dismissed EB-1C Case: Scuba Diving Tourism

US. Department of Homehnd security 
U. S. Citizenship and Immigration Selvices 
identifying data deleted to 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
prevent clearly  maned 
 Washington, Dc 20529-2090 
invasion of personal privacy 
 U.S. Citizenship 
and Immigration 
DAWR 0 6 2C11 OFFICE: NEBRASKA SERVICE CENTER FILE: - 
IN RE: 
 Pcritioncr: 
Benclician : 
LIN 08 236 50735 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. 5 1153(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. The 
specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
V Per~y Rhew 
Chief, Administrative Appeals Office 
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 a Guam corporation that seeks to employ the beneficiary as its general 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. 5 1153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. The director made note of numerous anomalies 
regarding the evidence documenting the petitioner's organizational hierarchy. 
On appeal, counsel disputes the director's decision and contends that the director issued erroneous findings 
and relied on irrelevant information to reach an adverse determination regarding the petitioner's eligibility. 
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 primary issue to be addressed in this proceeding is the beneficiary's proposed employment with the U.S. 
petitioner and whether such employment would be within a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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, 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 1 101 (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 Form 1-140, the petitioner submitted a supplemental statement which indicated that the 
beneficiary would be responsible for directing the operations of the petitioning entity. The beneficiary would 
be expected to understand the products and services being offered by the petitioner as well as methods for 
advertising and promoting such products and services. The petitioner indicated that 35% of the beneficiary's 
time would be spent making decisions and implementing company policies and procedures; 15% would be 
attributed to allocating budget expenditures to purchase scuba supplies; 20% would be spent meeting with and 
directing subordinate staff; another 20% would be spent preparing and delivering performance reports; and 
the remaining 10% would be allocated to making decisions on all personnel matters, including hiring, firing, 
recruiting and interviewing, and reassigning. 
Page 4 
On March 2, 2009, the director issued a request for additional evidence (RFE) in which the petitioner was 
instructed to provide position descriptions and educational levels of the beneficiary's subordinates in the 
proposed position. 
In response, counsel provided a letter dated May 19, 2009 in which he contended that the director placed 
undue emphasis on the petitioner's staff, arguing that the beneficiary manages the petitioner's essential 
functions by providing leadership and direction. Counsel stated that the size of the petitioner's staff is not a 
controlling factor in determining the beneficiary's employment capacity and urged the director to shift focus 
away from the company's staffing. 
The petitioner also provided its organizational chart and its third and fourth quarterly wage reports for 2008. 
The organizational chart shows the beneficiary at the top of a multi-tiered hierarchy which depicts an 
administrative assistant, a chief boat captain, a chief diving instructor, a chief mechanic and a bus driver 
under the beneficiary's direct supervision. The chart shows the chief boat captain overseeing a boat crew, and 
three part-time boat captains; the chief diving instructor overseeing three diving instructors and two part-time 
diving instructors; and the chief mechanic overseeing a mechanic. The petitioner's third quarter 2008 wage 
report suggests an entirely different organizational hierarchy containing no more than seven employees total, 
including the beneficiary. Of the seven employees, two received salaries indicating that they either worked 
on a part-time basis or, in the alternative, were not employed for the full reporting period. It is therefore 
unclear whether the petitioner employed either Daisy Soriano or Yukako Meno at the time the Form 1-140 
was filed. 
On July 29, 2009, the director issued a decision denying the petition. The director observed that the 
organizational charts for the foreign and U.S. entities list the same personnel in the positions of general 
manager, administrative assistant, chief boat ca~tain. chief dive instructor. and chief mechanic. The director - 
also pointed out that while was included in both entities' charts, he is depicted as a part- 
time boat captain in one chart. Furthermore, the director found it varticularly 
problematic that the petitioner listed sixteen employees in its chart, but provided a wage report showing that it 
had no more than seven employees at the time of filing the petition. 
