dismissed EB-1C Case: Real Estate

U.S. Department of Homeland Security 
identiFjing data deleted to 
prevent dearly unw arzi~~tiltzd 
invasion of persona\ privacy 
U. S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
LIN 07 162 52104 
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: 
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). 
uhn F. 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 an Arizona corporation that seeks to employ the beneficiary as its U.S. land 
acquisitions 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. $ 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial 
or executive capacity. 
On appeal, counsel submits a brief disputing both grounds for denial. Counsel asserts that the 
beneficiary's proposed position is in an executive capacity and further discusses the position to 
which the beneficiary has recently been promoted, claiming that the latest position is that of a 
function manager. The AAO notes, however, that the purpose of this proceeding is to determine the 
petitioner's eligibility based on the information and supporting evidence provided with the current 
Form 1-140. As such, the AAO will not consider the job description of the beneficiary's promoted 
position as senior vice president of land research and acquisitions. It is noted that a petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Kutigbuk, 14 I&N Dec. 
45, 49 (Comrn. 1971). Accordingly, if the petitioner wishes for U.S. Citizenship and Immigration 
Services (USCIS) to consider any information and/or evidence regarding the beneficiary's new 
position, it must file a new petition. 
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 
Page 3 
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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he would be employed in the United States in a qualifying managerial or 
executive capacity. 
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. 8 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 
(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 March 6, 2007, which included 
the following description of the beneficiary's proposed position: 
[The beneficiary] will assist with target market research, identification and pursuit of 
land leads in North America, preparation and management of contracts to purchase 
land, and preparation of land acquisition presentation for internal approval. The 
[proffered position] requires significant experience in economics, financing, asset 
management, as well as knowledge of the Walton business from the perspective of an 
investment dealer. 
[The beneficiary] will ensure that the necessary technical, financial and managerial 
structures exist in our organization to support our ongoing real estate investment and 
development projects. He will set specific goals and objectives as well as devising 
necessary operational strategies in order to streamline and enhance our internal 
processes. 
 He will also develop strategy, as well [as] direct the design and 
development of recommendations for further establishing our U.S. operations. [The 
beneficiary] will also manage the implementation of a corporate structure, and 
negotiate and manage plans to assist Walton in developing its corporate and 
operational strategies and to refine long-range goals and objectives to ensure that our 
corporate objectives are met. [He] will participate in determining Walton's mission 
and strategic direction through policies and objectives met through the effective 
management of human, financial, and physical resources. 
[The beneficiary] will rely heavily upon his knowledge, experience and 
understanding of our overall operations, procedures and confidential corporate 
strategies. [He] will assist in developing overall business activities, policies, and 
practices to ensure they are consistent with the needs and objectives of our operations. 
[He] will also develop distribution relationships, and at the same time coordinate 
Walton's overall activities, policies, and practices to ensure they are consistent with 
the requirements and needs of our operations in [the] U.S. 
With regard to the beneficiary's position with the foreign entity, counsel provided a letter dated May 
15, 2007 in which he stated that the beneficiary "has been responsible for identifying potential target 
lands as well as generating market analysis and up[-]to[-]date real estate market intelligence." No 
further information was provided regarding the beneficiary's employment with the foreign entity. 
Page 5 
On March 27, 2008, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide a detailed description of the specific job duties performed by the beneficiary 
during his position abroad and the job duties that would be performed in his proposed position with 
the U.S. entity. The director instructed the petitioner to assign a percentage of time to each job duty. 
Additionally, the petitioner was asked to provide organizational charts for both entities, depicting the 
beneficiary's position within each entity's organizational hierarchy. 
In response, the petitioner provided a letter dated June 11, 2008, discussing the beneficiary's 
employment history with the petitioner and its foreign affiliate. Although the letter includes a list of 
responsibilities that pertain to the beneficiary's latest position with the U.S. entity, as previously 
stated, this information is not relevant to the issue of the petitioner's eligibility, as it introduces 
information about the beneficiary's current position rather than the proffered position cited in the 
Form 1-140 that is the subject of the current proceeding. Despite the director's express request, the 
petitioner failed to provide the percentage breakdown of job duties that comprised the beneficiary's 
position with the foreign entity or the job duties that were meant to comprise the beneficiary's 
proffered position with the U.S. entity. The petitioner also failed to comply with the WE request for 
a copy of the foreign entity's organizational chart. It is noted that failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103.2(b)(14). 
