dismissed EB-1C Case: Real Estate Investment

(b)(6)
DATE: NOV 0'7 1013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland SecuritY 
U. S. Citizenship and Immigration Servi¢es 
A<Iministrativ~ Appeals Offi~e (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
u~ S. Citizenship 
and Immigration 
Services 
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. § ll53(b)(l )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in y0ur c:,ase. 
This is a non-precedent decision. The AAQ does not am_iounce new constructions of law nor establish agency 
poli~y throQgll non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your cl).se ot if you seek to present new facts for consideration, you may file a motion to reconsider ot a 
rnotioii to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Fotrn I-290B) 
within 33 days of the date of this decision. - Please review the Fotm I-290B instructions at 
http://www .uscis.J!ov/f~l"ll!s for the latest infonna,tioJ:I on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with tlte AAO . 
. TZou./// . 
/(Ron Ros~ . 
Chief, Administrative Appeals Office 
(b)(6)
NON-PRECEDENT DECISION 
Page2 
DISCUSSION: The Director, Texas Service Cent~r. denied the employment-based immigrant visa petition. 
The matter is now before the Administrative. Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation,that seeks to employ the b¢neficiary as its presiqent. Accordiilgl'y, the 
pet.itioner ebdeavors to Classify the beneficiary as an employment-baSed immigr~nt pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act'(the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational 
executive or manager. 
the director denied the petition based oil the following three adverse conclusions: (1) the petitioner failed to 
·establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; (4) the 
petitioner f~iled to establish that the beQ.efi(!iary would be employed in the United States in a qualifying 
managerial or executive capacity; and (3) .the petitioner failed to establish that it had been doing business for 
one year prior to filing the petition: 
On appeal, counsel disputes t,he dir~tor' s (jecision and asserts that the petitioner submitted sufficient 
evidence such that the three adverse findings listed above are not warranted. Although counsel marked Box B 
on the Forrn I-290:8., Indicating his intention. to provide a brief and/onidditional evidence within 30 days of 
filing the appeal, there is no evidence that the record has si~ce been supplemented in accordance With 
cOUQ.s~l's origiQ.a1 inten.t.. Th~refore, the AAO's d~eision will be based ori the evidence that has been ' . 
· submitted thus far and the record will be considered complete as presently constituted . . 
I. TbeLaw 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Wor~ers .. ""~ Visas shall first be inad~ 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 appiication for classification and admission into the United States 
under this subparagraph, has been employed for a.t l~st 1 year by a firrn or 
corporation or other legal entity or ~n affiliate or sUbsidiary thereof and who 
seek.s to eQ.ter ·the United States in otder to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity th,at is 
manag~rial or-executive. r· 
The language of the statute is specific in limiting this provision to on_ly 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 corning to the United States to work for the same entity, or its affiliate or subsidiary. 
(b)(6)
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?age 3 
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 l~l:>or cert~fic~tion 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. Suc;h a statement must clearly describe the duties to be performed by the alien. 
Section 101(a)(44)(A) of the Act, 8 tJ.S.C. § 1101(a)(44)(A), provides: 
The term "m~nagerial capacity" means a.n assignment within an organization in which the 
einployee primarily·., 
(i) manages the organization, or a dep:ptment, subdivision. function, or 
component of the organization:; 
(ii) supervises and controls the work of other supervisory, profession~l. or 
~a:nagerial employees. or m.~na.ges an essential function within the 
organization, or a department or-subdivision of the organization; ' 
(iii) if another employee or other em.:pl~yees are directly supervised, has the 
· C!4thority 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 witl:tin the organizational 
hierarchy or with respect to the fo;nction managed; ~nd 
(iv) exercises discretion over the day-to-day operations ofthe activity or ft,mctiOIJ 
for which the employee has authority. A first-:Jine 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. 
Sectionl01(a)(44)(B) of the Act, 8 U.S.C. § 1 iOl(a)(44)(B), provides: 
The tetril "executive capacity'' means an assignment withiri 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 di_scretionary decision-making; and 
(b)(6)
\ 
Page4 
NON-PRECEDENT DECISION 
'" (iv) receives only ·general supervision or direction from higher level executives, 
the board of directors, or st~ckholders oftl1e organization. 
