dismissed EB-1C Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 7538760 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 20, 2020 
Form I-140, Immigrant Petition for Multinational Executive or Manager 
The Petitioner , a real estate development company, seeks to permanently employ the Beneficiary as its 
president in the United States under the first preference immigrant classification for multinational 
executives or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C . 
§ 1153(b)(l)(C). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that it would employ the Beneficiary in an executive capacity in the United States . The 
matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, 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)(l)(C) of the Act. 
The Form I-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. § 204.5(j)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTNE CAPACITY 
The issue to be addressed is whether the Petitioner established that it will employ the Beneficiary in 
an executive capacity in the United States. The Petitioner does not claim, in the alternative, that the 
Beneficiary would be employed in a managerial capacity . 
"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. 
When assessing the executive nature of an offered position, we examine a petitioner's description of 
the job's duties. See 8 C.F.R. § 204.5(j)(5) (requiring that a petitioner "clearly describe the duties to 
be performed"). Beyond the required description of the job duties, we examine 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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Job Duties 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary would be performing certain high-level responsibilities. Champion World, Inc. v. INS, 
940 F .2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary will be primarily engaged in executive-level 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); Champion World, 940 F.2d 1533. 
The Petitioner operates a real estate development company and stated that the Beneficiary would serve 
as its president, responsible for overseeing the company's operations by "setting up standards, policies 
and procedures in order to set our company apart in the regional construction and real estate 
development sector." The Petitioner submitted the following position description at the time of filing 
and added the percentage of time spent on each responsibility in response to the Director's request for 
a "definitive statement" describing the Beneficiary's "specific daily duties": 
• [D]evelop and establish goals and policies and oversee the implementation of said 
goals and policies through subordinates (10%); 
• Exercising discretionary decision making on matters pertaining to: strategic long 
term planning, organizational objectives and goals, and development of company 
standards, processes and procedures ... (10%); 
• Full business plan development/implementation and profit and loss responsibility 
... (10%); 
• Operational responsibility for the company's business including all department 
support functions: sales, marketing, finance, and customer service (5%); 
• Development and implementation of the growth, product sourcing, logistics, and 
operational strategies for the business (5%); 
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• Collaborating with and working across all the management functions for the 
company in various departments which includes responsibility for sales, marketing, 
finance, administration, quality control, and business development (5%); 
• Managing all financial functions for the company including: budget preparation, 
forecasting, and expenditure controls (5%); 
• Reviewing and approving personnel changes and human resources issues for the 
company to maximize efficiency ... (5%); 
• Locating, negotiating and procuring contractual relationships with customers and 
suppliers, both domestic and international (3%); 
• Negotiating and executing business contracts, transactions, and financing terms 
with suppliers and customers (5%); 
• Conferring with and reviewing operational reports from division managers and 
making recommendations based on such (10%); 
• Securing banking and other financial services including loans, lines of credit ... 
(3%); 
• Monitoring market needs and requirements, taking into account competitor 
products/services, currency exchange fluctuation, regulatory and legal issues (3%); 
• Pursuing company's legal matters with legal counsel ... (3%); 
• Overseeing accounting, taxation, payroll, and budgeting functions with internal and 
external accounting professionals (3%); 
• Delegating day to day activities to subordinates for execution and oversight (5%); 
• Participating in long-term strategic planning for the company (10%). 
While lengthy, this list of job duties is so general that it could describe a senior position within almost 
any company. It lacks references to specific tasks the Beneficiary would perform on a day-to-day 
basis within the context of the Petitioner's real estate development business. In fact, the Petitioner 
indicates that the Beneficiary will spend half of his time on responsibilities that paraphrase the 
statutory definition of "executive capacity." Specifically, the Petitioner indicates that the Beneficiary 
will allocate 50% of his time to duties that include developing and establishing "goals and policies," 
"exercising discretionary decision making on matters pertaining to strategic long term planning," "full 
business plan development/implementation and profit and loss responsibility," "operational 
responsibility for the company's business," "development and implementation of ... operational 
strategies," and participating in long-term strategic planning. The Petitioner did not provide examples 
of specific policies, goals, or objectives he has implemented or the specific duties he performs to carry 
out these broad responsibilities within the context of its business operations. Conclusory assertions 
regarding the Beneficiary's employment capacity are not sufficient. Merely repeating the language of 
the statute or regulations does not satisfy the Petitioner's burden of proof Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs., Inc. 
