dismissed EB-1C Case: Motorsports

(b)(6)
DATE: JUL 2 5 2013 
INRE : Petitioner : 
Beneficiary: 
OFFICE: NEBRASKA 
SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigr ation Services 
Administrative Appeals Office (AAO) 
20 Mass?chusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FlLE: 
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.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
)?-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa pet1t10n 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 a Nevada corporation that seeks to employ the beneficiary in the United States as its race 
team director. 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. 
In support of the Form I -140 the petitioner submitted a statement dated October 17, 2011, which contained 
relevant information pertaining to the beneficiary's employment abroad and his proposed position with the 
pet1t10ning entity. The petitioner also provided evidence in the form of various business documents 
pertaining to both entities. 
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 July 25, 2012 informing the petitioner of 
various evidentiary deficiencies. The RFE addressed a variety of eligibility factors, including the 
beneficiary's managerial or executive capacity in his positions with the foreign and U.S. entities. 
Specifically, the director instructed the petitioner to provide more detailed job descriptions pertaining to the 
beneficiary's positions with his foreign and U.S. employers. The petitioner was also asked to include the 
foreign entity's organizational chart that corresponds with the beneficiary's employment abroad. 
The petitioner's response included a statement dated October 16, 2012 from counsel, who addressed the 
director's various RFE requests. After considering the information provided with regard to the beneficiary's 
foreign and proposed employment, the director determined that the petitioner failed to establish eligibility 
based on two independent grounds. The director observed, based on the U.S. and foreign entities' respective 
organizational hierarchies, that neither entity has the organizational complexity to support an employee whose 
duties would be primarily in a qualifying managerial or executive capacity. The director therefore concluded 
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 adverse findings the director issued a decision dated 
January 25, 2013 denying the petition. 
On appeal, counsel disputes the director's findings, contending that the director "failed to evaluate the nature 
of the [b]eneficiary's job duties within the context of the supercross/motocross industry" and that the 
beneficiary would have discretion over the petitioner's goals and pol,Jcies as well as the selection and 
management of its riders. Counsel also states that the beneficiary, along with the team manager, marketing 
manager, and chief mechanic, would manage the mechanical staff routines. Counsel asserts that the 
beneficiary's subordinates include "professional, highly-skilled industry-specific riders, mechanics and 
managers" and cannot be classified as non-professional. 
Upon review, and for the reasons discussed herein, counsel's assertions are not persuasive and thus fail to 
overcome the director's grounds for denial. 
Section 203(b) of the Act states in pertinent part: 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
(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 I-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. 
Section 10l(a)(44)(A) of the Act, 8 U.S. C.§ 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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 
(b)(6)
Page4 
NON-PRECEDENT DECISION 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10l(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 m 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 stated previously, the primary issues in this matter pertain to the beneficiary's employment capacity in his 
respective positions with the foreign and U.S. entities. Specifically, the AAO will determine whether the 
petitioner provided 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 . 
In general, when examining the executive or managerial capacity of the beneficiary, the AAO reviews the 
totality of the record, starting first with the descriptions of the beneficiary's job duties. See 8 C.P.R. 
§ 204.5(j)(5). As observed in the director's decision, a detailed job description is crucial, given that the duties 
themselves will reveal the true nature of the beneficiary's foreign and proposed employment. Fedin Bros . Co., 
Ltd. v. Sava, 724 F. Supp . 1103, 1108 (E.D .N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The AAO will 
then consider this information in light of other relevant factors, including, but not limited to, job descriptions 
of the beneficiary's subordinate employees , the nature of the business conducted by the entities in question, 
the beneficiary's subordinate staff in each of his respective positions, and any' other facts that may help the 
AAO to gain a comprehensive understanding of the beneficiary's actual roles in his respective position s with 
the foreign and U.S. entities. 
