dismissed EB-1C Case: Real Estate

identifyii?? '-I: kleted to 
prevent ci&ly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 204 51002 
NOV 0 3 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. 8 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. 9 103.5 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 or reopen, as required by 8 C.F.R. 8 103.5(a)(l)(i). 
Perry  hew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a United States corporation that engages in the real estate business. It seeks to 
employ the beneficiary as its president and chief executive officer. 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 1 153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition, concluding that the petitioner had not established that the 
beneficiary was employed by the foreign entity, or will be employed by the United States entity, in a 
primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner contends that the 
director's decision is in error. Counsel submits a brief and additional evidence on appeal. 
Section 203(b) of the Act states in pertinent part: 
(I) 
 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 hrnish a job 
offer in the form of a statement that 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. See 8 C.F.R. 9 204.50')(5). 
The first issue in the present matter is whether the beneficiary would be employed in a primarily 
managerial or executive capacity in the United States. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1 lOl(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 hnction 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. $ 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-making; and 
(iv) 
 receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In a letter dated May 29, 2007 submitted with the Form 1-140, Immigrant Petition for Alien Worker, 
the petitioner stated that as the president and chief executive officer, the beneficiary "is ultimately 
responsible for overseeing the entire operation" and that his responsibility "is to plan, develop, and 
establish the policies and objectives of the company." The petitioner indicated that it has a staff of 
eight, including salaried employees as well as independent sales staff, In addition to the beneficiary, 
the staff includes an office manager, a property manager, a projects manager, an auction manager, 
and workers in information technology and development. 
On February 28, 2008, the director issued a request for further evidence (RFE), in which he 
instructed the petitioner to submit the following evidence relating to the beneficiary's position with 
the petitioner: 
1. A complete, detailed description of the day-to-day duties to be performed by the 
beneficiary, including the percentage of time the beneficiary will spend 
performing each duty. 
2. A complete, detailed description of the day-to-day duties to be performed by the 
beneficiary's subordinate employees, including the percentage of time each person 
will spend performing hisher duties, and the educational level of each employee. 
3. An organizational chart showing the beneficiary's position in the U.S. in relations 
to others in the company. 
4. Copies of 2007 IRS Forms W-2 or Forms 1999 for all of the petitioner's 
employees. 
5. The 2007 and 2008 work schedules for all employees including the beneficiary. 
In response to the RFE, the petitioner indicated that it is involved in real estate development as well 
as real estate brokerage. The petitioner specified that the main emphasis of the company is on real 
estate acquisitions and investments, and the beneficiary's day-to-day activities focus on these long 
term projects. The petitioner provided the following description of the beneficiary's intended duties 
in the United States: 
Oversees the acquisition of new properties. 30% 
o Evaluate and analyzes new commercial property and development 
opportunities (20%) 
o Analyzes target markets throughout the Tampa Bay region and State of 
Florida (5%) 
o Anticipates and identifies expansion opportunities by researching 
market conditions, demographics, competition and other activities 
generators (5%) 
Oversees analysis and management deal summaries [sic] to identify most 
favorable deals. 5% 
Performs due diligence on potential acquisitions. 
 15% 
Studies and analyzes land use patterns and changes that affect acquisition 
opportunities. 5% 
Reviews work load and analyzes staffing requirements. 5% 
Represents the company before zoning boards and other regulatory agencies. 3% 
Oversees negotiations on acquisition of potential sites and properties to coordinate 
in-depth feasibility analyses of potential developments. 
 5% 
Reviews and approves all funding proposals and applications. 2% 
Monitors progress of developments against proforma budgets and schedules. 5% 
Approves contracts with attorneys, architects, engneers and other 
professionals. 5% 
Facilitates resolution of operational and personnel issues. 
