dismissed EB-1C Case: Hospitality

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
IN RE: 
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. 3 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
L- -_ 
<-- . 
~~ 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an Arizona corporation that operates as a resort hotel. The petitioner 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. 5 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
based on two grounds: 1) the beneficiary would not be employed in a managerial or executive capacity; and 
2) the petitioner has not established its ability to pay the beneficiary's proffered wage. 
On appeal, counsel disputes the director's findings and submits a brief in support of her arguments. 
Section 203(b) of the 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. 
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 first issue in this proceeding is whether the beneficiary would be performing in a capacity that is 
managerial or executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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. 5 1101(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 petition, the petitioner submitted an employment offer stating that the beneficiary would 
direct the management of the petitioner's daily operations, set goals and policies, and hire and fire all 
personnel. The petitioner further stated that the beneficiary would exercise full discretion over company 
operations and would report to the shareholders. No additional information was provided regarding the 
beneficiary's duties under an approved petition. 
On June 4, 2002, the director issued a request for additional evidence (RFE) instructing the petitioner to 
submit its organizational chart describing its managerial hierarchy and staffing levels as of the date the 
petition was filed in March of 2002. The petitioner was also instructed to clearly identify the beneficiary's 
position in the chart, his subordinates' names and job titles, and the subordinates' job duties and educational 
levels. Additional documentation was also requested in the form of the petitioner's wage reports for the last 
quarter of 2001 and for all available quarters of 2002. The petitioner was also asked to provide a more 
detailed description of the beneficiary's job duties. 
Page 4 
The petitioner submitted a written response dated August 13, 2002 claiming that the beneficiary would be 
employed in a managerial and an executive capacity. The petitioner provided the following information about 
the beneficiary's job responsibilities: 
As [plresident, [the beneficiary] directs the management of the organization, he establishes its 
goals and policies, he exercises wide latitude in discretionary decision-making, and reports 
only to the shareholders. 8 C.F.R. [§I 204.5(j). As the controlling manager, [the beneficiary] 
manages the entire U.S. entity, supervises and controls the work of 5 employees (including 
two college graduates), hires and fires personnel, and exercises day-to-day operations of 
business activities. Id. 
The petitioner also submitted an organizational chart showing four tiers of management with four hotel 
workers at the bottom of the company's hierarchy. The four tiers of management include the beneficiary as 
the petitioner's president; the vice president as the beneficiary's immediate subordinate; the secretary as the 
vice president's subordinate; and the general manager whose subordinates consist of two front desk workers, a 
maintenance worker, and a housekeeper. Information at the bottom of the chart further indicates that the vice 
president and secretary are primarily based at the petitioner's Canadian parent company. 
The petitioner also submitted its quarterly tax returns (Forms 941) for the fourth quarter of 2001 and for the 
first two quarters of 2002. The first quarter 2002 tax return during which the petition was filed shows that the 
petitioner paid a total of $8,695.32 in wages. Although the petitioner was instructed to submit its quarterly 
wage reports in addition to its quarterly tax returns it failed to do so. 
On February 24, 2003, the director attempted to issue another RFE, which appears to have been resent on 
September 23, 2004. The director instructed the petitioner to submit the previously request quarterly wage 
reports for the first two quarters of 2002 and made another request for a more detailed description of the 
beneficiary's proposed duties. Additional evidence regarding the petitioner's ownership and control was also 
requested for the purpose of determining whether the petitioner had established a qualifying relationship with 
the beneficiary's foreign employer. 
In response, the petitioner provided the requested quarterly wage reports, which indicated that, even though 
the petitioner employed a total of five employees during the course of the first quarter of 2002, it employed 
three individuals in March of 2002 when the petition was filed. Although all of the employees' names are 
provided in the wage report, there is no way to determine which of the employees the petitioner employed 
during the relevant time period. It is noted that of the five employees named in the quarterly wage report, 
only three of the names match the names shown in the petitioner's organizational chart. 
On December 18, 2004, the director denied the petition stating that the petitioner failed to provide sufficient 
information about the beneficiary's specific job duties. The director also stated that the beneficiary's support 
staff does not appear to consist of supervisory, professional, or managerial employees and further noted that 
the record does not show that the petitioner actually employs the beneficiary despite the fact that the 
beneficiary has been an L-1 nonirnrnigrant since at least March 1999. 
