dismissed EB-1C Case: Hospitality

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,. 
DATE: 
INRE : 
PETITION: 
MAR 1 9 2013 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
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 
OFFICE: TEXAS SERVICE CENTER FILE: :...::::=:===~ 
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: 
Enclosed please fmd 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 . 
• J 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The record indicates that the petitioner filed a motion to reopen. In a decision dated September 
4, 2012, the director stated that the requirements of a motion have been met and the petitioner's 
appeal filed on January 30, 2012, is reopened and forwarded to the Administrative Appeals 
Office (AAO) for a final decision. The matter is now before the AAO on appeal. The appeal 
will be dismissed. 
The petitioner is a hotel chain that seeks to employ the beneficiary as its Guest 
Services/Reservations Manager. 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 concluding that the petitioner failed to establish that the 
beneficiary's proposed employment with the U.S. entity would be within a qualifying managerial 
or executive capacity. 
On appeal, counsel disputes the director's findings and provides an appellate brieflaying out the 
grounds for challenging the denial. 
Section 203(b) ofthe 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. 
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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 issue that will be addressed in this proceeding calls for an analysis of the beneficiary's job 
duties. Specifically, the AAO will examine the record to determine whether the petitioner 
.submitted 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) ofthe 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, subdivisi<;m, function, 
or component of the organization; · 
(ii) supervises and controls the work of other supervisory, 
professional, or managerial employees, or manages an essential 
function ~ithin the organization, or a department or subdivision of 
the organization; 
(iii) if another employee or other employees are drrectly 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.§ 110l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which 
the employee primarily--
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. (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 examining the executive or managerial capacity of the beneficiary, USCIS will look first to 
the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law 
clearly supports the pivotal role of a clearly defined job description, as the actual duties 
themselves reveal the true nature of the employment. 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); see also 8 C.F.R. § 204.5(j)(5). 
USCIS reviews the totality of the record, which includes not only the beneficiary's job 
description, but also takes into account the nature of the petitioner's business, the employment 
and remuneration of employees, as well as the job descriptions of the beneficiary's subordinates, 
if any, and any other facts contributing to a complete understanding of a beneficiary's actual role 
within a given entity. 
The definitions of executive and managerial capacity have tw9 parts. First, the petitioner must 
show that the beneficiary performs the high-level responSibilities that are specified in the 
definitions. Second, the petitioner must prove that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his or her time on day-to-day 
functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 
30, 1991). . 
An analysis of the record does not lead to an affirmative conclusion that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
When examining the executive or managerial capacity ofthe beneficiary, the AAO will look first 
to the petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's 
description of the job duties must clearly describe the duties to be performed by the beneficiary 
and indicate whether such duties are either in an executive. or managerial capacity. !d. 
The petitioner provided a list of job. duties. Due to the overly general and vague list of job 
duties, the AAO is unable to gain a meaningful understanding of how much time the beneficiary 
spent performing qualifying tasks versus those that would be deemed non-:qualifying. For 
instance, in describing the beneficiary's position in the United States, the petitioner stated that 
the beneficiary has "overall responsibility for the overall operation of the Guest Services 
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Department," "responsible for all hiring and firing. decisions," and "monitor and supervise all 
aspects of her manager's duties and training protocols." It is unclear what specific tasks actually 
fall within these broad ·. categories. Merely using the term "manage" to describe the beneficiary's 
~nction does not establish that the supervisory tasks the beneficiary will perform are of . a 
qualifying nature. Without further information, it is impossible to determine whether the 
beneficiary will be providing the services of the business rather than directing such activities 
through subordinate employees. An employee who "primarily;~ performs the tasks necessary to 
produce a product or provide a service 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). 
In response to the request for evidence, the petitioner explained that the beneficiary will spend 25 
percent of her day "coordinating the receiving updates on reservations from rooms and banquet 
facilities," 50 percent ofher day ''requires oversight ofher front desk operations," and 15 percent 
of her day will "involve review and quality control of the valet services and the shuttle services 
to historic Annapolis." In addition, the petitioner explained that the ''balance ofthe day is spent 
in coordination with other senior management staff" The petitioner did not provide a clear 
description of the day to day duties to be performed by the beneficiary. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The petitioner submitted a list of front office staff with job descriptions. According to the list, 
the front office staff includes the assistant reservation manager, reservations, front desk manager, 
front desk staff: night audit and valet/porter. The petitioner did not explain how many 
individuals are actually employed in these positions and are supervised by the beneficiary. In 
addition, the petitioner did not provide any evidence to corroborate the employment of the entire 
front office staff Again, going on record with<?ut supporting documentary evidence is not 
sufficient for purposes of meeting the burden ofproofin these proceedings. Matter ofSoffici, 22 
I&N Dec. 158 at 165. 
In summary, the petitioner has failed_ to provide sufficient evidence to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. Based on this finding, the instant petition cannot be approved. 
Beyond the decision of the director, the petitioner did not submit sufficient evidence to establish 
that it has a qualifying relationship with the beneficiary's foreign employer. To establish a 
"qualifying 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)(1)(C) of the Act, 8 U.S.C. § 1153{b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) 
(providing definitions of the terms "affiliate" and "subsidiary"). 
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As general evidence of a petitioner's claimed qualifying relationship, the articles of incorporation 
alone are not sufficient evidence to determine whether a stockholder maintains ownership and 
control of a corporate entity. The stock certificates, corporate stock certificate ledger, stock 
certificate registry, corporate bylaws, and the minutes of relevant .annual shareholder meetings 
m~t also be examined to determine the total number of shares issued, the exact number issued to 
the shareholder, and the subsequent percentage ownership and its effect on corporate control. 
Additionally, a petitioning company must disclose all agreements relating to the voting of shares, 
the distribution of profit, the management and direction of the subsidiary, and any other factor 
affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., supra. 
Without full disclosure of all relevant docuJ,nents, USCIS is unable to determine the elements of 
ownership and control. In the instant petition, the petitioner did not submit any documentation to 
establish a qualifying relationship between the beneficiary's foreign employer and the petitioner. 
In addition, the record· lacks substantive job descriptions establishing what job duties the 
beneficiary performed during her employment abroad. Conclusory assertions regarding the 
beneficiary's employment capacity are 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); Aryr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108. 
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), aff'd. 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. 
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.