 10% 
Builds and strengthens network within the real estate development industry, with 
financial institutions and lenders, as well as consultants. 10% 
The petitioner also provided job descriptions for four other employees. Based on that information, 
the office manager's duties include auditing real estate contracts and listing agreements, handling 
bookkeeping activities, overseeing office staff, and supervising day-to-day office functions. The 
broker/salesperson's duties include locating and obtaining contracts with U.S. businesses and 
investment properties, and potential buyers in the U.K. market (the petitioner explained that this 
employee has taken over the primary function of representing buyers and sellers while the 
beneficiary focuses on the company's real estate investment sector). The secretary is responsible for 
typing contracts and letters, answering the phone, and other secretarial duties. The property 
manager's duties include management and oversight of maintenance and leasing functions; support 
and marketing of properties; resolution of disputes with customers, contractors, buyers/sellers and 
agents; inspection of property to ensure upkeep and cleanliness; overseeing application approval and 
lease renewal processes; and collection of rent, security deposits and documentation for investment 
properties. 
The petitioner submitted a list of its employees, past and present, setting forth their names, positions, 
number of hours worked per week, dates of employment, and social security numbers. In addition, 
the petitioner submitted an organizational chart which lists the beneficiary, the four subordinate 
employees, and eleven independent contractors. As requested, the petitioner provided IRS Forms 
W-2 for 2007 for seven employees and thirteen IRS Forms 1099 filed by the petitioner in 2007. 
On June 27, 2008, the director denied the petition, concluding that the petitioner had not established 
that the beneficiary was employed abroad, or would be employed by the U.S. entity, in a primarily 
managerial or executive capacity. Specifically, with respect to the beneficiary's U.S. position, the 
director found that "the job description is composed of vague, conclusory assertions regarding the 
beneficiary's claimed managerial or executive capacity, and statements which indicate that the 
beneficiary is directly responsible for a number of non-qualifying duties, rather than supervising the 
performance of these duties through subordinate personnel." The director fbrther found that "the 
record does not substantiate that the petitioner employs sufficient personnel to allow the beneficiary 
to primarily 'direct' and 'manage' all of the functions of the organization, rather than performing its 
non-qualifying operations." 
On appeal, counsel contends that the director's determination that the beneficiary's job description is 
vague is based on an incomplete and inaccurate reading. Counsel asserts that the director gave no 
indication as to how the petitioner could have been less vague. Counsel restates the description of 
the beneficiary's job description in its entirety and claims that the director omitted some details in his 
analysis and re-characterized some of the beneficiary's managerial and executive duties to non- 
qualifying ones. Counsel contends that the U.S. Citizenship and Immigration Services (USCIS) is 
denying the petition based upon the size of the company. Counsel asserts that size should be only 
one factor to be considered, and that the petitioner has shown that the beneficiary has four 
employees to support him in addition to numerous independent contractors. Finally, counsel seeks 
to supplement the record with documentary evidence of the petitioner's involvement in various real 
estate development deals since the petition was first submitted. Counsel concludes that, given the 
diversity of the petitioner's business, the beneficiary "could not possibly be simply 'performing the 
tasks necessary to produce the product or services offered by these businesses"' and that, instead, the 
beneficiary is required to be completely engaged in the function of chief executive officer of the 
company. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to 
establish that the beneficiary would be employed in a primarily executive or managerial capacity in 
the United States. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. 8 204.5(j)(5). The petitioner's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. Beyond the required 
description of the job duties, USCIS reviews the totality of the record when examining the claimed 
managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, 
the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary fiom performing operational duties, the nature of the petitioner's business, and any other 
factors that will contribute to a complete understanding of a beneficiary's actual duties and role in a 
business. 
Further, it is noted that the definitions of executive and managerial capacity each have two parts. 
First, the petitioner must show that the beneficiary performs the high-level responsibilities that are 
specified in the definitions. Second, the petitioner must prove that the beneficiaryprimarily performs 
these specified responsibilities and does not spend a majority of his or her time on day-to-day 
functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 
1991). Whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that the beneficiary's duties are "primarily" managerial 
or executive. See sections 101(a)(44)(A) and (B) of the Act. 