On appeal, counsel objects to the director's failure to discuss the submitted newspaper article, which counsel 
claims discusses the beneficiary's role in the company, or the previously approved 1-129 petition, which 
Page 5 
classified the beneficiary as an L-IA nonimmigrant. Counsel's objection, however, is without merit. While 
the newspaper article to which counsel refers does discuss the beneficiary's role in attempting to expand the 
petitioner's resort hotel, it does not address the subject of the beneficiary's specific daily job duties within the 
petitioning organization. Neither the director nor the AAO dispute the beneficiary's likely importance to the 
success of the petitioning entity. However, the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). The newspaper article submitted by the petitioner provides no insight as to the beneficiary's actual 
day-to-day duties and, instead, focuses on the beneficiary's role as an entrepreneur, which does not necessarily 
determine that the beneficiary is employed in a managerial or executive capacity pursuant to sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. $3 1101(a)(44)(A) and (B), respectively. 
In regard to the beneficiary having been approved for classification as an L-LA nonirnmigrant, the director's 
decision does not indicate whether he reviewed the prior approval(s) of the other nonirnmigrant petition(s). If 
the previous nonirnrnigrant petition(s) was approved based on the same unsupported and contradictory 
assertions that are contained in the current record, the approval(s) 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 
CIS 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). 
Counsel also states that the director failed to consider the beneficiary's supervision of 
petitioner's general manager. However, despite the petitioner's organizational chart, which includes Mr. 
name and indicates that ~ais 
 general manager, the petitioner's wage report for the first 
quarter of 2002 does not identify 
 its employees. Nor has the petitioner submitted any other 
documentary evidence to support its claim. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Crafl of California, 14 I&N Dec. 190 (Reg. Cornm. 
1972)). Furthermore, the unsupported statements of counsel on appeal or in a motion are not evidence and 
thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Thus, while counsel reiterates the petitioner's 
claim regarding Mr. Nau's employment as the petitioner's general manager, it does not establish that the 
petitioner employed Mr. Nau at the time the petition was filed. 
Counsel continues her argument asserting that the director improperly interpreted the petitioner's claim, 
which, according to counsel, does not include the claim that the beneficiary's position fits the statutory 
definition of managerial capacity. While counsel's argument holds true regarding the petitioner's initial claim, 
the petitioner's first RFE response, which was formulated by counsel on counsel's official letterhead, clearly 
indicates counsel's intent that the beneficiary's position is both executive and managerial. Counsel followed 
this assertion with excerpts of the regulatory definition of managerial capacity. See 8 C.F.R. 5 204.5(j). 
Thus, counsel's objection to the portion of the director's decision that addresses the definition of managerial 
capacity is without merit and contrary to her previously made statements. 
On review, the petitioner has failed to establish that the beneficiary would be employed in a managerial or 
executive capacity. In examining the executive or managerial capacity of the beneficiary, Citizenship and 
Immigration Service (CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 
Page 6 
5 204.5(j)(5). 
 In the instant matter, the petitioner has provided a broad overview of the beneficiary's 
responsibilities, but it has failed to provide any specifics regarding his day-to-day job duties despite CIS'S 
numerous attempts to elicit this relevant information. Specifics are clearly an important indication of whether 
a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103. 
Furthermore, a comparison of the names provided in the petitioner's organizational chart and the information 
in the petitioner's quarterly wage report for the first quarter of 2002 indicates that the petitioner employed 
three nonprofessional, nonsupervisory, and nonmanagerial workers at the time the petition was filed. As 
previously stated, the record does not support the claim that the petitioner employed a general manager during 
the relevant time period. As such, the record lacks evidence that the petitioner had a sufficiently complex 
organizational hierarchy through which the beneficiary could have effectively directed the management of the 
petitioner's operation. Nor does the record suggest that the beneficiary's subordinate staff was comprised of 
professional, supervisory, or managerial personnel. Accordingly, the AAO cannot affirmatively conclude that 
the beneficiary would primarily perform managerial or executive duties. For this initial reason, the petition 
may not be approved. 
The other issue in this proceeding is whether the petitioner had established its ability to pay the beneficiary's 
proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states the following, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer has 
the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time 
the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence. Evidence of this ability shall be either in the form of copies of annual reports, federal 
tax returns, or audited financial statements. 
In determining the petitioner's ability to pay the proffered wage, CIS will examine the net income figure reflected 
on the petitioner's federal income tax return, without consideration of depreciation or other expenses. Reliance on 
federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well- 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F.Supp. 1049, 1054 (S.D.N.Y. 
