dismissed EB-1C Case: Amusement Park

(b)(6)
DATE: 
IN RE: 
JAN 0 5 2015 
Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
Office of Administrative Appeals 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b )(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(l)(C) 
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://www.uscis.gov/forms for the latest information on fee, filing location, and 
other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Texas Service Center Director denied the preference visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as a multinational executive or manager pursuant to 
section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153( b)(1)(C). The 
petitioner is a "high thrill amusement park." It claims to be a subsidiary of the beneficiary's foreign 
employer, located in Australia. The petitioner seeks to employ the 
beneficiary as its General Manager and Site Controller. 1 
The director denied the petition on February 25, 2014, concluding that the petitioner failed to establish 
that the beneficiary would be employed within a qualifying managerial or executive capacity. 
The petitioner subsequently filed an appeal, which the director treated as a motion. The director again 
denied the petition on April 28, 2014 and declined to treat the subsequent appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that it provided sufficient 
evidence to establish that the beneficiary would be employed in the U.S. in a qualifying managerial 
capacity. The petitioner submits a brief and additional evidence in support of the appeal. 2 
I. THE LAW 
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): 
* * * 
(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 who 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. 
The language of the statute is specific in limiting this provision to only those executives and managers 
who have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of 
1 The Form I-129 stated the proffered position as "General Manager" but all of the supporting 
documentation indicated the position as "General Manager and Site Controller." 
2 We conduct appellate review on a de novo basis (See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004)). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
that entity, and who are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
A United States employer rna y file a petition on Form I -140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for 
this classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or 
executive capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10l(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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; 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Finally, if staffing levels are used .as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the organization, 
in light of the overall purpose and stage of development of the organization. Section lOl(a)( 44)(C) of the 
Act. 
II. ISSUE ON APPEAL 
A. U.S. Employment in a Managerial or Executive Capacity 
The issue to be addressed is whether the petitioner established that the beneficiary would be employed in 
a qualifying managerial or executive capacity. 
The petitioner offered the beneficiary the position of General Manager and Site Controller. In a letter of 
support, dated May 22, 2013, the petitioner explained the duties of the proffered position as follows: 
• Oversee and direct the business operations of commercial amusement and recreation 
enterprise (35%) 
• Define and implement company's policy, goals and procedures (15%) 
• Hire and fire managerial staff (2.5%) 
• Approve/disapprove the hiring and firing of lower level employees (2.5%) 
• Conduct regular and routine inspections of premises (5%) 
• Discuss inspection discrepancies and solutions with appropriate subordinate managers 
(2.5%) 
• Ensure full compliance with governmental safety regulations (2.5%) 
• Develop management team through weekly meetings, weekly one-on-ones, semi-annual 
performance reviews, delegation of various responsibilities and projects within both of 
the amusement/recreation businesses (5%) 
• Review and monitor expenditures to ensure that they conform to budget limitations, 
continually strive to improve performance through subordinate managers (5%) 
• Control profit & loss, by implementing control/security procedures for products and cash, 
managing inventory, managing labor, reviewing financial information and implementing 
appropriate actions (2.5%) 
• Implement safety training and procedure instructions (5%) 
• Manage staff rosters and onsite procedure instructions (5%) 
• Supervise/oversee payment of accounts and orders through accountant (who is a 
subcontractor accountant and bookkeeper) (5%) 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
• Coordinates with managers of other J locations to ensure uniformity of 
safety, procedures, personnel policy and profitability schedule (5%) 
• Report to owner/CEO in Australia (5% )3 
The petitioner also stated that the beneficiary would supervise two managers: an Assistant General/Sales 
and Marketing Manager and a Maintenance Manager. The Assistant General/Sales and Marketing 
Manager's duties are as follows: 
• Prepare staff rosters and schedules and onsite placement for , 
approval. (15%) 
• Sets up staff meeting and prepare meetings agenda. (5%) 
• Handle all correspondence and communications between 
and outside accounts. (10%) 
---
Manager's 
Manager, staff, 
• Oversee and direct sales and customer relations staff. Assign tasks and ensure duties 
are carried out. (30%) 
• Develop and implement sales strategies. (25%) 
• Direct interface with customers. (10%) 
• Report to [the petitioner's] General Manger and Site Controller. (5%) 
The Maintenance Manager's duties include the following: 
• Supervise maintenance assistant (20%) 
• Define and implement safety measures and procedures in a manner to comply with 
all State and Federal laws (20%) 
• Coordinate with other locations maintenance managers to ensure uniformity of safety 
standards (15%) 
• Inspect fixed-mast towers, flange connections arid steel maintenance cables (20%) 
• Prepare annual budget concerning expenditures for maintenance and new part 
purchases (10%) 
• Ensure customer safety. (AT ALL TIMES) 
The petitioner also submitted an organizational chart that indicated that the Owner/Chief Executive 
Officer supervises the beneficiary as General Manager and Site Controller. The beneficiary will 
supervise the Maintenance Manager who in turn supervises two Maintenance Assistant/Operators. The 
beneficiary will also supervise the Assistant General/Sales and Marketing Manager, who in turn 
supervises four Operator/Sa lespersons, four Operator/Salespersons, and five 
Customer Relations/ Salespersons/Trampoline Operators. 
On August 13, 2013, the director sent a request for evidence ("RFE"). The director requested, in part, a 
detailed job description of the beneficiary's specific tasks on a normal business day including the 
percentage of time spent on each task. In addition, the director requested an organizational chart 
3 The percentage total is 102.5. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
including the names of all employees, employees' titles, a clear description of their job duties, educational 
levels, and whether they work full or part-time. The petitioner also requested Forms W-2, Wage and Tax 
Statements, for all employees. 
