sustained EB-1C Case: Hospitality

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PUBLIC COPY 
JAN 0 6 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER : JAN 0 6 zoo8 
LIN 04 083 52730 
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. 9 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 further inquiry must be made to that office. 
- Robert P. ~iemann,$irector 
Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. The matter is 
now before the AAO on appeal. The appeal will be sustained. 
The petitioner is an international company organized in 1949. It is engaged in international hotel operations. 
It seeks to employ the beneficiary as one of its subsidiary's hotel sous chef. 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. 3 1153(b)(l)(C), as a multinational executive or 
manager. 
The director determined that the petitioner had not established a qualifying relationship with the beneficiary's 
foreign employer. 
On appeal, counsel for the petitioner submits documentation and a brief. 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 that 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. See 8 C.F.R. 
4 204.56)(5). 
The issue in this proceeding is whether the petitioner has established a qualifying relationship between the 
petitioner and the foreign entity. In order to qualify for ths visa classification, the petitioner must establish that 
a qualifying relationship exists between the United States and foreign entities in that the petitioning company is 
the same employer or an affiliate or subsidiary of the foreign entity. 
The regulation at 8 C.F.R. 204.56)(2) states in pertinent part: 
Afiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
Multinational means that the qualifjrlng entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of the entity, but in fact controls the entity. 
On April 7,2005, the director denied the petition. The director acknowledged that the petitioner in this matter 
had established that it owns and controls The Drake Hotel, the beneficiary's proposed place of United States 
employment. However, the director questioned and ultimately determined that the petitioner had not 
established it owned and controlled the beneficiary's place of foreign employment, the Maldives Hilton. The 
director first noted that the petitioner had not provided any evidence it owned the beneficiary's foreign place 
of employment. The director then reviewed a management agreement (agreement) dated September 1996 
supplied by the petitioner covering a hotel site on Rangalifinolhu Island where the beneficiary had been 
employed from May 1999 to May 200 1. 
The director referenced Article 111, Paragraph 3 of the agreement that had been highlighted by the petitioner. 
This paragraph reads in pertinent part: 
Nothing herein shall constitute or be construed to be or to create a partnership or joint venture 
between First Party (Crown Company PTE limited) and [the petitioner] and the right of First 
Party to receive financial returns based on the operation of the Hotel shall not be deemed to 
give the First Party any interest, control or discretion in the operation of the Hotel. The 
control and discretion by [the petitioner] shall include the use of the Hotel for all customary 
purposes, terms of admittance, charges for rooms and commercial space, entertainment and 
Page 4 
amusement, sport and recreation, food and beverages, labour policies (including wage rates, 
the hiring and discharging of employees), the maintenance of the bank accounts and holding 
of funds, and all phases of promotion and publicity relating to the Hotel. 
The director acknowledged that the above paragraph demonstrated that the petitioner had some control over 
the activities of the foreign entity but noted that two paragraphs later, the agreement states: 
All the activities of [the petitioner] in the management, use and operation of the Hotel shall 
be on behalf of and for the account of First Party. The employees of the Hotel shall be 
employees of First Party. All contracts of employment and all leases and concessions, all 
purchase orders and agreements shall be executed in the name of First Party by [the 
petitioner] as Manager. 
The agreement indicated that the petitioner would receive a management fee for operating the hotel. 
The director determined that upon review of the totality of the agreement, Crown Company PTE Limited 
controlled the major aspects of the foreign business and that the record contained evidence that Crown 
Company PTE Limited held the lease on the island and thus the hotel. The director concluded that as the 
petitioner was simply contracted to manage the hotel, it did not appear that an actual affiliate or subsidiary 
relationship existed between the petitioner and the beneficiary's foreign employer. The director further 
concluded that the beneficiary was an employee of Crown Company PTE Limited, an entity unrelated to the 
petitioner, and thus the beneficiary had not been employed with the same employer, a subsidiary, or an 
affiliate of the petitioner. 
On appeal, counsel for the petitioner observes that the petitioner does not claim control of Crown Company 
PTE Limited or ownership of the Maldives Hilton hotel property; but rather it claims ownership and control 
of the management operations of the Maldives Hilton. Counsel explains that most major hotel chains do not 
own both the physical property and the management operations; but that through the petitioner's ownership of 
management operations, the petitioner retains all control over employment and that the employees are 
considered working for the petitioner. Counsel acknowledges that the hotel employees are paid from the 
owner's (Crown Company PTE Limited) account, but notes that the petitioner has the right to use the hotel for 
all customary purposes, which includes hiring, disciplining, and firing all employees, assigning their work, 
directing the manner in which it is performed, and determining the conditions of their employment including 
wage levels. 
Counsel cites Matter of Pozzoli, 14 I&N Dec. 569 (1974 Reg. Comm.) which holds that the essential elements 
of the employment relationship is the right of control by the master to order and control the servant in the 
performance of work by the latter, and the right to direct the manner in which the work shall be done. 
Counsel argues that like Matter of Pozzoli, when determining whether the right of control exists, possession 
of either the power to employ or to discharge is regarded as strong evidence of the master and servant 
relationship, whereas the payment of wages is the lease important factor. Matter of Pozzoli, 14 I&N Dec. at 
572 quoting, 53 Am. Jur. 2d, Master and Servant, 5.2. 
Page 5 
Counsel contends that in this matter the petitioner has full control and discretion in the operation of the 
Maldives Hilton including the right to hire and discharge employees, such as the beneficiary. Counsel 
concludes that since the petitioner totally owns and controls the management operations of the Maldives 
Hilton and that since the petitioner is both the foreign entity that employed the beneficiary under Matter of 
Pozzoli and the petitioning entity, that there is no need to provide further evidence of a corporate relationship. 
The record in this matter establishes that the petitioner and the management company of the Maldives Hilton 
are one and the same. When the beneficiary was employed with the Maldives Hilton his duties were subject 
to the management of the petitioner and the petitioner had the authority to hire and fire the beneficiary based 
on language contained in the management agreement. In this matter, the petitioner's right to hire and fire the 
beneficiary and to direct and control his duties is sufficient to establish the employer-employee relationship, 
albeit the petitioner did not pay the beneficiary his salary. The petitioner has established that the petitioner 
and the beneficiary's foreign employer, for the purposes of this visa classification are one and the same, so 
that a qualifying relationship exists. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has been met. For the foregoing 
reasons the decision of the director will be withdrawn and the petition will be approved. 
ORDER: The appeal is sustained.