Additiomtlly, (he regul~tions at & C.F.R. § 204.5(j)(3)(i) state that the petitioner must provide the following 
~Vidence ir1 support of the petition in order to establish eligibility: 
(A) If the alien _is outside th~ United States, in the three years immediately preceding the 
filipg of the petition tbe alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a finn _or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a firtn ot corporation or other legal entity; 
or 
(B) If the alien is already in the United States worldng for the same employer or a 
subsidiary or affiliate of the firm or corpor(ltion, or other legal entity by which the alien 
was employed 
overseas, in the three years preceding entry as a nonimmigrant, the alien 
was employed by the entity abroad for at least one )'ear in a managerial or executive 
capacity; 
(C) The prospective ~mployer in the United States is the same employer or a subsidiary or 
affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) The prospective United Sta,tes employer has been doing business for at least on~ year. 
II. Procedural History 
The record shows that the petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on June 12, 
20l2 and submitted a number of supporting documents in an effort to establish eligibility for the above stated 
immigration benefit. The petitioner stated on the Form I-140 that it is engaged in the business of real es~te 
investment and claimed five employees at the time of filing. The petitioner's supporting evidence indud~d 
various tax and financial documents, the petitioner's office lease, three invoices issued by the petitioner for 
consulting services rendered in February, April, and May of 2012, the petitioner's corporate and bank 
documents, as well a~ job descriptions addressing the beneficiary's former and prospective employment with 
tl_le for¢ign employer and the U.S. petitioner, respectively. 
In discussing the beneficiary's proposed employment with the U.S. entity, the petition¢£ Stated that the 
beneficiary ''will fulfill the key execUtive and manageri<il position of President," thus indicating that the 
propose~:! employment faH_s within the statutory definitions of both managerial and executive capacity. 
However, as the petitioner continued . with its discUssion of the beneficiary's U.S. employment, .it referred to 
the benefictary' .s proposed and fortner positions as those of a high~level'executive, who devoted and would 
continue tp devote 100% of his time carrying out executive job duties. The petitioner continued its discussion 
by reciting the statutory ciefioition of managerial capacity, claiming that tile beneficiary would ll)anage an 
essential function and professional personnel in his proposed position with the U.S. entity where "he will 
qevote over 60% of his time to operational objectives to ensure the company continues to grow.'' The 
(b)(6)
NON-PRECEDENT DECISION 
Pa~e5 
petitioner also provided a percentage breakdown of the beneficiary's responsibilities in his proposed 
employment, indicating that the beneficiary would allocate his time to budget and financial concerns; 
operational policies and objectives, marketing and sales objectives, overseeing busine_ss projects, and making 
decisions regarding the content and scope of contracts, new business opportunities, and marketing methods. 
The petitioner briefly addressed the beneficiary's employment abroad, stating that the beneficiary was 
cbatged with mctnagj_ng international development, overseeing executive, administrative, and operational 
emploxees, developing foreign contacts to forge business relationships, implementing policies, and hiring and 
firing personnel. The petitioner stated that the beneficiary's two subordinate employees included a. 
~onstruction director and a financial director. 
After reviewing the petitioner's submissions, the director determined 
that the petition did not warrant 
approval. Accordingly, on February 21,2013, the director issued a request fot evidence (RFE) instructing the 
petitioner to provide, in part, supplell1entary job <;i~scriptions for the beneficiary's former and proposed 
employment. The director instructed the petitioner to lis_t the beneficiary's specific daily job duties in both 
positions and tp assigri time allocatiqns indicating the portion of time the beneficiary spent and would spel)CJ 
performing each of the listed job duties. Additionally, the director asked for the submission of both entities' 
orga.r.ti_zational chans depicting the beneficiary's respective positions within each entity as well as the 
positions of the beneficiary's subordinates, their job duties, educational credentials, and an identification of 
each employee's full- or part-time employment statuses. The petitioner was instrUcted to indicate Whether it 
1JSes contract labor and. if so, to provide eviden.ce doco.menting the ninnbet of contractors used and the job 
dO.ties they perfotni_. The director also observed ithat, based on a review of the petitioner's 2011 tax return, the 
company did not pay wages commensurate with the employment of a staff of professional employees. 