The AAO agrees with the director's observation that the petitioner has provided a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary does 
on a day-to-day basis. For example, the petitioner stated that, among other duties, the beneficiary 
"oversees the acquisition of new properties," "oversees analysis and management deal summaries 
[sic] to identify most favorable deals," "performs due diligence on potential acquisitions," 
"represents the company before zoning boards and other regulatory agencies," "oversees 
negotiations," "facilitates resolution of operational and personnel issues," and "builds and 
strengthens network within the real estate development industry, with financial institutions and 
lenders, as well as consultants." While the petitioner did elaborate upon what it means for the 
beneficiary to "oversee the acquisition of new properties," scant details were provided relating to the 
remaining duties. For example, what is involved in "overseeing negotiations?" What tasks does the 
beneficiary perform with respect to due diligence? In what instances does the beneficiary "represent 
the company" before regulatory agencies? What tasks does the beneficiary actually perform with 
respect to conflict resolution and networking? 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. The petitioner has failed to provide any detail or explanation of 
the beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(ED .N .Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Id. 
In addition, while the evidence indicates that the beneficiary is the highest ranking employee within 
the U.S. company and performs some of the high-level responsibilities that are specified in the 
definition, the record does not sufficiently establish that the beneficiary primarily performs these 
specified responsibilities, and does not spend a majority of his time on day-to-day functions. 
As previously noted, the job description provided in response to the RFE divides the beneficiary's 
responsibilities into different categories and assigns percentages of time spent on each general 
category. The petitioner describes the beneficiary as focusing primarily on the company's real estate 
investment and development activities, and indeed, at least 55% of the beneficiary's described duties 
appear to fall into this category. However, based on the descriptions of the job responsibilities of the 
beneficiary and the petitioner's other employees, it appears that the beneficiary is directly 
performing, rather than directing or overseeing, many of the tasks relating to investment-related 
acquisitions. For example, the beneficiary is described as "overseeing" the acquisitions of new 
properties (30%), but as the petitioner indicated, the beneficiary himself is performing the analysis of 
target markets and new opportunities and "researching market conditions, demographics, 
competition and other activities generators." The beneficiary also directly "performs due diligence 
on potential acquisitions" (1 5%), and "studies and analyzes land use patterns" relating to acquisition 
opportunities (5%). Similarly, while the petitioner claims that the beneficiary "oversees negotiations 
on acquisitions" (5%), it is not clear who else on staff, if not the beneficiary, is doing the actual 
negotiations in these real estate acquisitions. 
In fact, a review of the descriptions of the duties of the beneficiary's subordinates show that none of 
these employees perform any of the research, analysis, due diligence, or negotiation relating to the 
company's real estate investment activities. Since the beneficiary actually performs these non- 
qualifying tasks himself rather than directs or manages them, he is performing tasks necessary to 
provide a service or product, and as such, time spent on such tasks will not be considered time spent 
functioning in a managerial or executive capacity. 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 Int 'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
Counsel contends on appeal that the evidence clearly indicates that the beneficiary is supported by a 
staff of four subordinate employees and a number of independent contractors who would relieve the 
beneficiary from performing non-qualifying tasks. First, it is noted that there are a number of 
inconsistencies in the record with respect to the staffing of the U.S. company. In the Form 1-140, the 
petitioner indicated that it has four employees. In its May 29, 2007 letter, the petitioner indicated 
that it has a staff of eight. In response to the RFE, however, the petitioner only listed and provided 
job descriptions for four employees, in addition to the beneficiary, who are still employed by the 
U .S. company. The petitioner indicated on its staff list provided in response to the RFE that it has 
several employees who are on "temporary leave," including a broker/salesperson, a development 
manager, and an IT technician. However, the petitioner has not indicated who among the staff has 
taken on the duties of the employees on leave. In view of these inconsistencies in the record, the 
exact makeup of the petitioner's staff, and thus the support the beneficiary actually would have at his 
disposal, cannot be ascertained. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591 -92 (BIA 1988). 
Furthermore, as discussed, the job descriptions of the beneficiary's subordinates do not indicate that 
they perform the non-qualifying tasks relating to the company's real estate investment activities. The 
AAO acknowledges that the petitioner has submitted a number of IRS Forms 1999, evidencing the 
company's use of independent contractors. However, the petitioner failed to identify the services 
these individuals or companies provide, nor did the petitioner explain how the services of the 
contractors obviate the need for the beneficiary to primarily conduct the petitioner's business. 
