dismissed EB-1C Case: Hospitality

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUL 3 0 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: . 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
:zy~ 
jRon~~rg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the preference visa petition. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The petitioner's appeal 
was dismissed. The matter is now before the AAO on a motion to reconsider. This motion will be 
dismissed. 
The petitioner is an Illinois corporation that 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. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility, concluding that 
the petitioner failed to establish: 1) that the beneficiary would be employed in a qualifying 
managerial or executive capacity; and 2) that it had a qualifying relationship with the beneficiary's 
foreign employer. 
On appeal, regarding the first issue of managerial and executive capacity, the petitioner's counsel 
asserted that the director placed "undue emphasis on the size of the beneficiary's operation in 
determining his qualifications as a manager or executive" and the director did not consider the 
petitioner's investments or the "current global depressive economic conditions." Regarding the 
second issue of the qualifying relationship, counsel provided a missing page from the petitioner's 
Articles of Incorporation and asserted that the record sufficiently demonstrated a qualifying 
relationship between the foreign employer and the petitioner. 
The AAO dismissed the appeal, concluding that the petitioner failed to overcome either basis for 
. denial. In finding that the petitioner failed to establish that the beneficiary would be employed in a 
primarily managerial or executive capacity, the AAO noted that its decision was based on a number 
of factors including the petitioner's failure to submit the beneficiary's detailed position description­
in response to a request for evidence, a number of unexplained discrepancies in the record 
pertaining to the petitioner's staffing levels and organizational structure, and the absence of 
personnel available at the time of filing to perform the day-to-day non-managerial functions 
associated with operating the petitioner's motel. Further, the AAO determined that the petitioner 
had failed to resolve questions and inconsistencies noted in the director's decision regarding the 
existence of a qualifying relationship between the foreign company and the petitioner. Finally, the 
AAO acknowledged that the beneficiary had previously been granted L-lA nonimmigrant status as 
an intracompany transferee, and explained why the nonimmigrant approvals are not due deference 
in this immigrant visa proceeding. 
The petitioner subsequently filed the instant motion to reconsider which consists of a Form I-290B, 
Notice of Appeal or Motion, and counsel's brief. 
The regulations at 8 C.P.R. § 103.5(a)(3) state, in pertinent part: 
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NON-PRECEDENT DECISION 
A motion to reconsider must state the reasons for reconsideration and be supported 
by any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or USCIS policy. A motion to reconsider a decision on 
an application or petition must, when filed, also establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 
With respect to the petitioner's claim that the beneficiary will be employed in a managerial or 
executive capacity, counsel cites to the general statutory and regulatory requirements for the 
requested immigrant visa classification and the statutory definitions of managerial and executive 
capacity found at section 101(a)(44) of the Act. Counsel also cites section 101(a)(44)(C) of the Act 
along with case law in support of his claim that "a company's size along may not be the determining 
factor in denying a visa to a multinational manager or executive." Counsel contends: 
USCIS has erred in denying the Petition because they believe the duties provided are 
too vague. Petitioner has very clearly established the duties of the beneficiary in the 
record of evidence. Petitioner has timely responded to all requests for evidence that it 
has been issued. USCIS is again placing an undue emphasis on the size of the 
beneficiary's operation in determining his qualifications as a manager or executive. 
Under analogous provisions regulating the grant of temporary visas to managers and 
executives, there have been no requirements imposed as to the number of employees 
supervised. Mars Jewelers, Inc. v. Immigration & Naturalization Service, 702 F. 
Supp. 1570, 1574 (N.D. Ga. 1988); Johnson-Laird, Inc. v. INS, 537 F. Supp. 52 (DC 
Ore. 1981). 
Counsel further states that the AAO "ignored numerous approved L-1A nonimmigrant approvals." 
Counsel citing Omni Packaging, Inc. v. INS, 733 F. Supp. 500, 504 (D.C.P.R. 1990), states "When a 
visa was granted and extended on the same standard under which the agency denies a subsequent 
visa, the agency must specifically explain why the previous L-1A visa approvals were erroneous." 
With respect to the issue of the petitioner's qualifying relationship with the foreign entity, counsel 
cites controlling case law on this issue and simply concludes that "the record of evidence shows 
sufficient ownership and control" and that "USCIS has cast unneeded doubt on all documentation 
provided by petitioner." 
Upon review, the petitioner has not met the requirements of a motion to reconsider. While counsel 
cites relevant statutory and regulatory provisions and precedent case law, counsel fails to establish 
how the AAO's decision was based on an incorrect application of law or USCIS policy. 
The AAO discussed the deficiencies in the petitioner's evidence in considerable detail, noting the 
petitioner's description of a vague job description for the beneficiary's position, its failure to provide 
a more detailed description of the beneficiary's duties in its RFE response, its failure to provide 
consistent evidence of its organizational structure, and its failure to establish that it has employees 
to relieve the beneficiary from performing the day-to-day operational duties of the petitioner's 
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motel. The combination of these deficiencies, considered in light of the totality of the record, led 
the AAO to conclude that the petitioner had not met its burden to establish that it would employ the 
beneficiary would be employed in a primarily managerial or executive capacity. 
