dismissed EB-1C Case: Hospitality

U.S. Citizenship 
and Immigration 
Services 
MA TIER OF M-A- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 25, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner 1 seeks to permanently employ the Beneficiary as its CEO under the first preference 
immigrant classification for multinational executives or managers. Immigration and Nationality Act 
(the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(1)(C). This classification allows a U.S. employer 
to permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary will be employed in a managerial or executive capacity in 
the United States. On appeal, the Petitioner submits additional evidence and asserts that the 
Beneficiary will be employed in an executive capacity in the United States. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has 
been doing business for at least one year. See 8 C.F.R. § 204.5U)(3). 
1 On the petition, the Petitioner claims to be a hospitality business. However, the Petitioner's actual business is not clear 
from the record. 
Matter of M-A- LLC 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial or executive capacity. On appeal, the Petitioner asserts that the 
Beneficiary will be employed in an executive capacity to direct the management of the organization, 
establish the goals and policies of the organization, and exercise wide latitude in discretionary 
decision-making authority. The Petitioner does not claim that the Beneficiary will be employed in a 
managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary will be 
employed in an executive capacity. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
_on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. 
A Duties 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definition of executive capacity. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table 1ecision). The Petitioner must also prove that the 
Beneficiary will be primarily engaged in exe~utive duties, as opposed to ordinary operational 
activities. alongside the Petitioner's other employees. See, e.g., Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
With the petition, the Petitioner submitted a chart listing four broad duties of the position of CEO. 
In a request for evidence (RFE), the Director requested that the Petitioner submit additional evidence 
to establish that the Beneficiary will be employed in the United States primarily in a managerial or 
executive capacity. The Director specifically requested a definitive statement from the Petitioner 
which describes the Beneficiary's job duties. · 
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Matter of M-A- LLC 
In response to the RFE, the Petitioner submitted a list of the duties of the Beneficiary is his role as 
"President & CE0" 2 of the Petitioner, and the percentages of time devoted to the duties of these 
positions, including: 
• Establishes and enforces strategies, goals, procedures and policies for the company. 
Responsible for managing enforcing and assuring the fulfillment of the company's mission 
and goals (25% of his time); 
• Ensure financial objectives are met, manage the company's budget and make sure funds are 
used efficiently (25% of his time); 
• Establishing and overseeing operational strategies, determination of Human Resources 
policy, and supervision of the company's business. Oversees the subordinate managers' 
efforts to increase employee productivity and ensure employee safety as well as exceptional 
customer service. Has ultimate and final decision-making authority regarding all employee 
hiring and termination. Direct managers in the assignment of projects and supervise the 
completion of assigned tasks (25 % of his .'time); and 
• He coordinates and manages the activiti~s of the company and he develops and implements 
·strategies for increasing growth. Serve as senior company representative in all negotiations, 
representing and preserving the company's image and communicating with employees 
through daily meetings toward the company's objectives (25% of his time}. 
In his decision, the Director noted that the Petitioner's response to the RFE did not include a 
description of the specific daily duties that the Beneficiary will perform. He dete.rmined that the 
Petitioner's_ description of the job duties fails to convey an understanding of what the Beneficiary 
would actually be doing on a daily basis. 
On appeal, the Petitioner resubmits the same list of duties that it submitted in response to the RFE. 
It submits no new information regarding the proposed duties of the Beneficiary. 3 The Petitioner has 
provided only a broad overview of the Beneficiary's general responsibilities and level of authority 
without identifying the nature of his actual day-to-day tasks. For example, the Petitioner vaguely 
stated that the Beneficiary would be responsible for establishing and enforcing strategies, goals, 
procedures, and policies for the company. However, the Petitioner has provided no supporting 
evidence to demonstrate its actual strategies, goals, procedures, and policies; nor has the Petitioner 
2 On the petition, the Petitioner listed the offered position as CEO. In response to the RFE, the Petitioner listed the title 
of the offered job as "President & CEO" and expanded the job duties for the offered position. On appeal, the Petitioner 
lists the job title as "President/Managing Member," "CEO and Founder," and "President & CEO:" A petitioner cannot 
materially change a position's level of authority within the organizational hierarchy or the associated job responsibilities. 
