dismissed EB-1C Case: Cleaning Services

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifying date deleted to 
pvent clearly unwarranted 
invasion of personal privw' 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
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Office: TEXAS SERVICE CENTER Date: AuG 0 1 2008 
SRC 06 098 52057 
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 : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Florida. It offers residential and 
commercial cleaning services and seeks to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153@)(1)(C), as a multinational 
executive or manager. The director determined that the petitioner failed to establish that the beneficiary 
would be employed in a managerial or executive capacity and denied the petition on that basis. 
On appeal, counsel disputes the director's conclusions and submits a brief as well as an expert opinion in 
. support of his arguments. 
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 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 may file a petition on Form 1-140 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. 
The primary issue in this proceeding is whether the petitioner has provided sufficient evidence to establish 
that the beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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 f~st-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means 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. 
In support of the Form 1-140, the petitioner submitted a letter dated February 2, 2006, which includes a 
description of the beneficiary's proposed employment. The petitioner also provided a supplement separating 
and assigning a numerical order to each job responsibility listed in the support letter. As the numerical list 
has been incorporated into the director's decision it need not be repeated in the AAO's discussion. 
After reviewing the petitioner's submissions, the director issued a request for additional evidence (RFE), dated 
May 24, 2006, instructing the petitioner to list each of the beneficiary's proposed job duties and the 
percentage of time that would be allotted to each task. The petitioner was also asked to provide its 
organizational chart listing the position titles within its organization and the individuals who occupy them. 
In response, the petitioner restated and attempted to expand on the 20 job responsibilities previously provided 
in support of the Form I- 140: 
- - . - - - - - - 
Page 4 
Item 1 discussed the beneficiary's responsibility in planning procedures, establishing 
responsibilities and coordinating all managerial functions among departments and sites. 
The petitioner stated that this set of responsibilities includes establishing the subcontractors' 
job responsibilities at the various cleaning sites. The petitioner explained that the 
beneficiary does not perform any of the cleaning herself and stated that this set of 
responsibilities would consume 3-5% of the beneficiary's time. 
Item 2 discussed the beneficiary's responsibility in analyzing operations to evaluate the 
performance of the petitioner's staff and determining areas for cost reduction and program 
improvement. The petitioner stated that these responsibilities are carried out by assessing 
profit margin and possibly redistributing job assignments among subcontractors based on 
the amounts they charge the petitioner for their respective services. The petitioner stated 
that this "evaluation" may consume 7-1 0% of the beneficiary's time. 
Item 3 discussed the beneficiary's broad discretionary authority in conferring with the 
petitioner's stakeholders, organization officials, and staff members to establish policies and 
formulate plans. The petitioner fails to identify who are the organization officials and staff 
members. As suggested by the organizational chart, the petitioner's staff appears to include 
three contractors who carry out the cleaning services. Moreover, according to the 
petitioner's Form 1065 tax return for 2005, the only "stakeholders" in the petitioning entity 
are the beneficiary and one other individual. Although the petitioner claimed that 2-3% of 
the beneficiary's time would be spent on this set of responsibilities, no clear explanation 
was provided with regard to the policies and plans that are formulated. 
Item 4 discussed the beneficiary's responsibility in reviewing financial statements and sales 
and activity reports to ensure that the company reaches its objectives. Although the 
petitioner claimed that 15% of the beneficiary's time would be allotted to financial 
oversight, no clarification has been provided to explain who generates the financial and 
sales reports. 
Item 5 discussed the beneficiary's responsibility in assigning and delegating duties to 
subordinates. The petitioner stated that no more than 2% of the beneficiary's time would be 
allotted to this responsibility. 
Item 6 discussed the beneficiary's responsibility in adjusting the petitioner's reactions to 
business and market trends, which would consume 10-15% of the beneficiary's time. The 
petitioner stated that the beneficiary has been vested with broad authority in making 
decisions regarding new business opportunities, the petitioner's pricing scheme, and hiring 
new subcontractors. The petitioner provided no-clarification to indicate how new business 
opportunities are sought out and who generates the information regarding business and 
market trends, whlch apparently serve as the basis for the beneficiary's critical business 
decisions. 
Item 7 discussed the beneficiary's responsibility in assessing costs and benefits of potential 
actions, whlch the petitioner stated is "intertwined" with the item 6 above. 
Page 5 
Item 8 discussed the beneficiary's responsibility in determining how hnds will be spent, 
which would consume 7-10% of the beneficiary's time. The petitioner stated that this 
responsibility requires that the beneficiary assess the clients' needs in order to match them 
with the appropriate service provider while incurring the least amount of cost. 
Item 9 discussed the beneficiary's responsibility in identifying measures or indicators of 
employee performance, whlch would consume 5% of the beneficiary's time. The petitioner 
stated that the beneficiary reviews performance evaluations and contacts clients directly to 
get feedback regarding the services provided. 
Item 10 discussed the beneficiary's responsibility in deterrnining how operations should 
work and how changes in conditions, operations, and the environment will affect outcomes. 
The petitioner elaborated, stating that the beneficiary must read industry periodicals and 
attend relevant conferences in order to adapt to change and recognize business 
opportunities. These duties suggest that the beneficiary would conduct her own market 
research, which would consume 3% of her time. 
