MATTER OF M- LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: DEC. 23, 2015

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a New York limited liability company operating a restaurant business, seeks to classify the Beneficiary as an L-1 A nonimmigrant intracompany transferee. See Immigration and Nationality Act (the Act) § 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The Director, Vermont Service Center, denied the petition, and we dismissed the subsequent appeal. The matter is now before us on a combined motion to reopen and reconsider. The combined motion will be denied.

The Director denied the petition on April 11, 2014, on three alternate grounds, concluding that the Petitioner did not establish that: ( 1) it had a qualifying relationship with the foreign entity; (2) the Beneficiary was employed in a qualifying managerial or executive capacity at the foreign entity; and (3) the Beneficiary will be employed in a qualifying managerial or executive capacity in the United States. The Petitioner submitted an appeal of the Director's decision to our office. We reviewed the record of proceeding and determined that it did not contain sufficient evidence to overcome the bases for the Director's denial. We provided a comprehensive analysis of the Director's decision and dismissed the appeal.

I. MOTION REQUIREMENTS

For the reasons discussed below, we conclude that this combined motion will be denied because the motion does not merit either reopening or reconsideration.

A. Overarching Requirement for Motions by a Petitioner

The provision at 8 C.F.R. § 103.5(a)(1)(i) includes the following statement limiting a USCIS officer's authority to reopen the proceeding or reconsider the decision to instances where "proper cause" has been shown for such action: "[T]he official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision."

Thus, to merit reopening or reconsideration, the submission must not only meet the formal requirements for filing (such as, for instance, submission of a Form I-290B that is properly completed and signed, and accompanied by the correct fee), but the Petitioner must also show proper cause for granting the motion. As stated in the provision at 8 C.F.R. § 103.5(a)(4), "Processing

Matter of M- LLC

motions in proceedings before the Service," "[a] motion that does not meet applicable requirements shall be dismissed."

B. Requirements for Motions to Reopen

The regulation at 8 C.P.R. § 1 03.5(a)(2), "Requirements for motion to reopen," states:

A motion to reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be supported by affidavits or other documentary evidence.

This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states:

Motion to Reopen: The motion must state new facts and must be supported by affidavits and/or documentary evidence demonstrating eligibility at the time the underlying petition ... was filed. 1

Further, the new facts must possess such significance that, "if proceedings ... were reopened, with all the attendant delays, the new evidence offered would likely change the result in the case." Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 (1Oth Cir. 20 13).

A. Requirements for Motions to Reconsider

The regulation at 8 C.P.R.§ 103.5(a)(3), "Requirements for motion to reconsider," states:

A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must [ (3)], [ (a)] when filed, also [(b)] establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

These provisions are augmented by the related instruction at Part 4 of the Form I-290B, which states:

Motion to Reconsider: The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions when filed and must establish that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence of record at the time of decision.

1 The regulation at 8 C.F.R. § 1 03.2(a)(l) states in pertinent part : "Every benefit request or other <;locument submitted to DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR chapter 1 to the contrary, and such instructions are incorporated into the regulations requiring its submission."

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(b)(6)

Matter of M- LLC

A motion to reconsider contests the correctness of the prior decision based on the previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 8 C.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2).

A motion to reconsider should not be used to raise a legal argument that could have been raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991) ("Arguments for consideration on appeal should all be submitted at one time, rather than in piecemeal fashion."). Rather, any "arguments" that are raised in a motion to reconsider should flow from new law or a de novo legal. determination that could not have been addressed by the affected party. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (examining motions to reconsider under a similar scheme provided at 8 C.F.R. § 1003.2(b)); see also Martinez-Lopez v. Holder, 704 F.3d 169, 171-72 (1st Cir. 2013). Further, the reiteration of previous arguments or general allegations of error in the prior decision will not suffice. Instead, the affected party must state the specific factual and legal issues raised on appeal that were decided in error or overlooked in the initial decision. See Matter of 0-S-G-, 24 I&N Dec. at 60.

II. DISCUSSION AND ANALYSIS

In denying the petition, the Director concluded that the evidence of record did not establish that the controlling shareholders of the foreign entity and the controlling shareholders of the U.S. company were the same group of individuals. The Director noted that, in addition to the additional two shareholders of its U.S . company, owns approximately 33% ofthe foreign entity but does not have any ownership or control over its U.S. company, and owns 30 shares of its U.S. company but does not have any ownership or control over the foreign entity.

