dismissed EB-1C Case: Hotel Management

DATE: DEC 0 5 2012 
INRE: 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: NEBRASKA SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § I 153(b)(l)(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 law was inappropriately applied by us in reaching our 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 1-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request 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 that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
on Rosenberg 
Acting Chief, Administrative Appeals Office 
","'ww.uscis.gov 
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 wiJl be dismissed. 
The petitioner is a multinational corporation that seeks to employ the beneficiary in the United States as its 
sales manager. Accordingly, the petitioner endeavors to c1assity the beneticiary as an employment-based 
immigrant pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. 
§ 1 1 53(b)(I)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated April 19, 2010, which contained 
relevant information pertaining, in part, to the beneficiary's employment abroad and with the petitioning 
entity. The petitioner also provided evidence of its corporate structure to establish the existence of a 
qualifying relationship with the beneficiary's foreign and U.S. employers. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated May 17, 2010 informing the petitioner of 
various evidentiary deficiencies. Specifically, the director instructed the petitioner to provide more detailed 
job descriptions pertaining to the beneficiary's foreign and proposed employment as weJl as detailed 
organizational charts depicting the staffing structure of the departments and teams that comprised the foreign 
organization during the beneficiary's employment abroad. The petitioner was asked to provide the same 
information pertaining to the beneficiary's proposed employment with the U.S. entity. 
The response included a statement from counsel dated June 24,2010 and a statement from the petitioner dated 
June 15, 2010, each containing descriptions of the beneficiary's foreign and proposed employment. It is 
noted that the petitioner's statement contained a list of the beneficiary's job duties and a percentage 
breakdown to establish how much time the beneficiary allocated to each of the listed tasks during his 
employment abroad and how much time he would allocate to each task in his proposed position with the U.S. 
entity. The petitioner also complied with the director's request for organizational charts pertaining to the 
beneficiary's foreign and U.S. employers. 
After reviewing the petitioner's response, the director found that the evidence provided indicates that the 
beneficiary primarily performs tasks of a non-qualifying nature and thus cannot be deemed as someone who 
was employed abroad and who would be employed in the United States in a qualifying managerial or 
executive capacity. 
On appeal, counsel disputes the director's decision, asserting that the director erroneously focused on the 
beneficiary's lack of subordinate employees, thus failing to consider the beneficiary as a function manager 
who does not oversee personnel, but rather manages an essential function. Counsel points out that the 
beneficiary functions autonomously and with little oversight from superiors, other than periodic verification 
to determine whether he continues to meet desired revenue targets. Additionally, the petitioner introduces 
new evidence in the form of opinion letters-one letter dated March 8, 20 I I from Sony Pictures 
Entertainment's travel services director, and one letter dated March 9, 201 I from the dean of William F. 
Harrah College of Hotel Administration at the University of Nevada Las Vegas-both asserting that the 
beneficiary's position as sales manager at a luxury hotel is of a managerial nature. 
Notwithstanding the relevance of the statements and documents put forth in support of the appeal, the AAO 
finds that the opinion letters have little probative value in terms of establishing the beneficiary'S qualifying 
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managerial or executive employment either in his foreign or in his proposed position with the multinational 
entity. Despite Sony Picture's relationship with the petitioning entity (and with the beneficiary in particular) 
and regardless of the dean's in-depth knowledge on the subject of hotel administration, there is no evidence 
that either party has acquired expert knowledge of the term "managerial capacity" within the scope of its 
statutory definition as found in the Act. In fact, the statements of both parties inadvertently indicate that, 
while the beneficiary'S position may be that of a professional, the job duties he has performed and would 
continue to perform are not primarily those that are common to someone employed within a qualifying 
managerial or executive capacity. 
The AAO may, in its discretion, use as advisory opinion statements that the petitioner submits as expert 
testimony. When an opinion is not in accord with other information or is in any way questionable, the AAO 
is not required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N 
Dec. 791 (Comm. 1988). There is no evidence that either of the individuals whose expert opinions the 
petitioner has offered in support of its claim is an export in or has considerable knowledge of section 
203(b)(I)(C) of the Act and the relevant statutory definitions. Therefore, the AAO finds that these statements 
have little probative value and are insufficient to overcome the director's decision. 