Item 11 discussed the beneficiary's responsibility in using logic and reasoning to identify 
the strengths and weaknesses of alternative solutions or approaches to problems. The 
petitioner explained, stating that this responsibility would require the beneficiary to 
reevaluate current contracts and possible new business opportunities. The petitioner stated 
that the beneficiary executes ths cost benefit analysis 100% of the time. 
Item 12 discussed the beneficiary's responsibility in monitoring and assessing performance 
of the company's managerial and service staff. Although the petitioner stated that this 
responsibility would consume 7-10% of the beneficiary's time, it is unclear who, aside from 
the beneficiary herself, is an active managerial staff member withn the petitioner's current 
organizational hierarchy. Moreover, item 9 has already identified the beneficiary's role in 
evaluating service providers' performances. It is unclear how the current task is different 
from the one cited in item 9. 
Item 13 discussed the beneficiary's responsibility in motivating, developing, and overseeing 
the company's staff and work product and identifying the best people for the job. The 
petitioner suggests that a marketing component is involved in this responsibility, which 
would consume 3-5% of the beneficiary's time. As no employees have been identified as 
marketing staff, it is implied that the beneficiary performs this non-qualifying task. 
Item 14 discussed the beneficiary's responsibility in generally observing, receiving, and 
otherwise obtaining information from all sources. 
Item 15 discussed the beneficiary's responsibility in monitoring and controlling resources 
and overseeing spending, which the petitioner also referred to as fiscal management. 
Although an additional 5% of the beneficiary's time has been allocated to this general 
responsibility, it is unclear how it differs from item 8, which also discusses the beneficiary's 
role in monitoring the petitioner's budget and spending. 
Page 6 
Item 16 discussed the beneficiary's responsibility in providing information to subordinates 
via phone, mail, email, or in person, which would consume 1% of the beneficiary's time. 
Item 17 discussed the beneficiary's responsibility in establishing long-range goals and 
specifying ways to achieve them. The petitioner deemed this a critical function and stated 
that 10% of the beneficiary's time would be devoted to this responsibility. 
Item 18 discussed the beneficiary's responsibility in analyzing information and evaluating 
results to choose the best solution. 
Item 19 discussed the beneficiary's responsibility in encouraging and building mutual trust, 
respect, and cooperation among the petitioner's staff and subcontractors. Again, aside from 
the beneficiary herself, it is unclear what other staff the petitioner actually employs. While 
the petitioner has identified subcontractors hired to carry out the janitorial and cleaning 
services, it is unclear what specific duties are employed to carry out this broad 
responsibility, which would consume 2-4% of the beneficiary's time. 
Item 20 discussed the beneficiary's responsibility in developing specific goals and plans to 
prioritize, organize, and accomplish the petitioner's objectives. The petitioner broadly 
spoke of emerging market conditions and business opportunities, but failed to explain any 
of its specific goals. It is entirely unclear what actual duties are entailed in this general set 
of job responsibilities, which would comprise 20% of the beneficiary's time. The petitioner 
also failed to distinguish this responsibility from item 17, which also deals with business 
goals. 
While the petitioner has provided a lengthy list of responsibilities in an attempt to fit the beneficiary's 
employment into the statutory definition of managerial or executive capacity, the.petitioner failed to explain 
who, if not the beneficiary carries out its administrative tasks, including the generating of service invoices, 
contacting customers, answering the office phone, etc. Furthermore, as previously indicated, a number of the 
above responsibilities are repetitive, assigning additional portions of time to responsibilities that have already 
been discussed in another portion of the job description. 
With regard to the beneficiary's organizational chart, the petitioner lists its immigration attorney and its 
accountant among the beneficiary's subordinates and the petitioner's staff. However, the petitioner has not 
provided evidence to establish that either the immigration attorney or its accountant provide anything more 
than limited services on a need basis such that either individual would be considered an employee of the 
company rather then a mere service provider. As such, the petitioner's entire staff consists of the beneficiary 
and three subcontractors. As previously stated, no evidence has been provided to establish that the petitioner's 
administrative services, which are non-qualifying yet crucial to the company's daily operation, are provided 
by anyone other than the beneficiary herself. As these tasks have not been accounted for in the petitioner's 
lengthy job description, it is unclear how much of the beneficiary's time would actually be spent perform non- 
qualifying tasks. 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 1 0 1 (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 International, 19 I&N Dec. 593, 604 (Comm. 
1988). 
Page 7 
After evaluating the documentation submitted, the director denied the petition in a decision dated September 
13, 2006. The director noted that the petitioner failed to establish that the beneficiary would primarily 
perform duties within a qualiQing capacity. 
