(b)(6)

MATTER OF A-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 23,2016

CERTIFICATION OF TEXAS SERVICE CENTER DECISION

PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, operator of a restaurant franchise, seeks to permanently employ the Beneficiary as its president under the first preference immigrant classification for multinational executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity.

The Director, Texas Service Center, denied the petition, concluding that the Petitioner was not doing business. The Petitioner appealed that decision to us. We withdrew the Director's decision and remanded the matter for a new decision. The Director denied the petition for a second time, concluding that the evidence of record did not establish that the Beneficiary will be employed in the United States in a managerial or executive capacity.

The matter is now before us on certification. In response to the certified denial, the Petitioner submits additional evidence and asserts that the Director erred by issuing a decision with "absolutely no basis in fact." The Petitioner also states that the Director did not issue a new request for evidence (RFE) after the remand order, even though the new denial rested on grounds not raised in the first decision. Nevertheless, the AAO's remand order, issued. December 11, 2014, put the Petitioner on notice of the deficiencies in the record. The Director issued the certified denial notice on February 6, 2015, and the Petitioner submitted a brief in response to the Director's certification on March 16, 2015.

Upon de novo review, we will affirm the deni~l of the petition.

I. LEGAL FRAMEWORK

Section 203(b) of the Act states in pertinent part:

(1) Priority Workers.- Visas shall first be made available ... to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):

Matter of A-, Inc.

(C) Certain multinational executives and managers. An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. A labor certification is not required for this classification. The regulation at 8 C.F.R. § 204.50)(3) states:

(3) Initial evidence-

(i) Required evidence. A petition for a multinational executive or manager must be accompanied by a statement froin an authorized official of the petitioning United States employer which demonstrates that:

(A) If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or

(B) If the alien is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;

(C) The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and

(D) The prospective United States employer has been doing business for at least one year.

II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY

The Director denied the petition based on a finding that the Petitioner did not establish that the Beneficiary will be employed in a managerial or executive capacity. The Petitioner does not claim

2

Matter of A-, Inc.

that it seeks to employ the Beneficiary in a managerial capacity. Therefore, we restrict our analysis to whether the Petitioner will employ the Beneficiary in an executive capacity.

Section 101(a)(44)(B) of the Act, 8 U.S.C. § 110l(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.

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. 1

·

The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which indicates that the Beneficiary is to be employed in the United States in a managerial or executive capacity. The statement must clearly describe the duties to be performed by the Beneficiary.

A. Evidence of Record

The Petitioner filed Form I-140 on March 20, 2013. On the Form I-140, the Petitioner indicated that it had 18 employees in the United States. An organizational chart reflected the following hierarchy:

President

General ManagerNice President I

Manager I \

Assistant Manager Shift Supervisor

I Four Sandwich Artists/Cashiers

1 See section 10l(a)(44)(C) of the Act.

3

(b)(6)

Matter of A-, Inc.

A second organization chart, for showed the same general structure except that there is no shift supervisor; instead, seven sandwich artists/cashiers report to the assistant manager. The organization charts identified the Beneficiary as the president and as the general manager/vice president of both corporations.

In an undated statement, the Petitioner provided the following breakdown of the Beneficiary's duties as president of the petitioning company:

DUTIES TIME

[P]lan, organize, direct and control the organization's major functions. . . . 20% [C]onfer with the two managers to plan business objectives, to develop organizational policies, to coordinate functions and operations for the company, and to establish responsibilities and procedures for attaining objectives.

[R]eview activity reports and financial statements ... and . revise 15% objectives and plans in accordance with current conditions .. . work[ing] with the company's accounting and legal staff.

[D]irect and coordinate formulation of financial and sales programs. . . . 15%

[W]ork with suppliers and distributors to obtain the best prices for the 10% products that the business sells.

[W]ork on introducing new products and to expand the customer base. 10%

[H]old regular staff meetings to insure that the above goals are realized, 5% and to evaluate staff performance. . . . [R ]esponsible for the hiring and firing of all the employees in the business.

[A]ctively seek new business ventures for the company. His plans are to 20% expand the operating hours of the current business location and to negotiate for the purchase of at least one-two other restaurant locations. . . . Eventually, he also plaris to expand into other types of retail businesses including restaurants, gas stations, grocery stores, and lodging facilities.

[H]andling the remaining functions of the company. 5%

Regarding jhe Beneficiary's subordinates, the Petitioner asserted:

[The] Gerieral Manager/Vice President . ; . is responsible for the operation of the restaurant business . on a day-to-day basis. He prepares weekly work

4

(b)(6)

Matter of A-, Inc.

schedules, supervises the . employees on a day-to-day basis, handles customer inquiries and complaints, and resolves minor personnel matters. He is responsible for ordering food and supplies, pricing issues, and determines inventory requirements. He coordinates the activities of the store employees engaged in keeping sales and accounting records, and collecting and paying accounts. He will report directly to [the Beneficiary], once he assumes his duties as President of the US Company.

The stated duties of the manager and assistant manager consisted largely of assisting the general manager and running the business in his absence.