The AAO has also considered counsel's assertions in which he contends that the beneficiary has and would 
continue to serve as a function manager. The AAO finds that, given the information provided in response to 
the RFE concerning the beneficiary's job duties, counsel's assertions are not persuasive and are therefore 
insufficient to overcome the director's adverse findings. The discussion below will provide an analysis of the 
relevant documentation and will explain the underlying reasoning for the AAO's decision. 
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 (Al through (C): 
• • • 
(Cl 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 I 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)(I )(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 
Page 4 
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 issues in this proceeding calls for an analysis of the beneficiary's employment capacity in his past 
employment with the foreign entity and his proposed employment with the U.S. petitioner. Specifically, the 
AAO will examine the record to determine whether the petitioner submitted sufficient evidence to establish 
that the beneficiary was employed abroad and would be employed in the United States in a qualifying 
managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 US.c. § 1101(a)(44)(A), provides: 
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 101 (a)(44)(B) of the Act, 8 US.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. 
In exammmg the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's proposed job duties. See 8 C.F.R. § 204.50)(5). Published case 
law supports the pivotal role of a clearly defined job description, deeming the actual duties themselves as the 
factors that determine the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989). aIN, 905 F.2d 41 (2d. Cir. 1990). Additionally, the AAO fmds that it is often 
appropriate to consider other relevant factors. including an entity's organizational hierarchy and overall 
staffing, which establish who actually performs the non-qualifying tasks of the entity or department where the 
beneficiary's position is placed. 
The petitioner provided critical information in the form of a June 15, 2010 letter, written by 
the human resources vice president. As _ indicated that the beneficiary's position abroad entailed 
the same job duties as those in his proposed position with the U. S. entity, the AAO will address the 
employment capacity of both positions by discussing the single percentage breakdown _ provided 
to elaborate on the beneficiary's job duties. 
After having considered the list of the beneficiary's job duties and the corresponding time constraints, the 
AAO finds that the beneficiary's time, both abroad and in the United States, has been and would continue to 
be primarily allocated to the performance of non-qualifying operational tasks that are necessary to provide 
marketing and sales services. The statements of_ indicate that the beneficiary has and would 
continue to allocate his time to the following non-qualifying sales and administrative tasks: negotiating with 
clients to achieve maximum profit, soliciting business to achieve budgeted sales and profitability, traveling 
for the purpose of soliciting business, following up with personal and sales calls, contacting customers in­
house to foster good business relations, following sales leads and maintaining a good relationship with the 
national sales offices. acquiring knowledge of local competitors. representing the petitioner at industry events 
and sales meetings, and providing monthly reports regarding sales goals. These non-qualifying tasks 
consumed and would continue to consume approximately 54%. or the majority, of the beneficiary's time. 
Additionally, the petitioner has not established that developing and executing projects to increase sales 
volume qualify as a managerial or executive task, thus indicating that even more of the beneficiary's time 
may have been and may continue to be allocated to matters that are non-qualifying. 
While counsel is correct in asserting that the beneficiary does not have to serve as a personnel manager in 
order to qualify for the immigrant classification of multinational manager or executive, in order to establish 
that the beneficiary is a function manager, the petitioner must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. Additionally, while the AAO acknowledges 
that no beneficiary is required to allocate 100% of his or 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 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). 
The job description provided indicates that the beneficiary'S role is not limited to merely managing the 
essential sales function, but rather requires the beneficiary to take considerable steps in actually carrying out a 
number of underlying sales tasks that are directly related to that function. Merely establishing that the job 
duties the beneficiary performed and would perform are of a professional nature is not sufficient unless those 
Page 6 
tasks rise to the level of a managerial or executive capacity. The record strongly indicates that the 
beneficiary's time in his position with the foreign entity and in his proposed position with the petitioning 
entity has been and would be allocated primarily to the performance of tasks of a non-qualifying nature. 
Therefore, the AAO finds that the beneficiary was not employed abroad and would not be employed in the 
United States in a qualifying managerial or executive capacity. Based on these two grounds of ineligibility, 
the instant petition cannot be approved. 
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.