v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The Petitioner indicates that the Beneficiary would allocate another 15% of his time to "working across 
all the management functions of the company in various departments" and "reviewing operational 
reports from division managers" but the supporting evidence does not establish that the company is 
organized into clearly defined departments or divisions or explain how the Petitioner works with 
subordinates to carry out implementation of the plans and strategies he devises. While many of the 
remaining duties relate to the Petitioner's authority over financial, contractual and human resources 
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matters, the description also contains references to the Beneficiary's oversight of functions, 
departments and/or staff that do not appear on the Petitioner's organizational chart including logistics, 
administration, quality control, business development, product sourcing, and customer service. 
Overall, the position description focuses on the Beneficiary's level of authority without providing 
insight into what he is expected to do on a daily basis as the president of the petitioning company. 
In the RFE, the Director advised the Petitioner that it did not sufficiently describe the specific tasks 
the Beneficiary would perform on a day-to-day basis and provided an opportunity for the Petitioner to 
further explain his daily tasks. However, as noted, the Petitioner did not avail itself of this opportunity 
to further describe the Beneficiary's actual job duties and simply added percentages to the list of job 
duties that the Director had already reviewed and found to be deficient. Rather than elaborating on 
the Beneficiary's duties, the Petitioner seeks to rely on external sources, such as position descriptions 
for "chief executive officers" published by the Society for Human Resources and the U.S. Department 
of Labor. The regulations require a petitioner to clearly describe the individual beneficiary's job 
duties within the context of its own business. Therefore, the Petitioner cannot meet this burden by 
comparing its own general description to generic job descriptions from published resources. 
Finally, we note that while the Petitioner has repeatedly re-submitted the same list of duties describing 
the Beneficiary's duties as its president/CEO, the company organizational chart submitted at the time 
of filing depicted the Beneficiary as holding two distinct positions within the company: both CEO and 
"real estate development manager." In its supporting letters, the Petitioner did not mention this second 
position, the duties the Beneficiary would perform in that role, or how his time would be divided 
between the two positions. The position of "real estate development manager" was eliminated from 
subsequent organizational charts, but its appearance on the original chart raises questions as to whether 
the Petitioner provided a complete description of the Beneficiary's roles and responsibilities as of the 
date of filing. The Petitioner must 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). 
In general, the fact that a beneficiary will direct a business and exercise discretion over its day-to-day 
operations does not necessarily establish eligibility for classification as an intracompany transferee in 
an executive capacity. By statute, eligibility for this classification requires that the duties of a position 
be "primarily" managerial or executive in nature. Section 10l(A)(44) of the Act. As such, a detailed 
job description is critical in determining the nature of the employment; reciting the Beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient. In order to meet its 
burden of proof: the Petitioner must identify the specific tasks the Beneficiary will perform or the 
services he will provide. The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros., 724 F. Supp. at 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner has conveyed that the Beneficiary, as the company's senior employee, would have 
authority to establish plans, policies, and objectives for the company and make major decisions regarding 
its finances and overall direction. However, the Petitioner must also establish that these types of 
responsibilities would primarily occupy the Beneficiary's time from the date of filing. The job 
description provided does not sufficiently delineate the Beneficiary's actual proposed job duties within 
the context of its business, and therefore do not establish that his duties would be primarily executive 
in nature. 
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Further, whether the broad duties attributed to the Beneficiary qualify as executive in nature depends 
in part on whether the Petitioner established that it has the subordinate staff to supervise and perform 
the day-to-day company activities he is claimed to direct. As discussed below, the Petitioner has not 
clearly described the company's activities or explained how those activities are performed by the 
lower-level staff. 
B. Business Activities, Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, we take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 101(a)(44)(C) of the Act. 
The Petitioner indicated on the Form I-140 that it had six employees in the United States as of February 
2018 and stated that they are employed through its wholly owned subsidiary, I . I 
. The organizational chart submitted at the time of filing identified the 
~---,-----,------J 
company's employees and their position titles as follows: 
CEO (Beneficiary) 
Hospitality Manager I,___ __ __, 
Real Estate Development Manager (Beneficiary) 
Project Manager I, > I 
Senior Pro· ect Managerl ,__ _____ .,.... 