Although the director also determined that the beneficiary's proffered wage of $42,000 annually is not 
commensurate with that of a multinational manager or executive, this finding is entirely irrelevant to the 
petitioner's eligibility, as there is no statutory or regulatory provision that sets salary guidelines for the 
immigrant classification sought herein. Accordingly, the AAO hereby withdraws the director's finding with 
regard to the beneficiary's proffered wage. 
On appeal, counsel challenges the director's findings, stating that the director was wrong to "microscopically 
examine" the petitioner's personnel and claiming that the letter provided in response to the RFE contained 
sufficient information in support of the petitioner's eligibility. Counsel contends that a detailed description of 
the beneficiary's proposed employment was provided in support of the petition and that such description 
established that the beneficiary's duties and responsibilities are those of a function manager. Counsel asserts 
that the director's emphasis on anomalies regarding the petitioner's staffing is indicative of the director's 
"tunnel vision" where all focus was placed on a single issue. 
The AAO finds, however, that counsel oversimplified and dismissed the significance of the director's adverse 
findings without addressing and resolving the considerable inconsistencies concerning the petitioner's 
Page 5 
organizational hierarchy. While counsel is correct in pointing out that a petitioner's eligibility should not 
hinge on a single issue such as the petitioner's staffing, the record in the present matter shows that the 
petitioner's questionable credibility was the primary contributing factor in the director's adverse decision. The 
AAO further notes that in reviewing the relevance of the number of employees a petitioner has, federal courts 
have generally agreed that USCIS "may properly consider an organization's small size as one factor in 
assessing whether its operations are substantial enough to support a manager." Family, Inc. v. US. Citizenship 
and Immigration Services, 469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. 
INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per 
curiam); Q Data Consulting, Inc. v. INS,293 F. Supp. 2d 25, 29 (D.D.C. 2003). Thus, contrary to counsel's 
assertions, the director was right to consider the petitioner's organizational chart in an effort to establish who 
was available to carry out the daily operational tasks of the business at the time the petition was filed. Despite 
the fact that a detailed job description is admittedly one major component in determining the petitioner's 
eligibility, the petitioner is expected to provide sufficient evidence to corroborate the proposed job 
description. Merely providing a job description that lists primarily qualifying tasks is meaningless if the 
organization that seeks to hire the beneficiary does not have the human resources to relieve the beneficiary 
from having to primarily perform non-qualifying operational job duties. 
In the present matter, it is clear that the director was performing due diligence in examining the organizational 
hierarchy as one aspect of the petitioner's eligibility. The petitioner's ability to provide corroborating 
evidence that is consistent with the claims being made is crucial, as 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. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). It is therefore 
entirely unreasonable for counsel to expect the director to simply overlook the glaring anomalies that were 
found during the review of the record and it is equally unreasonable for counsel to expect the AAO to 
overlook the same anomalies as well as the petitioner's failure to adequately address and resolve them with 
independent objective evidence. See id. Counsel's assertion that the beneficiary is a function manager will 
not overcome the director's valid findings. It is noted that the unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter oflaureano, 19 I&N 
Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The AAO finds that the record does not support counsel's assertion that the beneficiary is a function manager. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e., identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8 
C.F.R. 5 204.5(i)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to hisher proposed position. An employee who primarily performs the tasks 
necessary to produce a product or to provide services is not considered to be employed in a managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
Page 6 
enumerated managerial or executive duties); see also Mamer of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). 
