dismissed EB-1C Case: Hospitality

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal prtvacy 
PUBLIC COpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Sel\lices 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: MAR 1 5 2011 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b )(1 )(C) of the Immigration and Nationality Act, 8 U .S.C § lI53(b)(1 )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § /03.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § /03.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.usds.gov 
Page 2 
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 Florida corporation that seeks to employ the beneficiary as its general manager. 
Accordingly, the petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1 1 53(b)(l)(C), as a 
multinational executive or manager. The director denied the petition based on two independent grounds of 
ineligibility: I) the petitioner failed to establish that the beneficiary was employed abroad in a qualifYing 
managerial or executive capacity; and 2) the petitioner failed to establish that it would employ the beneficiary 
in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief asserting that the beneficiary'S 
foreign and proposed positions as general manager fit the definition of executive capacity. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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)(I )(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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
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. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization to 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' § lI01(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization to 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, Mercy Posada, president of the U.S. entity, submitted a letter dated July 25, 
2007 on behalf of the petitioner. Ms. Posada provided the following description of the beneficiary's proposed 
employment with the U.S. petitioner: 
[The beneficiary] will continue to be responsible for the overall operation of the motel. 
Within [the] guidelines established by the owners of[the] motel [she] will be responsible for 
setting room rates, allocate funds to departments, approve expenditures, establish expected 
standards for guest service, decor and housekeeping. In addition, she will review room 
activities, analyze reports, records and confer with staff to obtain data required for status of 
work in progress, and problems encountered. She will hire new personnel in order to 
Page 4 
properly staff the newly acquired contract. She will continue to exercise wide latitude in 
discretionary decision-making and receive only general supervision from the owners. 
_ further noted that 75% of the beneficiary's time would be allocated to directing the operational 
activities listed above and another 25% of her time would be allocated to business development. With regard 
to the beneficiary's employment abroad, that the beneficiary's job duties were the same as 
those she would perform during the with the petitioning entity. 
On December 29, 2008, the director issued a notice of intent to deny (NOID) instructing the petitioner to 
provide supplemental job descriptions of the beneficiary's positions with the foreign entity and with the u.S. 
petitioner. The petitioner was asked to list all of the beneficiary's duties and to specifY the percentage of time 
that was and would be allocated to each listed task. The director also asked the petitioner to discuss the 
beneficiary's level of authority and to list the position titles and provide brief job descriptions for the 
beneficiary's subordinates. 
In response, the petitioner provided a letter dated January 19, 2009 manager of 
.. 
entity, who stated that the beneficiary functioned at a senior level of the foreign entity's hierarchy. 
stated that the beneficiary was responsible for general oversight of the foreign entity's business 
operation, which included overseeing the front desk, marketing, operational, housekeeping, and maintenance 
employees. _ stated that the beneficiary allocated 70% of her time to operations of the business and 
business the remaining 30% being equally distributed among finances, training, and 
marketing. added further that 40% of the beneficiary's time was attributed to managing staff, 
which included schedule preparation and task assignment; 25% of her time was spent setting room rates, 
allocating funds to various departments, approving expenditures, and setting standards for guest services, 
decor, and housekeeping; and the remaining 35% of her time was spent reviewing room activities, analyzing 
reports and records, and conferring with staff regarding work in progress and any problems that may arise. 
The beneficiary's subordinates during her employment abroad included an administrator, a guest services 
manager, and an assistant administrator. 
With regard to the beneficiary's proposed employment with the u.S. entity, ~rovided a letter dated 
January 27, 2009 in which she included an identical percentage breakdown as the one that was submitted with 
regard to the beneficiary's employment abroad. Again, the beneficiary was described as a senior-level 
employee who is subordinate to the company's president. __ indicated that the beneficiary's 
subordinates in her proposed position would include a front office/guest services supervisor, an executive 
housekeeper, and a director of sales/marketing manager. 
On June 16,2009, the director issued a decision denying the petitioner's Form 1-140. The director determined 
that the descriptions of the beneficiary's foreign and proposed employment did not establish that the 
beneficiary was employed abroad and would be employed in the United States in a qualifYing managerial or 
executive capacity. The AAO acknowledges that the director's decision rested, in part, upon the finding that 
the petitioner's entire staff consisted of only four employees including the beneficiary. The AAO notes that 
this observation was incorrect based on the evidence of record, which shows that the petitioner actually had 
six employees, including the beneficiary. Accordingly, the director's erroneous finding is hereby withdrawn. 
Page 5 
Notwithstanding the director's apparent oversight, however, the AAO finds that the denial was nevertheless 
warranted. In examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and 
Immigration Services (USCIS) will first examine the petitioner's description of the beneficiary's job duties. 
See 8 C.F.R. § 204.5(j)(5). While other factors, such as the petitioner's organizational hierarchy and the 
beneficiary's placement within that hierarchy, also play an important role in determining the petitioner's need 
and ability to support an employee in a primarily managerial or executive capacity, published case law has 
determined that the actual tasks performed by the beneficiary on a daily basis are pivotal, as they 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). In the present matter, the job descriptions offered in response to the director's 
NOm focus primarily on general job responsibilities, which establish the beneficiary's level of discretionary 
authority, but otherwise fail to convey a meaningful understanding of exactly what the beneficiary was and 
would be doing on a daily basis so as to clarify how much of her time has been and would be spent 
performing qualifying tasks versus the non-qualifying ones. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of hislher time to managerial­
or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to hislher proposed position. 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 (8) 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). 