Second, the Director found that many of the duties listed for the Beneficiary's position abroad demonstrated that he was engaged in non-qualifying duties and, although requested by the Director, the Petitioner did not quantify the amount of time spent on each of the duties assigned to the Beneficiary on a regular basis. As such, the Director was unable to conclude that the Beneficiary was primarily engaged in managerial duties at the foreign entity without supporting evidence to show that the majority of his time was spent in a managerial capacity.

Third, the Director found that many of the duties listed for the Beneficiary's proposed position in the United States demonstrated that he would be performing rather than managing the duties and, although requested by the Director, the Petitioner also did not quantify the amount of time he would spend on each of the regularly assigned duties. Again,' the Director was unable to conclude that the Beneficiary would be primarily engaged in managerial duties without supporting evidence to show that the majority of his time would be spent managing restaurant kitchen operations. The Director further found that the Beneficiary would not be involved in the supervision and control of the work of other supervisory, professional, or managerial employees to relieve him from performing the services of running a restaurant kitchen in the United States and that the Petitioner did not provide any evidence to verify the employment of the U.S. stafflisted on its organizational chart.

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Matter of M- LLC

In dismissing the Petitioner's appeal, we found that it had not provided sufficient information detailing the Beneficiary's duties abroad and at the U.S. company to demonstrate that his listed duties qualify him as a manager or executive. We noted that, although one of the Beneficiary's subordinates performed some supervisory duties, the Beneficiary had not been shown to primarily supervise and control the work of other supervisory, professional, or managerial employees. We found that the Petitioner did not demonstrate that the Beneficiary's duties had and would primarily focus on the management of the organization and the supervision of qualifying managerial, professional, or supervisory employees, rather than on producing a product or providing a service of the Petitioner. We further found that the job duties provided for the Beneficiary and his subordinates did not demonstrate that the Beneficiary would focus 51% of his time on managerial duties rather than the day-to-day operations ofthe business.

The Petitioner filed this combined motion to reopen and reconsider on March ·18, 2015. The submission constituting the combined motion consists of the Form I-290B and a brief. Although the Petitioner's brief states that "copies of the referenced exhibits accompany [its] brief," the only documents submitted in support of the joint motion are the Petitioner's brief and a copy of our February 13, 2015 decision. In its brief, the Petitioner asserts that it maintains an affiliate relationship with the foreign entity and that the Beneficiary has been and will be employed in a managerial capacity.

A. Motion to Reopen

Upon review, we find that the Petitioner did not provide any new facts in this motion. While the Petitioner states that it is submitting "copies of referenced exhibits" with its motion, the record does not contain any documentation other than the Petitioner's brief in support of the motion. The Petitioner has not submitted any new evidence · pertaining to the instant petition or our recent dismissal of the Petitioner's appeal. As such, the Petitioner has not established that the evidence submitted on motion would change the outcome of this case if the proceeding were reopened. Therefore, the Petitioner has not met the requirements of a motion to reopen.

"There is a strong public interest in bringing [a case] to a close as promptly as is consistent with the interest in giving the [parties] a fair opportunity to develop and present their respective cases." INS v. Abudu, 485 U.S. 94, 107 (1988). Motions for the reopening of immigration proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94). A party seeking to reopen a proceeding bears a "heavy burden" of proof. INS v. Abudu, 485 U.S. at 110. With the current motion, the Petitioner has not met that burden.

B. Motion to Reconsider

A motion to reconsider must state the reasons for reconsideration and be supported by citations to pertinent statutes, regulations, and/or precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy. A motion to reconsider a decision on an

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Matter of M- LLC

application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. See 8 C.F.R. § 103.5(a)(3) (detailing the requirements for a motion to reconsider).

Upon review, we find that the Petitioner did not properly state the reasons for reconsideration. The Petitioner briefly discusses its qualifying relationship with the foreign entity and the Beneficiary's positions abroad and in the United States. Some of the Petitioner's arguments pertaining to each issue were previously presented and addressed on appeal and will not be discussed again on motion.