1986)(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
Chang v. Thomburgh, 719 F.Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F.Supp. 1080 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F.Supp. 647 (N.D.111. 1982), a@, 703 F.2d 571 (7th Cir. 1983). In 
K.C.P. Food Co., Inc. v. Sava, the court held that CIS had properly relied on the petitioner's net income figure, as 
stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. 623 F.Supp. at 
1084. The court specifically rejected the argument that CIS should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." Chi-Feng Chang v. Thomburgh, 719 F.Supp. at 537; see also 
Elatos Restaurant COT. v. Sava, 632 F.Supp. at 1054. 
In the instant matter, the petitioner's Form 1120 corporate tax return for 2002 shows that the petitioner was 
operating at a net loss of $30,160 the year during which the petition was filed. While counsel is correct in 
stating that the petitioner does not have to actually pay the beneficiary's proffered wage unless and until the 
petition is approved, the fact remains that the petitioner must establish the ability to pay the beneficiary's 
proffered wage of $48,000 per year at the time the petition is filed, which in the this case was March 11, 
2002. The fact that the petitioner was operating with a net loss after paying only $40,044 in wages suggests 
that the petitioner did not have the ability to pay the beneficiary's proffered wage, which would have been 
considerably higher than the total amount of wages paid that year by the petitioner. 
Furthermore, while the petitioner is not required to employ the petitioner at the time the petition is filed, the 
petitioner in the instant matter has maintained the claim that the beneficiary has, in fact, been employed with 
the petitioning entity since prior to the filing of the petition and continuing to the present day. Thus, the 
petitioner's inability to show that the beneficiary has been compensated in any way throughout his alleged 
employment gives rise to doubts regarding the credibility of the petitioner's claims. 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). 
In the instant matter, the petitioner has failed to submit evidence establishing its ability to pay the 
beneficiary's proffered wage at the time of the filing of the petition. For this additional reason, the petition 
cannot be approved. 
Beyond the decision of the director, the petitioner has failed to submit sufficient evidence establishing that it 
has a qualifying relationship with the beneficiary's foreign employer. 
The regulation at 8 C.F.R. 5 204.5(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 qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, 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 support of the petition, the petitioner submitted a statement regarding the ownership breakdown of the 
petitioning entity and the beneficiary's foreign employer, which is located in Canada. 
The petitioner stated that the beneficiary owns 25% of its outstanding shares while , a 
Canadian company, owns 50% of its outstanding shares. The petitioner claims that the same parties have the 
same ownership interests in the beneficiary's foreign employer. The petitioner also submitted a copy of a 
stock purchase agreement identifyin nd the from here on) as one 
party and "a major shareholder" of the petitioning corporation. The same agreement transfers 1,000 of the 
Class B nonvoting shares to 
In response to the director's second RFE, the petitioner submitted stock certificates 1-8 and the corresponding 
stock transfer ledger indicating that a total of 10,000 were issued. Of those 10,000 shares, 2,000 Class A 
voting shares are owned by the beneficiary, 7,000 Class B nonvoting shares are also owned by the 
beneficiary, and 1,000 nonvoting shares discussed in the stock purchase agreement are owned by - 
Additionally, Schedule L, item no. 22(b) of the petitioner's 2002 and 2003 corporate tax returns show 
that $10,000 worth of stock was issued by the petitioner. Thus, neither the tax return nor the stock transfer 
ledger reflects 
 alleged ownership of 50% of the petitioner's shares. 
Furthermore, the stock certificate no. 3, which was submitted in support of the prior I:140 petition (with 
receipt number WAC0006850121) filed by the same petitioner, does not match the stock certificate no. 3 
submitted in support of the instant 1-140 petition. The latter stock certificate appears to have been altered 
without any explanation for the alteration or any prior disclosures by the petitioner regarding denial of the 
previously filed 1-140 petition. As previously stated, 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. at 591-92. Doubt cast on any aspect of the petitioner's proof may, 
of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition. Id at 59 1. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter 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. Further, 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., 19 I&N 
Dec. 362. Without full disclosure of all relevant documents. CIS is unable to determine the elements of 
- - - . -. . - -. . - - - 
ownership and control. Thus, even if the petitioner were able to establishownership of 
50% of the petitioner's shares, this information does not establish who controls the petitioning entity. In 
regard to ownership of the beneficiary's foreign employer, no evidence has been submitted to corroborate the 
petitioner's claim. As previously noted, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
165. 
Accordingly, as a result of the conflicting documentation submitted in regard to ownership and control of the 
U.S. entity and the lack of any evidence regarding ownership and control of the foreign entity, the AAO 
concludes that the petitioner has failed to establish that it has a qualifying relationship with the beneficiary's 
foreign employer. 
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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional issues discussed in the above paragraphs, the 
AAO cannot sustain the appeal. 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.