remanded EB-1C Case: Hotel Management

MATTER OF A-H- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 5, 2018. 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a hotel management company, · seeks to permanently employ the Beneficiary as its 
president under the first preference immigrant classification for multinational executives or 
managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ 1 l 53(b)(l )(C). This classification allows a U.S. employer to permanently transfer a qualified 
foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity 
in the United States. The Petitioner filed a combined motion to reopen and motion to reconsider. 
The Director reopened and reconsidered the matter, but concluded that the grounds for denial had 
not been overcome. The matter is now before us on appeal. 
On appeal, the Petitioner contends that the Director did not consider submitted evidence establishing 
that the Beneficiary would supervise managerial subordinates and contends that the Director 
improperly required it to demonstrate that he oversaw multiple higher level managers and 
professionals in order to qualify. 
We will withdraw the Director's previous decisions regarding the merits of the petition and will 
remand the matter for the entry of_ a new decision. 
I. ANALYSIS 
Upon review, we conclude that the Director erred in determining that the Petitioner did not establish 
that the Beneficiary would be employed in a managerial_capacity. 
In the initial denial decision, the Director emphasized that the Petitioner did not substantiate that the 
Beneficiary supervised professional subordinates. The Director also pointed to tax and payroll 
documentation and noted that many of the members of the Petitioner's organizational chart worked 
part-time. In addition, the Director stated that the Petitioner did not demonstrate that the Beneficiary 
oversaw managerial or professional subordinates and determined that its organizational chart was not 
sufficient to support him in a managerial or executive capacity. 
Matter of A-H- lnc 
On motion, the Petitioner submitted additional Forms W-2, Wage and Tax Statements and asserted 
that this evidence demonstrated that the Beneficiary would oversee managerial and professional 
subordinates. The Petitioner asserts that the Director overemphasized the number of part-time 
employees and misinterpreted several operational employees as part-time. It also contends that the 
regulations do not prohibit the Beneficiary from qualifying because the subordinate managers he 
oversees supervise employees such as housekeepers, bartenders, front desk personnel, and other such 
hospitality workers. 
As discussed, the Director later granted the Petitioner's motion to reopen and reconsider, but 
concluded that the previous grounds for denial had not been overcome. The Director stated that the 
Petitioner did not establish that any of the Beneficiary's subordinates were professionals and 
indicated that his subordinates were seasonal or part-time workers. The Director also stated that the 
Petitioner did not establish that the Beneficiary would be primarily relieved from performing non-
. qualifying operational duties. On appeal, the Petitioner largely reiterates the same assertions it 
submitted on motion. 
We conclude that the Director did not.properly consider that the Beneficiary qualifies as a personnel 
manager. The statutory definition of ';managerial capacity" allows for both "personnel managers" 
and "function managers." See section 1 0l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that 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." 8 C.F.R. § 204.5G)(4)(i). 
In denying the petition and upholding the· denial on motion, the Director emphasized that the 
Petitioner did not establish that the Beneficiary would have professional subordinates. In ~ddition, 
the Director appeared to conclude that the Petitioner was required to establish that the Beneficiary's 
managerial subordinates were also managers or executives consistent with the regulations. 
However, as discussed above, the regulations indicate that a beneficiary may qualify as a personnel 
manager based on the supervision of subordinate managers. Here, the Petitioner has credibly 
established that the Beneficiary more likely than not oversaw and would continue to oversee the 
· . operation of a hotel with over 30 employees, including a directly subordinate general manager 
overseeing several subordinate managers directing various hotel functions such as the restaurant and 
bar, housekeeping, front desk, and maintenance operations. The Petitioner also provided credible 
duty descriptions for these positions and supporting payroll and tax documentation to substantiate 
the Beneficiary's subordinate general manager, the general manager's subordinate supervisors, and 
the various operational level employees performing the non-qualifying duties of the business. 
In addition, the Director appeared to overemphasize the type of business the Petitioner conducted 
stating that it "is a small lodging motel which targets the low end _market." It appears that the 
Director did not take into consideration the reasonable needs of the Petitioner. As required by 
section 10l(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether ·an 
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Maller of A-H- Inc 
individual is acting in a managerial, the Director must take into account the reasonable needs of the 
organization, in I ight of the overall purpose and stage of development of the organization. 
