dismissed EB-1C Case: Hospitality

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PUBLIC COpy 
DATE: JUL 0 6 2011 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. DepartmeDt of Homeland Secwity 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
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. § \\53(b)(l)(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. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(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.uscis.gov 
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 seeks to employ the 
beneficiary as its president/managing member. 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. § I I 53(b)(I)(C), as a multinational executive or manager. 
The director denied the petition, finding the petitioner ineligible based on the following grounds: I) failure to 
establish that a qualifYing relationship exists between the U.S. petitioner and the beneficiary's foreign 
employer; 2) failure to provide sufficient evidence of the foreign entity's current staffing and business 
activity; 3) failure to establish the ability to pay the beneficiary's proffered wage; and 4) failure to establish 
that the beneficiary would be employed in the United States in a managerial or executive capacity. 
On appeal, counsel states that the petitioner has established its ability to pay by virtue of having paid the 
beneficiary the proffered wage. Counsel further asserts that sufficient evidence has been submitted to 
establish the existence of the requisite qualifYing relationship and, with regard to the beneficiary's U.S. 
employment, counsel asserts that the director referred only to executive capacity and failed to consider 
whether the beneficiary would be employed in a managerial capacity. Additionally, counsel states that a brief 
and/or additional evidence would be submitted within thirty days of the appeal. It is noted that there is no 
evidence that the petitioner has supplemented the record with any additional evidence or information. 
Therefore, the AAO will make its determination regarding the petitioner's eligibility on the basis of the record 
as presently constituted. 
After reviewing the record in its entirety, the AAO concludes that the director's finding regarding evidence of 
the petitioner's qualifYing relationship with the beneficiary's foreign employer and its ability to pay the 
beneficiary's proffered wage were not warranted in light of the documentation that was submitted to show that 
both requirements had been met. As such, the AAO hereby withdraws the first and third grounds as bases for 
denying the petition. 
Despite the withdrawal of two of the denial grounds, the AAO nevertheless finds that the petition does not 
merit approval. First, with regard to the director's second basis for denial, the AAO notes that counsel failed 
to dispute or to otherwise address the current staffing level and business activity of the foreign entity. As 
such, the petitioner in effect concedes the director's adverse finding with regard to the petitioner's 
multinational status. l Next, the AAO will address the beneficiary's employment capacity with the U.S. entity 
as the sole remain ing ground for denial. 
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): 
• • • 
1 See 8 C.F.R. § 204.5(j)(2) for the defmition of multinational. 
Page 3 
(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)( 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. 
As indicated above, the primary issue to be addressed in this proceeding is the beneficiary'S employment 
capacity in the proposed position with the U.S. entity. Specifically, the AAO will examine the record to 
determine whether the petitioner provided sufficient evidence to establish that it would employ the 
beneficiary 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 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. 
Page 4 
Section 101 (a)(44)(B) of the Act, 8 U.S.c. § llOl(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 provided a memorandum that included the following description 
of the beneficiary's employment with the U.S. entity: 
[The beneficiary],s time is almost exclusively devoted to management and executive services. 
He has overall direction and authority for control of the company as well as the hiring and 
firing of employees, establishing corporate policies, and establishing corporate purchase and 
acquisition criteria. He is also responsible for establishing financial goals and budgets. [He 1 
exercises authority in regards to hiring, firing, training, delegating of assignment[s 1 according 
to capabilities, preferences and technical goals, discipline, promotion, and remuneration. He 
conducts performance reviews and ensures that his staff follows corporate procedures. [He 1 
has autonomous control over, and exercises wide latitude and discretionary decision making 
in, establishing the most advantageous courses of action for the successful management and 
direction of [the petitioner]'s business and development activities in Florida. 
In discussing the organization'S staffing composition, the petitioner stated that it employs a sales and 
marketing director, a hotel manager, a front desk manager, a head of housekeeping, a head of maintenance, 
and twelve general staff members. 
On December 18, 2008, the director issued a request for evidence (RFE) instructing the petItIOner to 
supplement the record with a more detailed description of the beneficiary's job duties with the U.S. entity in 
order to determine whether the proposed employment is within a qualifYing managerial and/or executive 
capacity. The petitioner was also asked to provide additional information about its staff, including the 
number of employees as well as their duties and job titles. 
The petitioner's response included a letter dated January 14, 2009 from counsel, who stated that the 
beneficiary is responsible for managing the organization. He claimed that the beneficiary controls the work 
of supervisory or managerial employees, including the director of sales/general manager and the vice 
president/accounting and finance manager, and stated that the beneficiary maintains authority to hire, fire, and 
promote these individuals. Counsel repeated information that was previously provided with regard to the 
beneficiary's discretionary authority in creating policies, delegating job assignments, establishing technical 
Page 5 
goals, and planning for development and expansion. Counsel claimed that the beneficiary negotiates 
contracts, including franchise, purchase and sale, financing, and professional service agreements. 
The petitioner also provided a copy of its organizational chart depicting the company employees in their 
respective placements within the petitioner's hierarchy. The beneficiary is depicted at the top of the hierarchy 
with the director of sales/general manager and the vice president of accounting and finance as his two direct 
subordinates. The general manager is shown as overseeing the housekeeping manager, a maintenance 
worker, and the night watchman, while the vice president of accounting and finance is shown as overseeing a 
front desk clerk and a night audit employee. 
