dismissed EB-1C Case: Real Estate Development

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
'3 i, 
Office: TEXAS SERVICE CENTER Date: 0 4 2006 
SRC 05 008 51436 
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. 
 1'153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice 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. 
---- 
& 
"Ro&Pnn, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation engaged in real estate development. It seeks to employ the beneficiary 
as its chief executive officer and president. 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. 9 1153(b)(l)(C), as a multinational executive or manager. The director determined that 
the petitioner failed to establish that the beneficiary would be employed in a managerial or executive capacity 
and denied the petition. 
On appeal, counsel submits a brief disputing the director's conclusion and underlying analysis. 
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 primary issue in this proceeding is whether the beneficiary would be employed in a managerial or 
executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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. § 1 10 l(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-malung; 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 provided a letter dated September 15, 2004, claiming that the 
beneficiary's duties would be directly related to operational or policy management rather than the supervision 
of lower level employees. The director deemed the petitioner's statements inadequate to enable a 
determination as to the beneficiary's proposed employment capacity. 
Accordingly, on March 23, 2005, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide the following information to assist in determining the beneficiary's employment capacity 
in the proposed position in the United States: 1) evidence of the petitioner's staffing levels identifying its 
employees by name and position title and explaining the job duties of the beneficiary's direct subordinates; 
and 2) W-2 wage and tax statements issued by the petitioner in 2003. 
In response, counsel provided a letter dated June 22, 2005, explaining that the beneficiary's role within the 
U.S. entity will be that of a function manager whose job duties will revolve around managing the petitioner's 
real estate development projects. Counsel discussed the variety of contractors whose work the beneficiary 
would oversee as part of the development projects and provided a general list of job duties with the respective 
percentage of time the beneficiary would spend on each duty. Additionally, the beneficiary provided an 
hourly account of his typical daily work schedule, thereby adequately illustrating the duties to be carried out 
on a day-to-day basis. 
Regardless, on July 15, 2005, the director denied the petition finding that the petitioner's description of the 
beneficiary's proposed duties was insufficient to warrant an approval of the petition. Although the AAO 
concurs in the overall conclusion that the record lacks sufficient evidence to establish that the beneficiary 
would be employed in a qualifying capacity, the AAO does not support the director's underlying reasoning in 
reaching this conclusion. Specifically, while the director discussed the general percentage breakdown of job 
duties provided by counsel, she failed to note the more detailed account of job duties provided in an hourly 
breakdown, which was also part of the petitioner's response to the WE. Contrary to the director's analysis, 
the detailed hourly account of job duties provides a reasonable illustration of a function manager whose job 
primarily focuses on overseeing the work of contractors. Thus, if eligibility were dependant entirely on the 
description of prospective job duties, approval of the petition might be warranted. 
However, the petitioner's burden is not satisfied with a mere description of duties. Aside from an adequate 
job description, the petitioner must establish that it is adequately staffed to relieve the beneficiary from having 
to perform qualifying tasks. That being said, counsel is correct in his assertion that adequate staffing need not 
consist of personnel directly employed by the petitioner. As pointed out, contracted labor, if adequately 
documented, might relieve a beneficiary from having to primarily perform non-qualifying tasks. However, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of Calz$ornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In the instant matter, both counsel and the beneficiary discuss the myriad of contract labor that has been and 
would continue to be used in carrying out the petitioner's essential tasks, thereby relieving the beneficiary 
from having to cany out non-qualifying tasks. In support of these claims, the petitioner has submitted labor 
contracts describing the duties to be carried out by the various contracted individuals. However, such 
contracts merely serve to establish the petitioner's intent to employ contracted labor. Contrary to counsel's 
assertions, the contracts alone do not establish that the individuals were in fact contracted or that any work 
was actually performed. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary, who was 
also employed in the real estate industry, met the requirements of serving in a managerial and executive 
capacity for L-1 classification. However, counsel has furnished no evidence to establish that the facts of the 
instant petition are analogous to those in the unpublished decision. Furthermore, while 8 C.F.R. 5 103.3(c) 
provides that AAO precedent decisions are binding on all CIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
The petitioner also submitted a number of letters from individuals claiming to provide the petitioner with 
legal, financial, and real estate services. However, the third party claims, much like the petitioner's own 
claim, must be corroborated with documentary evidence. In the instant matter, the record lacks 
documentation to establish that the claimed contractors and service professionals were paid for services that 
they purportedly rendered. Without documentary evidence to support the claim, the assertions of counsel will 
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Page 5 
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
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 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). In light of the 
petitioner's failure to adequately document its claims regarding the hiring of contract labor, the AAO cannot 
determine with any degree of certainty that at the time of filing the Form 1-140 the petitioner was adequately 
staffed to relieve the beneficiary from having to primarily perform non-qualifying tasks. Accordingly, based 
on the evidence furnished, the AAO cannot conclude that the beneficiary would be employed in a qualifying 
managerial or executive capacity. 