Sales Manager~.=====--~ 
Marketing 
In June 2018, in response to the Director's RFE, the Petitioner submitted an organizational chart 
depicting the following staffing: 
President & Manager Member (Beneficiary) 
Owner's Representative/Construction manager I 
Controller I I ~----~ 
Sales & Marketing Manager I._____,,_...__ __ ~ 
Sales Center Administratorl 
VP International Operations~I -----"'-..------~ 
The latest 
1
organiz
1
ational chart, submitted on appeal, depictsl a. 001.I as vice pr,sjdent of financ9 and 
sales, and as a finance specialist reporting tol I It identifies 1 ...... -----~J as a 
project manager and indicates that he has supervisory authority over a general contractor company, 
which in tum supervises subcontractors who provide plumbing, roofing, electrical, architecture, 
window installation, landscaping, and heating and air conditioning services. 
The Petitioner submitted state and federal quarterly wage reports and IRS Form W-2s confirmin&Jhat, 
~mployed the staff named in the second organizational chart at the time of filing, althoughl_J 
L__J left the company shortly after the Petitioner responded to the RFE. However, the Petitioner 
did not provide an explanation for the varying job titles assigned to some of its employees, and more 
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importantly, it has provided very limited information regarding the duties performed by its subordinate 
staff despite the Director's request for this information in the RFE. 
For example, the Petitioner stated that.__ _____ ___, is "in charge of overseeing project 
development, supervising trade contractors over the life of each project, and ensuring that high quality 
projects are delivered on a timely and cost effective basis." In response to the RFE, the Petitioner 
stated thatOwas involved in the management of a condominium project id lthat 
was still under construction. The Petitioner submitted year-end financial statements for'! I 
~-----~ and Subsidiary" for 2017 and 2018, as well as its federal tax return for 2018. 
However, the Petitioner did not report paying construction-related contractor expenses in either year, 
nor is the company's use of contractors documented elsewhere in the record. 1 While we acknowledge 
that commercial real estate projects can require several years for completion we cannot overlook the 
absence of evidence related to those ongoing project activities. The Petitioner has not documented its 
use of the contractors who are claimed to report to I I 
With respect to the two sales staff depicted on the company's June 2018 organizational chart, the 
Petitioner indicated that I ~s "responsible for the development and implementation of 
sales and marketing plans for the expansion of the business" and overseeing the creation of marketing 
and promotional materials, whilel ~ was "responsible for coordinating sales and marketing 
activities of the company." The Petitioner stated that I I role as "Vice President 
International Operations" was to travel between the group's operations in the United States, Panama 
and Venezuela to "oversee and manage the operations" and to report to the Beneficiary. Finally, the 
Petitioner indicated that the controller is responsible for accounting, tax, financial, payroll and related 
matters. These brief descriptions, when considered in light of the Beneficiary's own overly-broad 
job duties, provide little insight into how the day-to-day work of the company is allocated among the 
Petitioner's five subordinate staff 
Further, we note that although the Petitioner indicates that it and its subsidiary are doing business as 
real estate developers, the Petitioner's primary source of income in both 2017 and 2018, according to 
its financial statements, was in the form of"management income." 2 The record reflects that in January 
201 7, ~ entered into management agreements to provide "financial oversight, legal services, 
accounting and finance, and project coordination services" to both I land to a 
Florida company called! l in exchange for monthly service or management fees. As 
noted, the Petitioner has not reported any construction expenses or real estate-related income since 
2015. However, despite evidence indicating that the company was directly or indirectly deriving its 
income through provision of management services as of the date of filing, the submitted job 
descriptions for the Beneficiary and his subordinates do not establish who is actually responsible for 
providing those management services. Without this information, we cannot determine whether or to 
what extent the Petitioner's staff is able to relieve the Beneficiary from involvement in the company's 
1 We note that the Petitioner's latest tax returns appear to include the financial information of its subsidiaryLJ For 
example, the reported salaries and wages on the Petitioner's 2018 IRS Form 1120, U.S. Corporation Income Tax Return, 
is the samel figre reported byDon its IRS quarterly federal tax returns (Forms 941) in 2018. The record does not 
reflect that incurred contractor expenses that were reported on its own tax return or elsewhere. 
2 The Petitioner also reported $126,750 in "interest income" in both 2017 and 2018. 
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day-to-day activities or whether the staff is sufficient to support him in a position in which he performs 
primarily executive duties. 
