dismissed EB-1C Case: Real Estate Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-G-I-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 22,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a real estate management company, seeks to permanently employ the Beneficiary as 
its chief executive officer (CEO) under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(1)(C), 
8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner will employ the Beneficiary in the United States in a managerial capacity. 
On appeal, the Petitioner asserts that the Director erred by imposing improper requirements and 
disregarding evidence the Beneficiary will be employed in an executive capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa 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 atliliate. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. This 
classification does not require a labor certification. 
The petition 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. § 204.5G)(3). 
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Matter ofG-G-1- , LLC 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in the 
United States in a managerial capacity. On appeal, the Petitioner states that it seeks to employ the 
Beneficiary in an executive capacity, and that the Director erred by considering the offered position 
under the wrong statutory requirements. Because the Petitioner states that the Director erred by 
applying the criteria for a managerial capacity , we need not review those requirements here. For the 
reasons discussed below, we find that the Petitioner has not established that it will employ the 
Beneficiary in an executive capacity. 
The Act defines the term "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function 
thereof; 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 
IOI(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B) . 
If staffing levels are a factor in determining whether an individual is acting in a managerial or 
executive capacity , U.S. Citizenship and Immigration Services (USCIS) must 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) ofthe Act. 
A. Place of Business 
One basis for the Director ' s decision was the finding that the Petitioner had not identified a place of 
business. Counsel states that this finding was in error. We agree and withdraw that particular 
finding. 
On Parts 1 and 4 of the Form I-140 petition, the Petitioner did not provide addresses for itself or for 
the Beneficiary. Instead, the form showed counsel's address in Texas. Part 6 of the form 
asked for the "[a]ddress where the [beneficiary] will work if different from address in Part 1." The 
Petitioner left this line blank, thereby implying that the Beneficiary 's physical work location would 
be in the office of the Petitioner 's attorney of record. 
Various tax, lease, and other documents in the initial submission showed several addresses for the 
petitioning company in different cities in Texas. The Petitioner 's business plan and introductory 
letter indicated that the company's headquarters are at a residential address in Texas, but 
in the same letter, the Petitioner stated that the Beneficiary "will work at our Texas oftice." 
The Director cited "[t]he lack of an actual business location" in the denial notice, but in response to a 
request for evidence (RFE), the Petitioner stated "the Beneficiary will be working at the office 
headquarters " in Texas. The Petitioner repeats this assertion on appeal. Because the 
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Matter ofG-G-1-, LLC 
Petitioner specified a work location before the denial of the petition, we agree with the Petitioner 
that this finding was in error. Other issues remain, however, which have not been resolved. 
B. Other Businesses 
The Director noted that the Beneficiary continues to run other businesses in addition to the 
petitioning company. The Director concluded that these parallel activities would reduce the time 
that the Beneficiary is able to devote to the petitioning company, despite the Petitioner's assertion 
that it will employ the Beneficiary full-time. 
The Beneficiary and his spouse own a cleaning services company, and much of the record pertains to 
that business rather than to the petitioning real estate management company. For example, the 
record contains documentation relating to the cleaning company's payroll and board of directors. 
The cleaning company is not the petitioning employer in this proceeding. The cleaning company 
and the Petitioner are two separate legal entities, and neither has authority over the other. Also, the 
cleaning service filed its articles of incorporation in October 2014, only nine months before the 
petition's July 2015 filing date, and it was unstaffed until March 2015. A qualifying U.S. employer 
must have been doing business for at least one year prior to the filing of the petition. 8 C.F.R. 
§ 204.5G)(3)(i)(D). The Beneficiary's involvement with the newly incorporated cleaning company 
cannot establish eligibility in the current proceeding. 
The Beneficiary also continues to oversee the management of a taxi service and auto repair shop in 
Mexico. The foreign company does not provide support services to the petitioning U.S. employer; 
the only demonstrated connection between the two entities is their shared ownership by the 
Beneficiary and his spouse. Therefore, while it is not an inherently disqualifying circumstance, the 
Beneficiary's continued authority over a foreign company doing business abroad cannot contribute 
toward a finding that the Beneficiary will be an executive of a qualifying U.S. employer. 
