dismissed EB-1C Case: Real Estate

, ide~tify ing data deli.ted to 
prevent clearly unwrraanted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
41: 
Office: NEBRASKA SERVICE CENTER Date: $OV C 2 
LIN 06 253 50431 
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 PETFIONER: 
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. 
Robert P. Wiemam, Chief 
Administrative Appeals Office 
LIN 06 253 50431 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (MO) on appeal. The appeal will be dismissed. 
The petitioner, a Florida corporation, claims to be a real estate business and a subsidiary of the beneficiary's 
foreign employer located in Colombia. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employrnent-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U. S.C. 
 1 1 53(b)(l)(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that it would employ the 
beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's findings, asserts that the beneficiary will be employed in an 
executive capacity, and submits a brief in support of his arguments. 
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. 
Title 8 C.F.R. fj 204.56)(3) explains that a petition filed for a multinational executive or manager under 
section 203(b)(l)(C) must be accompanied by a statement from an authorized official of the "petitioning 
United States employer" which demonstrates that: 
LIN 06 253 5043 1 
Page 3 
(A) 
 If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a firm or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(B) 
 If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the fum or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) 
 The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) 
 The prospective United States employer has been doing business for at least one year. 
The primary issue in this proceeding is whether the petitioner provided sufficient evidence to establish that it 
will employ the beneficiary in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 
 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 fue 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 
Page 4 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 4 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. 
The AAO reviews appeals on a de novo basis. See Dov v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). The 
petitioner does not clearly state in the underlying petition whether the beneficiary will be employed in a 
managerial or executive capacity, and counsel on appeal appears to argue in the alternative that the 
beneficiary will supervise professional employees. Therefore, while counsel on appeal argues that the 
beneficiary will be employed in an executive capacity, and not in a managerial capacity, the AAO will 
nevertheless consider both classifications on appeal. 
In the Form 1-140, the petitioner claims to employ one worker and four independent contractors and asserts 
that the beneficiary will "oversee, direct, and manage the company's U.S. operations." The petitioner mher 
describes the beneficiary's duties as "president" in a letter dated August 1,2006 as follows: 
[The beneficiary will keep the company updated as to the Real Estate market and the 
economy as a whole. He will lead the administrative, managerial and operational activities 
and he will define and design strategic policies, develop marketing strategies and be in charge 
of work performance. [The beneficiary] will aggressively market and develop the business, 
create a marketing plan that will keep the company and its investments in good standing and 
ensure customer satisfaction and company profitability. 
[The beneficiary] has the authority to develop, take the necessary actions on behalf of [the 
petitioner], to negotiate contracts, hire personnel and pursue design, construction and 
development projects on behalf of the company. One of [the beneficiary's] first priorities will 
' LIN 06 253 50431 
Page 5 
be to locate suitable premises for the company's expansion plans and to hire additional 
supervisory personnel and the staff who will handle day-to-day activities of [the] company. 
[The beneficiary] will establish the goals and policies of the company in all areas and will 
exercise wide latitude with regard to discretionary decision-making reporting only to the 
Board of Directors of the corporate group. That is, upon approval of his permanent residence 
petition, [the beneficiary] will perform in an executive capacity in the U.S. operation, same as 
he has done for [the] Colombian parent Company. 
The petitioner also submitted a copy of its occupational license indicating that it employs one person. 
On July 31, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed description of the beneficiary's job duties in the United States; a description of the beneficiary's 
subordinate workers, if any; and an organizational chart. 
In response, the petitioner submitted an organizational chart indicating that the beneficiary directly supervises 
a "real estate analyst" and three "sales associates." The "sales associates" are described as independent 
contractors (licensed real estate agents) performing sales related tasks. The "real estate analyst" is generally 
described as analyzing and interpreting pertinent data, producing forecasts, dealing with customers, 
networking, establishing asset control procedures, and evaluating securities. The "real estate analyst" is not 
described as having any supervisory or managerial responsibilities or as performing clerical or administrative 
tasks associated with all businesses, e.g., filing, correspondence, payroll, or accounts payable. 
The petitioner also further described the beneficiary's duties in a letter dated August 21,2007 as follows: 
Keep the company updated to the Real Estate Market. 
Lead the administrative, managerial and operational activities of the company. 
Develop marketing strategies for the company. 
Be in charge of work performance of the company and the personnel under his 
management. 
Negotiate Real Estate contracts on behalf of agents and clients. 
Hire personnel necessary to develop the company goals. 
Create strategies for market positioning and lead generation for our sales personnel. 
Pursue new business and investments for the company profitability. 
Create new sources of income for the company with the creation of new services the 
market demands. 
On October 24, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
On appeal, counsel asserts that the director erred, claims that the beneficiary will be employed in an executive 
capacity, and submits a brief in support of his arguments. Counsel also argues that the beneficiary's 
subordinate employees are professionals. 
Page 6 
Upon review, counsel's assertions are not persuasive in establishing that the beneficiary will be employed in a 
primarily managerial or executive capacity. 