The"petitioner's response to the RFE included a statement dated May 14, 2013 in which the petitioner 
addressed the deficiencies pointed out by the director. The petitioner restated the job descriptions provioed 
earlier with regard to the beneficiary's claimed subordinates in his former position with the foreign entity. 
The 
petitioner aJso provided a separate statell1ent dated Match 8, 2013 clairriirig that the beneficiary assumed 
_tb~ role of a manager and an executive during his employment abroad. the petitioner repeated the brief job 
descriptio_n provided in the original supporting statement and went on to provide a percentage breakdown that 
is virtually identical in content to the percentage breakdown that was previously provided to describe the 
beneficiary's proposed employment with the petitioning U.S. entity. The fact that the petitioner provided the 
same job description that the director previously deemeq insufficient When it. was submitted to describe the 
beneficiary's propos¢d employment indicates that the petitioner effectively failed to address the director's 
request, whose goal was to elicit additiomil infolinatioil enumerating the beneficiary's specific daily job 
duties duririg his former employment abroad. Failure to submit requested evidence that precludes a material 
llne of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
The petitioner's resporise also included the foreign entity's organizational cha_rt, which depicted the_ 
beneficiary at the top of the organizational hierarc:hy witb an ·executive assistant, construction director, and a , 
financial director as the beneficiary's immediate subordinates. 
, 
With regard to the bt!neficiary's proposed employment with the U.S. entity, the petitioner 1 provided a 
starement dated May 10~ 2013 in which the petitioner reiterated its prior claim that the beneficiary is a 
(b)(6)
·NON-PRECEDENT DECISION 
Page6 
frt~n:ager a..nd an executive. The petitioner proceeded to restate the statutory~ definition of executive capacity 
and restated the same percentage breakdown that was previously provided in support of the petition. The 
petitionerfocused on the beneficiary's discretionary authority and provided examples of the beneficiary's ro.Ie 
in establishing the petitioner's goals and policies. Specifically, the peti~ioner ~~t~d tba..t the beneficiary would 
be responsible for: (1) new development and structure of the compail)', (2) financial growth, (3) expansion 
into new markets, (4) reViewing flilancial reports and statements, (5) meeting with upper management, 
(6) establishing economic goals and objectives •. and (7) reviewing sales reports. 
AdQitionally, tbe petitioner provided a copy of its organizational chart as well as quarterly tax returns and 
employer's quarterly wage reports for 2012. A comparison of the petitioner's previously submitted 
organizational chart and the chart submitted in response to the RFE indicates that the latter chart, with a 
1 O~ 
persop staff; represents a depiction of tl).e petitioner'~ most recent staffing strQtt4re, which is shown to include 
a marketing manager, a financial 
manager, a web designer, a property supervisor, and an administrative 
assistant. It is noted, however, that a petitioner's eligibility must be based on the facts and circumstances tha..t 
existed at the tiqte the petition was filed; a petition cannot be approved at a fytU.re da..te after the petitioner or 
beoefici:ary becomes eligible under a: new set of facts. Matter of Katigbak, 14 I&:N Dec. 45, 49 (Comm. 
1971). A review of the petitioner's 2012 quarterly tax returns and corresponding employer's reports indicates 
that the petitioner had a total of five employees throughout 2012. The petitioner's eligibility must be 
determined based on a consideration of these -a:nd other relevant facts that applied to the petitioner at the time 
t)le Form 1-140 was filed. 
With regard to the director's request f~r evidence of the petitioner's business activity dufing the one~yea.r 
period prior to the filing of the petition, the petitioner offered its bank and ~x doc1.irilelits, a business license 
and business lease that the petitioner entered into on May 3, 2013, an office servic.e agreement dated June 6, . 
