dismissed EB-1C Case: Real Estate

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 09 038 51238 MAY 1 2 2010 
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. $ 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. $ 103.5. 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. Please be aware that 8 C.F.R. $ 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
V Perry Rhew 
Chief, Administrative Appeals Office 
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 a California corporation that seeks to employ the beneficiary as its president. 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. fj 1153(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 asserts that the petitioner's prior counsel provided faulty and unreliable information, which 
lead to an erroneous denial. Accordingly, counsel challenges both grounds cited for denial and submits an 
appellate brief that will addressed in a full discussion below. 
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 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 10 l(a)(44)(A) of the Act, 8 U.S.C. fj 1 10 l(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. 9 1 101 (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 November 18, 2008, which provided the 
following description of the beneficiary's employment abroad: 
a [dlirector. In this capacity, [he] manages and directs the daily activities of our senior 
professional management team, including three chartered surveyors, five chartered 
accountants and various development managers to implement business unit targets for key 
markets in the United Kingdom. He is also responsible for sustaining the company's earning 
growth by devising strategies and formulating policies to ensure business objectives are met. 
Page 4 
[The beneficiary] develops performance appraisals for internal management systems and 
implements initiatives geared towards newly developed projects using strategic integration of 
management requirements and profitability methodologies. [He] manages and directs the 
overall development of integrated qualitativelquantitative performance management concepts 
to improve business operations. 
[The beneficiary] makes daily strategic decisions regarding complex business policies and 
operation issues and problems. He identifies critical performance deficiencies and proposes 
solution efforts for new modifications. [He] additionally directs expenditures to support 
operation and development projects. 
The support letter also addressed the beneficiary's proposed employment, stating that the beneficiary would 
be "serving as an executive and a function manager in the U.S." The petitioner referred to itself as a sister 
entity to, which, along with the petitioner, buys, develops, and resells real estate 
properties in the United States. The petitioner stated that each project requires brokers to negotiate contracts 
and close on the purchased properties, contractors to remodel some of the purchased properties, and 
accountants and lawyers. The petitioner also provided a list of business transactions for which the beneficiary 
has been responsible since his arrival in the United States in 2003. No further information was provided to 
elaborate on the beneficiary's proposed job duties with the U.S. entity. 
On April 15, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide supplemental information about the beneficiary's prior employment with the foreign entity and his 
proposed employment with the U.S. entity. Specifically, the petitioner was instructed to list the beneficiary's 
specific job duties with each entity and to assign a percentage of time to each job duty to indicate how the 
beneficiary's time was and would be allocated with the foreign and U.S. entities, respectively. The petitioner 
was also asked to provide organizational charts for the beneficiary's past and prospective employers depicting 
the beneficiary's position with each entity. 
In response, the petitioner provided two sets of job duties, listing the beneficiary's job duties with the foreign 
and U.S. employers.' The petitioner also provided a list of its five real estate investments and indicated the 
approximate percentage of time the beneficiary would allocate and the job duties he would perform with 
respect to each in~estment.~ Specifically, the petitioner stated that the beneficiary would allocate 30% of his 
time to which would include performing due diligence on notes and acquire new notes, 
negotiating with borrowers to arrange terms for repayment of notes, and dealing with attorneys, accounts, and 
brokers; 25% of the beneficiary's time would be allocated to investment, which would 
require that the beneficiary be the lead negotiator in arranging borrowers' payoffs to avoid foreclosure; 10% 
of the beneficiary's time would be allocated to - which would require negotiating sales, 
dealing with brokers, managing agents and the general contractor responsible for remodeling the purchased 
properties, and traveling to the properties; and 20% of the beneficiary's time would be allocated to Universal 
1 As the director included both lists of job duties in the April 15, 2009 decision, the AAO need not restate this 
information in the current decision. 
2 Although the petitioner indicated that 15% of the beneficiary's time would be allocated to the foreign entity, this would 
not be time spent in the beneficiary's capacity as an employee of the U.S. petitioner. Therefore, any tasks performed to 
advance the business interests of the foreign entity would not assist the AAO in determining the beneficiary's managerial 
or executive capacity in his proposed employment with the petitioning entity. 
Page 5 
which would require working with website designers, patent attorneys, marketing 
consultants, and development advisers. The petitioner also submitted a supplement that provides a list of 
sample activities in which the beneficiary has engaged in the recent past, including names of people with 
whom the beneficiary meets regularly in an effort to purchase new properties and maintain existing properties 
and the specific places the beneficiary visited to determine their potential as future real estate purchases. 
The petitioner also provided resumes for the accountant, whom the petitioner claims to have hired in 
November 2007, and vice president of diligence, whom the petitioner claims to have hired in March 2009, 
and a separate work histo; statement for who is described as a consultant in the information 
technology industry. It is noted that the separate IRS Form W-4 submitted by the company's -- 
account manager, indicates that the date of hire was November 1, 2008, not November 2007 as 
indicated in his resume. The petitioner's organizational chart depicts the beneficiary at the top of the 
hierarchy as the company's president and three subordinates, including the vice president of diligence and 
development, an account manager, and as the marketing manager. 
