dismissed EB-1C Case: Tour Operator

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prevent clearly unwamted 
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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
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. 5 1153(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 hrther inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
v 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The petitioner filed a motion to reopen a~d rcconsider seeking to overcome the director's findings. 
The director determined that the petitioner failed to meet the provisions specified at 8 C.F.R. 
5 103.5(a)(3) and therefore dismissed the motion to reconsider. Although the director granted the 
petitioner's motion to reopen, he found that the additional documentation submitted did not 
overcome the adverse findings cited in the denial and therefore affirmed his initial decision to deny 
the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal.' The 
appeal will be dismissed. 
The petitioner was organized in North Carolina as a limited liability company intended to function as 
a tour operating entity. 
 It 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. § 1153(b)(l)(C), as 
a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary would be employed in the United States in a managerial or 
executive capacity; 2) the director found the beneficiary to be a majority owner of the petitioning 
entity and concluded that in light of this ownership interest, the petitioner does not have the requisite 
employes/employee relationship with the beneficiaiy; and 3) the petitioner failed to establish that it 
has the ability to pay the beneficiary's proffered wage. 
? 
In response to the director's findings, counsel filed a combined motion to reopen and reconsider on 
the petitioner's behalf. In support of the motion to reopen, counsel submitted evidence showing that 
three prior Form 1-129 petitions had been approved on the beneficiary's behalf, thereby allowing the 
petitioner to employ the beneficiary in the United States in the classification of an intracompany 
transferee. Counsel also introduced documentation establishing that neither the foreign nor U.S. 
entity is majority owned by the beneficiary. 
On motion to reconsider, counsel disputed the director's finding regarding the petitioner's ability to 
pay the beneficiary's proffered wage. More specifically, counsel argued that the director 
mischaracterizeci and dismissed the importance of the documentation submitted to establish the 
petitioner's ability to pay the beneficiary's proffered wage, urging the director to use his discretion to 
consider documents that are not specified in the applicable regulatory provisions. See 8 C.F.R. 
0 204.5(g)(2). 
The director reviewed the petitioner's motion to reopen and reconsider and determined that the 
petitioner failed to meet the provisions specified at 8 C.F.R. § 103.5(a)(3), which state in pertinent 
part: 
A motion to reconsider must state the reasons for reconsideration and be supported by 
any pertinent precedent decisions to establish that the decision was based on an 
As the petitioner chose not to appeal the initial denial when it was initially issued, the scope of the AAO's appellate 
review in the present matter is limited to the director's dismissal of the motion to reconsider and the affirmation of the 
initial denial itself. 
incorrect application of law or [U.S. Citizenship and Immigration Services (USCIS)] 
policy. A motion to reconsider a decision on an application or petition must, when 
filed, also establish that the decision was incorrect based on the evidence of record at 
the time of the initial decision. 
The director found that counsel failed to cite any precedent decisions to support his arguments and 
did not establish that the director's decision was incorrect based on the evidence of record at the time 
the decision was issued. Upon reviewing the petitioner's submissions in support of the motion to 
reconsider, the AAO affirms the directol-'s decision dismissing the motion. Therefore, the 
petitioner's failure to establish its ability to pay the proffered wage remains one of two grounds for 
the petitioner's ineligibility to classify the beneficiary as a multinational manager or executive. 
The director did, however, grant the petitioner's motion to reopen and gave full consideration to the 
additional documents provided in support of the motion, which addressed the two remaining grounds 
of ineligibility. After reviewing the documents that pertained to the ownership of the U.S. and 
foreign entities, the director withdrew the portion of his decision that directly addressed the issue of 
the beneficiary's employee relationship with the U.S. entity based upon the finding that the 
beneficiary does not have controlling interest of the petitioning entity. Nevertheless, the director 
affirmed the denial, finding that the petitioner failed to establish that the beneficiary would be 
employed in 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 piimarily-- 
(i) 
 mznages 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 e-qloyee 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. 
With regard to the issue of the beneficiary's employment capacity in his prospective position with 
the U.S. petitioner, the director rejected counsel's argument that the three prior approvals of the 
petitioner's L-1A visa petitions suggest that the issue of the beneficiary's employment in a 
managerial or executive capacity has been considered and that the prior favorable determinations 
should guide the results in the present matter. 