In terms of its qualifying relationship, the Petitioner references an unpublished decision in which we determined that a qualifying relationship exists where one individual wholly owns the U.S. company and 61% of the foreign entity along with a second individual owning the remaining 39%. The Petitioner has not established that the facts of the instant petition are analogous to those in the unpublished decision. In the unpublished decision, although the U.S. company had one shareholder and the foreign entity had two shareholders, one individual majority-owned and controlled both entities. In the instant matter, five individuals own the U.S. company and three individuals own the foreign entity, and no one person majority-owns and controls both entities. Both entities share common ownership with two individuals, each owning 30% and 33.5% of the U.S. company and foreign entity, respectively, but the Petitioner has not shown that there are any agreements in place for them to always vote in concert. Absent documentary evidence such as voting proxies or agreements to vote in concert, the Petitioner has not established that any one individual, or group of individuals, effectively owns and controls the U.S. company or the foreign entity in order to establish a qualifying affiliate relationship as defined at 8 C.F.R. § 214.2(l)(i)(ii)(L). While 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding.

Regarding the Beneficiary's positions abroad and in the United States, the Petitioner states that the Beneficiary is a "second line manager in charge of 14 persons to satisfy the definition of manager." The Petitioner referenced previously submitted position descriptions and lists of job duties that were discussed in our previous decision and will not be discussed again on motion. The Petitioner further referenced an unpublished decision in which we determined that the Beneficiary met the requirements of serving in a managerial capacity for L-1 classification as a banquet manager even though he was a second line manager and not a professional. The Petitioner has not established that the facts of the instant petition are analogous to those in the unpublished decision. Again, while 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding.

Based on the Petitioner's statement in support of this motion, it appears that the Petitioner seeks to address matters that were already addressed on appeal. However, we conclude that the documents constituting this motion do not articulate how our decision on appeal misapplied any pertinent statutes, regulations, or precedent decisions to the evidence of record when the decision to dismiss the appeal was rendered. The Petitioner has therefore not submitted any document that would meet the requirements of a motion to reconsider. Accordingly, the motion to reconsider must be denied.

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Matter of M- LLC

III. CONCLUSION

The Petitioner should note that, unless USCIS directs otherwise, the filing of a motion to reopen or reconsider does not stay the execution of any decision in a case or extend a previously set departure date. 8 C.F.R. § 103.5(a)(l)(iv).

In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. Accordingly, the combined motion will be denied, the proceedings will not be reopened or reconsidered, and our previous decision will not be disturbed.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter of M- LLC, ID# 15147 (AAO Dec. 23, 2015)

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(b)(6)

DATE: FEB 1 3 2015 Office: VERMONT SERVICE CENTER

IN RE: Petitioner:

Beneficiary:

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Admini.strative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washin!!:lon. DC 20529-2090

U.S. Citizenship and Immigration Services

FILE:

PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration

and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency

policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a

motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B)

within 33 days of the date of this decision. Please review the Form I-290B instructions at

http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements.

See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO.

� on Rosenberg

Chief, Administrative Appeals Office

(b)(6)

NON-PRECEDENT DECISION

Page 2

DISCUSSION: The Director, Vermont 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 Form 1-129, Petition for a Nonimmigrant Worker, seeking to classify the beneficiary

as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and

Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a New York limited liability company established in states that it operates a restaurant. The petitioner claims to be an affiliate of

The petitioner seeks to employ the

beneficiary as its executive chef for a period of three years.

The director denied the petition on three alternate grounds, concluding that the petitioner failed to establish

that (1) it has a qualifying relationship with the foreign entity, (2) the beneficiary was primarily employed in a

managerial or executive capacity at the foreign entity, and (3) the beneficiary will be employed primarily in a managerial or executive capacity in the United States.

The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and

forwarded the appeal to the AAO for review. On appeal, the petitioner contends that the U.S. company is an

affiliate of the foreign entity based on the similar ownership of each company and that the beneficiary has

been and will be employed in a managerial capacity. The petitioner submits a brief and additional evidence in support of the appeal.

I. THE LAW

To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria outlined in section 101(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.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-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.

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Page 3 NON-PRECEDENT DECISION

(iv) Evidence that the alien's prior year of employment abroad was in a position that was

managerial, executive or involved specialized knowledge and that the alien's prior

education, training, and employment qualifies him/her to perform the intended

services in the United States; however, the work in the United States need not be the

same work which the alien performed abroad.

II. THE ISSUES ON APPEAL

A. Qualifying Relationship

The first issue addressed by the director is whether the petitioner established that the beneficiary's foreign

employer and the U. S. company are qualifying organizations. 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 101(a)(15)(L) of the Act; 8 C.P.R. § 214.2(1).

The pertinent regulations at 8 C.P.R. § 214.2(1)(1)(ii) define the term "qualifying organization" and related terms as follows:

(G) Qualifying 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.

