dismissed EB-1C Case: Real Estate Asset Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 16664976 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN. 08, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a real estate asset management operation, seeks to permanently employ the Beneficiary 
as its "Chief Asset Manager" under the first preference immigrant classification for multinational 
executives or managers . See Immigration and Nationality Act (the Act) section 203(b )(l)(C), 8 U.S.C . 
§ l l 53(b )(1 )(C). 
The Director of the Vermont Service Center denied the petition, concluding the record did not establish 
that the Petitioner had a qualifying relationship with the Beneficiary's foreign employer. We 
dismissed the appeal and added a second ground for ineligibility, concluding the Petitioner did not 
establish that the Beneficiary would be employed in the United States in an executive capacity. The 
Petitioner subsequently filed a motion to reopen and reconsider that we dismissed as untimely. 1 The 
Petitioner then filed a motion to reconsider, and we affirmed our decision that the prior motion was 
untimely . Notwithstanding this determination, we concluded that the Petitioner demonstrated a 
qualifying relationship between it and the Beneficiary's former foreign employer. However, we 
dismissed the motion to reconsider, determining the Petitioner did not adequately address our previous 
conclusion that it did not demonstrate the Beneficiary would be employed in an executive capacity in 
the United States. The matter is now before us on another motion to reconsider. 
On motion, the Petitioner asserts that we disregarded an "extensive record" establishing the 
Beneficiary's executive-level duties. The Petitioner contends we did not sufficiently consider the 
Beneficiary's executive-level tasks performed through affiliated companies within its greater 
organization. The Petitioner claims the Beneficiary would oversee the operations of two large hotels 
through its affiliates, including over 700 hotel employees. 
For the reasons discussed below, the motion currently before us will be dismissed and the petition will 
remain denied. 
I. MOTION REQUIREMENTS 
1 The record contains a copy of Form I-797C, Notice of Action, notifying the Petitioner that its motion was being rejected 
because it was incomplete in that it was not identified as either an appeal or a motion. Although the Petitioner cured the 
defective filing by completing the Form 1-290B, the motion was not received within the allowed 33-day filing period, thus 
causing the motion to be filed untimely . 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy, and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must be supported by a pertinent 
precedent or adopted decision, statutory or regulatory provision, or statement of U.S. Citizenship and 
Immigration Services (USCIS) or Department of Homeland Security policy. We may grant a motion 
that satisfies these requirements. 
II. ANALYSIS 
We will only discuss whether our prior decision to dismiss the Petitioner's motion to reconsider 
represented an incorrect application of law or policy and whether this decision was incorrect based on 
the evidence in the record of proceedings at that time. Specifically, we will review whether we were 
incorrect to conclude that the Petitioner did not establish that the Beneficiary would be employed in 
an executive capacity in the United States. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
The Petitioner presents a complicated picture of the Beneficiary's asserted executive employment in 
the United States. 
it wholl ownsl 
with 
For instance, the Petitioner stated, despite limited operations and employees 2, that 
I an entity with an asset management agreement in place 
.-------,..-------' who acts as the "de facto em lo er for all em lo ees at the I I 
The Petitioner further asserted that is "the direct employer 
of all of the 350 plus employees of the ' Similarly, the Petitioner stated that the 
Beneficiary owns 95% of al I who in tum has another asset management 
agreement in place with the 1 I' The Petitioner indicates that Beneficiary, 
through the Petitioner and the other discussed affiliated entities, "oversees all activities necessary and 
proper for the management and operation of the hotel," including its "approximately 375 employees." 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. 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 in an executive capacity. 
8 C.F.R. § 204.5(j)(5). 
To be eligible as a multinational executive, the Petitioner must show that the Beneficiary will perform 
the high-level responsibilities set forth in the statutory definition at section 101 ( a)( 44 )(B)(i)-(iv) of the 
2 We indicated in our initial appeal decision that the supporting documentation reflected that the Petitioner only employed 
one individual beyond the Beneficiary as of the date the petition was filed in January 2016. The Petitioner does not dispute 
this statement. 
2 
Act. If the record does not establish that the offered position meets all four of these elements, we 
cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in executive duties, 
as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family 
Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the job duties, the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the presence 
of other employees to relieve the beneficiary from performing operational duties, the nature of the 
business, and any other factors that will contribute to understanding a beneficiary's actual duties and 
role in a business. 
The Petitioner submitted the following duty description for the Beneficiary as "Chief Asset Manager": 
A. Management Functions 
• Advise ownership as to property management issues, including evaluating hotel 
operator strengths and weaknesses, and reviewing industry trends that may impact 
hotel properties. Perform monthly financial review of property performance, and 
annual strategic review of property performance comparing properties' expected 
performance to ownership's investment objectives. 