In the 
present matter, the information pertaining to the job duties the beneficiary performed during his 
employment with the foreign entity indicates that the beneficiary allocated his time primarily to the 
performance of non-qualifying operational tasks that were directly related to the foreign entity's revenue 
generating scheme. In other words, the beneficiary did not merely oversee the daily tasks being performed , 
but rather performed operational and administrative tasks associated with day-to-day operation of the 
company 's motorsports racing team. Such tasks included arranging for and informing team members of 
transportation and accommodations and arranging team dinners for Thursday , Friday, and Saturday; providing 
the riders with a training program, nutritional plan, and ensuring that the riders eat a healthful diet; attending 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
the race track to oversee the training schedule and timing and recording riders' lap times; ensuring continuity 
and growth of the business by communicating directly with existing and potential sponsors; communicating 
directly with riders to address their concerns, providing them with encouragement and support, and 
communicating with the chief mechanic to ensure that riding equipment is prepared and ready; conducting 
research of track layouts, race day schedules, and weather in order to complete plans for race day strategy; 
setting up an awning at the track and apprising riders of track format; and making motivational speeches and 
generally motivating riders as part of race preparatio~. This list of the beneficiary's tasks indicates that the 
beneficiary engaged in all administrative activities and hands-on training and motivation of the riders in 
addition to procuring sponsorship for the riders to maintain a steady source of revenue for the business. 
Although such tasks are essential to the operation of the business, they do not fall within the statutory 
definitions of managerial or executive capacity at section 101(a)(44)(A) or (B) of the Act. 
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 
performed or would perform were/are only incidental to the p6sition in question. 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 10l(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 Intemational, 19 I&N Dec. 593, 604 (Comm. 1988). 
In the present matter, the job description discussed above indicates that the primary portion of the 
beneficiary's time during his employment abroad was spent performing the very tasks that were necessary to 
provide services without which the business simply could not have continued its daily operation. While the 
beneficiary's discretionary authority is evident from the sheer volume of operational tasks with which the 
beneficiary was entrusted, his overall authority cannot outweigh the nature of the activities he can·ied out on a 
daily basis and the fact that those activities cannot be deemed as those of a managerial or executive employee. 
Counsel's assertion that the beneficiary oversees "highly-skilled" riders does not establish that his time was 
allocated primarily to the oversight of professional employees. Not only has counsel failed to establish that 
the riders themselves could be classified as professional employees, there is little evidence to establish that 
the beneficiary's role was limited to supervision of these individuals. Rather, the evidence, which includes 
the list of the beneficiary's specific tasks, indicates that the beneficiary was directly engaged in training the 
riders and carrying out all necessary administrative tasks necessary to make travel, food, and hotel 
arrangements for the riders. These tasks do not fall within the applicable definitions of managerial or 
executive capacity, no matter how talented the riders are and regardless of the fact that these tasks are 
essential to the operation of the business. 
With regard to the beneficiary's proposed employment with the petitiOning entity, a review of the job 
description provided indicates that his duties would be overwhelmingly similar to those duties that he 
performed as race team manager during his employment abroad. In light of the finding that the beneficiary's 
employment abroad consisted primarily of non-qualifying tasks, we must conclude that the proposed position 
of race team director would also be similarly comprised of non-qualifying operational and administrative 
tasks. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
In light of the deficiencies discussed in the analysis above, the AAO cannot conclude that the beneficiary was 
employed abroad or that he would be employed in the United States in a qualifying managerial or executive 
capacity and based on these findings of ineligibility the instant petition cannot be approved. 
Additionally, while not previously addressed in the director's decision, the petitioner has failed to provide 
sufficient evidence to support its claim that it has an affiliate 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)(l)(C) of the 
Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.P.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" 
and "subsidiary"). 
In the present matter, the petitioner claims to have an affiliate relationship with the beneficiary's foreign 
employer by virtue of both entities being solely owned by the beneficiary and his father. However, in 
reviewing the record, the documentation provided does not corroborate the petitioner's claim. More 
specifically, the record contains documentation showing that the beneficiary's father owns a trust that holds a 
majority interest in the foreign entity. The only evidence of ownership pertaining to the petitioning entity is 
the petitioner's corporate tax returns for 2010 and 2011 both of which identify the beneficiary as sole owner. 
In other words, based on the evidence presented, the beneficiary's father appears to hold a majority interest in 
the foreign entity, while the beneficiary holds a majority interest in the U.S. entity. In addition, there is no 
parent entity with ownership and control of both companies such that would qualify the two entities as 
affiliates. Although counsel claims that the foreign entity has invested capital in the petitioning company, 
stressing the father/son relationship as part of a common ownership scheme, this familial relationship does not 
cons.titute a qualifying relationship under the regulations. See e.g. Ore v. Clinton, 675 F.Supp.2d 217, 226 
(D.C. Mass. 2009) 
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 (B.D. Cal. 2001), affd, 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 ground of ineligibility discussed above, this 
petition cannot be approved. 
The appeal will be dismissed 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 of Otiende, 26 I&N Dec. 
127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.