Managing Director

The petition was dismissed because the Petitioner did not demonstrate the Beneficiary would function in an executive capacity as defined in section 101(a)(44)(B) of the Act. Evidence showed the Beneficiary was the only employee, suggesting he would personally perform the service tasks of the contract rather than directing the organization. The management of a client's employees (hotel staff) did not satisfy the requirement for executive capacity within the petitioning entity.

The appeal was dismissed primarily because the Petitioner failed to address or contest the Director's finding regarding the ability to pay the proffered wage, effectively abandoning the issue. Additionally, the Petitioner failed to submit the regulatory required evidence (federal tax returns or audited financial statements) to demonstrate financial capacity.

The appeal was dismissed because the petitioner failed to establish that the Beneficiary would be employed in a primarily managerial capacity in the U.S. The job description contained generalities that precluded a meaningful assessment of actual tasks, and there was insufficient evidence of a subordinate staff to relieve the Beneficiary from non-qualifying operational duties. Issues regarding the qualifying relationship and foreign employment capacity were reserved as the staffing issue was dispositive.

The Petitioner failed to provide a statement from the foreign employer confirming the Beneficiary's duties and did not establish a subordinate personnel structure. There was no objective evidence of a qualifying relationship (parent, subsidiary, or affiliate) between the entities. Furthermore, the Beneficiary's stay in the U.S. for over four years in B-2 and F-2 status without work authorization interrupted the continuity of qualifying employment.