A petitioner must establish that the position offered to a beneficiary, when the petition was filed, merits classification as 
a managerial or executive position. See Maller of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'I Comm'r 1978). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to U.S. 
Citizenship and Immigration Services (USCIS) requirements. See Maller of /z11111111i, 22 l&N Dec. 169, 176 (Assoc. 
Comm'r 1998). ! · 
3 A petitioner bears the burden of establishing eligibility: for the immigration benefit sought. Section 29 I or the Act, 
8 U.S.C. § 1361; Matter of Skirball C11lt11ral Ctr., 25 l&N Dec. 799,806 (AAO 2012). 
Matter of M-A- LLC 
explained what performing this duty wouJd look like on a daily basis. Other duties indicate that the 
Beneficiary will oversee the determination of human resources policies and manage the company 
budget, but the Petitioner does not explain who would actually perform the human resources and 
accounting functions over which it cJaims the Beneficiary will have authority. The absence of 
information concerning who will perform these non-qualifying operational duties renders the 
Petitioner's description of the Beneficiary's responsibility largely meaningless. The Petitioner also 
states that the Beneficiary will be responsible for managing, enforcing, and assuring the fulfillment 
of its mission, but its mission remains unclear. It furt~er contends that the Beneficiary will oversee 
the subordinate managers' efforts to increase . employee productivity and ensure exceptional 
customer service and coordinate and manage the activities of the company. However, the record 
does not establish what services the Petitioner actually provides or discuss the activities of the 
company. Rather, the record contains inconsistent information of the nature of the Petitioner's 
business. On the petition, the Petitioner claims to be a hospitality business. However, its Operating 
Agreement indicates that its purpose is to rent and lease automobiles, while its application for a 
federal employment identification number states that it provides rental car services, and its tax 
returns indicate that it provides concierge services. A business information sheet further states that it 
offers travel consultant services. The Petitioner has not resolved these ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 
591-92 (BIA 1988). 
Conclusory assertions regarding the Beneficiary's employment capacity arc not sufficient. Merely 
repeating the language of the statute or regulations does not satisfy the Petitioner's burden of proof. 
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). The job descriptions do not provide adequate insight into the nature of his specific daily tasks 
or the amount of time he actually spends on any clearly defined duty. This, coupled with a lack of 
clear infonnation on the nature of the Petitioner's business prevents us from fully analyzing the 
proposed job. As such, the Petitioner has not provided enough information about the Beneficiary's 
duties to establish that his duties are primarily th<?sc of an executive. 
Further, the offered job title and its correspo~ding duties are inconsistent with the Petitioner's 
Operating Agreement. The Operating Agree~ent designates the Beneficiary and his wife as the 
managing members of the limited liability company. It states that the business and affairs of the 
company shall be managed by the two managing members, no·t a single CEO. The Petitioner has not 
resolved these inconsistencies in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
Based on the vague description of the Beneficiary's proposed duties, the absence of a clear 
explanation of the Petitioner's business, and the· inconsistencies in the record regarding the job title 
and duties, the Petitioner has not established that the Beneficiary will be employed in an executive 
capacity in the United States. 
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Matter of M-A- LLC 
B. Staffing 
Beyond the required description of the job duties, USC[S reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from perfon:ning operational duties, the nature of the business , 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. If staffing levels are used as a factor lin 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. See 
section 101(a)(44)(C) of the Act. 
The Petitioner stated on the Form 1-140 that it had five employees as of September 2ffl 6. With the 
petition, the Petitioner submitted an organizatiohal chart showing that the Beneficiary oversees the 
following four employees: a sales manager; a marketing manager (the Beneficiary's wife and a 50% 
owner of the Petitioner); a sales associate; and a business developer. Another chart I ists the job 
descriptions, levels of education, and salaries of the Beneficiary and the four employees, including: 
CEO and Founder (Beneficiary) 
Marketing Manager 
Sales Manager 
Sales Associate 
Business Developer 
Level of Education 
Higher 
Higher/University Level 
Higher/University Level 
Upper Level 
Higher/University Level 
Salary 
U$2 ,500 
U$2 ,000 
U$2,500 
In the RFE, the Director requested that the Petitioner submit copies of each employee's degree if 
required for the position, and whether they work full or part-time. He also requested the Petitioner 
to submit pay vouchers and tax statements for the relevant years for each employee and/or 
'· contractor. 