The AAO did observe that the petitioner had documented the employment of only two workers 
other than the beneficiary during the quarter in which the petition was filed. The decision correctly 
acknowledged that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate 
for USCIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the 
non-managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Family Inc. v. USCIS, 469 F.3d 1313 
(9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The AAO observed that, as the only employees documented as of the date of filing included the 
beneficiary and two part-time housekeepers, the petitioner had not established a reasonable need for 
the beneficiary to perform primarily managerial or executive duties. The petitioner offers no 
additional explanation as to how this staff would be sufficient to relieve the beneficiary from 
involvement in the company's day-to-day operations, nor has it attempted to resolve the other 
inconsistencies noted in the AAO's decision with regard to the company's staffing levels and 
organizational structure. For example, the petitioner stated on the Form I-140 that it has six 
employees, submitted an organizational chart depicting 15 employees, but documented the 
employment of a staff of only three employees at the time the petition was filed. Counsel does not 
address these inconsistencies in the instant motion and has not disputed the AAO's finding that the 
petitioner's motel had only two employees other than the beneficiary when the petition was filed. 
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989), and 
Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition 
that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act in 
a primarily managerial or executive capacity. First, the AAO notes that counsel has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in National Hand 
Tool Corp., where the Fifth Circuit Court of Appeals decided in favor of the legacy Immigration 
and Naturalization Service (INS), or Mars Jewelers, Inc., where the district court found in favor of 
the plaintiff. With respect to Mars Jewelers, the AAO is not bound to follow the published decision 
of a United States district court in matters arising within the same district. See Matter of K-S-, 20 
I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be 
given due consideration when it is properly before the AAO, the analysis does not have to be 
followed as a matter of law. !d. at 719. 
In both National Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former 
INS should not place undue emphasis on the size of a petitioner's business operations in its review 
of an alien's claimed managerial or executive capacity. As noted in our previous decision, the AAO 
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has interpreted the regulations and statute to prohibit discrimination against small or medium-size 
businesses. However, consistent with both the statute and the holding of National Hand Tool Corp., 
the AAO has required the petitioner to establish that the beneficiary's position consists of primarily 
managerial or executive duties and that the petitioner will have sufficient personnel to relieve the 
beneficiary from performing operational and/or administrative tasks. Like the court in National 
Hand Tool Corp., we emphasize that our holding is based on the conclusion that the beneficiary is 
not primarily performing managerial duties; our decision does not rest on the size of the petitioning 
entity. 889 F.2d at 1472, n.5. 
With respect to the issue of the petitioner's qualifying relationship with the beneficiary's foreign 
employer, counsel simply states that the evidence of record is sufficient to establish eligibility. 
Counsel fails to state how the AAO's dismissal of the appeal involved an incorrect application of 
law or USCIS policy, and fails to address the numerous inconsistencies discussed in detail in the 
AAO's decision. Counsel contends that "USCIS has cast unneeded doubt" on the petitioner's 
documentation. However, 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). Any doubt cast on the petitioner's 
evidence was the result of the petitioner's failure to submit consistent evidence of the company's 
ownership. 
Finally, contrary to counsel's assertion, the AAO's decision did in fact acknowledge that USCIS 
previously approved L-1A classification nonimmigrant petitions filed by the petitioner on behalf of 
the instant beneficiary. Counsel cites Omni Packaging, Inc. v. INS, 733 F. Supp. 500 (D.C.P.R. 
1990) for the proposition that denial of a third preference classification on the same record as an L-1 
visa and extension that were approved is an abuse of discretion without specific elucidation stating 
why the previous approvals were in error. Counsel fails to note that the court in Omni Packaging 
revisited the issue and later determined that the Immigration and Naturalization Service had 
properly denied the immigrant petition and that it was not estopped from finding that the alien was 
not manager or executive after having determined that he was a manager or executive for purposes 
of issuing an L-1 visa. See Omni Packaging, Inc. v. INS, 930 F. Supp. 28 (D.C.P.R. 1996). 
Overall, and for the 
reasons discussed above, the case law, legal authority and assertions by counsel 
in support of this motion do not establish how the AAO's decision to dismiss the petitioner's appeal 
was based on an incorrect application of law or USCIS policy. Counsel primarily cites to legal 
precedent ·and applicable law already discussed in the AAO's decision and fails to explain how such 
laws and precedents were misapplied in the adjudication of the appeal. Therefore, the motion will 
be dismissed in accordance with 8 C.F.R. § 103.5(a)(4), which states, in pertinent part, that a motion 
that does not meet applicable requirements shall be dismissed. 
It is noted that the filing of a motion to reopen and/or reconsider does not stay the AAO's prior 
decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 C.F.R. 
§ 103.5(a)(1)(iv). 
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The motion will be dismissed and the petition will remain 
denied for the above stated reasons, with 
each considered as an independent and alternate basis for the decision. In visa petition proceedings, 
it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The motion is dismissed.