The Petitioner submitted a copy of contains information about the operation of a

Franchise Disclosure Document (FDD), which franchise and the requirements for doing so.

The Director issued an RFE on May 6, 2013. ·The Director instructed the Petitioner to "[p ]rovide detailed information regarding the beneficiary 's proposed . position in the U.S. company. Specifically, what will his or her daily duties be? What percentage of time will he or she spend on these respective duties?" In response, the Petitioner submitted a percentage breakdown similar to the earlier version, with some modifications to combine the Beneficiary's presidency of two different corporations into a single description. For example, the Petitioner specified that "the company ... currently has sixteen (16) employees," and where the first description stated that the Beneficiary "will confer with the two managers," the new version specified that he "will confer with the general manager and the managers of the two business locations."

As noted previously, the Director' s August 27, 2013 denial notice did not address the Beneficiary' s duties with the petitioning organization. In our December 11 , 2014 remand notice, we stated:

The record contains insufficient evidence to establish that the beneficiary would be employed in the United States in a qualifying managerial or executive capacity.

The petitioner' s descriptions of the beneficiary's job duties are vague and unclear. The petitioner described the beneficiary' s job duties in overly broad terms ... This description provides little insight into what the beneficiary primarily would do on a day­to-day basis ... .

Furthermore, the petitioner has failed to provide any detailed explanation, along with credible and probative supporting documentation, establishing the U.S. entity' s overall organizational structure, staffing levels, and the scope of its business activities at the time of filing. Based on the evidence in the record, it appears that the petitioner and its claimed subsidiary, run two different stores ....

Regarding the petitioner' s staffing, the record . . . lacks . a work schedule for all employees for the two stores. It is also not clear why one store

5

(b)(6)

Matter of A-, Inc.

would need a President, a General ManagerNice President, a Manager, an Assistant Manager and a Shift Supervisor to supervise four sandwich artists/cashiers.

In the certified denial notice, the Director stated: "the petitioner maintains a general manager, a store manager, an assistant manager, and shift supervisor for four labor employees .... The petitioner has not proposed any specific duties for the beneficiary to perform that would not also overlap with the existing management in place." The Director also noted that; while the job description mentions "accounting and legal staff," the organizational chart did not identify any such staff.

In response to the certified denial of the petition, the Petitioner maintains that the evidence "clearly establishes that the beneficiary ... will continue to be employed in an executive capacity for the United States Company," and that "[t]he director has clearly erred in ascribing duties to [the Beneficiary] that arenot contained anywhere in the record." In response to the certified decision, in a statement dated March 15, 2015, repeats the job description provided in response to the RFE, and contends that these "duties ... are almost exclusively executive in nature."

Upon review, and for the reasons stated below, we find that the Petitioner has not established that the Beneficiary's proposed position with the petitioning entity falls within the statutory parameters of executive capacity.

B. Analysis

Upon review of the petition and the evidence of record, including materials submitted on certification, we conclude that the Petitioner has not established that it seeks to employ the Beneficiary in an executive capacity in the United States.

When examining the executive capacity of a given beneficiary, we will look first to the petitioner's description of the job duties.2 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 in a managerial or executive capacity.3 Published case law has determined that the duties themselves will reveal the true nature ofthe beneficiary's employment.4

The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner must prove that the benefiCiary primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to-day functions. 5

2 See 8 C.F.R. § 204.5(j)(5). 3 /d. 4 Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 5 Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991).

6

(b)(6)

Matter of A-, Inc.

Inherent to the definition of executive capacity, the organization must have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than the day-to-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. 6

As a preliminary matter, we note that the Petitioner asserts that we should consider the Beneficiary's role as president for the Petitioner, as well as which is a separate, but related entity. Because is not the petitioning employer, we will only consider the Beneficiary's role as President with the Petitioner. In response to the certified denial of the petition, the Petitioner states that the Director's decision "distorts the true number of employees in the US business .... At the time of filing the instant I-140 petition, [the Beneficiary] was the President of a company that had two business locations and had seventeen (17) employees." protests that the Director "only discusses the eight employees who worked for [the Petitioner] and totally ignores the nine to ten employees working for ... [T]he company has nineteen employees." is not the petitioning U.S. employer. is a separate corporation, whose employees do not count toward the staffing of the petitioning entity. As separate franchisees, the two businesses operate in parallel rather than in tandem. They are not, collectively, "a company that had two business locations."

The various versions of the Beneficiary's job description indicate that "[h]is primary function will be to plan, organize, direct and control the organization's major functions." These vague terms do not indicate specifically what this function would entail. 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. 7

The job description also indicated that the Beneficiary "will work with suppliers and distributors to obtain the best prices for the products the business sells" and "will work on introducing new products," but FDD substantially limits the Beneficiary's discretion in these areas. Item 16 of that document, "Restrictions on What the Franchisee May Sell," indicates that the franchisor "must approve additional menu items" before the franchisee can offer them for sale.· Item 8, "Restrictions on Sources of Products and Services," requires the franchisee to purchase much of its equipment and supplies either from the franchisor or from approved sources, and advises: "You may experience delays and higher costs if you seek approval to purchase directly from vendors or from vendors not currently approved by us." Because the Petitioner's list of job duties is in evident conflict with the FDD, there is reason to doubt the accuracy of that list of duties. The record contains no countervailing evidence to show that the Beneficiary, or anyone acting in a similar capacity, has been performing those duties.