(J) Branch means an operating division or office of the same organization housed in a

different location.

(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

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Page 4 NON-PRECEDENT DECISION

over the entity; or owns, directly or indirectly, less than half of the entity, but in fact

controls the entity.

(L) Affiliate means

(1) One of two subsidiaries both of which are owned and controlled by the

same parent or individual, or

(2) One of two legal entities owned and controlled by the same group of

individuals, each individual owning and controlling approximately the

same share or proportion of each entity.

1. Facts

The petitioner filed the Form 1-129 on June 20, 2013. On the L Classification Supplement to Form 1-129, the

petitioner identified the beneficiary's last foreign employer as

and stated that the foreign and U.S. companies have an affiliate relationship

following description of the stock ownership and control of each company: 30% owned by and 30% by company)- 33.5% owned by and 33.5% by

based on the

(Petitioner) -

(Foreign

The petitioner submitted its share transfer ledger indicating that, on a unknown date between 10:45 a.m. and 10: 55 a.m., it issued 30 shares to on certificate number one, 30 shares to

on certificate number two, five shares to on certificate number three, five

shares to on certificate number four, and 30 shares to on certificate number five. The petitioner sub�pitted a copy of certificate number one issuing 30 shares to

on April 14, 2010 and crrtificate number two issued 30 shares to on April 14,

2010. The petitioner did not submit the remaining three share certificates issued, as indicated on the share transfer ledger.

The petitioner submitted a document titled, " Request of Attestation" from Lawyer

December 10, 2010, indicating that the foreign entity issued 335 shares to

and 330 shares to on January 30, 2010.

dated

335 shares to

The director issued a request for additional evidence ("RFE") on November 13, 2013, advising the petitioner

that the evidence submitted was insufficient to establish who exercises voting control over the foreign entity.

The director instructed the petitioner to submit evidence of a qualifying affiliate relationship between the U.S. company and the foreign entity.

In response to the RFE, the petitioner submitted a letter stating that voting control over the foreign entity is the same as its ownership as there are no special classes of ownership and each share equals one vote. The

petitioner did not submit any adqitional evidence in support of its qualifying relationship with the foreign entity.

(b)(6)

NON-PRECEDENT DECISION Page 5

I The director denied the petition o� April 11, 2014 concluding, in part, that the petitioner failed to establish that the evidence of record does not establish that the controlling shareholders of the foreign entity and the

controlling shareholders of the U. S. entity are the same group of individuals. The director noted that, in

addition to the additional two shareholders of its U.S. company, owns approximately 33%

of the foreign entity but does not have any ownership or control over its U.S. company and

owns 30 shares of its U.S. company but does not have any ownership or control over the foreign entity.

On appeal, the petitioner focuses on the fact that and each own

approximately 30% of the U. S. company and approximately 33.5% of the foreign entity, which satisfies the

"same shares or proportions rule." The petitioner does not provide any additional evidence nor does it address

the same or similar group of individuals portion of the requirement.

2. Analysis

Upon review, the petitioner has not established that it has a qualifying affiliate relationship with the foreign entity.

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'r. 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 Church Scientology International, 19 I&N Dec. at 595.

While the evidence suggests that both companies are partly owned by the same two individuals, and the petitioner has not established that the companies are

owned and controlled by the same individuals, with each individual owning and controlling approximately the same share or proportion of each entity. Rather, the evidence indicates that three

individuals own the foreign entity. The record further indicates that five individuals own the petitioning

company in the United States. Accordingly, the two entities are not "owned and controlled by the same

group of individuals, each individual owning controlling approximately the same share or proportion of each entity . .. . " 8 C.F.R. § 214.2(1)(1)(ii)(L)(2)(emphasis added). In addition, there is no parent entity with ownership and control of both companies that would qualify the two as affiliates. The petitioner has not

established that the two entities qualify as affiliates as that term is defined at 8 C.F.R. § 214.2(1)(1)(ii)(L).

Accordingly, the appeal will be dismissed.

B. · Employment in a Managerial or Executive Capacity Abroad and in the United States

The next issue addressed by the director is whether the petitioner established that the beneficiary has been and

will be employed primarily in a qualifying managerial or executive capacity.