201Z .• and photographs of the business premises. 
The director reviewed the petitioner's submissions <md determined that the record lacked sufficient evidence 
to es~blish that the petitioner was doing business for one year prior to filing the petition or that the 
beneficiary was employed abroad and would be employed in the United States in a qualifying managerial of 
executive capacity. Accordingly, the director issued a decision dated June 13, 2013 denying the petition. Tbe 
director determined 
that the wages indicated in the employer's report for· the second quarter of 2012 indicate 
that the petitioner did not have any full-time employees, other than the beneficiary, at the time the petition 
was filed. The director concluded that the petitioner's staff at the time of filing was not sufficient to support 
the beneficiary's emploYment in a qualifying managerial or executive capacity. Although the director m1l.<ie 
several observations based on infom'lation provided in the petitioner's April 2013 payroll sumrnary, which the 
petitioner provided in its RFE response, this document is not relevant to the 
matt.er at hand, as it does not 
reflect the petitioner's staffing at the time of filing. As St1ch, any adverse conclusions that resulted from the 
director's analysis of this document will have no bearing on the outcome in this decision apd will not be 
addressed further. 
The director also distussed thejob descriptions provided with regard to the benefici(J.ry's fortnetand proposed 
employment, concluding that the information provided was vague and failed to adequately establish that the 
beneficiary allocated and would continue to allocate his time primarily to the perfoffilance of t(J.sks within a 
qualifying managerial or executive capacity. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
Finally, with regard to the requirement that the ~titioner provide .evidence to show that it was doing business 
clllring the one year prior to filing the petition, the director concluded that the petitioner provide« a number of 
irrelevant docum~nts that did tJ.Ot address the issue at hand. While thC' director considered the petitioner's 
thr~ invoices, which indicate that the petitioner provided consulting services during the relevant one-year 
time period, the director determined that these invoices were not sufficient to establish that the petitioner was 
doing business on a regular, systematic, and continuous basis in accordance with the regulatory definition of 
the term "doing business.'' See 8 C.P.R. § 204.50)(2). 
On appeal, counsel for the petitioner disputes all three of til~ director's adverse conclu_sions, asserting that the 
petitioner provided sufficient evidence to. establish that (1) the beneficiary was employed abroad in a 
qualifying managerial or executive capacity, (2) the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity, and (3) the petitioner had been doing business for one full year 
prior to fiHng theFotrn I-140. 
III. Analysis 
The first two issues to be addressed in this proceeding require a review of the facts pertaining to the 
beneficiary former employment with the foreign entity and his proposed employment within 
the petitioning 
entity. Specifically, the AAO will review the record to determine whether the petitioner offered sufficient 
evidence to est:tbltsh tb:tt the beneficil!l)' was employed <tbroad and would be employed in the United States 
in a qualifying managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, tbe MO reviews the 
totality of the record, starting first with the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 
§ 204.5(j)(5). As the director stressed in the RFE and later in his denial of the petition, a detailed job 
description is crucial, as the duties themselves will reveal the true nature of the beneficiary's foreign lilld 
proposed employment Fedin Btos. Co., Ltd. v. Savq, 744 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 
F.2d 41 (2d. Cit. 1990). 
The beneficiary's job description can. then be considered in light of other relevant factors, i~clu.din~ (but not 
limited to) job descriptions and size of the beneficiary's subordinate staff, the nature of the bUsiness cohl:l\lcted 
. by the entity in question, and any other relevant facts that may contribute to a comprehensive understanding 
of the beneficiary's actual role within the organization of the petitioning U.S. employer. Among these factors, 
. a company's staffing is highly relevant and should be considered as a means of allowing USCIS to gauge the 
extent to which a given entity is able to relieve the beneficiary from having to carry out the company's daily 
operational tasks that are 
deemed as non-qualifying. In reviewing the relevance of the nurnber of employee!) a 
petitioner has, federal courts h(lve gener(llly agreed that users "may properly consider an organization's 
small size as one factor in assessing whether its operations are substantial enough to support a manager." 
Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cit. 2006) (citing with 
:tpproval Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 
41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D,D.C. Z003). 
Furthermore, it is appropriate for USCIS.to consider the size of the petitioning company in conjunction with 
other relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell oompany" that does not 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
conduct business in a re~ular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, . 
J5 (!).D.C. 2001). 
ln. the present matter, the record shows that the petitioner originally submitted a job description that purported 
to list the beneficiary's broad job responsibilities in his former anct' proposed positions. Despite the 
petcentage breakd6wns contained within the record pertaining to both of the beneficiary's positions, neither 
addressed the director's finding that thejob descriptions are substantively devoid of crucial information about 
the beneficiary's specific daily tasks. The petitioner used the same set of broad job responsibilities to 
ges~ribe botl) positioQ.S; faiJing to tailor the descriptions to each entity's linicjlie organizational structure at the 
tifue of the beneficiary's fotiner and proposed employment. As previously noted, the petitioner focused on the. 
beneficiary's discretionary authority regarding contractual and financial decisions and his overall 
responsibility to oversee the each entity's business operation, However, the specific tasks that the beneficiary 
c~rrieq out and would carry out in these respective positions remain unclear. 
The lack of clarity is compounded by the petitioner's repeated use of the term$ managerial lind executiv~ . . \ 
capacity interchangea,l;>ly, rather than as two separately defined terms, each With its own unique set of criteria. 
A beneficiary may not cla.im to be employed as a hybrid i •exe<.;~tlve/manageri• and rely on partial sections of 
the two statutory definitions. 
Furthermore, the petitioner used the same exact per<;¢Qtage breakdown to describe the beneficiary's position 
With both entities, despite the fact that the foreign entity's organizational composit~on was considerably more 
complex during the beneficiary's employment abroad than that of the petitioner at the time the form 1-140 
. w;ts filed. This inconsistency raises questions as to whether either job clescription is an accurate depiction of 
the beneficiary' s tas~ with either entity. That being said, a review of the beneficiary's percentage breakdown 
and the general inanager' s 
percentage breakdown as provided in the petitioner's original supportin~ 
statement, indicates that there is overlap in certain job responsibilities. Namely, the job description_s imiie:J.te 
that both the beneficiary and his subordinate would be responsible for directing budget and financial 
a,c~jvjties. It is unclear Why the beneficiary and his subordinate would have overlapping responsibilities given 
their different roles and placements within the petitioner's organizational hierarchy. Additionally, the Job 
description assigned to 
·the petitioner's international sales person is not consistent with the organizational 
· hierarchy that was depicted in the . original organizational chart provided in Support of the petition. 
Specifically, while the international sales person was assigned the job dQty of setting sales goals for sales 
personnel, the only imiividu~J who was depicted a$ the international sales person's subordinate was a sales 
assistaf1t who Was not assigned ap.y sales-related tasks. Similarly, while the property manager' s jdb 
description indicates that he would confer with administrative personnel, the organizational chart does not 
· Identify any administrative personnel. 
ll 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 
submit~ competent objective evidence pointing to where the truth lies. Mauer of Ho, 19 I&N Dec. 582, 591-
92 (iHA 1988). In the present matter, the various anomalies and inconsistencies with regard to the job · 
descriptions pertaining to the beneficiary and his subordinate staff With the U.S. entity strongly indicate that 
the inform:J.tion provided is not accurate, as it does not reflect the petitioner's staffing at the time the petition 
was filed. Merely providing job descriptions in an effort to conform to statutory requirements is not sufficient 
I 
(b)(6)
'· 
NON-PRECEDENT DECISION 
Page9 
without evidence. to support and corroborate the information being offered. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Coiilm. 1972)). 