The petitioner did, however, provide its own organizational chart in which the company's 
presidentlchief executive officer is depicted at the top of the hierarchy with a chief operating officer 
and the executive vice president of land research and acquisition as his two direct subordinates. The 
latter position's subordinates include two managerial positions, one of which is the beneficiary. It is 
noted that neither the beneficiary's position title nor the position title of the other managerial position 
includes any description beyond the mere indication that both are managers. In other words, despite 
the petitioner's claim that the beneficiary's proffered position was that of U.S. land acquisitions 
manager, only the word "manager" was used in specifying the beneficiary's position title. Lastly, the 
chart shows that the organization is comprised of three additional tiers, all lower in the chain of 
command as compared to the beneficiary's position. However, neither the beneficiary's position 
itself nor that of the other manager within his division shows any subordinate employees. 
In a decision dated August 8, 2008, the director denied the petition, finding that the petitioner failed 
to establish that the beneficiary's employment abroad or his proffered employment with the U.S. 
entity can be deemed to be within a managerial or executive capacity. With regard to the former 
employment, the director noted that the brief job description that was initially submitted lacked 
specific information explaining the actual daily tasks the beneficiary carried out in meeting his 
overall business objectives. 
Next, with regard to the beneficiary's proposed employment, the director recited and provided a brief 
analysis of the list of job responsibilities that were provided in response to the WE. However, the 
director clearly erred in addressing this irrelevant information, which pertained to the beneficiary's 
current, rather than the proffered, position with the U.S. entity. Therefore, the AAO hereby 
withdraws the director's findings with regard to information that did not pertain to the position being 
offered in the Form 1-140. That being said, even if the director had not included an analysis of the 
irrelevant information, the record clearly shows that the petitioner failed to provide the requested 
information either with regard to the beneficiary's former employment or with regard to the position 
being offered in the Form 1-140 that is the subject of this decision. 
On appeal, the petitioner's supporting evidence includes a percentage breakdown of duties and 
responsibilities for the beneficiary's foreign and proposed positions. However, the AAO will not 
accept the petitioner's untimely submission of the previously requested evidence. The regulation 
states that the petitioner shall submit additional evidence as the director, in his or her discretion, may 
deem necessary. The purpose of the request for evidence is to elicit further information that clarifies 
whether the petitioner was eligible for the benefit sought at the time of filing. See 8 C.F.R. 
$5 103.2(b)(8) and (12). As previously stated, failure to submit requested evidence that precludes a 
material line of inquiry shaIl be grounds for denying the petition. 8 C.F.R. tj 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept the requested evidence 
when it is offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); 
see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the 
submitted evidence to be considered, it should have submitted the documents in response to the 
director's RFE. Id. Under the circumstances, the AAO need not and does not consider the 
sufficiency of the evidence submitted on appeal. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 204.5@(5). The significance of a detailed 
job description has been firmly established by case law, which has determined that the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Thus, it is the petitioner's burden to 
provide an adequate job description for the beneficiary's foreign and proposed positions, keeping in 
mind that in order to establish that a certain position meets the definition of managerial or executive 
capacity, the primary portion of the job duties that comprise the position are themselves managerial 
or executive. 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 (Cornm. 1988). 
In the present matter, the record lacks a detailed description explaining the specific tasks the 
beneficiary performed abroad during the relevant time period and the job duties he would be 
expected to perform during his proposed employment. The petitioner also failed to provide the 
requested organizational chart of the foreign entity depicting the beneficiary's placement within the 
foreign entity's organizational hierarchy. While the record shows that the beneficiary is currently 
paid a considerable salary to carry out his duties with the U.S. entity, this factor has no relevance to 
the nature of the job duties the beneficiary would be expected to perform. Thus, while counsel 
asserts on appeal that it is clear that the beneficiary's proffered position is within an executive 
capacity, the AAO finds this argument entirely unpersuasive, particularly given the petitioner's 
failure to comply with the director's express request for highly relevant information. Thus, in light 
of the petitioner's and/or counsel's oversight in failing to comply with the director's request, the 
additional information counsel offers on appeal with regard to the beneficiary's foreign and proposed 
employment will not be considered in this proceeding. See Matter of Soriano, 19 I&N Dec. 764. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary 
has been or will be employed in a primarily managerial or executive capacity. As thoroughly 
discussed above, the first step in establishing that a particular position fits the definition of 
managerial or executive capacity is to provide a detailed description of the job duties that were 
performed or job duties that would be performed. Given the absence of this crucial information, the 
AAO cannot conclude that the beneficiary was either employed abroad in a qualifying capacity, as 
required by regulation at 8 C.F.R. 5 204.5(j)(3)(i)(B), or that he would be employed in a qualifying 
managerial or executive capacity in his proffered employment with the U.S. petitioner, as required 
by regulation at 8 C.F.R. 5 204.50)(5). Therefore, based on these two independent grounds of 
ineligibility, 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 1025, 1043 
(E.D. Cal. 2001), afd, 345 F.3d 683 (9th Cir. 2003). 
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 met that burden. 
ORDER: The appeal is dismissed.