In sum, we conclude that the Petitioner established that it is more likely than not that the Beneficiary 
would act in a managerial capacity in the United States. 
II. ADDITIONAL ISSUE 
Although not addressed by the Director in either decision, we note that the record as currently 
constituted does not support that the Beneficiary acted in an executive capacity abroad. We note that 
the Petitioner o_nly asserted that the Beneficiary acted in an executive capacity abroad; as such, we 
will only analyze whether it demonstrated this and not whether he acted in a managerial capacity. In 
order for the Beneficiary to qualify as a multinational executive, the Petitioner must demonstrate that 
the beneficiary was employed abroad in an executive capacity for at least one year in the three years 
preceding the filing of the petition or their entry into the United States as a nonimmigrant. See 
.8 C.F.R. § 204.50)(3). 1 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10l(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed· an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. 
The Petitioner indicated that the Beneficiary acted as managing director of his foreign employer and 
that this company was engaged in hotel and property management in China. The Petitioner further 
stated that the foreign employer "employs a team of experienced senior management and supervisors 
who currently manage over 5 significant real estate projects in China including luxury apartments 
and hotels." In addition, it stated that the Beneficiary "directly supervised 10 directors and managers 
who managed different properties (hotels and apartments) as well as lower level employees." 
In a request for evidence (RFE), the Director noted that the Beneficiary's foreign duty description 
lacked specificity and requested that it submit further explanation of his daily tasks abroad. The 
1 We note that prior to the date the petition was filed the Petitioner was granted three nonimmigrant intracompany 
transferee petitions on behalf of the Beneficiary (with validity periods dating from April 23, 2015, to March I, 2016, 
March I, 2016, to February 28, 2018, and March I, 2018, to February 29, 2020). 
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Matter of A-H- Inc 
duty description provided in response was not sufficiently detailed and did not substantiate that the 
Beneficiary was primarily devoted to qualifying executive level duties. The duty description 
, included several broadly cast responsibilities such as the Beneficiary being tasked with "supervising 
all lines of business," holding monthly meetings, reviewing reports, "devising strategic plans," 
creating "new business opportunities," delegating "strategy formation and implementation," 
developing "financial policies," establishing "current and long range goals, objectives, plans and 
policies," creating "operational and financial policies," and negotiating "major contracts." 
The Beneficiary's duty description includes several generic duties that could apply to any executive 
acting in any business or industry and they do not provide insight into the actual nature of his former 
role. The Petitioner provided insufficient examples and little supporting documentation to 
demonstrate the Beneficiary's performance of qualifying duties abroad, such as strategic plans he 
devised, new business opportunities he identified, financial policies he developed, goals he 
established, operational or financial policies he created, or major contracts he negotiated. This lack 
of detail is particularly noteworthy since the Petitioner asserts that the Beneficiary acted in his role 
as managing director from 2009 until entering the United States in 2015. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive in nature, otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1 1989), aff'd, 905 F.2d 41 (2d. Cir.1990). 
In addition, the Petitioner did not submit sufficient evidence to demonstrate that the Beneficiary 
acted in an elevated position in a complex organizational hierarchy overseeing a subordinate level of 
managerial employees. Section 101 ( a)( 44 )(8) of the Act. The Petitioner submitted an 
organizational chart reflecting that the Beneficiary supervised a finance director, a finance manager, 
a human resources director, an IT director, a chief engineer, an operation director, and five other 
general managers overseeing investment properties. However, the Petitioner provided little 
information or evidence to substantiate the subordinates and operations these claimed managerial 
subordinates oversaw. Upon review, the Petitioner did not submit sufficient evidence to establish 
that the Beneficiary acted within a complex organizational hierarchy overseeing a subordinate level 
of managerial employees. 
III. CONCLUSION 
On remand, the Director should consider whether the Beneficiary was employed in an executive 
capacity abroad. The Director should also afford the Petitioner the opportunity to submit additional 
evidence and assertions specific to this issue. 
ORDER: The two previous decisions of the Director on the merits of the petition are 
withdrawn. The matter is remanded for the entry of a new decision consistent with 
the foregoing analysis. 
Cite as Matter of A-H- Inc, ID# 1699449 (AAO Oct. 5, 2018) 
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