Without documentary evidence to support its statements, the petitioner does not meet its burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998). 
Counsel also asserts that the USCIS improperly based its denial of the petition on the size of the 
company. In reviewing the relevance of the number of employees a petitioner has, federal courts 
have generally agreed that 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 (9 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)). Furthermore, it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a 
"shell company" that does not conduct business in a regular and continuous manner. See, e.g. 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
As required by section 101 (a)(44)(C) of the Act, if staffing 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. However, to establish that the reasonable needs of the organization justify the 
beneficiary's job duties, the petitioner must specifically articulate why those needs are reasonable in 
light of its overall purpose and stage of development. In the present matter, the petitioner has not 
explained how the reasonable needs of the petitioning enterprise justify the beneficiary's 
performance of non-managerial or non-executive duties. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 I&N Dec. at 165. 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. 
See sections 101 (a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 101 (a)(44). The reasonable needs of the 
petitioner may justify a beneficiary who allocates 5 1 percent of his duties to managerial or executive 
tasks as opposed to 90 percent, but those needs will not excuse a beneficiary who spends the 
majority of his or her time on non-qualifying duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity. 
As discussed above, the petitioner has not established this essential element of eligibility. 
Finally, the AAO acknowledges the petitioner's submission on appeal of documentation relating to 
its subsidiary, joint venture and other real estate transactions in which the petitioner has been 
involved. However, while these documents may be indicative of the company's ongoing business, 
counsel has not adequately demonstrated their relevance to the issue of whether the beneficiary is 
functioning primarily in an executive or managerial capacity in the U.S. company. 
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has 
failed to establish that the beneficiary would be employed in the United States in a primarily 
executive or managerial capacity. For that reason, the petition will be denied. 
The second issue in this matter is whether the beneficiary was employed abroad in a primarily 
executive or managerial capacity. 
In the May 29,2007 letter, the petitioner indicated that the beneficiary served as managing partner of 
the U.K. business. The petitioner indicated that as managing partner, the beneficiary made "all 
major policy decisions regarding the operation of the business." The petitioner further stated that 
although another individual has been promoted to managing director of the U.K. businesses while 
the beneficiary is in the United States, the beneficiary remains active in the U.K. business. 
In the RFE, the director requested the following evidence relating to the beneficiary's position as 
managing partner of the U.K. business: 
1. A complete, detailed description of the day-to-day duties performed by the 
beneficiary, including the percentage of time the beneficiary spent performing 
each duty. 
2. A complete, detailed description of the day-to-day duties performed by the 
beneficiary's subordinate employees, including the percentage of time each person 
spent performing hisher duties, and the educational level of each employee. 
3. An organizational chart showing the beneficiary's position in relations to others in 
the company abroad. 
4. The work schedules for all employees including the beneficiary for the period 
worked prior to transfer to the United States. 
In response, the petitioner listed the beneficiary's duties overseas, along with the time allocated to 
each duty, as follows: 
Directed corporate policy of successful real estate firm and was ultimately 
responsible for training, hiring and firing of management staff and continuing the 
established proven formula which had been in place for decades. 
 30% 
Oversaw analysis and management deal summaries [sic] to identify most 
favorable deals. 5% 
Performed due diligence on potential acquisitions. 
 10% 
Studied and analyzed land use patterns and changes that affect acquisition 
opportunities. 5% 
Reviewed work load and analyzed staffing requirements. 
 10% 
Oversaw negotiations on acquisition of potential sites and properties to coordinate 
in-depth feasibility analyses of potential developments. 5% 
Facilitated resolution of operational and personnel issues. 
 20% 
Built and strengthened network within the real estate industry, with financial 
institutions and lenders, as well as consultants. 10% 
The petitioner submitted a list entitled "Staff employed at [foreign entity] Prior to Transfer," which 
lists twelve employees other than the beneficiary, eight of whom would have been employed during 
the requisite period preceding the beneficiary's transfer to the United States. The list sets forth the 
name, position, hours worked per week, and employment dates of each employee. The petitioner 
provided a detailed job description for only one other employee, the office managerldirector, whose 
duties appear to be identical to those of the same position in the U.S. company. 
