dismissed EB-1C Case: Real Estate

US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
idmtifvhg data deleud 
Washington, DC 20xB-2090 
prevent clearly unwfled 
 U. S. Citizenship 
invasion of and Immigration 
Services 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 07 074 54028 
 AUG 07 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 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
TNSTRUCTIONS: 
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). 
JO~. Grissom . 
Acting Chief, Administrative 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 is organized in the State of California as a family trust. The petitioner seeks to 
employ the beneficiary as its general manager. 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. 5 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on the following independent grounds of ineligibility: 1) the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive 
capacity; 2) the petitioner failed to establish that it has a qualifying relationship with the 
beneficiary's foreign employer; and 3) the petitioner failed to comply with the director's request for 
the foreign entity's organizational chart and copy of approval notice(s) for any petitions filed on the 
beneficiary's behalf. 
On appeal, counsel disputes all three grounds for denial, asserting that the director expressly 
acknowledged the petitioner's prior approval notice. Additionally, the record clearly shows the 
petitioner's compliance with the director's earlier request for a copy of the foreign entity's 
organizational chart. Accordingly, as there is no basis for the director's findings in No. 3 above, the 
AAO hereby withdraws the third ground as a basis for denial. The remainder of this discussion will 
therefore be limited to the two remaining grounds as cited in Nos. 1 and 2 above. 
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 
Page 3 
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 first issue in this proceeding is whether the petitioner established that it would employ the 
beneficiary in a qualifying managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. $ 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. $ 1 10 1 (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 
Page 4 
(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 January 3, 2007, which includes 
the following description of the beneficiary's proposed employment: 
[The beneficiary] will establish [the petitioner's] goals and policies, oversee the 
development and expansion of the business, locate new properties as they become 
available on the market, perform initial profitability analyses, negotiate the 
acquisition of real estate, negotiate the sale and/or refinancing of the organization's 
real estate assets, negotiate with major subcontractors for the refurbishing of the 
rental units, carry out the disposition of the properties, set out rental policies and 
dispute resolution guidelines with tenants. [The beneficiary] will also explore the 
feasibility of exporting auto parts from the U[.]S[.] to Russia. 
More specifically, [the] beneficiary will be responsible for the management of [the] 
petitioner's business. He will consult with the [plroperty [mlanager to determine 
whether the individual buildings are being managed adequately, whether the 
individual units are sustaining unusual wear and tear . . . , etc. [The bleneficiary will 
review competitive bids for major repairs to the various buildings. The foregoing will 
take up 30% of [the] beneficiary's time. Secondly, [the] beneficiary will confer with 
local real estate brokers to review properties available for purchase and to direct them 
as to what properties to look for . . . . He will confer with mortgage brokers, bankers 
and other lending institutions to discuss ways of financing the purchases of the real 
properties . . . . In short, he will travel around southern California to locate new 
properties, perform initial profitability analyses and negotiate their acquisition. The 
foregoing will take up 40% of [the] beneficiary's time. The remaining 30% of [the] 
beneficiary's time will be spent on negotiating with major contractors the refurbishing 
of the buildings, setting rental policies and dispute resolution guidelines with tenants 
for the [plroperty [mlanager to follow, conferring with [an] attorney to review and 
select adequate lease forms . . . . 
The letter also indicated that the petitioner employs one full-time employee as the general property 
manager and further noted that independent contractors are used to provide plumbing, electrical, 
general contracting, roofing, painting, cleaning, pest control, and other repair services. 
On December 10, 2007, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide its organizational chart as well as a detailed description of the beneficiary's 
proposed jdb duties. 
In response, the petitioner provided a letter dated January 28, 2008 from its attorney, who reiterated 
the job description provided initially in the petitioner's support letter. Counsel further stated that the 
beneficiary would deal directly with the real estate, insurance, and mortgage brokers while the 
property manager would deal with all the service providers contracted to service the properties 
owned by the beneficiary. Additionally, the beneficiary himself provided a declaration, executed on 
January 28, 2008, in which he stated that he will be responsible for 1) ensuring that his properties are 
occupied and that vacancies are filled; 2) screening prospective tenants; 3) ensuring that rent is 
promptly collected and the money deposited in the bank; 4) supervising prompt maintenance and 
repairs; 5) establishing an accounting program, which includes paying property-related bills, 
compiling reports for the properties, hiring and training the necessary personnel, and maintaining 
relationships with city inspectors and housing authorities; 6) preparing an annual budget; 
7) reviewing vendor contracts; 8) supervising vendors; and 9) establishing a program for "debt 
retirement." In the meantime, the beneficiary stated that he plans to continue acquiring properties. 
