dismissed EB-1C Case: Real Estate Asset Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 29, 2024 In Re: 30297180 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a real estate asset management company, 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. 
§ 1153(b )(1 )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 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 that the Petitioner did 
not establish that the Beneficiary would be employed in the United States in an executive capacity. 
We then dismissed the Petitioner's four subsequent motions - first, a combined motion to reopen and 
reconsider' followed by three consecutive motions to reconsider. In response to the second motion, 
we concluded that sufficient evidence was submitted to establish the existence of a qualifying 
relationship between the Petitioner and the Beneficiary's foreign employer. Nevertheless , we 
concluded that the Petitioner did not adequately address our prior adverse conclusion concerning 
whether the Beneficiary would be employed in an executive capacity and dismissed the Petitioner's 
motion on that basis. We reiterated similar findings in response to the Petitioner's two subsequent 
motions to reconsider. The matter is now before us on a fifth motion - this time as combined motions 
to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
combined motions to reopen and reconsider. 
1 As noted in several of our prior decisions, the record contains a copy of Form I-797C, Notice of Action, notifying the 
Petitioner that its motion - the one filed following the dismissal of the appeal - was being rejected because the Form I-
290B was incomplete. Although the Petitioner cured the defective filing by completing the Form I-290B, the motion was 
not received within the allowed filing period, thus causing its untimely filing. 
I. MOTTON TO REOPEN 
First, we will address the Petitioner's motion to reopen. A motion to reopen must state new facts and 
be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). Our review on motion is limited to 
reviewing our latest decision. 8 C.F.R. § 103.S(a)(l)(ii). We may grant motions that satisfy these 
requirements and demonstrate eligibility for the 
requested benefit. See Matter ofCoelho, 20 I&N Dec. 
464, 4 73 (BIA 1992) ( requiring that new evidence have the potential to change the outcome). 
Pursuant to the above cited provisions, only new facts and evidence that pertain to our decision from 
April 2023 - our latest decision - will be considered. In denying the Petitioner's fourth motion - a 
motion to reconsider - we addressed the Petitioner's claims that we focused primarily on the 
Beneficiary's proposed job duties to the exclusion of ro er consideration of two asset management 
agreements - one with the and one between 
the Petitioner's U.S. subsidiary, and However, as in our decision from June 
2021 we again considered the Beneficiary's claimed role in overseeing the Petitioner's operating 
affiliates, their employees, and the management of two luxury hotels. We indicated that in fulfilling 
this role, the Beneficiary would likely be engaged in performing primarily non-executive operational 
duties that are directly related to the Petitioner's provision of management services in an asset 
management agreement. 
We also acknowledged the complexity of the Beneficiary's claimed executive role, which we also 
previously discussed in our June 2021 decision where we addressed the Petitioner's third motion. In 
that decision, we noted that the Petitioner's U.S. subsidiary, rather than the Petitioner itself, assumed 
the role of asset manager in the agreement with I I In addition, we highlighted the 
passage of time between December 2011, when the asset management agreement between D 
________ andI lwas executed, and January 2016, when this petition 
was filed, reminding the Petitioner of its burden to establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). 2 
In sum, we determined that our prior decision reflects our consideration of the Beneficiary's job duties 
along with other relevant factors, such as the agreements cited and other factors as noted above. As 
such, our decision was not exclusively based on the Beneficiary's job duties as the Petitioner claimed, 
but rather it was the product of a totality of the evidence analysis. 
On motion, the Petitioner submits two copies of the 2011 asset management agreement along with 
evidence that the agreement is currently and has been valid since prior to and including the time of 
2 While not specifically mentioned in our prior decision, the record contains a "Second Amended and Restated Services 
Agreement" listing I las "Owner" and the Petitioner together with I I 
I Ias "Consultant" in a management agreement that was executed in August 2009. 
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filing. 3 However, the validity ofthe 2011 asset management agreement notwithstanding, the Petitioner 
has not offered new facts establishing that the Beneficiary's proposed position with the petitioning 
entity would be in an executive capacity. 
Going back to our original decision from March 2019, we questioned who would perform the 
underlying tasks that comprise the asset management service that the Petitioner offers its client. We 
noted that the Beneficiary was the Petitioner's only employee at the time of filing. In that decision we 
acknowledged that the Petitioner's clients have managers and other employees who work for the 
properties the Petitioner is paid to manage. However, we nevertheless deemed the Petitioner's claim 
problematic. We questioned the likelihood that the Beneficiary would be employed in an executive 
capacity when he was the Petitioner's only employee and thus the only one available to carry out the 
asset management services the Petitioner was contracted to provide. 
In our October 2020 decision, which addresses the Petitioner's second motion, we stated that to 
establish that the Beneficiary would be employed in an executive capacity, the Petitioner would have 
to demonstrate that the Beneficiary's role and job duties with the petitioning entity, rather than its U.S. 
affiliate, would be executive in nature. And in our latest decision, while we acknowledged the 
"complicated picture" presented in the Petitioner's discussion of the Beneficiary's proposed 
employment, we once again pointed out that the Petitioner did not "properly address our [prior] 
conclusions related to the Beneficiary's proposed duties set forth in our prior decisions." The new 
documents submitted in support of the current motion to reopen do not overcome these prior findings. 
The new evidence includes copies of emails that demonstrate the Beneficiary's participation in certain 
asset management activities between 2020 and 2023 and an affidavit and promissory note which show 
the continued validity of a 2011 asset management agreement involving the Petitioner's U.S. affiliate. 