On appeal, the Petitioner asserts that there is no requirement that the Beneficiary must work 
exclusively for the petitioning employer, rather than for other related entities. This assertion is 
correct, but the Petitioner initially made the affirmative claim that the Beneficiary would work 40 
hours per week during standard business hours as the Petitioner's CEO, rather than as the CEO of a 
multinational organization that includes the Petitioner, the cleaning service, and the foreign taxi 
company. The Beneficiary's other companies are the Petitioner's affiliates rather than its 
subsidiaries, and the Beneficiary's activities running the petitioning company do not directly affect 
the operation of the other companies. Therefore, if the Beneficiary will continue to have an active 
role in the management of the other companies, he must either do so outside of normal business 
hours or at the expense of the time that the Petitioner had originally stated the Beneficiary would 
devote to the petitioning company. 
The Petitioner's assertions about the Beneficiary's obligations to his various companies have been 
either inconsistent or incomplete, and the Petitioner has not resolved this matter on appeal. 
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Matter ofG-G-1-, LLC 
C. Duties 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
When examining the executive capacity of a given beneficiary, we will look first to the petitioner's 
description of the job duties. The Petitioner's description of the job duties must clearly describe the 
duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 204.5(j)(5). 
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. Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and a beneficiary 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" the enterprise as an owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Section 1 0 1 (a)( 44 )(B) of the Act. 
The Petitioner asserts that it seeks to employ the Beneficiary as an executive, and that the Director 
erred by applying the statutory definition of managerial capacity rather than executive capacity. We 
find that the Director's core objections apply to a claim of executive capacity as well as to a claim of 
managerial capacity. Below, we will show that the Petitioner had not established that it will employ 
the Beneficiary in an executive capacity. 
In a job offer letter, the Petitioner listed the Beneficiary's duties: 
• Direct and coordinate the company's financial and budget activities to fund 
operations, maximize investments, and increase efficiency. 
• Confer with staff members to discuss issues, coordinate issues and resolve 
problems. 
• Analyze operations to evaluate performance of the company or its staff in meeting 
objectives, and to determine areas of potential cost reduction, program 
improvement, and policy change. 
• Direct, plan, and implement policies, objectives, and/or activities of the company 
to ensure continuing operations, to maximize returns on investments to increase 
productivity. 
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Matter ofG-G-1-, LLC 
• Prepare budgets for approval, including those for funding and implementation of 
programs. 
• Direct and coordinate activities of the business and its departments concerned 
with pricing, leases, or property sales. 
• Negotiate and approve contracts and agreements with contractors, suppliers, 
federal or state agencies, and other organizational entities. 
• Review reports submitted by staff members to recommend approval and to 
suggest changes. 
• Appoint department heads or managers, and assign responsibilities to them. 
• Direct human resources activities, including the approval of human resource plans 
and activities, the selection of directors or other high-level staff, and the 
establishment or organization of major departments. 
The above list consists primarily of general responsibilities; only one of the items refers specifically 
to real estate. Otherwise, the list has the appearance of a template rather than a specific description 
of this particular job. The Petitioner stated that the Beneficiary would "[p ]repare budgets for 
approval," but did not say who would approve them. The description also implies an organizational 
complexity significantly beyond the stated size of the petitioning company. 
In a separate letter, the Petitioner provided a four-paragraph job description which repeated some of 
the above elements, and also indicated that the Beneficiary '"will determine the investments to be 
made in different real estate properties," and ·'will locate, select and negotiate commercial and 
residential real estate opportunities." The narrative job description indicated that the Beneficiary: 
will be the top executive responsible for establishing and implementing company 
goals, objectives, and policies. Similarly, he will be accountable for planning, 
organizing, directing, and controlling the entire company under the general 
supervision of the Board of Directors . . . . He shall exercise the full authority 
delegated by the Board of Directors, and will report the progress and status of the 
company in attaining goals and objectives. 
In the RFE, the Director asked for more details about the Beneficiary's intended duties with the 
Petitioner. In response, the Petitioner provided a new list of responsibilities, with the percentage of 
time' the Beneficiary would dedicate to each: 
• Determine the investments to be made in different real estate properties, and set 
prices and credit terms, based on forecasts and customer demand. (7%) 
• Locate, select, and negotiate commercial and residential real estate opportunities, 
representing [the Petitioner] in purchase and property management negotiations. 
(6%) 
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We note that the percentages of time add up to 99 percent. 
Matter ofG-G-1-, LLC 
• Coordinate the preparation of statements, reports, and documents to demonstrate 
goal achievement and plans. (5%) 
• Perform full reviews and track all potential property investments so as to make 
decisions to change their courses, if needed. (9%) 
• Ensure the administrative, logistical, and financial areas are adequately 
representing the company before applicable private and local governmental 
entities. (5%) 
• Review financial statements, reports, and performance data to measure 
productivity and goal achievement, and to determine areas needing changes or 
improvement. (9%) 
• Review company news, statements, documents, reports, and other external data or 
information, to anticipate trends, directions, opportunities, and courses of action. 
