dismissed EB-1C Case: Construction

U.S. Department of Homeland Security 
U. S. citizens hi^ and Immieration Services 
identifying data deleted to 
.. 
OfJe ofAdm~n~stratrve Appeals MS 2090 
Washington, DC 20529-2090 
prevent clmr!y ili~>:m~~~tl.tited 
invmiofl of'pe~onai privacy 
 U. S. Citizenship 
and Immigration 
Services 
pulwc COPY 
FILE: FFICE: NEBRASKA SERVICE CENTER Date: MAR 3 0 2009 
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 further 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). 
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 was organized in the state of Washington claiming to be in the business of operating a 
residential housing construction company. The petitioner 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. 8 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
based on the determination that the petitioner would not employ the beneficiary in a managerial or 
executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of her 
arguments. 
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 in this proceeding is whether the beneficiary would be employed in a capacity that 
is managerial or executive. 
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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 letter dated September 21, 2006, which 
includes the following description of the beneficiary's proposed position with the U.S. entity: 
As [plresident, [the beneficiary] is responsible for planning, directing and 
coordinating the U.S. company's overall operations. He holds broad responsibility 
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and authority as the top executive and manager for [the petitioning entity]. Through 
subordinate management personnel, he directs and supervises all aspects of the 
business operation. [The beneficiary] is responsible for establishing procedures for 
attaining business objectives. He also implements initial company goals and policies. 
[He] represents [the petitioner] in contractual negotiations and is responsible for 
establishing procedures for attaining business objectives. He also implements initial 
company goals and policies. [The beneficiary] represents [the petitioner] in 
contractual negotiations and is ultimately responsible for the company's legal matters 
including oversight of compliance with U.S. building codes and regulations. [He] 
also coordinates financial and banking for the U.S. company to maximize the 
company's return on its initial investment. 
[The beneficiary] manages the [vlice [plresident, who, in turn, supervises a ljlob 
[sluperintendent [who] supervises [clarpenters, [clontractors, [alpprentices, and 
[llaborers. [The beneficiary] has the authority to hire, fire, or take other personnel 
action as necessary. 
The petitioner also provided its organizational chart, which depicts the beneficiary's position of 
president at the second tier within the hierarchy. The beneficiary's immediate subordinate is 
identified as the vice president, whose immediate subordinate is shown to be the on-site foreman. 
The foreman is shown as supervising four contract employees and 67 subcontracted employees are 
depicted at the bottom tier of the petitioner's hierarchy. 
On July 23, 2007, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide, inter alia, a description of the beneficiary's proposed employment, listing the 
specific job duties the beneficiary would be expected to perform and the estimated percentage of 
time the beneficiary would spend on each listed job duty. 
In response, the beneficiary, on behalf of the petitioner, provided a letter dated August 14, 2007 in 
which he provided the following description of his proposed employment with the petitioning entity: 
As [plresident I'm completely in charge of the entire company and it's [sic] operation. 
. . . First of all I negotiate and purchase serviced building lots. I negotiate the price 
to pay, dates for closing and number of sites we'll purchase. 1'11 then deal with 
architects and coordinate homes for each lot. Once plans are received, I have to 
obtain engineering and permits before construction begins. This requires meeting 
with engineering firms and following that, [clity [olfficials and [ilnspectors. While 
this aspect is being done I negotiate contracts with each and every [s]ubcontractor 
[elmployee [floreman. . . . I also need to negotiate the purchase of all materials used 
in the construction project. I set up the specifications list, outlining materials to be 
used in each project. Once I have contracts andlor price estimates I can set up all 
financial needs of this project. This involves meeting with appraisers and bank loan 
officers. I have complete signing authority for [the petitioner] . . . . I also sign and 
execute all documents for the purchase of our lots . . . . Once construction begins, I 
supervise our [vlice [plresident and on[-]site [floreman. I provide them with plans, 
contracts and the specifications list for each project. When the project is at the 
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drywall stage I start dealing with sales personnel. 
 We set up an Add [sic] and 
[mlarketing campaign to promote our home. 
 When the project is complete 1'11 
negotiate the sale price with the buyer and also work to provide the new home owner 
with any additional desires they may have. We also provide warranty for our new 
homes. I coordinate this with the new home owner. This covers all of my ofq-]site 
duties. 
On[-]site I only act in an executive and managerial capacity: 
[Plrovide [vlice [plresident and on[-]site foreman with all contract plans and 
specifications[.] 