The petitioner has not provided evidence to establish that the beneficiary manages an essential function. First, 
the AAO does not accept that generally identifying the beneficiary's essential function as "providing the 
company with leadership and direction" is tantamount to specifically identifying a function. Second, the 
AAO finds that, despite counsel's assertions to the contrary, the job description provided in support of the 
petition lacks sufficient information about the beneficiary's actual day-to-day job duties. Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations 
require a detailed description of the beneficiary's daily job duties. See 8 C.F.R. 5 204.56)(5). Here, the 
petitioner generally stated that 35% of the beneficiary's time would be allocated to making and implementing 
decisions regarding company policies and procedures. However, this general claim provides no indication as 
to how the beneficiary's policy-making authority translates into daily tasks. The petitioner also failed to 
specify the beneficiary's specific role with regard to the company's budget. If the beneficiary actually 
formulates the company's budget, further explanation is needed to establish that this job duty is managerial or 
executive and does not require the performance of operational tasks. Additionally, the petitioner originally 
indicated that the beneficiary would allocate 20% of his time to directing a subordinate staff and 10% to 
making final decisions on personnel matters. The AAO notes, however, that these staff-related 
responsibilities are contradictory to the concept of a function manager, which applies to individuals who do 
not supervise or control the work of subordinate personnel. Thus, the petitioner's initial description of the 
beneficiary's proposed employment further undermines counsel's subsequent claims that the beneficiary is a 
function manager. 
In summary, the record lacks sufficient evidence to establish that the beneficiary would be employed by the 
petitioning entity in a qualifying managerial or executive capacity. Although the director described, at length, 
the anomalies that were discovered during the course of reviewing the record of proceeding, counsel merely 
dismissed the director's analysis as being irrelevant to an overall determination of the beneficiary's 
employment capacity and failed to provide any documentation to resolve the inconsistencies. Instead, counsel 
explained that the petitioner's staffing needs vary depending on customer demands and further claimed that 
the individuals who work for the petitioner are "multi-talented" such that they are able to perform the job 
duties assigned to numerous positions. No supporting evidence was provided to corroborate counsel's 
explanation. See Matter of Obaigbena, 19 I&N Dec. at 534. Moreover, even if counsel's statements were 
factually true, the implication of his explanation would be damaging to the petitioner's overall eligibility 
claim. More specifically, if it were hue that the petitioner's staffing could change at any given time 
depending on its business needs, it would be logical to assume that the beneficiary's job duties would not be 
constant, but rather would vary depending on the size of the subordinate staff and the needs of the company, 
particularly at a time when customers' demand for the petitioner's services is low. 
When 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. 8 204.5(j)(5). The AAO will then consider this 
information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. In the present matter, the record lacks a comprehensive description of the beneficiary's day-to-day 
tasks and does not adequately establish the availability of support personnel who would perform the 
petitioner's daily operational tasks such that the beneficiary would be able to primarily focus on the 
performance of managerial or executive duties. Thus, in light of the above analysis and the unresolved 
Page 7 
discrepancies pointed out in the director's decision, the AAO finds that the petitioner has failed to establish 
that it would employ the beneficiary in a managerial or executive capacity. 
Lastly, with regard to counsel's reference to the petitioner's current approved E-2 employment of the 
beneficiary, the AAO notes that the approval of the petitioner's nonimmigrant visa will in no way serve as an 
indicator of the petitioner's eligibility for the immigrant visa being sought in the present matter. Regardless of 
whatever examination was likely conducted by the U.S. Embassy in Japan prior to the issuance of the 
petitioner's E-2 nonimmigrant visa, the criteria for the type of 1-140 immigrant visa classification the 
petitioner seeks herein is wholly separate and distinct in terms of its eligibility requirements from the 
previously approved nonimmigrant visa. 
Moreover, the approval of a nonimmigrant visa at a U.S. Embassy abroad in no way guarantees that USCIS 
will approve an immigrant petition filed on behalf of the same beneficiary. An immigrant petition will only 
merit approval where eligibility has been duly established. In the present matter, the above analysis outlines 
specifically the various shortcomings of the petitioner's claim and the evidence that has been submitted in 
support thereof. Thus, given the finding that the petitioner has failed to establish eligibility, the instant 
petition may not be approved. 
Furthermore, while not previously addressed in the director's decision, the AAO finds that the petitioner has 
failed to provide sufficient evidence to establish that it meets the provisions of 8 C.F.R. 5 204,S(j)(3)(i)(B), 
which states: 
If the alien is already in the United States working for the same employer or a subsidiary or 
affiliate of the firm or corporation, or other legal entity by which the alien was employed 
overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the 
entity abroad for at least one year in a managerial or executive capacity .... 
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 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 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