In response to the RFE, the Petitioner submitted the same two charts that it submitted with the 
petition. In his decision, the Director noted [ that the Petitioner did not submit copies of the 
employee's degrees, indicate whether. the employees worked full or part-time, or submit evidence of 
wages paid to employees and/or contractors. He indicated that the wages paid by the Petitioner in 
2016, totaling $41 ,383, do not appear to suppor~ salaries for three full-time employees, including a . 
manager. Further, he indicated that because of the small size of the Petitioner , it appears that the 
Beneficiary would be performing day-to-day :duties associated with running the business and 
unrelated to executive duties. 4 
4 This finding is supported by the Petitioner's Operating Agreement, which states that the Beneficiary, as a managing 
member, shall have responsibility for the day-to-day affairs of the company. 
' 5 
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Matter of M-A- LLC 
On appeal, the Petitioner submits the same two charts that it submitted with the petition and with its 
response to the RFE. It also submits four IRS Forms W-2, Wage and Tax Statements, which show 
the following wage payments by the Petitioner in 2016: 
Pursuant to statute, the Petitioner must have a subordinate level of managerial employees for the 
Beneficiary to direct. Section 101(a)(44)(B) of the Act. However, the record does not establish that 
the Beneficiary's subordinate employees are managerial. While the Petitioner's organizational chart 
lists two subordinate "managers," the record does not show that th.ese employees supervise or 
manage anyone. Of the four subordinate employees, the only job description that lists managerial 
duties is the position of sales associate, which indicates that the individual is responsible for 
managing and supervising the sales team. 6 However, the Petitioner does not identify which, if any, 
of the named employees is part of the sales team.' 
Further, the Petitioner has not established that any of the subordinates held full-time postt1ons. 
Based on the wages paid to the four employees in 2016, it is clear that two of them did not work full­
time the entire year, including the sales manager who earned only $5,000 , and another employee 
who earned only $747.69. It is not clear if the other two employees - a sales associate and a 
business developer - worked full-time, . but their wages indicate that, if they did, they were paid less 
than $10 per hour based on a 40-hour work week. The marketing manager did not receive a salary in 
her capacity as an employee. 
In addition, the salaries actually paid do not match the salaries listed in the salary chart provided by 
the Petitioner. The chart indicates that the sales manager and business developer are paid the same 
amounts, and the sales associate is paid less than the . sales manager and -business developer. The 
actual wages paid show that the sales manager earned significantly less than the sales associate and 
the business developer, and that the .sales associate earned more than the business developer. The 
Petitioner has not resolved these inconsistencies in the record with independent, objcc1ive evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. The evidence does not 
substantiate that the duties of the Beneficiary and his subordinates correspond to their placement in 
the Petitioner's structural hierarchy. 
We take into account the reasonable needs of the organization and acknowledge that a company's 
size alone may not be the only factor in determining whether the Beneficiary is or would be 
employed in a managerial or executive capacity .. See section 101(a)(44)(C) of the Act. However, it 
is appropriate to consider the size of the petiti,oning company in conjunction with other relevant 
' 5 The record doi.:s not indicate a job titk or job di.:scription 'for · 
6 It is not clear why these duties belong to the sales associate, and not the sales manager. 
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Matter of M-A- LLC 
factors, such as the absence of employees who would perform the non-managerial or non-executive 
operations of the company. Family Inc. v. USCIS, 469 F.3d at 1313; Systronics C~Jrp. v. INS, ]53 F. 
Supp. 2d 7, 15 (D.D.C. 2001). Because the record does not establish the actual business operations 
of the Petitioner or the amount of time worke~ by the claimed employees, we cannot determine 
whether the four existing employees could relieve the Beneficiary from spending a large amount of 
time on non-executive duties. As such, there is insufficient evidence to show that the Petitioner has 
the necessary support staff to relieve the Beneficiary from having to engage primarily in the non­
executive operational tasks of the organization. Therefore, the Petitioner has not established that the 
Beneficiary will be employed in an executive capacity in the United States. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary will be employed in an executive capacity in 
the United States. · · 
ORDER: The appeal is dismissed. 
) 
Cite as Matter of M-A- LLC, ID# 1241325 (AAO July 25, 2018) 
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