We have also considered the Petitioner's claim that the Beneficiary continues to oversee staff 
employed overseas within its multinational group. Citing to Matter of Z-A-, Inc., Adopted Decision 
2016-02 (AAO Apr. 14, 2016)3 the Petitioner asserts that the Director improperly excluded evidence 
that the Beneficiary is the leader of a multinational group, and by doing so, failed to consider the 
Beneficiary's role within the wider qualifying organization and continued oversight of more than 50 
foreign-based employees. However, we agree with the Director that the record lacks evidence that the 
employees on the payroll of the group's companies in Venezuela and Panama actually participate in 
the day-to-day operations of the petitioning company and work under the Beneficiary's supervision in 
carrying out his U.S. duties, such that they can be considered part of the Petitioner's organization for 
purposes of determining whether the Beneficiary will be employed 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, and they 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" an enterprise as its senior employee. Here, the Petitioner consistently indicates that the 
Beneficiary develops its strategies and goals, makes discretionary decisions, and directs the entity as 
a whole. However, it has not supported its claim that he primarily performs these higher-level 
functions, and has not sufficiently shown how he is relieved from involvement in the day-to-day 
operations of the company. As discussed, there is a lack of clear evidence showing the nature of the 
company's activities at the time of filing, and the evidence does not demonstrate how the work 
necessary to perform those activities was allocated among the five-person subordinate staff. 
We must take into account the reasonable needs of the organization if considering the Petitioner's 
staffing levels; a company's size alone may not be the only factor in determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 101(a)(44)(C) 
of the Act. However, 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. 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). 
Here, the Petitioner states that it and its wholly-owned subsidiary operate a construction and real estate 
development business that is also engaged in providing various management services to other 
companies. As noted, the Petitioner has provided an overly broad description of the Beneficiary's job 
duties that does not identify the specific tasks he performs on a day-to-day basis. The position 
3 The Petitioner also refers to several non-precedent decisions in which we sustained appeals filed by petitioners seeking 
classification of their respective beneficiaries as executives or managers. These decisions were not published as precedents 
and therefore do not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions apply 
existing law and policy to the specific facts of the individual case, and may be distinguishable based on the evidence in the 
record of proceedings, the issues considered, and applicable law and policy. 
7 
descriptions provided for his subordinates are too brief to meaningfully convey how the company's 
daily work is allocated among its staff or who is providing the services under the submitted 
management agreements. In addition, the submitted organizational charts convey a variable structure 
and job titles that have not been adequately explained. The Petitioner claims that much of the work 
required to provide its construction and property development services is performed by contractors, as 
is standard in the industry, but it has not shown that it consistently makes payments to such contractors. 
Due to these deficiencies, it is difficult to discern whether or how the Beneficiary is relieved from 
significant involvement in the administrative and operational aspects of the business and the Petitioner 
has not adequately supported its claim that the Beneficiary would primarily spend his time focused on 
the company's strategies, policies, and objectives. 
Finally, we note that, after providing the same insufficient position description for the Beneficiary in 
both its initial submission and in response to the Director's RFE, the Petitioner now submits for the 
first time on appeal an advisory evaluation of the Beneficiary's position written byl I. 
an associate dean and professor of finance and business administration at the University ofl I I I I f concludes that the Petitioner would be employed in a qualifying managerial or 
executive capacity, but does not reference the statutory definitions of these terms at section 10l(a)(44) 
of the Act. Further, he does not indicate with specificity what documentation he reviewed other than 
noting that he "obtained a detailed description" of the Beneficiary's duties and reviewed "many 
documents" regarding the Petitioner and its structure. We have addressed the Beneficiary's duties and 
the Petitioner's organizational structure and business activities, as they were described and 
documented in the record, and discussed why the totality of the submitted evidence does not establish 
the Beneficiary's eligibility. 
We may, in our discretion, use as advisory opm10n statements from univers1t1es, professional 
organizations, or other sources submitted in evidence as expert testimony. Matter of Caron Int 'l, 19 
I&N Dec. 791, 795 (Comm'r 1988). However, we are also ultimately responsible for making the final 
determination regarding a foreign national's eligibility. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility. Id. Because the expert evaluation 
appears to have based on a broad job description and not on a review of all relevant evidence that was 
submitted in support of the petition, we find that it has limited probative value. 
For the reasons discussed, the totality of the evidence does not establish that the Beneficiary would be 
employed in the United States in an executive capacity. Accordingly, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
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