours when he is not present in the store. In addition, the petitioner has not provided a complete 
copy of its franchise agreement with which likely contains critical information regarding 
expectations regarding the management of the store, such as any requirements that there be a food service 
manager on the premises during operating hours. Overall, while the petitioner has documented that _ 
_ employs on average approximately seven workers, the petitioner has not supported its claim that this 
staff is capable of performing the non-qualitying duties associated with the day-to-day operations of the fast 
food restaurant. 
The petitioner, as a service-oriented business with long operating hours, cannot establish its ability to support 
a qualitying managerial or executive position if it does not have sufficient lower-level workers and first-line 
supervisors to perform the non-qualitying duties of the business. Furthermore, the reasonable needs of the 
I According to the website for location operated by _is 
open from 10:00 a.m. to 9:00 p.m. daily. See "Location Search" https://order.mrgoodcents.com/ 
Locations .aspx?all=ot&ctlOO _ MainArea JadgLocationChangePage~3 
petitioner will not supersede the requirement that the beneficiary be "primarily" employed in a managerial or 
executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.c. § 
1 10 1 (a)(44). The reasonable needs of the petitioner may justify a beneficiary who allocates 51 percent of his 
or her duties to managerial or executive tasks as opposed to 90 percent, but those needs will not excuse a 
beneficiary who spends the majority of his or her time on non-qualifying duties. Regardless of the 
beneficiary's position title, the record is not persuasive that the beneficiary will function at a senior level 
within an organizational hierarchy. Even though the enterprise is in a preliminary stage of organizational 
development, the petitioner is not relieved from meeting the statutory requirements. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a qualifying managerial or executive capacity under the extended petition. 
II. Qualitying Relationship 
Beyond the decision of the director, the remaining issue in this matter is whether the pel:iti,)mor established 
that it has a qualitying relationship with the beneficiary's U.S. employer, and this company's 
claimed U.S. subsidiary, ' 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 I 01(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
The petitioning Indian entity indicates that it is the sole owner a •••••• limited 
liability company established in June 2007. The petitioner submitted a copy of the articles of organization for 
this company, along with a copy of its Membership Certificate # I identifying the Indian entity as the owner of 
51 membership units. The petitioner indicates that is qualified to do business in the State of 
-
However, the record shows that a new limited liability company, also named 
in_ in December 2008, and it is this company which acquired the 
was established 
petitioner submitted a document titled 
December I, 2008, which states: 
It was decided that instead 
franchise in 
acquiring interest in the newly formed 
nv,estiing directly in the purchase of. 
individually, on this LLC's behalf, by 
its initial IRS Form 1065, U.S. Return of Partnership Income, for the 2008 tax 
year. According to the Forms Schedule K-I, Partners Share of Income, Deductions, Credits, etc., the 
beneficiary owns a 90 percent interest in the Kansas limited liability company, while her spouse owns the 
remaining 10 percent. Based on the evidence of record, the beneficiary is one of seven owners of the foreign 
entity, but owns only a ten percent interest in that company. Therefore, the petitioner has not established that 
the Indian entity and are affiliates based on common majority ownership and control 
Page 12 
by the beneficiary, nor is the foreign entity the parent company of the newly established company which will 
serve as the beneficiary's u.s. employer. 
, the petitioner claims that this _corporation is majority­
December 2007. Based on a review of the company's 2008 
IRS Form 1120-S, U.S. Income Tax Return for an S Corporation, the owners of 
the beneficiary (51 percent) and _ (49 percent). 
are 
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 591. 
Based on the foregoing, the petitioning Indian entity has not established its direct or indirect ownership of 
either or the two companies which would serve as the 
beneficiary's employers in the United States under the extended petition. Nor does the record show that the 
foreign entity has an affiliate relationship with these two companies. Therefore it cannot be concluded that 
the beneficiary would be employed by a qualifying organization in the United States. 
The petitioner has submitted evidence suggesting that it does hold a majority interest in 
_ however, the record contains no evidence that this company continues to exist and no evidence that 
this company is or has been business in the United States. The claimed U.S. operations consist of a 
restaurant franchise operated by a retail store operated by 
., two entities which are neither parents, subsidiaries or affiliates to 
the petitioning foreign entity. 
Finally, a review of corporate records made publicly available by the Secretaries of 
and _indicates that~~~~~~::::::~:~ disso~hile the corporate status of is "forfeited." The uncertain corporate status 
raises questions as to whether either company remains a qualifying organization that continues to do business 
in the United States.' 
Based on the foregoing deficiencies, the AAO finds the petitioner's evidence insufficient to establish the 
claimed qualifying relationship between the U.S. and foreign entities. For this additional reason, the petition 
may not be approved. 
Business Entity (accessed on October 28, 2011, 
copy incorporated into record of proceeding. 
Page 13 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises. Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (ED. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). 
III. Prior Approval and Conclnsion 
The record does show that USCIS has approved two prior I.-I classification petitions filed by the petitioner 
on behalf of the instant beneficiary, including one previous request for an extension of status. Counsel 
specifically refers to a 2004 USCIS memorandum to support her assertion that it is USCIS policy that prior 
approvals of petitions involving the same parties should be given deference. See Memorandum of William R. 
Yates, Associate Director for Operations, USCIS: The Significance of a Prior CIS Approval of a 
Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility of Petition 
Validity (April 23, 2004)("Yates Memorandum"). The memorandum provides that exceptions to this policy 
should be made where: (I) it is determined that there was a material error with regard to the previous petition 
approval; (2) a substantial change in circumstances has taken place; or (3) there is new material information 
that adversely impacts the petitioner's or beneficiary's eligibility. Id. It is noted that the Yates Memorandum is 
addressed to service center and regional directors and not to the chief of the AAO. 
The AAO notes that prior approvals do not preclude USCIS from denying an extension of the original visa based 
on reassessment of the petitioner's or beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The mere fact that USCIS, by mistake or oversight, approved a visa 
petition on one occasion does not create an automatic entitlement to the approval of a subsequent petition for 
renewal of that visa. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir 2007); see also Matter of Church 
Scientology Int'l., 19 I&N Dec. 593, 597 (Comm'r. 1988). 
Each nonimmigrant petition filing is a separate proceeding with a separate record of proceeding and a separate 
burden of proof. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS is limited to 
the information contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). In the present 
matter, the director reviewed the record of proceeding and concluded that the petitioner was ineligible for an 
extension of the nonimmigrant visa petition's validity based on the petitioner's failure to submit evidence that 
satisfies the regulatory criteria at 8 C.F.R. § 214.2(1). Despite any number of previously approved petitions, 
USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden 
of proof in a subsequent petition. See section 291 of the Act. 
Furthermore, the evidence in the current record indicates that the beneficiary is not employed, will not be 
employed, and perhaps never has been employed by the limited liability company which is 
claimed to be a subsidiary of her foreign employer. Instead, she is employed by an entity or entities which 
have no qualifying branch, subsidiary, affiliate or branch relationship with the foreign entity. Therefore, the 
conditions set forth in the Yates memorandum have been met, and no deference to the prior petition is 
required. Neither the director nor the AAO is required to approve applications or petitions where eligibility 
• 
Page 14 
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'r. 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 approves 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.), aJfd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.C!. 51 (2001). Based on the lack of required evidence of eligibility in the current 
record, the AAO finds that the director was justified in departing from the previous petition approvals by 
denying the instant petition. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.