Furthermore, the record supports a finlng of ineligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 
 204.50)(3)(i)(C) states that the petitioner must establish that it has a qualifying relationship 
with the beneficiary's foreign employer. The 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 for purposes of this visa classification. 
 Matter of Church Scientology 
International, 19 I&N Dec. 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 
1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa 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 Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. In the instant matter, the petitioner has submitted a single stock certificate to corroborate the claim 
that it is a wholly owned subsidiary of the beneficiary's foreign employer. The record contains no evidence to 
establish the foreign entity's capital contribution toward the purchase of the petitioner's stock. 
Additionally, the petitioner provided a letter fiom counsel dated August 17, 2004 (exhibit A6) in which 
counsel stated that the beneficiary has been the petitioner's "sole shareholder, officer and director." Although 
counsel's claim in itself is not conclusive evidence of the petitioner's ownership, the AAO cannot overlook the 
fact that the petitioner's own claim is directly contradicted by this statement from counsel, a third party acting 
on behalf of the petitioner's interests. 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). As the petitioner has provided insufficient documentation to 
support the claim that it is entirely owned by the beneficiary's foreign employer, the AAO cannot conclude 
that the two entities have a qualifying relationship. 
Page 6 
Second, 8 C.F.R. tj 204.56)(3)(i)(D) states that the petitioner must establish that it had been doing business 
for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. § 204.56)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." In the instant matter, 
the petitioner's claim that it has been doing business during the requisite time period rests entirely on sales and 
purchase contracts. While the AAO acknowledges the contracts as a clear intent to do business, they are not 
in and of themselves evidence that the petitioner has, in fact, engaged in business transactions on a "regular, 
systematic, and continuous" basis. See id. The record lacks any evidence, such as cancelled checks or even tax 
returns, to show the petitioner's source of revenue. 
Moreover, the record contains a copy of the petitioner's lease, which shows that the petitioner did not acquire 
office space from which to conduct its business until November 15, 2003 and, therefore, could not have been 
doing business as of October 12,2003. The claim that the petitioner was doing business since October 12,2003 
is further undermined by service records that indicate that the beneficiary's employment authorization did not 
commence until November 9,2004. In light of the claim that the beneficiary is solely in charge of the petitioner's 
entire business operation, the AAO is unclear as to the means by which the petitioner would have been able to 
cany on business transactions without the beneficiary's involvement. 
Additionally, in light of the denial of the petition and the subsequent termination of the beneficiary's work 
authorization as of July 15, 2005, the date of the denial, the AAO questions the petitioner's ability to continue 
doing business in the United States and, therefore, its ability to maintain the status of a multinational organization. 
See 8 C.F.R. 5 204.56)(2) for a definition of muWnational. 
Finally, the regulation at 8 C.F.R. 5 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the instant matter, the petitioner claims that the beneficiary would be paid $40,000 annually under an approved 
petition. However, the record lacks documentation to support the petitioner's ability to pay ths proffered wage. 
As previously stated, going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. at 165. 
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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
Page 7 
When the AAO denies a petition on multiple altemative 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 Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
altemative basis for denial. In visa petition proceedings, the burden of proving eligbility 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.