However, the new evidence does not address issues that we previously deemed problematic. Namely, 
the new evidence does not address the Petitioner's organizational composition at the time of filing or 
establish that at the time filing the Petitioner was able to support the Beneficiary in a position where 
he would primarily direct the management of the organization; establish the goals and policies of the 
organization; 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. Section 101(a)(44)(B) of the Act. Nor does the new evidence establish that the 
Beneficiary would have performed primarily executive duties within the scope of operations that 
existed at the time of filing. See 8 C.F.R. § 103.2(b)(l). 
As stated earlier, the scope of a motion is limited to "the prior decision" and "the latest decision in the 
proceeding." 8 C.F.R. § 103.S(a)(l)(i), (ii). Here, the Petitioner has not provided new facts to 
establish that we erred in dismissing the prior motion. Because the Petitioner has not established new 
facts that would warrant reopening of the proceeding, we have no basis to reopen our prior decision. 
3 The new evidence includes a May 2023 affidavit from an affiant attesting to the continued validity of the 2011 asset 
management agreement along with a May 2022 assignment and subordination agreement and corresponding promissory 
note showing the assignment byl I the assignor, as the condition of a $10 million loan from 
I the assignee. The Petitioner also provides email communications that took place between 2020 to 2023 and either 
involved the Beneficiary as originator or addressee or referenced matters involving properties that the Petitioner or its U.S. 
subsidiary are claimed to manage. 
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II. MOTION TO RECONSIDER 
Next, we will address the Petitioner's motion to reconsider. A motion to reconsider must establish 
that our prior 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). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.S(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. To further clarify, the issue to be determined in addressing the Petitioner's 
fifth motion is whether we incorrectly applied the law or USCIS policy when we dismissed the 
Petitioner's prior motion to reconsider. 
The Petitioner contests the correctness of our prior decision, pointing out that we incorrectly referred 
to its third motion, which was filed in July 2021, as having taken place ten years prior to the date of 
the 2011 asset management agreement. While we acknowledge the incorrect reference, a contextual 
reading of the analysis indicates that the error was inadvertent and did not preclude a meaningful 
understanding of our finding. To be clear, we provided the month and year of the original asset 
management agreement - December 2011 - as well as month and year of the motion being referenced 
- July 2021. An objective reading of our decision shows that these dates were cited to highlight the 
passage of time between the date the agreement was executed and the filing date of the July 2021 
motion. The very dates we cited make it clear that the motion was filed after, not before, the asset 
management agreement, despite our incorrect reference to the motion as the earlier event. 
Regardless, the ten-year period between the date of the agreement and the filing of the motion was 
merely one observation in our analysis and was not the sole or primary basis for our latest decision 
where we made note of the Petitioner's limited operation and determined that the Beneficiary "would 
likely be primarily engaged in the provision of professional services, rather than his claimed executive­
level role with authority over a multi-layered organization including hundreds of employees." We 
also determined that "the Petitioner does not properly address our conclusions related to the 
Beneficiary's proposed duties set forth in our prior decisions." In reaching our decision, we considered 
both the Beneficiary's proposed job duties and the organizational context within which those duties 
would be performed. We then concluded that the Petitioner did not establish that we misapplied law 
or USCIS policy when we dismissed the fourth motion. 
In support of the current motion, the Petitioner asserts that we erred in concluding that the Beneficiary 
would not be primarily performing executive-level duties. The Petitioner contends that the 
Beneficiary assumes "the essence of an executive's role" by virtue of his position's "primary 
objective," which is to ensure that each hotel under his purview maintains optimal value and "achieves 
ownership investment objectives." By its own admission the Petitioner states that "the Petitioner itself 
has few employees" - in fact, the record shows that only one employee was claimed in the petition at 
the time of filing. 
The Petitioner also states that the Beneficiary's duties include "oversight and management of Hotel 
Mangers and General Managers" who work for hotels that contracted the Petitioner or its U.S. 
subsidiary to provide asset management services. As such, the Petitioner apparently recognizes that 
the employees the Beneficiary would manage are those working for the "asset," i.e., the client, in an 
asset management agreement, not those working for the Petitioner itself. As stated earlier, the 
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Petitioner claimed only one employee at the time of filing. And although the Petitioner highlights the 
Policy Manual's allowance for a small support staff, the Policy Manual does not relieve a petitioner 
from having to demonstrate that "all other requirements are met," regardless of staffing size, and it 
ultimately recognizes that "it may be very difficult for a petitioner to establish that the sole employee 
will be engaged primarily in a managerial or executive function." 4 USCIS Policy Manual, C.4, 
https://www.uscis.gov/policy-manual. 
Furthermore, there is no law or policy that precludes us from considering the Petitioner's staffing 
levels, so long as we do so alongside other relevant factors. It is appropriate to consider the size of 
the petitioning company in conjunction with other relevant factors, such as the absence of employees 
who would perform the non-managerial or non-executive operations of the company or a company 
that does not conduct business in a regular and continuous manner. Family Inc. v. USCIS, 469 F.3d 
1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Nothing in our 
prior decision indicates that we incorrectly considered the Petitioner's staffing to the exclusion of other 
factors. In fact, the record shows that the Petitioner's staffing was properly considered alongside the 
Beneficiary's job duties, and we previously stated that the Beneficiary's management of another 
entity's employees is problematic and does not support the Petitioner's claim that the Beneficiary's 
proposed employment would be in an executive capacity. 
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 10l(a)(44)(B)(i)-(iv) of the 
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. 
The record shows that we have consistently conducted a totality of the evidence analysis that includes 
consideration of relevant factors, such as the nature of the Petitioner's business, its organizational 
composition, and the job duties assigned to the Beneficiary in his proposed employment. For the 
foregoing reasons, we conclude that our previous decision to dismiss the Petitioner's motion to 
reconsider was reached pursuant to a correct application of law and policy and was based on the 
evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). Therefore, 
the underlying petition remains denied. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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