6 See 52 Fed. Reg. 5738, 5739 (February 26; 1987) ("[N]either the title of a position nor the ownership of a business are, by themselves, indicators of managerial or executive capacity."). 7 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1108.

7

(b)(6)

Matter of A-, Inc.

The Petitioner's assertion that the Beneficiary will "seek new business ventures for the company" does not establish that the company, at the time of filing, required the Beneficiary's involvement in a primarily managerial or executive capacity. To the extent that the record shows comparable activity by the Beneficiary, the new business ventures have been legally distinct from the petitioning entity and therefore do not constitute qualifying activities with the petitioning U.S. employer. Furthermore, because the FDD casts doubt on parts ofthe Beneficiary's job description, we need not presume that the remainder of the description is more accurate or reliable. Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 8

The Petitioner asserts that the Beneficiary will divide his time between the petitiOning entity, and, eventually, additional business entities that the Beneficiary intends to

purchase and/or develop. This information does not establish that the Beneficiary will primarily perform in an executive function for the petitioning entity; rather, it indicates that those duties will occupy only a fraction of his time. There is no umbrella organization controlling all of these existing and proposed businesses. Rather, the Beneficiary has, or seeks, an ownership stake in a· number of unrelated ventures. While the Beneficiary may be an investor in these entities, this fact in itself does not establishhim as an executive under Section 101(a)(44) of the Act.

In response to the certified decision, regarding the finding that the Petitioner already has numerous managerial layers in relation to its small staff, asserts only that even small businesses, and perhaps especially small businesses, require executive leadership. A company's size alone, without taking into account the reasonable needs of the organization, may not be the determining factor in denying a petition for classification as a multinational manager or executive.9 Nevertheless, it is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant factors. 10

The Petitioner's latestsubmission includes copies of Internal Revenue Service Forms W-2, Wage and Tax Statements, for 2013 and 2014. In 2013, the Petitioner paid $104,841 in salaries, divided among 29 employees, with each earning, on average, $3,615 that year. The only employee to earn more than $14,000 was the then-manager of the restaurant, who received $15,250. Thirteen of the employees received less than $1,000 each. In 2014, the Petitioner paid $89,437 to 27 employees, averaging $3,312 per employee. The highest-paid employee was a shift manager who received $10,500. These figures do not suggest that the Petitioner employs any full-time staff who would be continuously available to relieve the Beneficiary from performing operational tasks. Item 15 of

FDD requires franchisees to obtain . written permission to reduce their business hours beyond certain limits, and the record does not show that the Petitioner has obtained this permission.

8 Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 9 See section IOI(a)(44)(C) ofthe Act, 8 U.S.C. § IIOI(a)(44)(C). 10 See, e.g. Family Inc. v. USC/S, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C." 2001).

8

(b)(6)

Matter of A-, Inc.

Therefore, there is no evidence that the restaurant operates a reduced schedule (which would reduce the need for full-time subordinate staff).

In this instance, the Petitioner has not demonstrated that a number of the Beneficiary's claimed job duties readily apply to the Petitioner. asserts: "We have never said that we have a legal or accounting department. However, we most certainly have accountants and lawyers who we wock with on a regular basis." n:ames two local accounting firms that prepare the Petitioner's payroll and tax records and "provide accounting advice on a regular basis." He does not identify attorneys or specify their roles, or submit confirmation from any accountant or attorney to show that they meet with the Beneficiary for several hours a week as the Petitioner has effectively claimed. The only accountant's work product evident in the record consists of income tax returns, which are prepared annually and therefore do not represent regular, ongoing demands on the Beneficiary's time. The Petitioner did not specifically claim "a legal or accounting department," but it referred repeatedly to "the company's accounting and legal staff," a term that implies employees rather than contracted third parties.

The description of the Beneficiary's intended duties is mostly broad and general, and where it goes into any degree of detail, those details are incompatible with elements of the record such as the FDD and the organizational chart. For these reasons, it appears that the Petitioner has submitted a generic list of executive duties, rather than a considered account of the actual duties performed by others in similar positions.

Accordingly, we find that the Petitioner did not provide reliable, probative evidence sufficient to establish that the Beneficiary will be employed in the United States in a qualifying executive capacity. For this reason, USCIS cannot approve this petition.

III. CONCLUSION

The denial of the petition will be affirmed for the above reason. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. 11 Here, that burden has not been met.

ORDER: The decision of the Director, Texas Service Center, dated February 6, 2015, IS

affirmed, and the petition is denied.

Cite as Matter of A-, Inc., ID# 96144 (AAO Sept. 23, 2016)

11 Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26l&N 127, 128 (BIA 2013).

9