(b)(6)

NON-PRECEDENT DECISION

Page 6

Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an assignment within an organization in which the employee primarily:

(i) manages the organization, or a department, subdivision, function, or component of

the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial

employees, or manages an essential function within the organization, or a department

or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to

hire and fire or recommend those as well as other personnel actions (such as

promotion and leave authorization), or if no other employee is directly supervised,

functions at a senior level within the organizational hierarchy or with respect to the

function managed; and

(iv) exercises discretion over the day-to-day operations of the activity or function for

which the employee has authority. A first-line supervisor is not considered to be

acting in a managerial capacity merely by virtue of the supervisor's supervisory

duties unless the employees supervised are professional.

Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), 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.

1. Facts

The petitioner indicated on the Form I-129 that it operates a restaurant with 23 current employees in the United States and gross annual receipts of $1,358,773.00. The petitioner stated that the beneficiary will be

employed as the executive chef of its restaurant in the United States.

In its letter of support, the petitioner described the beneficiary's duties abroad for the three years preceding the

filing of the petition as follows:

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Page 7 NON-PRECEDENT DECISION

As , Executive Chef, the Beneficiary oversees seven kitchen staff out of the 33-person restaurant staff including, three Assistant Chefs and four Sous

Chefs. . . . As Executive Chef, the Beneficiary is responsible for:

• Developing updated menus to incorporate the unique Aleppo cms1ne to

traditional Lebanese/Armenian cuisine, paying special attention to seasonal

availability of ingredients. • Managing kitchen operations including staff, cooking, serving and obtaining

provisions, supplies and kitchen budget; • Hiring and terminating kitchen staff. • Overseeing kitchen staff disciplinary procedures and the handling of

grievances, • Coordinating with Restaurant Manager to ensure YIPs are immediately

identified, and any special arrangements and dietary restrictions are accurately communicated to the kitchen staff.

• Overseeing compliance with safety and hygiene requirements. • Supervising kitchen staff's training to effect good portion control, food quality

and pleasing presentation of dishes. • Leading daily meetings with Assistant Chefs and Sous Chefs to ensure smooth

running of all kitchen operations. • Performing on-the-job, "shoulder-to-shoulder training" of kitchen staff with

respect to cooking techniques and procedures. • Developing low season training programs to maintain the interest of the kitchen

staff and improve their knowledge and productivity. • Directly supervising the cooking and preparation of plats du jour (or specials of

the day) items. • Coordinating the schedules and job functions of the kitchen staff to ensure high

standards of quality. • Tracking and reducing overall overhead cost within the kitchen including,

food, materials and employment.

In the same letter of support, the petitioner described the beneficiary's proposed duties in the United States as follows:

As Executive Chef, [the beneficiary] will be responsible for managing the

kitchen operations, all food production including developing seasonal menus and plats

du jour (specials of the day) and food purchase specifications, developing and monitoring food and labor budget for the kitchen and ensuring that the highest professional food quality

and sanitation standards are maintained. The Beneficiary will be a key member of the

management team. The proposed specific job functions for the Beneficiary are:

• Establish controls to minimize food and supply waste and theft. • Hire and terminate kitchen staff.

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Page 8 NON-PRECEDENT DECISION

• Schedule, supervise and coordinate the work of the Assistant Chef, Pastry Cook, Assistant Pastry Cook, Preparation Cook and other kitchen employees to assure that

food preparation is economical and technically correct and within budgeted labor cost

goals. • Ensure that high standards of sanitation, cll;:anliness and safety are maintained

throughout all kitchen areas at all times. • Approve the requisition of products and other necessary food supplies. • Develop seasonal and plats du jour (specials of the day) recipes and techniques for food

preparation and presentation which help to assure consistently high quality and to

minimize food costs. • Exercise portion control for all items served. • Safeguard food preparation procedures by implementing trammg to increase the

kitchen staff's knowledge about safety, sanitation and accident prevention principles. • Prepare necessary data for applicable parts of the kitchen budget; projects annual food,

labor and other costs and monitors actual financial results; takes corrective action as

necessary to help assure that financial goals are met. • Cook and/or directly supervise the cooking of items that require skillful preparation,

e.g., seasonal menus and plats du jour (specials of the day). • Ensure proper staffing of the kitchen for maximum productivity and high standards of

quality; controls food costs to achieve maximum profitability. • Evaluate food products to assure that quality standards are consistently attained. • Coordinate with Quality Assurance Manager to assure that food production consistently

exceeds the expectations of guests. • Establish and maintains a regular cleaning and maintenance schedule for all kitchen

areas and equipment. • Provide training and professional development opportunities for all kitchen staff.