[Plrovide [a] schedule for construction[.] 
[Alnswer any questions regarding contracts or plans that I set up[.] 
[B]e sure [that the] [slubcontract [elmployees perform all duties that they are 
contracted to do[. M]y on[-]site foreman does most of this[.] 
[Rlesponsible for all personnel decisions[.] 
The beneficiary also explained that the petitioner has anywhere from two to four projects 
simultaneously in progress at various stages, thereby requiring the beneficiary to manage the various 
schedules as required for a particular stage of a project. Additionally, the beneficiary provided the 
following hourly breakdown of his time: 24 hours to be spent on office contracts, scheduling, plans, 
permits, and general business activities; 10 hours to be spent on the road purchasing materials and 
meeting with agents and city officials; six hours to be spent dealing with customers, bank 
representatives, and sales associates; and 10 hours to be spent corresponding with the vice president, 
on-site foreman, and subcontracted employees. 
On November 28, 2007, the director issued a decision denying the petition, finding that the petitioner 
failed to establish that the beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity. The director reiterated the above hourly breakdown and 
determined that the beneficiary would not primarily perform managerial or executive job duties 
despite the fact that the beneficiary operates the U.S. business. 
On appeal, counsel asserts that the beneficiary is not primarily performing those tasks that produce 
the homes sold by the petitioning entity. Counsel's statement, however, suggests that only those 
tasks that are associated with physically building the homes sold by the petitioner can be deemed as 
non-qualifying tasks. Counsel fails to acknowledge the various other non-qualifying tasks that the 
beneficiary performs, and would continue to perform, that have nothing to do with the physical 
aspect of building houses. Contrary to the inference in counsel's statement, there are a variety of 
sales and office administrative tasks that are also non-qualifying and yet are directly performed by 
the beneficiary. For instance, the beneficiary readily admitted that he negotiates the terms for 
purchasing the land for the building projects and that he subsequently negotiates contracts for the 
building materials and the subcontracted labor to be used in each building project. Once each 
Page 6 
building project is underway and getting closer to completion, the beneficiary then contacts sales 
people to set up a marketing campaign to help with the subsequent sales of the completed homes. 
Here too, the beneficiary admits that he deals directly with the buyer in negotiating a purchase price 
and getting feedback fiom the buyer with regard to any additional requirements helshe may have 
with regard to the finished product. Thus, while the beneficiary may not be physically involved in 
building the homes, the job description provided strongly suggests that the beneficiary is directly 
involved in the sales of the petitioner's finished products as well as the various administrative and 
daily operational tasks that are not within a managerial or executive capacity. 
While the beneficiary's performance of some non-qualifying tasks would not disqualify him from 
classification as a multinational managerial or executive, the petitioner must establish that the 
primary portion of the beneficiary's time would be spent performing job duties that are within a 
managerial or executive capacity, as an employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed 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, 1 9 I&N Dec. 593,604 (Comm. 1 988). 
Counsel further contends that the beneficiary devises each project's work plan, which is executed by 
the company's managers whose work the beneficiary then oversees. Counsel states that each project 
is directly managed by the petitioner's management personnel. However, it appears that the 
management personnel referenced in the material previously provided relate directly to the building- 
related activities that take place at the sites where the homes are built. As discussed earlier, there is 
no indication that the beneficiary is relieved in any way from having to perform the other operational 
tasks that are discussed above. Merely establishing that the beneficiary himself does not build the 
homes sold by the petitioner does not establish that he primarily functions within a qualifying 
managerial or executive capacity, as there are numerous non-qualifying duties that are unrelated to 
the actual building of the homes. 
Additionally, while counsel asserts that the beneficiary is primarily engaged in managing the 
company's managerial and supervisory personnel, the hourly breakdown provided by the beneficiary 
himself does not support this assertion. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). In the present 
matter the beneficiary states that 24 hours of his 50-hour work week would be spent in the office 
performing various administrative office duties and that another 10 hours would be spent on the road 
meeting with agents and city officials and performing purchasing-related duties. Thus, based on the 
beneficiary's own assessment of his time allocation, approximately 34 out of 50 hours would be 
spent on activities that have little to do with managing personnel, which contradicts counsel's claim. 
Counsel also places great emphasis on the beneficiary's discretionary authority with regard to 
personnel and all business matters. However, maintaining a high degree of authority does not ensure 
that the beneficiary is primarily involved in duties that are within a managerial or executive capacity. 
