dismissed EB-1C Case: Property Development And Construction

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: OFFICE: TEXAS SERVICE CENTER Date: JUN 0' 1 2005 
SRC 04 019 51747 
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. 
- Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation engaged in the business of residential and commercial property 
development and construction. It seeks to employ the beneficiary as its president and chief operations officer 
(CEO). 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. 9 1153(b)(l)(C), 
as a multinational executive or manager. The director determined that the beneficiary would not be employed 
in a managerial or executive capacity and denied the petition. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his 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 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 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 issue in this proceeding is whether the beneficiary would be employed in a capacity that is managerial or 
executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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, hnction, 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. 3 1101(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-malung; 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 petition, the petitioner submitted the following description of the duties to be performed by 
the beneficiary under an approved petition: 
[The beneficiary] is responsible for managing and directing our day-to-day operations, and 
for hiring, training, and supervising our employees and independent contractors . . . . [He] is 
also intimately involved in core development and construction operations, where he 
personally identifies, plans, and directs all projects. Specifically, [the beneficiary] is 
responsible for identifying new development opportunities, for negotiating land purchases, 
for arranging financing as required, for directing and approving the design of all projects, for 
securing appropriate permits, for negotiating and approving supplier prices and terms, for 
approving vendor and supplier disbursements, and for inspecting projects daily to initiate 
remedial steps as necessary. 
The petitioner also provided an organizational chart reflecting its personnel structure at the time the petition 
was filed. The chart identified the beneficiary and his wife as the petitioner's only employees, and indicated 
that the company was now ready to hire an additional secretary, a machine operator, a 
superintendentlmanager, and a general laborer. 
On January 16,2004, the director issued a request for additional evidence instructing the petitioner to describe 
the beneficiary's duties and the duties of the beneficiary's subordinates. 
The petitioner responded with a letter dated March 29, 2004. The petitioner divided the beneficiary's duties 
into two categories-daily duties and weekly duties. The following is the description provided: 
Daily Duties 
Check mail and respond to any enquiries and authorise [sic] payments of invoices and 
dues for vendors 1-2 hours every morning 
Drives to all job sites daily to check on progress, make sure material deliveries have 
arrived and are in correct quantities[;] if any problems have arisen on site[,] it is [the 
beneficiary's] duty to get them sorted ie[,] building section failure, architectural plan 
needs adjustment etc[.] 3-4 hours daily 
Meet with material suppliers 1-2 hours depending on size of order 
Reply to any emails or correspondence 1 hours [sic] (back in office) 
Answering constant phone calls from vendors and potential customers 1-2 hours . 
WeeklyIAs and When Duties 
Authorise [sic] employee wages 
Contact customers to check that they are happy with progress 
Contact realators [sic] for prospective land purchasement [sic]-scout for new business 
oportunities [sic] 
Arrange construction contractors 
Provide estimates for new construction 
Make sure adequate cash flow is maintained, visit bank managers to arrange loans[,] 
etc[.] provide lending banks with financial forecasts for each project 
Check invoices from vendors are correct before authorising [sic] payments 
Meet with representatives for vendors negotiating prices and quantities 
Pull permits-building licence [sic] is in the name of [the petitioner] 
Page 5 
Meeting with planning designers and architects both at office and on site 
Inspect quality of works for individual sub[-]contractors before releasing payments 
Market properties with realator [sic]-negociate [sic] fees 
Ensure insurances are in place for all sub[-]contractors and health and safety regulations 
are maintained 
On April 19, 2004, the director denied the petition concluding that the beneficiary's job description suggests 
that the beneficiary performs the petitioner's daily operational tasks. 
On appeal, counsel asserts that the beneficiary acts as a first-line supervisor whose subordinates consist of 
professional employees. In evaluating whether the beneficiary manages professional employees, the AAO 
must evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry into 
the field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe termprofession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates 
knowledge or learning, not merely slull, of an advanced type in a given field gained by a prolonged course of 
specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into 
the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Cornrn. 1988); Matter of Ling, 13 I&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the MO must focus on the level of education required by the position, rather than the degree held 
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary, for example, to perform the work of the sub-contractors who do the actual building. 
While the MO does not dispute that these individuals are highly skilled, there is no indication or evidence 
that would suggest that a bachelor's degree is a prerequisite for obtaining and practicing this skill. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Treasure Cra$ of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Therefore, the record lacks evidence to suggest that the beneficiary supervises professional employees. 