The petitioner submitted its organizational chart showing the beneficiary as the executive chef, reporting to

the general manager. As the executive chef, the beneficiary will directly supervise an "assistant chef

(trainer)," who supervises a "preparation cook." The "preparation cook" supervises a "kitchen helper" and dishwasher. None of the positions listed in the organizational chart, other than the beneficiary, has a named

person who is employed in the position and fulfilling its duties.

The petitioner also submitted the foreign entity's organizational chart showing the beneficiary as the executive chef, reporting to the "asst. restaurant manager." As the executive chef, the beneficiary directly supervises

three "assistant chefs," who supervise four "sous chefs." There also appears to be some relation between the

executive chef and the "restaurant captains," but it is unclear what that relationship is in the provided organizational chart.

The petitioner submitted a document titled Job Descriptions for both the foreign and U.S. entities briefly

listing job duties for each of the positions listed on each organizational chart. The beneficiary's listed duties

on these documents are identical to those provided in the petitioner's letter of support.

(b)(6)

NON-PRECEDENT DECISION Page 9

In the RFE, the director advised the petitioner that the submitted evidence is insufficient to establish that the beneficiary has been and will be employed in a qualifying managerial or executive capacity. The director

advised the petitioner that it failed to articulate the beneficiary's anticipated daily responsibilities, including

the percentage of time allocated to each duty, to establish that the beneficiary has been and will be primarily

engaged in managerial capacity duties abroad and in the United States. The director noted that although the

petitioner stated that the beneficiary will have oversight over 23 subordinates, it did not provide validating

evidence to establish the scope of its workforce in the United States. The director further noted that although

the evidence indicated that the beneficiary managed a kitchen workforce of 33 individuals at the foreign

entity, the petitioner failed to provide evidence to validate the number of individuals under his supervision,

the positions of each individual, or the job duties associated with their respective positions.

In response to the RFE, the petitioner provided a letter, dated February 5, 2014, signed by

Managing Member of the petitioner, referring the director to previously submitted evidence to demonstrate that the beneficiary has been employed in a managerial capacity at the foreign entity. In the same letter, the

petitioner also listed the same exact duties for the beneficiary's proposed position in the United States as

previously submitted in its initial letter of support, and added the following:

The beneficiary oversees 7 subordinates including an assistant chef and a pastry chef.

* * *

It is impossible to assign and percentage or breakdown of the duties since, by the nature of this job, it varies each week. The beneficiary is not a first-line supervisor. He has a floor

manager on his level. As Executive/Head Chef, the Pastry Cook, Assistant Chef (trainer),

Preparation Cook, Assistant Pastry Cook, a Kitchen Helper and Dish Washer all subordinate

to the beneficiary.

The petitioner submitted a salary sheet from the foreign entity indicating that it paid a salary to the beneficiary

from April 2010 through December 2013 and includes the beneficiary's signature for each month therein as

evidence that he received such salary.

The petitioner also submitted a new organizational chart for its U. S. restaurant showing the beneficiary as the

"head chef (trainer)," reporting to the "quality assurance manager" who reports to the "general manager." As

the "head chef (trainer)," the beneficiary directly supervises an "assistant chef (trainer)" and a "pastry cook."

The "assistant chef (trainer)" supervises a "preparation cook" who supervises a "kitchen helper" and a

"dishwasher." The "pastry cook" supervises an "assistant pastry cook." None of the positions listed in the

new organizational chart, other than the beneficiary, has a named person who is employed in the position and fulfilling its duties.

The director denied the petition on concluding, in part, that the petitioner failed to establish that the

beneficiary has been and will be primarily employed in a qualifying managerial or executive capacity. In denying the petition, the director found that many of the duties listed for the beneficiary's position abroad

demonstrate that he was engaged in non-qualifying duties and, although requested by the director, the

petitioner failed to quantify the amount of time spent on each of the duties assigned to the beneficiary on a

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regular basis. As such, the director was unable to conclude that the beneficiary was primarily engaged in managerial duties at the foreign entity without supporting evidence to show that the majority of his time was

spent in a managerial capacity. The director further found that many of the duties listed for the beneficiary's

proposed position in the United States demonstrate that he will be performing rather than managing the duties and, although requested by the director, the petitioner also failed to quantify the amount of time he will spend

on each of the regularly assigned duties. Again, the director was unable to conclude that the beneficiary will

be primarily engaged in managerial duties without supporting evidence to show that the majority of his duties

will be spent managing restaurant kitchen operations. The director also found that the beneficiary will not be

involved in the supervision and control of the work of other supervisory, professional, or managerial

employees to relieve him from performing the services of running a restaurant kitchen in the United States

and that the petitioner failed to provide any evidence to verify the employment of the U. S. staff listed on its

organizational chart.