In the present matter, the job description provided by the beneficiary adequately conveys his level of 
authority and his overall position within the petitioner's organizational hierarchy. However, neither 
Page 7 
of these factors establishes that the primary portion of the beneficiary's time would be spent 
performing tasks of a qualifying nature. 
Lastly, the record does not contain sufficient documentation to establish the beneficiary's 
employment of four contracted employees and 67 subcontracted employees, as indicated in its 
organizational chart. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 
165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The petitioner must establish its ability to relieve the beneficiary from having to primarily 
perform non-qualifying tasks at the time of filing the Form I- 140. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Comm. 1971). As such, U.S. Citizenship and Immigration Services may review the 
petitioner's staffing structure and documentation in order to gauge who within the petitioning 
organization is available to perform the company's daily operational tasks, which, while necessary, 
may not be within a qualifying capacity. 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. Suva, 905 F.2d 41, 42 (2d Cir. 1990) (per curiarn); Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). In the present matter, the record contains the 
petitioner's 2006 income tax return, which shows a payment of $36,000 in officer compensation, but 
does not show any funds going towards salaries and wages.' Rather, Schedule A, item 3 on the 
following page indicates that $77,895 was paid for the cost of labor. However, it is unrealistic to 
think that this amount would cover the wages of the petitioner's four claimed contracted and 67 
claimed subcontracted employees. 
In summary, the petitioner has not established that the beneficiary's proposed employment would 
primarily entail the performance of tasks within a qualifying managerial or executive capacity. 
Furthermore, the petitioner has failed to provide sufficient documentation to establish that it had the 
necessary staffing established at the time of filing such that it would have been able to relieve the 
beneficiary from having to primarily perform the petitioner's daily operational tasks. Based on these 
findings, the AAO concludes that this petition does not warrant approval. Therefore, the director's 
decision denying the petition will remain undisturbed. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
First, 8 C.F.R. 5 204.5Cj)(3)(i)(B) states that the petitioner must establish that the beneficiary was 
employed abroad in a qualifying managerial or executive position for at least one out of the three 
years prior to his entry to the United States as a nonimmigrant to work for the same employer. 
Based on the reasoning applied in the above discussion, and in light of the similarities between the 
petitioner's description of the beneficiary's proposed job duties and those he performed during his 
--- 
I 
 Although it is likely that the beneficiary is the officer that was compensated the $36,000, Schedule E was left 
incomplete and did not identify the officer(s) who received the compensation. 
employment abroad, the AAO finds that the petitioner failed to establish that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. tj 204.50)(3)(i)(D) states that the petitioner must establish that it has been doing 
business for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. tj 204.5(j)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods andfor 
services by a firm, corporation, or other entity and does not include the mere presence of an agent 'or 
office." Although the petitioner has provide information indicating that it is engaged in the building 
and retail of residential properties, there is little documentation to establish that the petitioner has 
been engaged in this business for the time and in the manner prescribed by regulation. Neither the 
petitioner's income tax returns nor letters from its business associates lead to the conclusion that the 
petitioner meets this regulatory requirement. 
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), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 
345 F.3d 683. 
As a final note, counsel makes a brief reference to the petitioner's current approved L-1 employment 
of the beneficiary. However, each nonimmigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof; each petition must stand on its own individual merits. 
That being said, it must be noted that USCIS spends less time reviewing Form 1-129 nonimmigrant 
petitions than Form 1-140 immigrant petitions. As such, some nonimrnigrant L-1 petitions are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29-30 (D.D.C. 2003) 
(recognizing that USCIS approves some petitions in error). The AAO 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). It would be absurd to suggest that USCIS or any agency must 
treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 
1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1 988). 
Furthermore, the approval of a nonimmigrant petition in no way guarantees that USCIS will approve 
an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant 
petitions after approving prior nonimmigrant I- 129 L- 1 petitions. See, e. g., Q Data Consulting, Inc. 
v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); 
Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). If the previous nonimmigrant 
petitions were approved based on the same unsupported assertions that are contained in the current 
record, the approval would constitute material and gross error on the part of the director. The AAO's 
authority over the service centers is comparable to the relationship between a court of appeals and a 
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district court. Therefore, even if a service center director had approved the nonimmigrant petitions 
on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), ayd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Accordingly, 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.