In a decision dated April 12, 2008, the director denied the petition based, in part, on the conclusion 
that the petitioner failed to establish that the beneficiary would be employed in the United States in a 
qualifying managerial capacity. The director properly noted that there is a difference between one 
who operates a business and one who manages an organization, implying that the beneficiary can be 
described as someone who operates a business, but is not necessarily employed in a capacity where 
the primary portion of his time is spent performing qualifying managerial or executive level tasks. 
However, the AAO hereby withdraws the director's comment noting that the petitioner failed to 
establish that the beneficiary would be employed at a senior level within an organizational hierarchy. 
In light of the evidence and information that has been submitted, the AAO finds that the director's 
comment is inaccurate, as the petitioner has clearly established that, aside from the beneficiary 
himself, the petitioner employs only one other employee, who happens to be directly subordinate to 
the beneficiary. Thus, by virtue of having only one other employee whom the beneficiary directly 
supervises, the beneficiary is in fact at the top of the petitioner's simple organizational hierarchy. 
That being said, the director's overall determination with regard to the beneficiary's employment 
capacity in his prospective position is correct, as merely establishing the beneficiary's elevated 
position with the petitioner's organization does not establish that the duties to be performed by the 
beneficiary will be primarily managerial or executive within the meaning of section lOl(a)(44) of 
the Act. It is noted that 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, 19 I&N Dec. 593,604 (Comm. 1988). 
In the present matter, while the petitioner has adequately established that the beneficiary does not 
perform the maintenance and repair services associated with property management, the beneficiary's 
own explanation of his role within the petitioning organization indicates that he has and would 
continue to perform numerous administrative tasks including marketing to fill vacant properties, 
screening tenants, ensuring that all necessary bills are paid, and directly dealing with vendors. In 
other words, the mere fact that the petitioner has a property manager to assist with the daily tasks 
does not relieve the beneficiary fiom having to perform the numerous other non-qualifying tasks that 
the petitioner requires, given the nature of the property management business and the type of 
personnel structure the beneficiary has currently instituted. While counsel argues the number of 
employees the petitioner has is irrelevant to the overall question of eligibility, federal courts have 
deemed this as a relevant factor and have generally agreed that U.S. Citizenship and Immigration 
Services (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. Sava, 905 F.2d 41, 42 (2d 
Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). In 
other words, the petitioner's severely limited number of support personnel inherently raises the 
question of who performs the petitioner's daily operational tasks and how the petitioner is able to 
relieve the beneficiary from having to primarily focus on non-qualifying tasks as part of his daily 
routine. While the AAO concedes that there may be instances where a limited support staff does not 
preclude the beneficiary from primarily performing tasks within a qualifying managerial or 
executive capacity, the burden is on the petitioner to provide a detailed discussion that explains how 
it functions on a daily basis, who performs its daily operational tasks, and what specific managerial 
or executive tasks consume the primary portion of the beneficiary's time. In the present matter, 
neither counsel's arguments nor the beneficiary's job description serve as compelling evidence of the 
petitioner's ability to employ the beneficiary in a qualifying managerial or executive capacity. 
The beneficiary's own statements as well as the initially submitted description of the proposed 
position indicate that the primary portion of the beneficiary's time has been and would be spent 
performing non-qualifying tasks that are directly associated with the acquisition of new real estate 
properties as well as assisting the property manager with overseeing the properties that have already 
been acquired and are currently rented or those that need to be rented. As previously stated, 40% of 
the beneficiary's time will be spent traveling to locate new properties and negotiating the acquisition 
of properties that the beneficiary has determined to be suitable. Another 30% of the beneficiary time 
would be spent negotiating contracts to refurbish buildings and setting rental policies, including 
dispute resolution guidelines. Given this job description and the personnel structure that was in 
place at the time the Form 1-140 was filed (and continuing through the present time), the AAO 
cannot conclude that the primary portion of the beneficiary's time would be spent performing tasks 
within a qualifying managerial or executive capacity. Therefore, based on this initial conclusion, 
this petition cannot be approved. 