In concluding that the petitioner has failed to demonstrate that the beneficiary was employed abroad 
in a primarily executive or managerial capacity, the director found that the description of the 
beneficiary's duties abroad contain "broad statements [that] convey little understanding of what 
specific tasks the beneficiary performed on a day-to-day basis." The director also found that "the 
record indicates that the beneficiary was directly responsible for a number of non-qualifying duties, 
rather than supervising or managing the performance of these duties through a subordinate staff of 
professional, managerial or supervisory personnel." 
Upon review, the AAO concurs with the director's finding that the petitioner has failed to establish 
that the beneficiary was employed abroad in an executive or managerial capacity. 
As previously noted, when examining the executive or managerial capacity of the beneficiary, the 
AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 9 204.5(')(5). The 
petitioner's description of the job duties must clearly describe the duties to be performed by the 
beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. 
Here, insofar as the description of the beneficiary's overseas job duties is nearly identical to his U.S. 
job description, it suffers from the same vagueness of language previously discussed in connection 
with the U.S. job description. First, in lieu of spending 30% of his time on "oversee[ing] the 
acquisition of new properties," the beneficiary "directed corporate policy of successful real estate 
firm and was ultimately responsible for training, hiring and firing of management staff and 
continuing the established proven formula which had been in place for decades" for 30% of his time 
in the U.K. company. The petitioner has failed to elaborate upon what "corporate policy" or 
"established proven formula" entailed. Further, according to the petitioner, the description of the 
remainder of the beneficiary's duties abroad is identical to that of his duties in the United States, and 
thus similarly deficient in its vagueness. Again, the petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine in his position abroad. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. at 1108. 
Furthermore, it is noted that the director requested a complete, detailed description of the day-to-day 
duties performed by the beneficiary's subordinate employees, including the percentage of time each 
person spent performing hisher duties. Although the record suggests that there were a number of 
employees under the beneficiary's supervision in the foreign company, the petitioner provided a job 
description for only one employee of the foreign company other than the beneficiary. 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 eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103,2(b)(14). Further, without 
any explanation of their job duties, the AAO is unable to determine to what extent the beneficiary's 
subordinate staff was able to relieve him from having to perform non-qualifying duties. As 
Page 12 
previously noted, 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 Int 'l., 19 I&N 
Dec. at 604. 
In light of these deficiencies in the evidence, the AAO finds that the petitioner has failed to establish 
that the beneficiary was employed abroad in an executive or managerial capacity as required by 
section 203(b)(l)(C) of the Act, 8 U.S.C. 4 1153(b)(l)(C). For this additional reason, the petition 
will be denied. 
Finally, the AAO acknowledges that USCIS has previously approved an L-1A petition filed by the 
petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant petitions 
are denied after USCIS approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22; Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1 103. Examining the consequences of 
an approved petition, there is a significant difference between a nonimmigrant L-1A visa 
classification, which allows an alien to enter the United States temporarily, and an immigrant E-13 
visa petition, which permits an alien to apply for permanent residence in the United States and, if 
granted, ultimately apply for naturalization as a United States citizen. CJ: $8 204 and 214 of the Act, 
8 U.S.C. $8 1 154 and 1 184; see also 8 3 16 of the Act, 8 U.S.C. 8 1427. Because USCIS spends less 
time reviewing I- 129 nonimmigrant petitions than 1-1 40 immigrant petitions, some nonimmigrant L- 
1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; 
see also 8 C.F.R. 8 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L-1A petition's validity). Despite the previously approved petition, USCIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a 
subsequent petition. See section 291 of the Act. Based on the lack of required evidence of eligibility 
in the current record, the AAO finds that the director was justified in departing from the previous 
nonimmigrant petition approval by denying the instant petition. 
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. 8 1361. Here, 
that burden has not been met. Accordingly, the director's decision will be affirmed and the petition 
will be denied. 
ORDER: The appeal is dismissed.