Despite the petitioner's inability to show that the beneficiary supervises professional employees, the petitioner 
can still establish the beneficiary's eligibility by providing evidence that the beneficiary is a function 
manager. The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e., identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 
8 C.F.R. fj 204.5(j)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
An employee who primarily perfoms the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988)). In this matter, counsel states that the beneficiary does not perform any construction-related 
duties and, therefore, asserts that the beneficiary is relieved from performing non-qualifying functions. 
However, merely establishing that the beneficiary does not perform the petitioner's most essential function 
does not mean that the beneficiary is relieved from performing many of the other types of non-qualifying 
functions associated with the petitioner's business. According to the description of the beneficiary's daily 
tasks, the beneficiary personally visits all of the worksites, communicates and negotiates with the vendors and 
suppliers, and addresses all customer-related issues. While these duties may be crucial to the proper 
functioning of the petitioner's business, they are also the daily operational tasks that cannot be deemed 
qualifying. This conclusion is corroborated by the petitioner's organizational chart, which shows plans to hire 
additional personnel to relieve the beneficiary from some of the duties he is currently performing, including 
visits to the various work sites, a task that currently consumes a significant portion of the beneficiary's day. 
Counsel further refers to an unpublished decision involving an employee of the Irish Dairy Board. In the 
unpublished decision, the AAO determined that the beneficiary met the requirements of serving in a 
managerial and executive capacity for L-l classification even though he was the sole employee. Counsel has 
furnished no evidence to establish that the facts of the instant petition are analogous to those in the Irish Dairy 
Board matter. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 
190. Furthermore, while 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. Similarly, in 
contrast to the broad precedential authority of the case law of a United States circuit court, the AAO is not 
bound to follow the published decision of a United States district court in cases arising within the same 
district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO, however the analysis does not 
have to be followed as a matter of law. Id. at 719. Therefore, the district court case of Mars Jewelers, Inc., v. 
I.N.S., 702 F. Supp. 1570 (N.D. Ga. Atlanta Div. 1988), will not serve as precedent in the instant matter. 
On review, the evidence of record in this case does not establish that the beneficiary would be employed in a 
managerial or executive capacity. While the AAO does not dispute the heightened degree of authority 
imparted upon the beneficiary, the actual duties themselves reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), am, 905 F.2d 41 (2d. Cir. 1990). In the 
instant case, the beneficiary's day is primarily comprised of non-qualifying duties of which the beneficiary 
cannot be relieved because it does not have a sufficient support staff to provide that relief. While counsel 
places great emphasis on the fact that the petitioner has hired a number of independent sub-contractors to 
carry out one of its essential functions, the fact remains that the beneficiary continues to perform other daily 
operational tasks, which are equally as non-qualifying as the actual building function. The petitioner has 
indicated its intention to hire additional employees who would likely relieve the beneficiary of some the 
mundane tasks he cwrently performs. However, a petitioner must establish eligibility at the time of filing; a 
petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Cornrn. 1971). Therefore, employees that were not in place at the 
time the petition was filed cannot be considered in determining the beneficiary's eligibility. 
Based on the evidence of record, the AAO cannot conclude that the beneficiary primarily performs 
managerial or executive duties. For this reason, the petition cannot be approved. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's duties abroad 
were primarily of a managerial or executive capacity. In response to the director's request for evidence, the 
petitioner submitted a description of the beneficiary's duties, which indicates that the beneficiary's duties 
abroad were nearly identical to the duties performed by the beneficiary at the time of the filing of the petition. 
The above discussion explains that the duties performed by the beneficiary in the United States cannot be 
deemed qualifying. As such, the AAO cannot establish that the beneficiary was employed abroad in a 
qualifying capacity. 
Additionally, the petitioner indicated in Item 9, Part 6 of the 1-140 petition that the beneficiary would be paid 
by the foreign entity. This indication raises doubt as to the petitioner's ability to pay the beneficiary's 
proffered wage, which the petitioner has not specified. See 8 C.F.R. 5 204.5(g)(2). 
Finally, the record contains evidence showing that the foreign entity issued one share to the beneficiary and 
one share to his wife. However, it appears that the company is authorized to issue a total of 1,000 shares of 
its stock. The record contains no evidence to show that only two shares have been issued, therefore 
eliminating the possible existence of other owners aside from the beneficiary and his wife. As previously 
noted, going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N 190. 
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 reasons provided in the paragraphs above this 
petition cannot be approved. 
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. 8 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.