dismissed EB-1C Case: Real Estate Management

· , 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLIC COpy 
DATE: 
JUN 01 2011 
OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeiand Security 
U. S. Citizenship and Immigration SelVices 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: 
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. § I I 53(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-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 limited liability company established in the State of Delaware. It seeks to employ the 
beneficiary as its executive director. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203 (b)(1 )(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition based on the conclusion that the petitioner failed to respond to a previously 
issued notice of intent to deny (NOID) and thus failed to establish that it meets four eligibility requirements. 
Namely, the director concluded that the petitioner failed to establish that: 1) the beneficiary was employed 
abroad in a qualifying managerial or executive capacity; 2) a qualifying relationship exists between the 
petitioning entity and the foreign entity where the beneficiary had been previously employed; 3) the 
beneficiary would be employed by the U.S. petitioner in a qualifying managerial or executive capacity; or 
4) the petitioner has the ability to pay the beneficiary'S proffered wage. 
On appeal, counsel disputes the director's findings and provides information and documentation addressing 
the issues discussed earlier in the NOID. 
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)(1)(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. 
Page 3 
The first two issues the AAO will address in this proceeding call for an analysis of the beneficiary'S job 
duties. Specifically, the AAO will examine the record to detennine whether the petitioner submitted 
sufficient evidence to establish that the beneficiary was employed abroad and would be employed in the 
United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 u.s.c. § 1 10 1 (a)(44)(A), provides: 
The tenn "managerial capacity" means an assignment within an organization III which the 
employee primarily--
(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. § 1101(a)(44)(B), provides: 
The tenn "executive capacity" means an assignment within an organization III 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-making; 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 Fonn 1-140, the petitioner submitted a letter dated May 10,2009 which included a list of 
eight general job responsibilities. As the director restated this infonnation in the denial, the AAO need not 
repeat the same infonnation in the current decision. 
Page 4 
With regard to the beneficiary's employment abroad, the petitioner stated only that the beneficiary occupied a 
senior position as the executive director and was responsible for supervising and operating the investment and 
the real estate management departments. No further information was provided regarding the beneficiary's 
duties or responsibilities with the foreign entity. The petitioner has not established that the beneficiary was 
employed abroad and would be employed in the United States in a qualifying managerial or executive 
capacity. 
The next issue the AAO will address in this proceeding is the petitioner's qualifying relationship with the 
beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary'S foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with 
a foreign office) or that the two entities are related as a "parent and subsidiary" or as "affiliates." See 
generally § 203(b)(1)(C) of the Act, 8 U.S.C. § 1153(b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In the May 10, 2009 support letter, the petitioner indicated that it has a qualifying relationship with the 
beneficiary's foreign employer by virtue of having the same majority shareholder as the foreign entity. More 
specifically, the petitioner indicated that _ owns 50% of the foreign entity who is also the U.S. 
entity's sole member owning 100% ofthe shares. 
In support of this claim, the petitioner provided a foreign document and its certified English translation 
indicating that Ms._owns 50% of the foreign entity. Although the petitioner provided its operating 
agreement naming Ms. as its sole member, it is noted that the agreement is not signed either by a 
party representing the petitioner or by Ms. herself. As such, the evidentiary value of the operating 
Page 5 
agreement is greatly diminished thus establishing a need for further evidence in order to establish the owner 
of the petitioning entity. The petitioner has not established that a qualifying relationship exists between the 
petitioner and the foreign entity. 
Lastly, the AAO will address the petitioner's ability to pay the beneficiary's proffered wage. 
8 C.F.R. § 204.5(g)(2) states the following, in pertinent part: 
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 either in the form of copies of annual reports, federal 
tax returns, or audited financial statements. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this 
evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. 
Here, the record shows that the petitioner employed the beneficiary since prior to the filing of the Form 1-140. 
Although the petitioner provided evidence showing that the beneficiary was paid the proffered wage prior to the 
filing of the Form 1-140, such evidence was not sufficient for the purpose of establishing the petitioner's ability to 
pay at the time of filing the petition and continuing until the beneficiary obtains lawful permanent residence. The 
regulations clearly require that the petitioner establish its ability as of the date the Form 1-140 is filed; its burden 
is not discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 
F.2d 1305, 1308 (9th Cir. 1984). 
In an effort to address the beneficiary's qualifying employment abroad and with the U.S. entity, the 
petitioner's qualifying relationship with the beneficiary's employer abroad, and the petitioner's ability to pay 
the beneficiary's proffered wage, the director issued a notice of intent to deny (NOID) the petition on 
September 18, 2009, instructing the petitioner to address the evidentiary deficiencies concerning these four 
key elements dealing with the petitioner's eligibility. With regard to the beneficiary's qualifying employment, 
the director instructed the petitioner to provide a list of the job duties the beneficiary performed during his 
employment abroad and those he would perform in his proposed position as well as a percentage breakdown 
indicating the amount of time that was and would be allocated to the job duties included in the petitioner's list. 
Regarding the issue of a qualifying relationship, the director instructed the petitioner to provide further 
evidence establishing that the beneficiary's U.S. and foreign employers share common ownership and control. 
Lastly, the director instructed the petitioner to provide additional documentation establishing that it had the 
ability to pay as of the filing date ofthe instant petition and going forward to the present date. 
The record shows that the petitioner did not respond with the requested information. Instead, counsel for the 
petitioner provided a letter dated October 12, 2009 requesting an additional 42 days in which to provide any 
requested infonnation that is available within the United States and an additional 84 days to provide evidence 
that must be obtained outside of the United States. 
Page 6 
In a ,decision dated October 20, 2009 the director denied the petition. With regard to the beneficiary's 
proposed employment, the director noted that the beneficiary is the one who is primarily responsible for 
carrying out the petitioner's non-qualifying operational tasks including conducting market research, acquiring 
new investors, negotiating pricing, and researching new potential business ventures. The director also found 
that the petitioner failed to provide evidence to establish that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity or that it had the ability to pay the beneficiary's proffered wage as 
of the date the petition was filed. With regard to counsel's prior request for an extension of time in which to 
provide the evidence that was requested in the NOm, the director referred to 8 C.F.R. § 103.2(b)(8)(iv), 
which expressly prohibits U.S. Citizenship and Immigration Services (USCIS) from extending the 30-day 
response period that is granted with the issuance of a NOm. 
On appeal, counsel addresses the deficiencies previously cited in the NOID and attempts to supplement the 
record with additional evidence and information in an effort to overcome the four grounds that served as the 
bases for denial. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Accordingly, the petitioner's 
failure to respond to the director's Nom resulted in a denial of the petition. 
Where, as here, a petitioner has been put on notice of deficiencies in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter ojSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ojObaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted consideration of supplemental evidence, such evidence should have 
been submitted in response to the NOm. Id. Under the circumstances, the AAO need not and does not 
consider the sufficiency of the evidence submitted on appeal. Consequently, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.