dismissed EB-1C Case: Real Estate

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-MG- CO. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE:', SEPT. 25, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a real estate enterprise, seeks to permanently employ the Beneficiary as its manager 
under the first preference immigrant classification for multinational executives or managers. See 
Immigration and Nationality Act (the Act) section 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the 
United States to work in a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that: (1) it has a qualifying relationship with the Beneficiary's foreign 
employer; (2) the Beneficiary would be employed in the United States in a managerial capacity; and 
(3) it has been doing business for at least one year. 
On appeal, the Petitioner asserts that the Director based the denial decision on erroneous facts and 
that the Director's conclusions are "contrary to law." 
Upon de novo review we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa available to a beneficiary who, in the three 
years preceding the filing of the petition, has been employed outside the United States for at least one 
year in a managerial or executive capacity, and seeks to enter the United States in order to continue to 
render managerial or executive services to the same employer or to its subsidiary or affiliate. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) of the Act as a multinational executive or manager. The petition 
must include a statement from an authorized official of the petitioning United States employer which 
demonstrates that the beneficiary has been employed abroad in a managerial or executive capacity for at 
least one year in the three years preceding the filing of the petition, that the beneficiary is coming to 
work in the United States for the same employer or a subsidiary or affiliate of the foreign employer, and 
that the prospective U.S. employer has been doing business for at least one year. See 8 C.F.R. 
§ 204.50)(3). 
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Matter of D-MG- Co. 
II. QUALIFYING RELATIONSHIP 
The first issue to be discussed is whether the Petitioner has established that it has a qualifying 
relationship with the Beneficiary's foreign employer. To establish a "qualifying relationship," the 
Petitioner must show that the Beneficiary's foreign employer and the proposed U.S. employer are 
the same employer (a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as 
"affiliates." See section 203(b )(1 )(C) of the Act; see also, 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Matter o.fChurch Scientology Int'l, 19 I&N Dec. 593 (Comm'r 1988); Matter o.fSiemens Med. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter o.fHughes, 18 I&N Dec. 289 (Comm'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter o.f Church Scientology lnt 'l, 
19 I&N Dec. at 595. 
The Petitioner's Florida Articles oflncorporation show it was incorporated in January 2011 and was 
authorized to issue 1000 shares. The Petitioner did not identify its owner(s) or provide documentary 
evidence of the ownership of its issued shares. 
The Petitioner asserts that the Beneficiary's last foreign employer was 
a Brazilian company. The Beneficiary indicated on his Form G-325A, 
Biographic Information, that his foreign employer was'' ' from November 2003 
until January 2015. The record includes the bylaws for a Brazilian 
company established in 2003, which identify the Beneficiary and another individual as 50-50 
owners. The record does not include further evidence establishing that 
and , are the same company, and the Petitioner 
did not submit evidence of the ownership of 
The Petitioner also claims that the Beneficiary is the owner of 
. a Florida corporation established in 2014. The record includes stock certificate 
No. 0001 issued to ' ' not to the Beneficiary. The 
Petitioner asserts that it "is a company in association with , and 
' On appeal, the Petitioner reiterates that "the association of 
and is a familiar [sic] association given the facts the owners of the three companies 
above are family related." 
To determine ownership and control of a corporate entity we examine stock certificates, the 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of 
relevant annual shareholder meetings to assess the total number of shares issued, the exact number 
issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
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Matter of D-MG- Co. 
control. In addition, a petitioning company must disclose all agreements relating to the voting of 
shares, the distribution of profit, the management and direction of the subsidiary. and any other 
factor affecting control of the entity. See Matter o,{Siemens Med. Sys., Inc., 19 I&N Dec. at 362. 
In a request for evidence (RFE), the Director specifically advised the Petitioner that the record did 
not establish a qualifying relationship with the Beneficiary's foreign employer and requested that the 
Petitioner submit evidence establishing that the companies share the requisite common ownership 
and control. The Petitioner, however, did not provide stock certificates or any other type of evidence 
establishing a parent, affiliate, or subsidiary relationship between the Petitioner and the Beneficiary's 
foreign employer. The record here does not include probative, consistent evidence of the ownership 
of any of the companies referenced by the Petitioner. Without full disclosure of all relevant 
documents, we are unable to determine the elements of ownership and control of any of the three 
companies and thus determine that a qualifying relationship exists between the Petitioner and the 
Beneficiary's foreign employer. 
We also note, for the Petitioner's information, that its contention that a familial relationship exists 
between the owners of the Petitioner and the Beneficiary's foreign employer is not persuasive. A 
familial relationship does not constitute a qualifying relationship under the regulations. See Ore v. 
