dismissed EB-1C Case: Real Estate

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-MG- CO. 
Non- Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR.13,2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
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)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United 
States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied, the petition, concluding that the Petitioner did not 
establish, as required, that: ( l) 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 had 
been doing business for at least one year one it filed the petition. The Petitioner appealed the Director's 
decision and we dismissed the appeal. 
The matter is now before us again on a motion to reconsider. On motion, the Petitioner asserts that 
our decision was contrary to U.S. Citizenship and Immigration Services (USCIS) regulations. 
Upon review, we will deny the motion. 
l. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, for instance, submission of a properly completed Form l-2908, Notice of Appeal or Motion, with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at 
the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of USC IS or 
Department of Homeland Security policy. We may grant a motion to reconsider that satistles these 
requirements and demonstrates eligibility for the requested immigration benetlt. 
.
Mauer of D-MG- Co. 
II. ISSUES RAISED ON MOTIOf\. 
At issue in this matter is whether any legal arguments made in support of this motion to reconsider 
overcome our previous findings that the Petitioner did not establish that: ( l) it has a qualifying 
relationship with the Beneficiary's employer abroad; (2) it would employ the Beneficiary in a 
managerial capacity in the United States; and (3) it was doing business for at least one year when it 
filed the petition in January 2016. 
for the. reasons discussed below, we will deny the motion to reconsider. Although the Petitioner's 
brief contains citations to the Act and USClS regulations, the Petitioner has not established that our 
decision to dismiss its appeal was based on an incorrect application of law or policy and it has not 
estab1ished eligibility for the immigrant classification sought. 
A. Qualifying Relationship 
To meet the statutory. requirements for this classification, the Petitioner must have a qualifying 
relationship with the Beneticiary's foreign empl9yer. 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§ 203(b)(l)(C) of the Act; see also 8 C.f.R. § 204.50)(2) (providing definitions of 
the terms "affiliate" and "subsidiary"). 
Regulation and case law confirm that ownership and control are the factors that must be exaf!1ined in 
determining whether a qualifying relationship exists between United States and foreign entities. See. 
e.g, A-fatter of Church Scientology lnt ·1, 19 l&N Dec. 593 (Comm'r 1988); Matter of Siemens Med 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
In our decision, we noted several evidentiary deficiencies in the record and determined that the 
Petitioner did not establish that it and the Beneficiary's foreign employer (referred to as' 
and ' share the requisite common 
ownership and control. Notably, the Pelitioner did not submit information or evidence regarding its 
ownership. Without evidence establishing who owns the company, we cannot determine that the 
Petitioner is owned by the foreign entity, or that it and the foreign entity are owned by the same entities 
or. individuals. Moreover, the Petitioner did not establish that it owns any portion of the foreign entity. 
Therefore, the Petitioner did not establish that the two entities are aftlliates or that one entity is the 
parent or subsidiary of the other. 
ln addition, the Petitioner did not identify 
the nature of its qualifYing relationship with the Beneficiary's 
employer abroad, and instead indicated that there is a "familiar association" because the owners of the 
companies are "family related." We addressed this claim in our decision, emphasizing that 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). 
Malter of D-MG- Co. 
On motion, the Petitioner emphasizes that it is "associating with" the Beneficiary's foreign employer by 
selling by using the foreign entity's products in its real estate projects and states that it "maintains 
business relationship with several other entities and associates in Brazil." ~ 
The Petitioner has not addressed the specific deficiencies discussed at length in our decision and has not 
established that we incorrectly applied USCIS policy or regulations by requiring that it provide 
evidence of its ownership and control and evidence that it satisfies one of the qualifYing relationships 
defined in the regulations at 8 C.F.R. § 204.5(j)(2). Business relationships or associations not based 
on common ownership and control do not satisfy the qualifYing relationship requirement. 
Finally, we note that the Petitioner emphasizes throughout its brief that the Beneficiary's foreign 
employer is a "legal entity." The Petitioner's apparent belief that it need only establish that the 
Beneficiary's foreign employer is a "legal entity" appears to be based on a misreading of the relevant 
statute and/or regulations: The Petitioner's arguments on motion do not overcome our previous 
finding or establish it has a qualifying relationship with the Beneficiary's employer abroad. 