• Maintain harmonious and professional relationship with property management and 
organizational departments, and communicate ownership expectations to property 
management. 
• Actively support company and hotel management teams with matters dealing with 
labor standards, payroll, and other issues that may arise. Assist in providing ideas 
aimed at re-engineering staffing models, leveraging day-to-day labor management. 
• Monitor the investment community, including tracking sales prices comparable 
properties, capitalization rates for hotel purchases and refinances, and remain 
apprised of financing terms and reporting. 
• Oversee the management of a roximatel 250 em lo ees many of whom are 
professionals, at th as well as 300 
employees, many of whom are------'----'-----...---------~ as 
subsidiary of [Petitioner], at th_.__ _________ ____, 
B. Product Functions 
• Monitor ongoing financial performance and review actual performance compared 
to budget, prior years and comparable properties. 
• Support and review the budgeting process. Benchmark operations against 
comparable properties. Review proposed budgets, marketing plans, and operating 
plans for compliance with ownership's expectations. 
• Provide oversight and monitor hotel assets, including evaluating physical condition 
and anticipated capital expenditure requirements, assessing major plant equipment 
and utility expenditures, evaluating food and beverage facilities and opportunities, 
and ensuring legal compliance for health codes, life and safety and security. 
3 
Review annual budget proposals for consistency with capital plan. Evaluate return 
on investment value from discretionary capital expenditures. 
• Track occupancy, average daily rate, revenue per available room and key statistical 
trends and data to help improve margins, profitability and overall performance of 
assets. Monitor demand generators for significant increases/decreases, and track 
new properties being considered for development and competitive inventory 
expans10n. 
• Assist in negotiating and facilitating management agreements with hotel operators 
ensuring compliance and long-term performance. 
In our initial appeal decision issued in March 2019 we stated that the Beneficiary's duty description 
reflected he would likely be primarily engaged in performing non-qualifying operational duties 
directly related to the Petitioner's provision of services. For instance, the Beneficiary's duty 
description states that he would "advise ownership" by "reviewing industry trends," "perform monthly 
financial review[s] of property performance," and complete "annual strategic review[s]." Likewise, 
the Beneficiary's duty description explained that he would be tasked with communicating ownership 
expectations, "assist[ing]" in providing ideas at re-engineering staffing models, tracking sale prices of 
comparable properties, and reviewing proposed budgets, marketing plans, and operating plans for 
ownership. In addition, the duty description appeared to list other service-related duties, such as the 
Beneficiary tracking occupancy, revenues, key statistical trends, and other properties being considered 
for development. In sum, the submitted duties suggest the Beneficiary's primarily involvement in the 
provision of professional services, rather than his claimed executive-level authority over a multi­
layered organization including hundreds of employees. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 10l(a)(44)(B) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties would be executive 
functions and what proportion would be non-qualifying. The Petitioner lists the Beneficiary's duties 
as including both asserted executive tasks and administrative or operational tasks but does not quantify 
the time he spends on these different duties. For this reason, we cannot determine whether the 
Beneficiary would primarily perform the duties of an executive. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
In addition, the Petitioner does not sufficiently address that the Beneficiary's duties do not appear to 
be specific to its operations but related to the operations of its affiliates, entities with asserted contracts 
in place to provide management services to hotels. Further, it is noteworthy that these claimed asset 
management agreements were executed several years prior to the date the petition was filed, yet there 
is little supporting evidence to reflect the Petitioner's or the Beneficiary's engagement in providing 
these services. 3 Likewise, despite appearing to suggest that the Beneficiary has been responsible for 
overseeing over 700 employees at two hotels for several years, there is little supporting documentation 
to substantiate his performance of this role. Therefore, we do not agree with the Petitioner's assertion 
on motion that we ignored an "extensive record" establishing the Beneficiary's proposed duties. In 
3 To illustrate, the Petitioner previously submitted in support of its first motion an "Amended and Restated Asset 
Management Agreement" executed between the mentioned'-------=-------' and.__ ____ ~ m 
December 2011. 
4 
fact, as we have noted previously, the supporting evidence suggests that it is more likely than not that 
the Beneficiary would be directly engaged in the provision of services, rather than acted in an elevated 
role where he would be primarily focused on the broad goals and policies. The Petitioner must resolve 
inconsistencies and ambiguities in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). It is the Petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
For the foregoing reasons, we conclude that our previous decision to dismiss the Petitioner's motion 
to reconsider was a correct application of law and policy, and correct based on the evidence in the 
record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
ORDER: The motion to reconsider is dismissed. 
5