On appeal, the petitioner submits an affidavit, dated May 8, 2014 and signed by its general

manager, explaining that the beneficiary is a second-tier manager, not a first-line manager. The letter states

that the beneficiary manages, directly or indirectly, 14 individuals, including one assistant head chef (first line

manager) and 13 other individuals involved with food preparation. The letter further states that the

beneficiary also directly supervises a "purchasing officer" who keeps track of inventory, stock (food,

beverage, and perishable/non-perishable items), assists the chef in creating and revising recipes, order supplies and prepares the payroll for outside service. In a separate letter on appeal, the purchasing officer is

described as being a managerial administrative position.

The petitioner submits a new organizational chart (third iteration) showing the beneficiary as the "head chef,"

reporting to the general manager, As the "head chef," the beneficiary directly supervises an

"assistant head chef" and a "purchasing officer." The purchasing officer does not have any subordinates listed. The assistant head chef supervises a "hot section," consisting of two line cooks, one grill cook, and

three dishwashers, and a "cold section," consisting of two preparation cooks, one kitchen assistant, one pastry

cook, and two kitchen cleaners. None of the positions listed in the new organizational chart, other than the

beneficiary and the general manager, has a named person who is employed in the position and fulfilling its

duties.

The petitioner also submits a document titled "payroll summary" for March 27, 2014. The document

indicates that the petitioner had four managers, four servers, six runners, one busser, four hosts/hostesses, six

kitchen, and three dishwashers on staff at that time.

2. Analysis

Upon review, and for the reasons stated herein, the petitioner has not established that the beneficiary has been

and will be primarily employed in a qualifying managerial or executive capacity.

When examining the executive or managerial capacity of the beneficiary, U. S. Citizenship and Immigration

Services (USCIS) looks first to the petitioner's description of the job duties. See 8 C.P.R. § 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 in either an executive or a managerial capacity. /d. Beyond

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the required description of the job duties, 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 an understanding of the beneficiary's actual duties and role in a business.

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 operational functions. Champion World, Inc. v. INS, 940 F.2d 1533 (fable), 1991 WL 144470 (9th Cir. July 30, 1991). The fact that the beneficiary owns or manages

a business does not necessarily establish eligibility for classification as an intracompany transferee in a

managerial or executive capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 101(a)(15)(L) of the Act does not include any and every

type of "manager" or "executive").

In the instant matter, although the petitioner references the beneficiary's positions as an executive chef or head

chef, the petitioner failed to demonstrate that the beneficiary's duties abroad and proposed duties in the United

States primarily focus on managing the organization, or a department, subdivision, function, or component

thereof. The petitioner first characterized the beneficiary's role as executive chef of both the foreign entity ·

and the petitioner and provided very vague descriptions of the beneficiary's position that do not establish that

he has been or will be primarily employed in a managerial capacity at either entity. The petitioner indicated

that the beneficiary's duties abroad and in the U.S. are to "manage kitchen operations," but failed to provide

an accurate picture of what he does on a daily basis. The letters submitted by the petitioner simply list 13

duties for his position abroad and 15 duties for his proposed position in the United States that are vague and

broadly general of a kitchen manager. Although specifically requested, the petitioner did not provide any

additional details or specific tasks related to the beneficiary's briefly listed responsibilities, nor did the

petitioner indicate how such duties qualify as managerial in nature. The petitioner's description of duties fails to provide any detail or explanation of the beneficiary's claimed executive 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. 1103 , 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 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. /d.

When asked to submit a comprehensive description of the beneficiary's job duties and a percentage of the

allocation of time devoted to each listed duty, the petitioner submitted a letter referring the director to its

previously submitted list of duties for the beneficiary's position abroad and providing an identical list of duties

for his proposed position in the United States. The reiteration of previously made statements failed to offer

any clarification as to the beneficiary's actual duties abroad and proposed in the United States, and fell

considerably short of satisfying the director's request for a "comprehensive description" of the beneficiary's

duties. 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. Although

afforded a second opportunity to provide the deficient information, the petitioner failed to provide any detail

or explanation of the beneficiary's activities in the course of both his current and proposed daily routine.