With regard to the beneficiary's employment abroad, the petitioner submitted an organizational chart 
depicting the beneficiary's position of acquisitions director as one of four top-level positions within the 
foreign entity's organizational hierarchy. The chart identifies a senior surveyor and a financial controller as 
the beneficiary's two subordinates, each with four subordinates of his own. 
In a decision dated September 25, 2009, the director denied the petition, concluding that the petitioner failed 
to establish that the beneficiary was employed abroad and that he would be employed by the U.S. petitioner in 
a qualifying managerial or executive capacity. The director restated the lists of job duties the petitioner 
provided to describe the beneficiary's foreign and U.S. employment and concluded that, rather than managing 
an essential function, the beneficiary's job descriptions are indicative of someone who performs the duties 
associated with an essential function. With regard to the proposed position, the director noted that operating a 
small business and maintaining an executive or managerial position title do not establish that the proposed 
employment would be within a managerial or executive capacity. 
In summary, the director concluded that the beneficiary's former and proposed employment primarily involve 
directly providing the services of the employing entity. Although the director also found that the record 
contains insufficient evidence of the beneficiary's senior level within the petitioner's organizational hierarchy, 
the AAO does not concur with that finding, given the beneficiary's discretionary authority with regard to the 
petitioner's key business decisions. As such, the director's finding specifically pertaining to the beneficiary's 
senior level within the organization is hereby withdrawn. However, the remainder of the director's finding as 
well as the two grounds cited as the bases for denial will not be disturbed. 
On appeal, the petitioner's new counsel submits a brief, asserting that the petitioner's former 
was negligent in her representation of the petitioner. Specifically, counsel contends that 
response to the RFE "was poorly drafted, confusing to read and blatantly mischaracterized evidence presented 
to support the case . . . ."3 Counsel hrther contends that presented outdated and irrelevant 
evidence and failed to point out that the beneficiary serves the petitioner in both a managerial and an 
3 See counsel's appellate brief, p. 1. 
executive capacity. Counsel claims that the petitioner's submissions had been prepared by a non-attorney 
staff member and that her actions are "tantamount to the unauthorized practice of law."4 
Any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim be 
supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was 
entered into with counsel with respect to the actions to be taken and what representations counsel did or did 
not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned 
be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the 
appeal or motion reflect whether a complaint has been filed with appropriate disciplinary authorities with 
respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 
I&N Dec. 637 (BIA 1988), am, 857 F.2d 10 (1st Cir. 1988). In the present matter, current counsel fails to 
establish that the above criteria have been met. In fact, despite counsel's assertion that may have 
violated the California Business and Professions Code, there is no evidence that the petitioner has taken any 
punitive or remedial measures to address the serious accusations that have been raised before the AAO. 
Therefore, the AAO will consider all of the petitioner's submissions, including those that were previously 
provided by the petitioner while under the representation of former counsel. 
Counsel indicates that RFE response Exhibits E and F were misleading in that they suggest that the 
beneficiary worked a percentage of time for a company that is actually among the petitioner's subsidiaries. 
After careful review of the exhibits in question, the AAO finds counsel's interpretation of the submission to be 
inaccurate. While the phrase "working for this company" was admittedly used in Exhibit E, careful review of - - 
this information in the context of th; document's title, ortfolio Investments and 
Duties of-' indicates that the percentages that were included are a representation of the amount of 
time the beneficiary generally allocates to the various companies that are part of the petitioner's investment 
portfolio. Contrary to counsel's interpretation,-statements in no way lead the AAO to believe 
that the beneficiary has been or would be actually employed by any of the entities in which the U.S. petitioner 
holds an ownership interest. 
Additionally, counsel seemingly claims that the beneficiary is both a function manager and a manager of a 
subordinate staff. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 9 1101(a)(44)(A)(ii). 
Thus, the very purpose of utilizing the term "function manager" is to distinguish a beneficiary who acts as a 
personnel manager, whose primary tasks involve the management of others, from a beneficiary who does not 
manage others, but instead oversees or manages the execution of an essential function. Any petitioner 
claiming to employ a beneficiary who will manage an essential function must furnish a written job offer that 
clearly describes the duties to be performed, i.e., identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. 8 C.F.R. tj 204.5(j)(5). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary manages the function rather than performs the duties related to 
the function. An employee who primarily performs the tasks necessary to produce a product or to provide 
services is not considered to be 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). 
4 See counsel's appellate brief, p.2, paragraph 2. 
In the present matter, the petitioner's response to the RFE included primarily tasks required to actually 
perform an essential function-the function of maintaining existing investments and acquiring new ones. The 
documentation is clear in stating that the beneficiary regularly negotiates with borrowers to ensure that they 
pay their respective debts to the entities that are part of the petitioner's investment portfolio. The record also 
indicates that the beneficiary deals directly with independently contracted parties, such as real estate brokers 
and general contractors, in order to purchase and remodel properties. However, it is also noted that any time 
spent supervising, directing, or overseeing the work of the petitioner's contractors cannot be considered as 
being a qualifying managerial or executive duty. Whether or not these specific tasks would normally be 
deemed managerial or executive if performed in relation to the internal staff of the petitioner, they would be 
deemed in this instance to be tasks necessary to provide a service, albeit a management service, being 
provided by the petitioner as a general contracting company and thus, would be non-qualifying. As stated 
earlier, 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. Id. 
