dismissed EB-1C Case: Hospitality Management

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PlJIJLIC COpy 
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 
DATE: MAY 172012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.c. § I I 53(b)(1)(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 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 with 
the field office or service center that originally decided your case by filing a 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.F.R. 
§ 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an Illinois limited liability company that seeks to employ the beneficiary as its executive 
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. 
§ I 153(b)(1)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated September 14,2009, which included 
relevant information regarding the petitioner's eligibility for the immigration benefit sought as well as a brief 
description of the beneficiary'S foreign and proposed employment. The petitioner also provided supporting 
evidence, including the petitioner's financial and corporate documents as well as documents pertaining to the 
petitioner's foreign parent entity. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated February 1, 20 1 0 informing the 
petitioner of various evidentiary deficiencies. The director instructed the petitioner to describe the 
beneficiary's foreign and proposed employment in greater detail, listing the specific job duties the beneficiary 
performed abroad and would perform for the U.S. entity and supplementing both lists of duties with the 
percentage of time that was allocated to the tasks performed abroad and to those that would be performed in 
the scope of the beneficiary'S U.S. employment. The director also asked the petitioner to provide the foreign 
entity's organizational chart and to specify the job duties of the beneficiary'S immediate supervisor and 
subordinates. The director similarly instructed the petitioner to provide job descriptions for the beneficiary'S 
subordinate employees as well as a complete work schedule of the U. S. business to clearly indicate the days 
and hours of the petitioner's staff Lastly, the director asked the petitioner to provide IRS Form W -2 wage 
and tax statements and any Form l099s issued to the petitioner's employees for 2009. 
The petitioner provided a response with the requested evidence and information. In the response statement 
dated March 10, 2010 the petitioner identified eight employees (not including the beneficiary) using the word 
"seasonal" in parenthesis next to the names of three part-time -~~ .. t' .. ')'.J"PP'~­
both in the position of front desk clerk, and described as holding a housekeeping position. It 
is noted that the petitioner did not explain what was meant by the word "seasonal" or how this component 
may affect those employees' work schedules. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
was employed abroad or that he would be employed in the United States in a qualifying managerial or 
executive capacity. The director therefore issued a decision dated April 29, 2010 denying the petition on both 
grounds. The director's analysis focused mostly on the beneficiary's proposed employment, questioning how 
the petitioner's given staffing structure would allow the beneficiary to allocate her time primarily to the 
performance of tasks within a qualifying managerial or executive capacity. The director further observed that 
some of the employee salaries were not indicative of full-time employees, which caused the director to further 
doubt whether the beneficiary would in fact primarily perform managerial- or executive-level tasks. 
Although the director found that the petitioner did not adequately describe the beneficiary'S job duties with 
the foreign entity as being within a qualifying managerial or executive capacity, the AAO has conducted its 
own review of the record and finds that the director's adverse finding with regard to the foreign employment 
Page 3 
was not warranted. Therefore, the AAO will withdraw one of the director's findings and devote the 
remainder of this decision to a discussion of the beneficiary's proposed employment with the U.S. petitioner. 
On appeal, counsel submits a brief in which he disputes the denial, questioning the relevance of the director's 
discussion of the beneficiary'S salary as an indicator of the employment capacity of the proposed position. 
Counsel contends that only 20% of the beneficiary'S time would be allocated to operational tasks and further 
points to two new hotel management agreements that the petitioner has entered into as a result of the 
beneficiary'S efforts. 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the director's adverse 
finding regarding the beneficiary'S proposed employment with the petitioning entity. It is noted that all of the 
petitioner's submissions have been reviewed. All relevant documentation that pertains directly to the key 
issue in this matter will be fully addressed in the discussion below. 
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. 
As noted above, the primary issue to be addressed in this proceeding is the beneficiary'S employment capacity 
in her proposed position with the U.S. entity. Specifically, the AAO will examine the record to determine 
whether the petitioner submitted 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: 
Page 4 
The term "managerial capacity" means an assignment within an organization III 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. 
Section 10 I (a)(44)(B) of the Act, 8 U.s.c. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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. 
As a preliminary matter, the AAO notes that the content of the instant discussion will be limited to the 
benefIciary's role and job duties within the scope of the petitioning entity as it existed when the Form 1-140 
was fIled. See 8 C.F.R. § 103.2(b)(1). Therefore, counsel's discussion of new business that the benefIciary 
may have negotiated since the date the petition was fIled would be deemed irrelevant for the purpose of 
determining eligibility at the time of fIling. 
In examining the executive or managerial capacity of the benefIciary, the AAO will look fIrst to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then consider this 
information in light of other relevant factors, including the petitioner's organizational hierarchy, the 
Page 5 
beneficiary's position therein, and the petitioner's overall ability to relieve the beneficiary from having to 
primarily perform daily operational tasks. 
Turning first to the job description offered in response to the RFE, the AAO finds that the petitioner failed to 
establish that the beneficiary would spend the primary portion of her time performing tasks within a 
qualifying managerial or executive capacity. While the beneficiary is not required to allocate 100% of her 
time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to the 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 10 1 (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). 
A significant portion of the job duties that would comprise the proposed position are non-qualifYing. 
Specifically, the petitioner indicated that 15% of the beneficiary's time would be allocated to seeking out new 
business and conducting market research; 5% would be allocated to purchasing supplies and services; 10% 
would be allocated to conducting random room inspections to check for cleanliness; 5% would be allocated to 
coordinating the front desk staff and interviewing job applicants; 15% would be allocated to promoting and 
marketing the business; and another 10% would be allocated to handling funds and recording payments. 
While no individual task mentioned herein would disqualify the beneficiary from the sought-after immigrant 
classification, when considered cumulatively, these non-qualifying tasks would consume approximately 60% 
of the beneficiary'S time, thus indicating that she would primarily perform non-qualifYing tasks. 
The AAO further notes a discrepancy between information provided in the Form 1-140, where the petitioner 
claimed eleven employees at the time of filing, and the employee list submitted in the RFE response, where 
the petitioner listed a total of eight employees not including the beneficiary. 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). 
Lastly, in considering the nature of the petitioner's business-providing hotel management services-and the 
beneficiary's role therein as general manager, the AAO finds that the beneficiary is responsible for actually 
carrying out the underlying tasks that are directly related to managing the hotels with which the petitioner has 
entered into contractual agreements. To clarify further, the petitioner has indicated that it generates income 
by entering into management agreements with hotel establishments, which are the petitioner's clients, 
wherein the petitioner gets compensated for actually managing the client hotel(s). Here, it appears that the 
beneficiary is directly involved in managing the hotel with which it had a contractual agreement at the time of 
filing the petition. It can therefore be concluded that the beneficiary would actually perform the tasks 
necessary to provide a service (that of hotel management) and her position cannot be considered as one where 
she would 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 summary, given the deficiencies described above, the AAO cannot conclude that the petitioner was ready 
and able to employ the beneficiary in a qualifYing managerial or executive capacity at the time of filing the 
petition. On the basis of this conclusion, the petition must be denied. 
I' I 
Page 6 
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.