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Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the

petition. 8 C.P.R. § 103.2(b )(14). The vague description of the beneficiary's position abroad and proposed

with the petitioner fail to demonstrate that the beneficiary focuses the majority of his time on managerial

duties rather than the day-to-day operations of the business.

Additionally, the petitioner lists the beneficiary's duties abroad and in the U.S. as including managerial,

administrative, and operational tasks, but fails to quantify the time the beneficiary spends on them. This

failure of documentation is important because several of the beneficiary's identified tasks abroad, such as

coordinating with restaurant manager to ensure VIPs are immediately identified, and any special

arrangements and dietary restrictions are accurately communicated to the kitchen staff, performing on-the-job,

"shoulder-to-shoulder training" of kitchen staff with respect to cooking techniques and procedures, and

directly supervising the cooking and preparation of specials of the day items do not fall directly under

traditional managerial duties as defined in the statute. Additionally, the beneficiary's proposed job duties in

the United States, including cooking and/or directly supervising the cooking of items that require skillful

preparation, evaluating food products to assure that quality standards are consistently attained, and providing

training and professional development opportunities for all kitchen staff also 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 IKEA US, Inc. v. U.S. Dept. of Justice, 48 F.

Supp. 2d 22, 24 (D.D.C. 1999). Collectively, this brings into question how much of the beneficiary's time can

actually be devoted to managerial duties. As stated in the statute, the beneficiary must be primarily

performing duties that are managerial or executive. See sections 101(a)( 44)(A) and (B) of the Act. The

petitioner bears the burden of documenting what portion of the beneficiary's duties will be managerial or executive and what proportion will be non-managerial or non-executive. Republic of Transkei v. INS, 923

F.2d 175, 177 (D.C. Cir. 1991). Given the lack of these percentages, the record does not demonstrate that the

beneficiary will function primarily as a manager.

Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve

supervising employees, the petitioner must establish that the subordinate employees are supervisory,

professional, or managerial. See§ 101(a)(44)(A)(ii) of the Act.

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. § 1101(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. See 8 C.F.R. § 214.2(1)(1)(ii)(B)(3).

Here, the petitioner submitted one organizational chart for the foreign entity and three different organizational

charts for its U.S. restaurant illustrating the managerial hierarchy within the foreign and U.S. entities. The petitioner also submitted thorough lists of job duties for the beneficiary's subordinate employees. It can be

reasonably expected that the foreign entity and petitioning U.S. company each have supervisory staff

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subordinate to the beneficiary's position. However, although it is shown that the beneficiary may have at least

one subordinate with some supervisory duties, he has not been shown to primarily supervise and control the

work of other supervisory, professional, or managerial employees. The fact that one of his subordinates may

supervise lower-level employees is not sufficient to elevate the beneficiary to a position that is managerial in

nature. The petitioner has failed to demonstrate that the beneficiary's duties will primarily focus on the management of the organization and the supervision of qualifying managerial, professional, or supervisory employees, rather than on producing a product or providing a service of the petitioner. As noted above, the

petitioner failed to submit a detailed description of the beneficiary's positions to establish that his daily routine

has consisted and will consist of primarily managerial duties.

The petitioner has not established, in the alternative, that the beneficiary is employed primarily 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 101(a)(44)(A)(ii) of the Act, 8 U. S.C. § 1101(a)(44)(A)(ii). The term

"essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is

managing an essential function, the petitioner must furnish a position description that describes 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(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. Here, the petitioner did not indicate that the beneficiary qualifies as a function

manager. The petitioner did not articulate the beneficiary's duties at the foreign entity as a function manager

and did not provide a breakdown indicating the amount of time the beneficiary devotes to duties that would clearly demonstrate that he manages an essential function of the foreign entity.

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. See Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). Under

the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and policies" of that organization. Inherent to the definition, the organization must have a subordinate level of

managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad

goals and policies of the organization rather than the day-to-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. The beneficiary in this matter has not been shown to be employed in a primarily executive capacity. The petitioner failed to demonstrate that

the beneficiary's duties will focus on the broad goals and policies of the organization rather than day-to-day operations. In fact, the petitioner has not established that the beneficiary will have sufficient subordinate

employees to relieve him from performing non-qualifying duties.

Based on the deficiencies discussed above, the petitioner has not established that the beneficiary was employed by the foreign entity or will be employed by the petitioner in a qualifying managerial or executive

capacity. Accordingly, the appeal will be dismissed.

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III. CONCLUSION

In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit

sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013).

Here, that petitioner has not met that burden.

ORDER: The appeal is dismissed.