In light of the considerable weight placed on the job descriptions provided by former counsel in response to 
the RFE, it is important to note that while counsel now asserts that the beneficiary "distances himself from the 
performance of day[-]to[-]day tasks," the job descriptions provided earlier in this proceeding do not support 
counsel's assertion. As stated earlier, the AAO cannot merely disregard the statements made on the 
petitioner's behalf by its former counsel merely on the basis of statements currently being made by new 
counsel. That being said, the AAO must also take into consideration the inconsistencies between the 
statements made on appeal and statements that were made earlier with regard to the beneficiary's job duties. 
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). The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter oflaureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). That being said, the AAO further notes that counsel's current claim that 
the beneficiary has four subordinates reporting directly to him is not supported by the evidence of record. 
While it is possible that the petitioner may have hired additional employees since the petition was filed, the 
record shows that the petitioner had no more than two employees at the time of filing. 
Furthermore, the AAO notes that counsel's claim that "the evidence presented clearly established that [the 
beneficiary] is responsible to set the goals and policies" indicates counsel's reliance on the submissions of 
prior counsel whom current counsel discredits as having submitted deficient and unreliable inf~rmation.~ In a 
similar manner, counsel refers to "[elvidence provided with the original petition and the response to the RFE" 
as adequate documentation of the beneficiary's employment in an executive capacity.6 The fact that counsel 
relies on information whose source he deems to be unreliable is in itself contradictorv and gives the AAO " 
reason to doubt the validity of current counsel's criticism of representation. Regardless, as noted 
earlier, the AAO cannot disregard documents that were previously submitted into evidence by the petitioner's 
former counsel merely based on the inconsistent assertions of current counsel. Thus, given the 
inconsistencies between the job description provided on appeal and those provided in response to the RFE, 
the actual tasks the beneficiary would perform in his proposed position remain unclear. While the 
beneficiary's discretionary authority appears to be consistently conveyed in both the current and prior job 
5 See counsel's appellate brief, p. 1 1, paragraph 3. 
See counsel's appellate brief, p. 14, paragraph 3. 
Page 8 
descriptions, this element alone is not sufficient to establish the petitioner's eligibility. As indicated 
throughout this discussion, a clear description of the beneficiary's proposed job duties is a key element in 
establishing whether or not he would be employed in a qualifying managerial or executive capacity. See 8 
C.F.R. 5 204.50)(5). Case law further emphasizes the importance of a detailed job description, finding that 
the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter, the job description provided in response to the RFE lists numerous operational tasks, as 
indicated above. As the petitioner failed to comply with specific RFE instructions asking the petitioner to 
allocate a percentage of time to each of the beneficiary's job duties, both foreign and proposed, the AAO 
cannot ascertain with any degree of certainty just how much of the beneficiary's time had been and would be 
spent performing the non-qualifying tasks. 
Additionally, with regard to the beneficiary's employment with the foreign entity, the record is equally 
lacking in evidence to support the claim that the beneficiary was employed abroad in a qualifying managerial 
or executive capacity. Despite the beneficiary's executive or managerial position title and placement within 
the foreign entity's organization, as previously noted, a detailed job description is essential to determine 
whether the beneficiary was employed abroad in a qualifying managerial or executive capacity. Here, the 
beneficiary's job description with the foreign entity is insufficient to establish what precise job duties he was 
performing and whether the beneficiary allocated the primary portion of his time to managerial or executive 
level tasks. As discussed earlier, the petitioner failed to comply with the director's request for specific time 
allocations to the specific tasks the beneficiary performed during his employment abroad. 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). 
In summary, counsel's objections on appeal to former counsel's submissions are not persuasive in establishing 
that the beneficiary was employed abroad and would be employed in the United States in a qualifying 
managerial or executive capacity. Despite numerous references to the beneficiary's elevated placement within 
each entity's organizational hierarchy as well as his discretionary authority with regard to business matters 
concerning each entity's acquisitions of investment properties, the AAO is unable to conclude that the primary 
portion of the beneficiary's time abroad and with the U.S. entity had been and would be spent performing 
tasks within a qualifying managerial or executive capacity. Therefore, on the basis of these two independent 
grounds, this petition cannot be approved. 
As a final note, counsel makes a brief reference to the petitioner's current and prior approved L-1 employment 
of the beneficiary. Although both the immigrant and nonimmigrant visa classifications rely on the same 
definitions of managerial and executive capacity, the AAO notes that each petition is a separate record of 
proceeding with a separate burden of proof. The prior nonimmigrant approvals do not preclude USCIS from 
denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that USCIS will 
approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same assertions that are 
contained in the current record, the approval would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), agd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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.