dismissed EB-1C Case: Real Estate Asset Management

U.S. Citizenship 
and Inunigration 
Services 
MATTER OF GDM-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 20. 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
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 153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that it has a qualifying relationship with the Beneficiary's foreign 
employer. 
On appeal, the Petitioner argues that the decision was erroneous and that it and the foreign employer 
are affiliates based on the Beneficiary's majority ownership of both entities. 
Upon de nova review, we find that the Petitioner has not overcome the denial. Therefore, we will 
dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or 
executive capacity, and seeks to enter the United States in order to continue to render managerial or 
executive services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the 
Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years 
preceding the filing of the petition, that the beneficiary is coming to work in the United States for the 
same employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. 
employer has been doing business for at least one year. See 8 C.F.R. § 204.50)(3). 
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Matter of GDM-, LLC 
II. QUALIFYING RELATIONSHIP 
The primary issue to be addressed is whether the Petitioner and the 
Beneficiary's foreign employer, have a qualifying relationship. To establish a "qualifying 
relationship," a petitioner must show that the beneficiary's foreign employer and the proposed U.S. 
employer are the same employer (i.e., a U.S. entity with a foreign office) or that they are related as a 
"parent and subsidiary" or as "affiliates." See generally section 203(b)(l)(C) of the Act; 8 C.F.R. 
§ 204.5G)(3)(i)(C). 
The Petitioner states that it and the foreign entity are affiliates. In order to establish an affiliate 
relationship, the Petitioner must demonstrate that its ownership scheme fits one of two scenarios: 
(1) the Petitioner and the foreign entity are subsidiaries that are owned and controlled by the same 
individual or parent entity; or (2) the Petitioner and the foreign entity are two legal entities that are 
owned and controlled by the same group of individuals with each individual owning and controlling 
approximately the same share or proportion of each entity. 8 C.F.R. § 204.50)(2). The Petitioner's 
claim rests on the first scenario where the Beneficiary is claimed to be its and the foreign entity's 
majority owner. 
Although the Petitioner provided evidence that the Beneficiary solely owns and therefore controls 
the U.S. entity, the record lacks sufficient evidence establishing that the Beneficiary owns the 
majority of and controls the foreign entity. 
The Petitioner's claim regarding ownership is premised on the Beneficiary's 
acquisition of 96% of that entity through a sale described in a "General Assembly" document that 
the Petitioner provides on appeal. The transfer document shows that sold 
48 of a total 50 shares of to the Beneficiary in a June 2011 stock transfer. We note, 
however, that this translated document was not accompanied by the required translator's certificate 
certifying that the English language translation is complete and accurate, and that the translator is 
competent to translate from the foreign language into English. 8 C.F.R. § 103.2(b)(3). Because the 
Petitioner's translation does not meet the regulatory criteria, we cannot meaningfully determine 
whether the translated material is accurate and thus supports the Petitioner's claims. 
Moreover, even if the Petitioner were to supplement the record with the required translation 
certificate, the record does not show when and how acquired the 48 shares 
he is now claimed to own. According to original operating agreement, which was 
executed in May 2010, the original owners of the foreign entity were with 
99% of the shares and with 1 % of the shares. Although 
executed a power of attorney in July 2010 granting the Beneficiary power of attorney 
over "lawsuits and collections, rights of ownership and management," this document did not have 
the effect of transferring ownership to the Beneficiary , nor did it establish purported 
ownership acquisition. Likewise, "Public Deed number 598," which purported to effect a transfer of 
48 shares of in June 2011, only shows ___ intent to transfer the 
shares to the Beneficiary, but does not show how ___ acquired those shares from 
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Matter of GDM-, LLC 
original majority owner. Without evidence establishing that 
acquired maJonty ownership in we cannot assume that he actually acquired the 
ownership rights that he could then transfer to the Beneficiary. A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of 
proof The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Here, the Petitioner 
provides documents that purport to transfer ownership interests in to the Beneficiary, 
but it does not provide evidence showing that the transferring party, actually acquired 
ownership of the 46 shares he purported to transfer. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Matter of Church Scientology Int'l, 19 I&N Dec. 593 (Comm'r 1988); Matter of Siemens Med 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
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 Int 'l, 19 
I&N Dec. at 595. Although the appeal brief points to transfer of ownership to the 
Beneficiary and provides documents of the transfer, the Petitioner does not provide evidence 
showing that actually acquired ownership interest in that he could then 
transfer to the Beneficiary. Without such evidence, we cannot conclude that transfer of 
ownership to the Beneficiary was valid or that a qualifying relationship between the Petitioner and 
the Beneficiary's foreign employer was created and continued to exist at the time of filing. 
III. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
Additionally, while not previously addressed in the Director's decision, we find that the Petitioner 
has not established that the Beneficiary would primarily perform executive job duties in his proposed 
position. The Petitioner, an asset manager and owner representative for two hotel properties in 
Colorado, stated that the Beneficiary would be its chief asset manager and claimed that it had only 
one employee at the time of filing. The Petitioner did not establish that it had other employees who 
would actually relieve the Beneficiary from having to carry out the operational tasks associated with 
asset management. Moreover, the Beneficiary's job description indicates that the Beneficiary 
himself would actually carry out those non-executive job duties, which would include performing 
financial and property performance reviews, managing relationships among the hotel's departments, 
supporting hotel management teams, overseeing employee management , monitoring hotel assets and 
assessing the physical conditions of the respective properties , reviewing budget proposals, and 
tracking hotel occupancy and sales. 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, e.g., sections 10l(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); Matter of Church 
Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). 
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Matter of GDM-, LLC 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within an organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 10l(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 Beneficiary must direct and 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. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. In this matter, the Beneficiary's job description indicates that 
he would actually perform the underlying tasks that comprise the asset management service, which 
is foreseeable given that the Petitioner employs only the Beneficiary and thus would have no one but 
the Beneficiary to carry out the services it has been contracted to provide. Although the Petitioner's 
clients have managers and other employees who work for the properties the Petitioner is paid to 
manage, the Petitioner itself has only one employee, who would be responsible for carrying out both 
executive and non-executive job duties. We therefore cannot conclude that the Beneficiary would 
primarily perform executive job duties in his proposed position. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofGDM-, LLC, ID# 1920719 (AAO Mar. 20, 2019) 
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