Clinton, 675 F. Supp. 2d 217, 226 (D.C. Mass. 2009) (finding that the petitioner and the foreign 
company did not qualify as "affiliates" within the precise definition set out in the regulations at 
8 C.F .R. § 214.2(1)( 1 )(ii)(L )(1), despite petitioner's claims that the two companies "are owned and 
controlled by the same individuals, specifically the Ore family"). As determined above, the record 
does not include probative evidence of the ownership of the companies referenced and thus there is 
no evidence supporting the Petitioner's claim that a familial relationship even exists. 
Moreover, although the Petitioner claims that it is "associated" with the Beneficiary's foreign 
employer, a mere "association" or contractual partnership in which two companies agree to provide 
services does not establish the Petitioner as a parent, affiliate, or subsidiary of the Beneficiary's 
foreign employer, as defined in the regulations. A contractual agreement between two entities can 
be terminated. In contrast, entities with a qualifying relationship are permanently tied together 
through ownership and control, and not limited to a specific venture. See Matter of Schick, 13 I&N 
Dec. 647 (Reg'l Comm'r 1970). 
The record lacks evidence of a qualifying relationship between the Petitioner and the Beneficiary's 
foreign employer. The Petitioner has not overcome the Director's decision on this issue. 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director also denied the petition based on a finding that the Petitioner did not establish that it 
would employ the Beneficiary in a managerial capacity.' 
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As the Petitioner does not claim that the Beneficiary will perfonn duties primarily in an executive capacity, we will 
restrict our analysis to the Beneficiary's claimed managerial capacity. 
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Matter of D-MG- Co. 
The Act defines the term "managerial capacity" as an assignment within an organization in which 
the employee primarily manages the organization or a department, subdivision, function, or 
component; supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function; if the employee directly supervises other employees, 
has the authority to take personnel actions, or if no other employee is directly supervised, functions 
at a senior-level within the organization or with respect to the function managed; and exercises 
discretion over the day-to-day operations of the activity or function for which the employee has 
authority. Section 10l(a)(44)(A) ofthe Act; 8 U.S.C. § 110l(a)(44)(A). 
We will address both the Petitioner's description of the Beneficiary's intended duties as well as the 
Petitioner's staffing to determine whether the Petitioner has established this eligibility requirement. 
We note that when reviewing staffing levels as a factor in determining whether an individual is 
acting in a managerial or executive capacity, we must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. See 
section 10l(a)(44)(C) ofthe Act. 
A. Duties 
When examining the executive or managerial capacity of a beneficiary, we look first to a petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definition of managerial capacity 
lms two parts. First, the petitioner must show that the beneficiary will perform certain high-level 
responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. 
July 30, 1991). Second, the petitioner must prove that the beneficiary will be primarily engaged in 
managerial duties, as opposed to ordinary operational activities alongside the petitioner's other 
employees. See, e.g., Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 
940 F.2d at 1533. 
The Petitioner states on the Form I-140, that it is a three-employee real estate enterprise. On the 
Petitioner's 2015 Florida, Local Business Tax Receipt, the Petitioner is identified as 
a real estate broker and a one-employee real estate office. The Petitioner asserts that the Beneficiary 
will be employed in a managerial capacity. 
In its letter of support, the Petitioner provided a broad overview of the Beneficiary's proposed duties. 
The Petitioner noted that the Beneficiary will "handle all policy and business decisions such as 
negotiation or [sic] contracts to provide for services, purchases, sales pricing, banking insurance and 
credit terms," ensure sales and profit goals are met each quarter, reduce costs, and direct and coordinate 
promotion of products or services, to develop new markets, and increase market share. The Petitioner 
added that he will analyze division or department budget requests, confer with administrative personnel, 
review activities, operation, and sales reports, preside over company-wide employee meetings and 
directors and managers meetings, as well as plan and develop labor and public relations to improve the 
company image and relations with customers, employees, and the public. 
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Matter of D-MG- Co. 
The description provided is so broadly-stated it is not possible to ascertain what proportion of the 
Beneficiary's duties would be managerial functions and what proportion would be non-qualifying 
duties. For example, negotiating contracts for services, ensuring sales and profit goals are met, 
developing new markets and increasing market share, analyzing budget requests, and reviewing 
activities, operation and sales reports include elements that may be managerial or may involve 
non-qualifying duties. The Petitioner has not detailed the actual duties that will engage the 
Beneficiary when carrying out these broadly-stated objectives. The actual duties themselves reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner also allocated the Beneficiary's time to four broadly stated categories: overseeing and 
coordinating commercial operations - 35 percent; establishing business relationships with 
customers, distributors, and others, reviewing terms and negotiating favorable deals - 35 percent; 
managing and directing marketing efforts - 20 percent; and reporting to the main office - 10 percent. 