On appeal, counsel challenges the director's conclusion in an appellate brief, asserting that Citizenship and 
Immigration Services (CIS) has deviated from the preponderance of the evidence standard of proof that is 
discussed in Matter of E- M-, 20 I&N Dec. 77 (Comm. 1989). Counsel suggests that the inadequate description 
of the beneficiary's proposed employment, i.e., the petitioner's claim alone, is in itself evidence that the 
beneficiary would be relieved from having to primarily focus on performing the petitioner's daily operational 
tasks. Based on counsel's faulty argument, there would be no need for the submission of actual documentary 
evidence. However, thls reasoning is directly contradicted by precedent case law, which specifically states that 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Counsel also introduces the professional opinion of Professor who supported the 
petitioner's claim in a letter dated October 9, 2006, finding that the beneficiary would be employed as an 
executive or manager "based upon generally accepted management principles."1 However, despite any expertise 
may possess in understanding generally accepted management principles, no evidence has been 
provided to establish ertise in immigration law and specifically sections 1 0 1 (a)(44)(A) and (B) 
of the Act, which discuss the relevant statutory definitions of managerial and executive capacity, respectively. 
In fact, ference to the beneficiary as a manager and an executive further suggests an overall 
lack of understanding of the distinctions between the two statutory definitions. 
Additionally, counsel's reference to guidelines provided in the United States Department of Labor's (DOL) 
Occupational Information Network is of little to no relevance in the present discussion, as the guidelines do 
not incorporate the statutory and regulatory provisions that are relevant in the present matter. Thus, meeting 
the requirements set out by DOL is irrelevant. Rather, in order to classify a beneficiary as a multinational 
manager or executive, the petitioner must comply with the provisions in 8 C.F.R. 5 204.50)(5), which are 
clear in requiring that every petitioner provide a detailed description of the position its beneficiary would 
occupy under an approved position. In the present matter, the job description provided was admittedly 
lengthy in its attempt to conform the beneficiary's proposed position to that of a manager or executive. 
However, the length of a job description has no bearing on the quality of its content. 
Here, the petitioner stressed the beneficiary's discretionary authority, which CIS does not dispute, and the 
petitioner's hiring of subcontractors to perform the actual cleaning duties. However, neither factor eliminates 
the likelihood that the beneficiary would primarily perform daily operational tasks rather than tasks within a 
qualifying managerial or executive capacity. In order to establish employment in a managerial or executive 
capacity, the petitioner must specify the tasks performed by the beneficiary, establish who perfoms the daily 
operational tasks, and provide documentary evidence that the individuals who are purportedly performing the 
operational tasks were employed at the time the Form 1-140 was filed such that the petitioner is ready and 
able to relieve the beneficiary from having to primarily perform those non-qualifying duties herself. In the 
present matter, these key elements were virtually absent. While the petitioner has established that the 
Page 1, paragraph 2 of Dr. Thaler's letter. 
Page 8 
beneficiary would not perform the cleaning duties, it has failed to address the issue of administrative tasks, 
which are also non-qualifying. As previously stated, the petitioner's job description is also severely lacking. 
The petitioner suggested that 15% of the beneficiary's time would be consumed with overseeing the 
company's finances, requiring the review of sales and activity reports. However, the petitioner failed to 
specify who within its hierarchy would actually generate those reports. Another 40-45% of the beneficiary's 
time was allotted to exercising discretionary authority and strategic planning.2 However, no actual or specific 
job duties can be derived from these general job responsibilities. Thus, based on these significant 
deficiencies, the AAO cannot conclude that the beneficiary would primarily perform duties of a qualifying 
nature. For this reason, the petition cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not previously addressed in the director's decision. Specifically, 8 C.F.R. 5 204.56)(3)(i)(C) states that 
the petitioner must establish that it has a qualifying relationship with the beneficiary's foreign employer. The 
regulation at 8 C.F.R. $ 204.56)(2) states in pertinent part: 
AfJiate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 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; 
Mzkltinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of whch is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In the present matter, the petitioner stated in the support letter dated February 2, 2006 that it is an affiliate of 
- 
I., located in Venezuela. 
 However, in an -unnamed and undated certified 
translated document, the petitioner was identified as the foreign entity's subsidiary, a claim that is furthered by 
a membership certificate issuing 30,000 units to the Venezuelan company. No other certificates were 
submitted to establish any other ownership interests aside from that of the foreign entity. The AAO further 
notes that the petitioner's Articles of Organization, Article V, indicate that the beneficiary and one other 
individual were named as the company's managers, without mentioning or referencing any other members or 
managers of the limited liability company. Therefore, these documents suggest that ownership and control in 
the U.S. petitioner are held by different parties. 
2 
Refer to the total percentage points assigned to items 6, 17, and 20 of the petitioner's job description discussed earlier. 
Page 9 
Furthermore, Schedule K-1 of the petitioner's Form 1065 tax return for 2005 identifies the beneficiary and the 
other individual as the petitioner's owners, each owning 50% of the company. Thls information is 
inconsistent with the petitioner's prior claim that it is owned directly by the foreign entitity. 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 
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., 1 9 I&N Dec. 362 (BIA 1 986); Matter of Hughes, 1 8 I&N Dec. 289 
(Cornm. 1982). In the present matter, the petitioner has not resolved this considerable inconsistency and, as 
such, has not provided sufficient documentation to establish that it and its claimed foreign counterpart are 
similarly owned and controlled as required for a qualifying relationship to exist. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1 043, affd, 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 29 1 of the Act, 8 U.S.C. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.