(10%) 
• Confer with managers and supervisors to review policies, goals, objectives, and 
procedures. ( 5%) 
• Responsible for performing full reviews of company activities, evaluating 
performance, approving expenditures, enforcing rules, changing individual 
procedures, and making decision rulings relating to management procedures. 
(7%) 
• Responsible for overseeing the development of company activities conducted, and 
ensuring all administrative and financial projects are efficiently and effectively 
completed. (4%) 
• Conduct a weekly evaluation meeting to discuss matters of general interest of the 
company. (6%) 
• Planning, organizing, directing, and controlling the entire company to ensure 
maximum profitability, as well as on-going growth and development. (8%) 
• Responsible for aiding the company in reaching profitability goals, continuity, 
and customer satisfaction goals. (5%) 
• Review and evaluate the company and its performance within each department 
and section ofthe company. (7%) 
• Ensure continuing operations, maximize return on investments, and increase 
productivity. (6%) 
The Director concluded that the Beneficiary's primary task is locating and purchasing real estate, 
which is not a managerial or executive function. 
On appeal, the Petitioner does not address the above finding. Instead, the Petitioner repeats the job 
description from the RFE response. 
Like the earlier job descriptions, the version submitted in response to the RFE and again on appeal 
lacks detail and includes only a few references to the Petitioner's specific business activity in real 
estate. Some items are redundant. For example, to "[e]nsure continuing operations [and] maximize 
return on investments" appears to say the same thing as "aiding the company in reaching 
Matter ofG-G-1-, LLC 
profitability goals [and] continuity." Also, the first two items on the list both appear to describe 
selecting properties and negotiating for their purchase. Reviews and evaluations constitute a 
substantial proportion ofthe listed responsibilities. 
The description does not always indicate who will perform the activities that the Petitioner states the 
Beneficiary will oversee. The Petitioner stated that the Beneficiary would "[ c ]oordinate the 
preparation of statements, reports, and documents," but did not specify who would prepare the 
statements, reports, and documents. Another item refers to "the development of company activities" 
and "administrative and financial projects," without providing information about those activities or 
revealing who would perform them. 
The Petitioner has shown that the Beneficiary meets the elements relating to discretionary authority 
and control over the company, but the Petitioner has not shown that the Beneficiary receives general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization. 
Early versions of the Beneficiary's job description repeatedly mentioned a board of directors. The 
Petitioner stated that the Beneficiary reported to that board, and that the board had delegated 
authority to the Beneficiary. Subsequently, the Petitioner has not submitted any other information 
about the board of directors, identified its members, or even submitted direct, first-hand evidence 
that the petitioning entity has a board of directors. 
The board of directors was integral to the initial job descriptions. If the Petitioner has no board of 
directors, then whoever wrote the original job descriptions lacked knowledge of the petitioning 
organization, the Beneficiary's responsibilities, or both. The subsequent submission of a new job 
description that removed all references to the board of directors does not explain why the Petitioner 
initially claimed to have a board of directors. Instead, the conflicting job descriptions raise questions 
as to how accurate either of them could be. The Petitioner must resolve this inconsistency in the 
record with independent, objective evidence pointing to where the truth lies, but the Petitioner has 
not done so. See Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a 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. 
The Beneficiary's authority over a business does not necessarily establish eligibility for 
classification as an intracompany transferee in an executive capacity within the meaning of section 
101(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" of an executive or managerial nature. Sections 101(A)(44)(A) and (B) ofthe 
Act. While the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
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Matter ofG-G-1-. LLC 
possesses the requisite level of authority with respect to discretionary decision-making, the position 
description alone is insufficient to establish that his actual duties, as of the date of filing, would be 
primarily executive in nature. 
We also consider the proposed positiOn in light of the nature of the Petitioner's business , its 
organizational structure , and the availability of staff to carry out the Petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a Petitioner has, USCIS "may properly consider an organization ' s small size as one factor 
in assessing whether its operations are substantial enough to support a manager." 2 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 company" that 
does not conduct business in a regular and continuous manner. See. e.g., Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
On Form 1-140, under "Current Number of U.S. Employees," the Petitioner stated "7." A copy of 
the Petitioner's income tax return indicated that the Petitioner did not pay any salaries in 2014 (the 
last full tax year before the filing ofthe petition in July 2015). 