After reviewing the submitted documentation, the director issued a decision denying the petition based, in 
part, on the conclusion that the petitioner failed to establish that the beneficiary would be employed in a 
qualifying managerial or executive capacity. The director noted that the supplemental job description 
provided by the petitioner failed to enhance an understanding ofthe beneficiary's specific daily job duties. 
On appeal, counsel challenges the director's finding, asserting that the director only considered the proposed 
employment under the definition of executive capacity, but failed to consider whether the proposed 
employment fits the definition of managerial capacity. 
Counsel's argument, however, is without merit as it appears to be based primarily on the director's 
unintentional omission of the statutory definition of managerial capacity. While the director did not restate , 
the statutory definition of managerial capacity, the director's references to managerial capacity are sufficient 
to indicate that the beneficiary'S proposed employment was considered under all relevant statutory criteria. 
Moreover, the director was clear in stating that it was the quality of the job description itself that was the 
primary basis for finding the petitioner ineligible. 
When examining the executive or managerial capacity of the beneficiary, the petitioner's description of the 
proposed position is a primary consideration. See 8 C.F.R. § 204.5(j)(5). Published case law supports the 
integral role of the finding that the actual duties themselves reveal the true 
nature of the employment. 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 
F.2d 41 (2d. Cir. 1990). It is noted, therefore, that merely reciting the beneficiary'S vague job responsibilities 
or broadly-cast business objectives is not sufficient. 
In the present matter, the RFE expressly instructed the petitioner to list the specific job duties the beneficiary 
would perform in his proposed position with the U.S. entity, in order to enable USCIS to make a reasonable 
assessment of the beneficiary'S time allocation to qualifying versus non-qualifying tasks. While the AAO 
acknowledges that no beneficiary is required to allocate 100% of his 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 (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). 
Here, the job descriptions provided by both counsel and the petitioner lack the necessary degree of detail and 
thus fail to convey a meaningful understanding of precisely which tasks the beneficiary would perform on a 
Page 6 
daily basis. While counsel stated that the beneficiary would be responsible for negotiating a variety of 
business contracts, he failed to establish that negotiating contracts falls within the statutory criteria for 
managerial or executive capacity. Moreover, merely reiterating that the beneficiary would have discretionary 
authority in matters concerning human resources and decision-making is little more than a paraphrased 
version of the statutory criteria. It says little about the specific tasks the beneficiary would perform within the 
context of the petitioning organization. There is little doubt than any individual who occupies the top-most 
level within an organizational hierarchy has the discretionary authority with regard to business development 
and personnel. This does not, however, automatically lead to the conclusion that all such individuals 
primarily perform managerial- or executive-level tasks. The fact that an individual manages a small business 
does not necessarily establish eligibility for classification as a multinational manager or executive in a 
managerial or executive capacity within the meaning of section 10 I(a)( 44) of the Act. It is the petitioner's 
burden to provide sufficient information about the beneficiary's specific job duties as well as evidence of an 
adequate support staff, all of which is collectively considered in order to determine whether the petitioner has 
the capability to employ the beneficiary in a managerial or executive capacity. In the present matter, the 
petitioner's failure to provide sufficient information about the tasks the beneficiary would perform in the 
proposed position precludes the AAO from issuing a favorable finding. Therefore, in light of this lack of 
sufficient evidence, the instant petition cannot be approved. 
Furthermore, while not addressed in the director's decision, the AAO finds that the petitioner also failed to 
establish that the beneficiary's employment abroad was within a qualifying managerial or executive capacity. 
See 8 C.F.R. § 204.50)(3)(i)(B). Although the petitioner provided a copy of the foreign entity's 
organizational chart, the record lacks sufficient information about the specific job duties the beneficiary 
perfonned. As previously noted, an explanation of the beneficiary's specific tasks is essential to determine 
whether the said employment fits the definition of managerial or executive capacity. See Fedin Bros. Co .. 
Ltd. v. Sava, 724 F. Supp. at 1108. 
Also beyond the decision of the director, the AAO finds that the petitioner has failed to submit sufficient 
evidence to establish that it has been doing business for at least one year prior to filing the Form 1-140 as 
required by 8 C.F.R. § 204.50)(3)(i)(D). The regulation at 8 C.F.R. § 204.50)(2) states that doing business 
means "the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other 
entity and does not include the mere presence of an agent or office." In the present matter, the petitioner has 
provided evidence to show that it was organized as a Florida company in 2006. However, mere evidence of 
its existence as a legal entity is not sufficient to establish that it was doing business on a regular, systematic, 
and continuous basis. 
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 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 grounds of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, service records show 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; each petition must stand on its own individual merits. The approval of a 
nonimmigrant petition in no way guarantees that US CIS will approve an immigrant petition filed on behalf of 
Page 7 
the same beneficiary. USClS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-
129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; lKEA 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 a previous nonimmigrant petition was 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. 593, 597 (Comm. 1988). It would be absurd to suggest that USClS 
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 petition 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 (ED. La.), afj'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
In summary, 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.