B. Employment in a Managerial Capacity 
In our decision dismissing the Petitioner's appeal, we determined that the Petitioner did not establish 
that it would employ the Beneficiary in a managerial capacity as defined at section l0l(a)(44)(A) of 
the Act, 8 U.S.C. § ll OJ (a)(44)(A). 
We observed that the job description provided for the Beneficiary was overly broad and included a 
number of non-managerial duties, such as customer service, product improvement, and marketing 
functions. We reviewed the record and noted that the Petitioner did not provide evidence showing its 
management structure or staffing levels, such as an organizational chart with employee titles, job 
duties and qualifications, or evidence of its payments to employees and contractors. Therefore we 
concluded that the record did not contain sufficient evidence to establish that the Petitioner employs 
staff to pertorrn operational and administrative tasks related to the day-to-day operations of its 
business. Without this evidence, the Petitioner did not establish that the company's staff would 
remove the Beneficiary from significant involvement in non-managerial duties. 
On motion, the Petitioner cites to section l0l(a)(44)(C) of the Act, which states that ifstafting levels 
are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity, USCIS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. The Petitioner states that we should 
have considered "the nature and scope of the petitioner's business and needs," and claims that it 
established that it has a reasonable need to employ the Beneficiary as its manager. 
The Petitioner has not shown how we misapplied the statutory requirement at section l0l(a)(44)(C) 
of the Act to the facts of this case. The Petitioner correctly observes that we must take into account 
the reasonable needs of the organization and that a company's size alone may not be the only factor 
in denying a visa petition for classification as a multinational manager. However, it is appropriate 
for USClS to consider the size of the petitioning comp\lny in conjunction with other relevant factors, 
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Matter of D-MG- Co. 
such. as the absence of employees who would perform the non-managerial or non-executive 
operations of the company. Family Inc. v. USCIS, 469 F.3d !313 (9th Cir. 2006); Systronics Corp. 
v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Here, the Petitioner did not establish that it had any current employees or contractors to perform the 
non-managerial functions associated with its business, nor did it submit sufficient evidence to allow 
us to fully consider the nature and scope of the company or its reasonable needs. The Petitioner had 
opportunities to supplement the record with an organizational chart, evidence of wages paid to 
employees, and information regarding the job duties and qualifications of any subordinate staff, but 
ultimately, did not meet its burden to establish how it would support the Beneficiary in a managerial 
position, or why it had a reasonable need for him to perform primarily managerial duties. We denied 
the petition based in large part on a lack of supporting evidence, not based on the size of the 
company. The Petitioner has not shown proper cause for reconsideration or established that it meets 
this eligibility requirement. 
C. Doing Business 
The Petitioner is required to establish that it has been doing business for at least one year at the time 
it files the Form 1-140. See 8 C.F.R. § 204.5(j)(3)(i)(D). To establish that it is doing business, the 
Petitioner must demonstrate that it is providing goods or services in a regular, systematic, and 
continuous manner. See 8 C.F.R. § 204.5(j)(2). 
The Petitioner submitted a copy of its 2015 tax return without evidence that it had been filed with the 
Internal Revenue Service, along with copies of several cooperating broker agreements signed in 
2015. The Director specifically requested additional evidence showing payments received as a result 
of the agreements as well as other documents of transactions showing regular business activities. 
The Director denied the petition when the Petitioner did not provide this evidence. We affirmed the 
Director's decision, noting that the record does not contain sufficient probative evidence showing 
that the Petitioner was regularly engaged in providing real estate or any other specific services, or 
evidence of income received in exchange for those services. 
Although the Petitioner asserts in its motion brief that it was "doing business for at least one year," 
the brief did not provide any argument on this issue. Therefore, the Petitioner has not established 
that we incorrectly applied USCIS law or policy with regard to this issue and it has not overcome 
this basis for denial. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reconsideration. 
ORDER: The motion to reconsider is denied. 
Cite as Maller ojD-MG- Co, ID# 1083288 (AAO Mar. 13, 2018) 
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