fllrthermore, a review of the petitioner's quarterly wage report for the second quarter of 2012 indicates that 
the beneficiary was the petitioner's only full-time employee at the time the petition w~s filed. The wages paid 
to the petitioner's remaining employees are commensurate with those paid to part-time employees. Given 
that the petitioner's billing invoices indicate that it provided consulting services, and given the absence of 
evidence shoWing that the petitioner engaged in activities that deal in real estat(! investment, it is Qnclear who 
within the petitioner's limited organizational hierarchy was available to provide consulting services to the 
petitioner's clients at the time of filing. Based on the petitioner's failure to provide a detailed description of 
the specific tasks the beneficiary was assigned within the scope of the hierarchy that was in place at the time 
of filing it h~s not met its bQrden to establish that the beneficiary's assignment with the petitioning entity 
would consist primarily of tasks within. a qualifying managerial or executive capacity. 
Although the foreign entity's organizational chart indicates that it had a compara~ively more developed 
organizational hierarchy at the time of the benefici~'s employment, the petitioner provided a broad and 
unreliable job description for the benefici~ and provided no supporting evidence to corroborate the claims 
made in the organizational chart with regard to the foreign entity's staffing~ The only evidence of the foreign 
entity's s~fing was provi<led in the form of an un-translated payroll summary for April2013. This evidence 
does not corroborate the information provided in the organizational chart regarding the staffing of the foreign 
·entity during the relevant time period. 
Counsel's assertions on appeal do not provide any clarifying evidence to allow the AAO to gain any further 
insight into the benefici~'s positions with the foreign and U.S. employers. Therefore, in light of the 
numerous evidenti~ deficiencies discussed above, the AAO cannot conclude· that the beneficiary was 
employed abroad or that he would be employed by the U.S. entity in a qualifying managerial or executiVe 
' / 
capacity and based on these two grou"nds of ineligibility, the instant petition cartrtot be approved. 
Next, the AAO will address the regulatory requirement at 8 C.P.R. § 204.5(j)(3)(i)(D), which requires the 
· petitioner to establish that it has been 'doing business for at lea~t one year prior to filing the Form I-140. As 
indicated above, the regulation at 8 C.F.R. § 204.5(j)(2) defines the term "doing business" as the regul:g, 
systematic, a:nd continuous provision of goods and/or services by a flilil, corporation, or other entity and dOes not 
include the mere presence of an agent or office. 
The record shows that the petitioner filed the Form I-140 on June 12, 2012. It is self-described as a real est;lte 
investmentbU:siness. In support of this claim, the petitioner provided a business plan, photographs of the leased 
premises, bank and tax documents, and three invoices issued by the petitioner for real estate consulting services. 
Althot~gh tb.e petitioner provided addition_al documents in response to the RFE, norie inCluded -invoices for real 
estate services rendered by the petitioner dUring the relevant one-year time period from June 2011 to June 2012. 
Therefore, the director properly determined that the three invoices the petitioner provided, which accounted. for 
only three months out of a one-year time period, were not sufficient to meet the regulatory criteria that was 
described at 8 C.F.R. § 204.5(j)(3)(i)(D). While the petitioner had the opportunity to submit further evidence 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
on appeal to overcome this evidentiary deficiency, no additional evidence was submitted. The petitioner's 
entire appeal was based on counsel's assertion that the petitioner 
met the statutory and regulatory criteria that 
served as the basis for determining the petitioner's eligibility. However, without documentary evidence to 
support the claim, the assertions of counsel will not sa.tisfy the petitioner's burden of proof. The unsupported 
_assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n._2 (BlA 
1988}; Matter of Laureano, 19 I&N Dec. 1 (iHA 1983 k Matter of Ramirez·Sa_nch.ez, 17 l&N Dec. 503, 506 
(BiA 1980). As the petitioner provided no further evidence to establish that 
the petitioner was doing business 
for the entirety of the relevant time period and in the manner prescribed by regulation, the appeal will be 
di_smjsse<i for this additional reason. 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as art independent and 
alternate b~1s for the decision. ln visa petition proce¢<iings, 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 Otiende, 26 I&N Dec. 
127, 128 (BIA 2013 ). Here, that burden has not been met. 
ORDER: The appeal is dismissed~