In response to the RFE, the petitioner submitted, inter alia, a statement from an authorized official of the 
petitioner, a letter from the foreign entity, organizational charts, job descriptions, payroll records for the 
beneficiary and a letter from the petitioners's payroll company. 
The director denied the petition, concluding that that the petitioner failed to establish that the beneficiary 
would be employed within a qualifying managerial or executive capacity. On appeal, the petitioner 
discusses all of the documentation submitted to show that the beneficiary would be employed in a 
qualifying managerial capacity. The petitioner also stated that the beneficiary is: 
in charge of managing a $1.2 Million operation amusement park which [sells] 60,000 
tickets a year with an average of 130 visitors a day during the low season and over 500 
during the high season, which has 10 full time employees and 8 part time employees, and 
which operates some of the most advanced amusement rides in the world. 
1. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of the 
record, starting first with the petitioner's description of the beneficiary's job duties. See 8 C.F.R. § 
204.5(j)(5). A detailed job description is crucial, as the duties themselves will reveal the true nature of 
the beneficiary's foreign and proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). We will then consider this information in light 
of other relevant factors, including job descriptions of the beneficiary's subordinate employees, the nature 
of the business that is conducted, the foreign company's subordinate staff, and any other facts contributing 
to a comprehensive understanding of the beneficiary's actual role within the foreign entity. While an 
entity with a limited support staff will not be precluded from the immigration benefit sought herein, it is 
subject to the same burden of proof that applies to a larger entity with a moderate or large subordinate 
staff. In other words, regardless of an entity' s size or support staff, the petit ioning entity must be able to 
provide sufficient evidence showing that it has the capability of maintaining its daily operations such that 
the beneficiary was relieved from having to primarily perform the operational tasks. 
In the present matter, upon review of the totality of the record, the evidence does not support a finding 
that the beneficiary will allocate his time primarily to the performance of tasks that are within a qualifying 
managerial or executive capacity. 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's proposed 
duties that fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the 
petitioner stated vague duties such as the beneficiary will spend 35 percent of his time to "oversee and 
direct the business operations of [a] commercial amusement and recreation enterprise." The beneficiary 
will also "define and implement company's policy, goals and procedures; " and, "review and monitor 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
expenditures to ensure that they conform to budget limitations, continually strive to improve performance 
through subordinate managers. " The petitioner did not, however, define the petitioner's vision, mission, 
goals and policies, or clarify the strategy plan and the financial and operations responsibilities of the 
organization. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is 
not su{ficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to provide sufficient details about the beneficiary's activities in the course of his daily 
routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1108. The petitioner's descriptions of the beneficiary's position do not 
identify the actual duties to be performed, such that they could be classified as managerial or executive in 
nature. 
In addition, the petitioner does not explain who will handle all of the financial and accounting operations. 
The petitioner stated that it employed an accountant but did not provide any evidence to corroborate that 
claim. It is not clear who is performing the budgeting, bookkeeping, and financial reporting for the 
petitioner. It appears that the beneficiary may be in charge of the financial operations rather than 
directing such activities through subordinate employees. An employee who "primarily" performs the 
tasks necessary to produce a product or to provide services is not considered to be "primarily" employed 
in a managerial or executive capacity. See sections 101(a)( 44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Intn 'l., 19 I&N Dec. at 604. 
In the instant matter, the job description submitted by the petitioner provides little insight into the true 
nature of the tasks the beneficiary will perform. While the petitioner has provided a breakdown of the 
percentage of time the beneficiary will spend on various duties, the petitioner has not articulated whether 
each duty is managerial or executive. 
In light of the foregoing discussion, the petitioner has not established that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity and on the basis of this 
second adverse conclusion, this petition cannot be approved. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. 
In evaluating whether: the beneficiary manages professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but 
not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge 
or learning, not merely skill, of an advanced type in a given field gained by a prolonged course of 
specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry 
into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm'r 1988); Matter of Ling, 13 
I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Therefore, we must focus on the level of education required by the position, rather than the degree held by 
subordinate employees. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term 
is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary, for example, to perform the duties of the Assistant General Manager who 
will: "prepares staff rosters and schedules and onsite placement for Manager's approval; " "sets 
up staff meetings and prepares meeting agenda;" "handles all correspondence and communications 
between Manager, staff, and outside accounts; " and, "develops and implements sales 
strategies." In addition, the Maintenance Manager will: "supervise [a] maintenance assistan t;" "define 
and implement safety measures and procedures in a manner to comply with all State and Federal laws; " 
and "ensure customer safety." It appears that the two managers are performing administrative tasks and 
maintenance operations and the petitioner has not established that a bachelor's degree is necessary to 
perform these duties. 
Moreover, the documentation is not clear as to whether the petitioner actually employs the individuals 
listed on its organizational chart. In response to the RFE, the petitioner submitted a letter from 
dated August 24, 2011, that states that is a 
Professional Employer Organization (PEO) and that "all federal and state payroll taxes are funded under 
Federal Tax Identification number & State Unemployment number for all leased employees." 
The letter also stated that the petitioner "has been a client of � 
since 02/11!2008 and is currently processing their payroll with us." However, upon review 
of the Forms W -2 for 2012 submitted by the petitioner, the employer's name is 
None of the documentation mentions or the petitioner. 
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). 
The petitioner has failed to provide a sufficiently 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. The record is unclear as to the beneficiary's 
actual role will be, and as to the petitioner's actual staffing levels. Overall, the record is insufficient to 
establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
III. CONCLUSION 
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 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003). 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of 
evidence that the beneficiary is fully qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). Here, that burden has not been met. 
ORDER: The appeal is dismissed.