In examining the executive or managerial capacity of the beneficiary, Citizenship and Immigration Services 
(CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 8 204.56)(5). 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). 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will establish strategic policies, 
marketing strategies, and company "goals." The petitioner also states that the beneficiary will "pursue new 
business and investments" and "lead the administrative, managerial and operational activities of the 
company." However, the petitioner fails to specifically describe these policies, strategies, goals, new 
businesses, or investments, or explain what, exactly, the beneficiary will do to "lead" the organization other 
than performing first-line supervisory tasks. The fact that the petitioner has given the beneficiary a 
managerial or executive title and has prepared a vague job description which includes inflated job duties does 
not establish that the beneficiary will actually perform managerial or executive duties. 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. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in his operation of the business. As noted above, the petitioner asserts that the beneficiary 
will "lead" the administrative, managerial, and operational activities of the petitioner. However, it appears 
that the beneficiary is assisted in the operation of the business by three independent real estate agents and a 
"real estate analyst," who are described as performing sales or analytical tasks. The petitioner does not 
appear to employ workers dedicated to relieving the beneficiary of the need to perform the non-qualifying 
tasks inherent to his ascribed duties, e.g., creating new services and marketing. The petitioner also does not 
appear to employ any workers dedicated to relieving the beneficiary of the need to perform the non-qualifying 
tasks inherent to the operation of the described business in general, e.g., filing, correspondence, accounts 
payable, and payroll. In fact, as hiring "the staff who[m] will handle day-to-day activities of [the] company" 
is listed as one of the beneficiary's proposed duties, it appears that the beneficiary will perform these non- 
qualifying tasks until the necessary staff is in place. However, a visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. 1978); Mutter of Kutigbak, 14 I&N Dec. 
45,49 (Comm. 1971). 
' LIN 06 253 5043 1 
Page 7 
Furthermore, the record is not persuasive in establishing that many of those duties ascribed to the beneficiary 
are truly managerial or executive in nature. For example, the petitioner claims that the beneficiary will 
negotiate real estate contracts and "[ble in charge of work performance of the company and the personnel 
under his management." However, as the beneficiary's subordinate workers have not been established to be 
professionals (see infra), it has not been established that these first-line supervisory or contract negotiation 
tasks will be qualifying duties. As the record does not establish how much time the beneficiary will devote to 
such non-qualifying tasks, it cannot be concluded that the beneficiary will "primarily" perform qualifying 
duties. Accordingly, it appears more likely than not that the beneficiary will primarily perform non- 
qualifying administrative or operational tasks in his administration of the enterprise. 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 lOl(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). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise a "real estate analyst" and three real estate 
agents. However, none of these workers appears to have any supervisory or managerial responsibilities over 
other workers. A managerial employee must have authority over day-to-day operations beyond the level 
normally vested in a first-line supervisor, unless the supervised employees are professionals. 
101 (a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Moreover, the record is not persuasive in establishing that any of these workers is a professional. In 
evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101 (a)(32) of the Act, 8 U.S.C. 9 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). As the petitioner failed to establish the skills or education 
required to perform the duties of the subordinate workers, it has not been established that any of the workers 
is a bona fide professional. Once again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190. The unsupported statements of counsel on appeal or in a motion are not 
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 
(1984); Matter ofRamirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).' 
1 
It is fWher noted that the real estate analyst and the real estate agents appear to be independent contractors. 
Accordingly, the beneficiary's supervision of these workers would not be a qualifying managerial duty as a 
matter of law. The Act is quite clear that only the management of employees may be considered a qualifying 
managerial duty for purposes of this visa classification. See sections 10 1 (a)(44)(A)(ii). 
Page 8 
Accordingly, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity.* 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity, The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction fi-om higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The beneficiary's job description is 
so vague that it cannot be discerned what, exactly, the beneficiary will do on a day-to-day basis. Also, as 
explained above, it appears more likely than not that the beneficiary will primarily perform administrative or 
operational tasks or work as a first-line supervisor of non-professional workers. Therefore, the petitioner has 
not established that the beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "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 
2 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. 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. The term "essential fbhction" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary will manage an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, 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. See 8 C.F.R. $ 204.5(')(2). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
will manage the function rather than perform the tasks related to the fkction. In this matter, the petitioner 
has not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record indicates that the beneficiary will more likely than not primarily perform non-qualifying 
tasks or be a first-line supervisor of non-professional workers. Absent a clear and credible breakdown of the 
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties 
will be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a hction 
manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
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Page 9 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 199 1)); Fedin Bros. Co. v. Sava, 905 F.2d 4 1,42 (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 CIS 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). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has also failed to establish that it and the foreign employer 
are qualifying organizations. 
A "subsidiary" is defined at 8 C.F.R. tj 204.5(j)(2) as: 
[A] fm, corporation, or other legal entity of which a parent owns, directly or indirectly, 
more than half of the entity and controls the entity; or owns, directly or indirectly, half of the 
entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, 
less than half of the entity, but in fact controls the entity. 
Likewise, an "affiliate" is defined in pertinent part at 8 C.F.R. $ 204.5(j)(2) as: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent 
or individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or proportion 
of each entity[.] 
The regulations and case law confii that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 
593. In the context of this petition, ownership refers to the direct or indirect legal right of possession of the 
assets of an entity with full power and authority to control; control means the direct or indirect legal right and 
authority to direct the establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N at 595. 
In this matter, the petitioner claims to be 5 1% owned by ., located in Colombia. In support, the 
petitioner submitted a stock certificate dated September 19,2000 representing the issuance of 1,020 shares of 
stock to the foreign employer. However, the petitioner also submitted its 2004, 2005, and 2006 tax returns in 
Page 10 
which it claims that the beneficiary owns 100% of the petitioner's stock. The petitioner offers no explanation 
for this inconsistency in the record. 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). Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Id. at 591. Accordingly, the record is not persuasive in establishing that the petitioner and the 
foreign employer are subsidiaries. Likewise, as the petitioner indicates in the letter dated August 21, 2007 
that the beneficiary owns a 26.66% share in the foreign employer, ., the record is not persuasive 
in establishing that the two entities are affiliates. 
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign 
employer, and the petition may not be approved for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. 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); see also Dor v. INS, 891 F.2d at 1002 n. 9 (noting that the AAO reviews appeals on a de novo 
basis). Therefore, based on the additional ground of ineligibility as discussed above, this petition cannot be 
approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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 Entelprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 345 F.3d 
683. 
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. 4 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.