On appeal from the director's latest findings, counsel points out that the issue in the present matter 
deals solely with the definitions for managerial and executive capacity, which are identical for the 
non-immigrant L- 1 A intracompany and the immigrant multinational manager or executive. Based 
on this line of reasoning, counsel argues that the director's most recent decision is inconsistent with 
the prior L-1 A approvals, which imply that the petitioner has adequately met the criteria outlined in 
the above statutory definitions. However, counsel is reminded that USCIS 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). Therefore, even if the AAO were to interpret USCIS's prior 
approvals of the petitioner's L-1A petitions as favorable reviews of the beneficiary's job description, 
the director in the present matter was not bound by those earlier approvals. 
As previously pointed out by the director. while an approval of a Form 1-140 results in an alien's 
permanent residence and, potentially, U.S. citizenship, approval of a Form 1-129 allows an alien to 
obtain only temporary lawful status in the United States. It therefore stands to reason that USCIS 
may spend less time reviewing Form 1-129 nonimmigrant petitions than Form 1-140 immigrant 
petitions, which may result in erroneous approvals of some nonimmigrant L-1 petitions. Q Data 
Consulting, Inc. 1). INS, 293 F. Supp. 2d 25, 29-30 (D.D.C. 2003) (recognizing that CIS approves 
some petitions in error). In light of these factors, the director was correct in relying solely on the 
evidence before hi~n in detennining the petitioner's eligibility for an immigrant petition. 
That being said, the record in the present matter does not warrant an approval of the Form 1-140. As 
properly pointed out by the director, at the time of filing the petitioner's staff consisted of a total of 
two employees. While this factor is not the only one to be considered in determining whether the 
Page 5 
beneficiary would be employed in a qualifying managerial or executive capacity, 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 17.5, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 
41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, IH~. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 
2003)). Furthermore, the AAO cannot overlook the beneficiary's job description, which suggests 
that the beneficiary's time would primarily be spent carrying out such daily operational tasks as 
representing the petitioner at trade shows; finalizing clients' arrangements by contacting booking and 
travel agents; traveling to various tour destinations to assess suitability for clients; and maintaining 
communications with safari operations. It is noted thzt an employee who "primarily" perfoms the 
tasks necessary to pr~duce a product or to provide services is not considered to be "primarily" 
ernpIoyed 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. at 604. While the petitioner did not assign 
a percentage of time to any of the above non-qualifying tasks, the AAO cannot assume, given the 
organizational structure at the time of the petition's filing, that these key tasks would not consume 
the majority of the beneficiary's time. 
That being said, despite the job descriptions provided for a marketing manager and an administration 
manager, the petitioner stated that "the natural expansion of the company" will result in the 
petitioner's need for these two positions. indicating that the expansion and additional personnel are 
planned for in the future. This statement suggests that until such a need arises, the beneficiary would 
continue to engage in all tasks necessary to ensure the petitioner's daily operation. However, a 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 
I&N Dec. 45, 49 (Comm. 1971:). As the petitioner has not established that it was ready and able to 
relieve the beneficiary from having to primarily perform the non-qualifying operational tasks at the 
time the Form 1-140 was filed, the AAO cannot conclude that the beneficiary would be primarily 
employed within a qualifying maaagerial or executive capacity. 
In summary, the record shows that the petiiioner failed to overcome two of the three grounds cited in 
support of the director's adverse decision. First, because the petitioner failed to meet the 
requirements for a motion to reconsider. the AAO upholds the director's finding that the petitioner 
failed to establish Ets ability to pay the beneficiary's proffered wage. Second, after reviewing the 
petitioner's organizational composition and thz beneficiary's proposed job duties at the time the Form 
1-140 was filed, the AAO finds that the petitioner has failed to establish that the beneficiary would 
be employed in a qualifying managerial or executive capacity. Accordingly, based on these two 
independent grounds of ineligibility, the petition ir;, the present matter cannot be approved. 
When a director denies a petition on multiple altemctive grounds, a petitioner can succeed on a 
challenge only if ~t is shown that the director abused his or her discretion with respect to all of the 
enumerated grounds. Cf Spencer Enterpri,res, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003). 
Page 6 
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.