However, the Petitioner does not identify specific tasks involved in these duties as they relate to the 
Petitioner's real estate business. Reciting the Beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
Beneficiary's daily job duties. It is not possible to ascertain from these generic categories what the 
Beneficiary will be expected to do for the Petitioner on a daily basis. 
On appeal, the Petitioner added that the Beneficiary will "elaborat[ e] final pricing program for the 
products, standard operational procedures for installation of unique cabinets into the homes with 
lower costs," "develop contacts with existing and potential clients," negotiate contracts, consult with 
prospective clients, investigate product improvements, investigate and evaluate new business 
opportunities, and "marketing intelligence to sales management and participation in the development 
of sales forecast and strategies." These duties show the Beneficiary as the individual performing 
customer consultations, investigating product improvements and new business, and marketing the 
business. Such duties are not managerial duties as defined in the statute, but are the non-qualifying 
duties required to operate and expand the business. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial capacity within the 
meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" managerial in nature. Sections IOI(A)(44)(A) of the Act. 
While. the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
possess the requisite level of authority with respect to discretionary decision-making, the position 
descriptions alone are insufficient to establish that his actual duties would be primarily managerial in 
nature. Without additional detailed information on the Beneficiary's proposed position, the 
Petitioner has not established the Beneficiary's actual role within the U.S. company and has not 
established that he will perform primarily in a managerial capacity. 
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Matter of D-MG- Co. 
B. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial capacity of a beneficiary, including the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
relieve a beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
The Petitioner's descriptions of the Beneficiary' intended duties imply that the Beneficiary will 
direct and manage others. However, the record does not include evidence of particular employees 
and their roles within the Petitioner's company. Although the Director specifically requested that 
the Petitioner submit an organizational chart with job titles and duties, as well as evidence of the 
educational level for all employees, the Petitioner did not provide this requested information. 
Similarly, the Director requested IRS Forms W-2 and 1099s to establish the Petitioner's staff and to 
support any claimed organizational structure. Although the Director denied the petition, in part, 
because the Petitioner did not provide the requested information, the Petitioner did not supplement 
the record on appeal with evidence of its staffing levels and organizational structure. The record 
does not include evidence of specific individuals for the Beneficiary to direct and does not include 
evidence of who will carry out the Petitioner's administrative, operational, marketing, or financial 
duties and relieve the Beneficiary from performing these non-qualifying duties. 
The Petitioner in this matter was established in 2011 and appears to operate as a real estate broker or 
office. The record does not include sufficient evidence to establish that the Petitioner employs 
subordinate staff to perform operational tasks related to the real estate business, its business 
expansion, first-line supervisory duties, and other routine administrative and operational tasks of the 
organization. 
For the reasons discussed, the Petitioner has not established that the proposed positiOn is a 
managerial position as defined by the Act; thus the Petitioner has not overcome the Director's 
determination on this issue. 
IV.· DOING BUSINESS 
The Petitioner is required to establish that it has been doing business for at least one year. See 8 C.F.R. 
§ 204.5G)(3)(i)(D). To establish that a petitioner is "doing business," the petitioner must demonstrate 
that it is providing goods or services in a regular, systematic, and continuous manner. This does not 
include the mere presence of an agent or office. See 8 C.F.R. § 204.5(j)(2). 
The Director requested that the Petitioner provide evidence that it had been doing business as defined in 
the regulation for one year prior to filing the petition. The petition was tiled in January 2016, thus, the 
Petitioner must show that it had been doing business since January 2015. The record includes the 
Petitioner's unsigned, uncertified IRS Form 1120, U.S. Corporation Income Tax Return, for the 2015 
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Matter of D-MG- Co. 
year which shows that the Petitioner earned $535,272 and did not pay any salaries. The record also 
includes several cooperating broker agreements signed in the 2015 year. 
In the RFE, the Director acknowledged the cooperating broker agreements and requested evidence 
demonstrating that the Petitioner had been compensated for services provided. However, the Petitioner 
has not supplied probative evidence that the Petitioner received payment for brokerage services. The 
Director determined that the record was insufficient to establish that the Petitioner had been doing 
business the previous year. 
On appeal, the Petitioner resubmits its 2015 tax return, but does not directly address this issue. It is 
reasonable to expect some evidence of the types of activities in which the Petitioner regularly engages 
in the U.S. market. The record here does not include sufficient probative evidence that the Petitioner 
regularly engaged in providing real estate or any specific services or evidence of income received in 
exchange for those services. Accordingly, the record does not overcome the Director's decision on this 
ISSUe. 
V. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that it has a qualifying 
relationship with the Beneficiary's foreign employer, that the Beneficiary will be employed in a 
managerial capacity, and that it had been doing business for the year prior to filing the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-MG- Co., ID# 620840 (AAO Sept. 25, 20 17)