In the present matter, the lack of specificity in the job descriptions precludes the AAO from being able to 
gauge how much time has been and would be allocated to those tasks that are necessary to produce a product 
or to provide services. For instance, the petitioner indicated that a portion of the beneficiary's time would be 
spent establishing standards for guest services, decor, and housekeeping in accordance with guidelines that 
are established by the company's president. This statement poses problems in two ways. First, the petitioner 
failed to explain what is meant by "establish expected standard," as no specific standard was actually 
identified. Thus it is unclear what specific tasks the beneficiary has and would perform in establishing this 
unknown standard. Second, the fact that the beneficiary must adhere to guidelines that are set by her 
immediate superior indicates that the beneficiary has diminished discretionary authority with regard to this set 
of tasks. 
Next, with regard to the beneficiary's supervisory role in preparing work schedules and assigning tasks to 
subordinate employees, the record does not establish that the beneficiary's subordinates are comprised of 
professional or managerial employees aside from their respective position titles. Although the petitioner 
indicated that one of the beneficiary's subordinates---<lirector of sales/marketing manager-possesses a 
baccalaureate degree in marketing, the same cannot be said of the other two subordinate employees. It is 
noted that the petitioner's claim that the executive housekeeper oversees the work of independently contracted 
housekeepers cannot be verified, as no evidence was provided to establish that the petitioner in fact contracts 
such workers. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 J&N Dec. 190 (Reg. Comm. 1972)). 
Moreover, in evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
Page 6 
endeavor. Section IOI(a)(32) of the Act, 8 U.S.C. § IIOI(a)(32), states that "[tJhe tenn 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 tenn "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. Maller of Sea, 19 I&N Dec. 817 (Comm. 1988); Maller of Ling, 13 I&N Dec. 35 (R.C. 
1968); Maller of Shin, II I&N Dec. 686 (D.O. 1966). Therefore, the AAO must focus on the level of 
education required by the position, rather than the degree held by the subordinate employee. In the present 
matter, there is insufficient infonnation about the hybrid director of sales/marketing manager to conclude that 
this is a position requiring a baccalaureate degree. Lastly, while it is foreseeable that the beneficiary's 
position would require preparation of work schedules and assignment of tasks, more information is needed to 
explain what factors are involved in this undertaking that requires the beneficiary to devote such a 
considerable portion of her work week. 
In general, the purpose of a detailed job description is to establish what specific job duties comprise the 
foreign and/or proposed position. Given this infonnation, the AAO can then gain a reasonable understanding 
of what the beneficiary has been or would be doing on a daily basis and what portion of her time would be 
spent performing tasks within a qualitying capacity. The petitioner is reminded that it maintains the burden of 
establishing that the primary portion of the beneficiary's time in each of her positions is allocated to 
managerial- or executive-level tasks. Here, the petitioner simply did not provide the necessary infonnation to 
enable the AAO to reach a favorable conclusion. Thus, based on the evidence furnished, it cannot be found 
that the beneficiary has been or will be employed primarily in a qualitying managerial or executive capacity 
and on the basis of these two separate findings, the instant petition may not be approved. 
Additionally, while not addressed in the director's decision, the AAO finds that the record lacks sufficient 
evidence to establish that petitioner has a qualitying relationship with the beneficiary's foreign employer as 
required by 8 C.F.R. § 204.5(j)(3)(i)(C). To establish a "qualitying 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. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as 
"affiliates." See generally § 203(b)(I)(C) of the Act, 8 U.S.c. § 1 I 53(b)(l)(C); see also 8 C.F.R. 
§ 204.5(j)(2) (providing definitions of the tenns "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate 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; 
* * * 
Multinational means that the qualitying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Page 7 
Subsidiary means a finn, 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 contends that it has an affiliate relationship with the beI1efici,li"Y' 
employer. This claim is premised on the assertion that both entities are owned by 
With regard to the petitioning entity, the record contains stock certificate nos. I and 2, issuing 127 shares to 
Maria and 128 shares to Martin, respectively. With regard to the foreign entity, however, the share ownership 
has not been established. Rather, the petitioner has translations of foreign registry documents 
showing that ownership of the foreign entity passed after 
the death oftheir mother. While these documents clearly joint owners 
of the foreign entity, none of the documents provide infonnation portion of that 
entity belongs to each sibling. In other words, there is no indication that either sibling has his or her own 
individual portion of the foreign entity as each does with respect to the U.S. entity, which, according to the 
stock certificates, is majority owned, and therefore controlled, by Martin Garcia. 
The regulation and case law confinn that ownership and control are the factors that must be examined in 
detennining whether a qualifYing relationship exists between United States and foreign entities for purposes 
of this visa classification. Maller of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
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. In the present matter, while the evidence on record indicates 
owns a controlling portion of the U.S. entity's stock, the same cannot be said of the foreign 
documentation that has been submitted. As such, the AAO cannot conclude that the 
petitioner has satisfied the filing requirement discussed at 8 C.F.R. § 204.5(j)(3)(i)(C). 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identifY all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (ED. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, counsel makes numerous references to the petitioner's previously approved L-I employment 
of the beneficiary. The AAO notes, however, that each nonimmigrant and immigrant petition is a separate 
record of proceeding with a separate burden of proof. As such, each petition must stand on its own individual 
merits. USCIS is not required to assume the burden of searching through previously provided evidence 
submitted in support of other petitions to determine the approvability of the petition at hand in the present 
matter. The approval of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant 
petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions after 
approving prior nonimmigrant 1-129 L-I petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
Page 8 
at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 
F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that USCIS or any agency must 
treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th 
Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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 291 of the Act, 8 U .S.C. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.