The second issue in this proceeding is whether the petitioner has a qualifying relationship with a 
foreign entity. 
The regulation at 8 C.F.R. 5 204.5(j)(2) states in pertinent part: 
AfJiliate 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 qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Page 7 
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. 
In the present matter, the petitioner has provided sufficient evidence to establish that the beneficiary 
owns and controls both the foreign and U.S. entities such that a qualifying relationship exists 
between the beneficiary's foreign and prospective employers. Therefore, the AAO hereby withdraws 
the director's second ground as a basis for denial. 
However, in light of the evidence establishing the beneficiary's ownership of the U.S. entity, the 
AAO hereby finds that the petitioner is ineligible for the immigration benefit sought on another basis 
that was not discussed in the director's decision. 
First, by virtue of the beneficiary's claimed ownership of the U.S. petitioner, it appears more likely 
than not that the beneficiary will not be an "employee" of the United States operation. As explained 
in 8 C.F.R. 5 204.5(j)(5), the petitioner must establish that the beneficiary will be "employed" in an 
executive or managerial capacity. It is noted that "employer," "employee," and "employed" are not 
specifically defined for purposes of the Act even though these terms are used repeatedly in the context 
of addressing the multinational executive and managerial immigrant classification. Section 
203(b)(l)(C), 8 U.S.C. 5 1153(b)(l)(C), requires beneficiaries to have been "employed" abroad and to 
render services to the same "employer" in the United States. Further, section 101(a)(44), 8 U.S.C. 
5 1 101 (a)(44), defines both managerial and executive capacity as an assignment within an organization 
in which an "employee" performs certain enumerated qualifying duties. Finally, the specific definition 
of "managerial capacity" in section 10 1 (a)(44)(A), 8 U.S.C. 5 1 101 (a)(44)(A), refers repeatedly to the 
supervision and control of other "employees." Neither the legacy Immigration and Naturalization 
Service nor U.S. Citizenship and Immigration Services (USCIS) has defined the terms "employee," 
"employer," or "employed" by regulation for purposes of the multinational executive and managerial 
immigration classification. See, e.g., 8 C.F.R. 5 204.5 and 8 C.F.R. 5 214.2(1). Therefore, for 
purposes of this immigrant classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") 
(quoting Community for Creative Non- Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) ofAgency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at fj 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 53 8 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which is ultimately owned and controlled by the beneficiary, 
who purports to assume a role as the petitioner's principal. There is no evidence that anyone other 
than the beneficiary himself is in a position to exercise any control over the work to be performed by 
the beneficiary. As such, it appears the beneficiary is the employer for all practical purposes. He 
will control the organization; set the rules governing his work; and share in all profits and losses. 
Therefore, the petition must be denied on the additional ground that the petitioner has failed to 
establish that it has the requisite employer/employee relationship with the beneficiary. 
Additionally, 8 C.F.R. 5 204.5@(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. 
8 204.5(i)(2) states that doing business means "the regular, systematic, and continuous provision of 
goods and/or services by a firm, corporation, or other entity and does not include the mere presence of 
an agent or office." Here, the petitioner claims that it is in the business of acquiring and managing 
real estate. While the petitioner has provided a list of properties it claims to have purchased for 
investment purposes, no documentary evidence has been submitted to establish the petitioner's 
purchase of these properties. 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)). Moreover, even if such evidence had been submitted, the latest property 
acquisition took place on November 3 1, 2005, which is nearly fourteen months prior to the date the 
petition was filed. The above regulatory provision clearly requires that the petitioner establish that it 
has been doing business for one fbll year prior to filing the petition, which in this matter is the time 
period commencing in January 2006 and leading up to the date of filing. Although the petitioner has 
provided the beneficiary's personal tax return and numerous bank statements and copies of cashed 
checks, these documents do not establish that the petitioner has engaged in the property management 
business during the time period and in the manner prescribed by 8 C.F.R. 5 204,50)(3)(i)(D). Again, 
without sufficient documentation, the AAO cannot presume that the petitioner meets the necessary 
regulatory requirements. As the record lacks the necessary evidence documenting any ongoing 
business transactions during the requisite period, this finding will serve as the third basis for denial 
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, afd, 
345 F.3d 683. 
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.