The Petitioner's business plan names an "operation manager and maintenance man in [the] 
Area," and another "in the Area," plus a "certified accountant" 
and a financial manager who would be "in charge[] of customer service and administrative 
functions." An accompanying organizational chart shows that each of the two operation managers 
would supervise an electrician, a plumber , an air conditioning repairer, and a "handyman ." The 
business plan refers to an unspecified number of real estate agents, but the organizational chart does 
not show any agents. 
Receipts in the record show irregular payments, marked "salary," to one in May 2015: 
$600 on May 2; $600 on May 6; and $500 on May 29. A handwritten note from the Beneficiary 
states that he paid Mr. "$500 for an electrical permit on the day of May 15th 2015." It is 
not clear whether this is the same $500 paid to Mr. · on May 29th. 
The Petitioner initially submitted payroll documentation showing that the Beneficiary's cleaning 
services company had seven workers (some employees, other contractors) in early June 2015. It is 
not clear whether these workers were the seven employees claimed on Form l-140, but, as explained 
earlier, the Petitioner and the cleaning service are two different companies, and the cleaning 
company is neither the petitioner nor a qualifying U.S. employer that has been doing business for at 
least a year at the time of filing. 
2 Family, Inc. v. U.S Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d at 42; Q Data 
Consulting. Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D .C. 2003). 
Matter ofG-G-1-, LLC 
Among the seven workers at the cleaning company are the individuals whom the Petitioner had 
identified as its operation managers and financial manager. If these individuals, like the Beneficiary, 
are dividing their time between the two companies, then this split limits their availability to work for 
the Petitioner and relieve the Beneficiary from having to perform non-executive tasks. 
In the RFE, the Director asked for IRS Forms W-2, Wage and Tax Statements, for all of the 
Beneficiary's subordinate employees at the petitioning company. In response, the Petitioner 
submitted copies of 2015 IRS Forms W-2 for employees of the cleaning service, and 2015 IRS 
Forms 1099-MISC, Miscellaneous Income, for six contractors - five individuals and one 
bookkeeping service. 
In the denial notice, the Director cited the lack of employees as a ground for denial of the petition. 
On appeal, the Petitioner asserts that it can permissibly delegate some functions to contractors 
instead of employees without diminishing the Beneficiary's executive authority. The Petitioner is 
correct in this regard. Nevertheless, it is significant that the amounts on the IRS Forms 1 099-MISC 
are not consistent with the level of staffing described in the organizational chart. Only one 
individual earned an amount consistent with a year's full-time employment; specifically, the 
individual identified as the real estate manager for Houston earned $17,500. The other four 
individuals each received between $1700 and $4500. Therefore, the Petitioner has not established 
that it was fully staffed with full-time workers at the time of filing. The Petitioner has not shown 
that these contractors filled the positions described on the organizational chart. Some of the high­
ranking workers named on the organizational chart are also employees of the Beneficiary's cleaning 
services company, as shown by IRS Forms W-2, indicating that they, like the Beneficiary, divide 
their time between the two companies. The Beneficiary's job description presumes the existence of 
a subordinate staff of a certain minimum size to perform lower-level company functions. The record 
does not show that the Petitioner had such a staff when it filed the petition. 
The Petitioner has not established that it will employ the Beneficiary in an executive capacity. 
III. ABILITY TO PAY 
Beyond the Director's decision, the record does not establish the Petitioner's ability to pay the 
Beneficiary's salary from the filing date until the Beneficiary obtains lawful permanent residence. 
See 8 C.F.R. § 204.5(g)(2). 
In the denial notice, the Director found that "it currently appears unlikely the petitioner would have 
the ability to pay the beneficiary plus another employee." The Director based this conclusion on the 
Petitioner's 2014 Form 1120, U.S. Corporation Income Tax Return, which showed a net loss for the 
year and $66,250 in net current assets, which would cover the Beneficiary's $60,000 salary but not 
leave enough to pay any other full-time workers. 
The Petitioner's 2015 tax return, submitted in response to the RFE, shows even less money available 
to the Petitioner during the year it filed the petition. The Petitioner again reported a net loss, and its 
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Matter ofG-G-1-, LLC 
net current assets totaled only $33,217, substantially below the Beneficiary's $60,000 salary. 
Therefore, the year the Petitioner filed the Form 1-140 petition, it could not pay the Beneficiary's full 
salary either from its net income or from its net current assets. 
IV. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in an executive capacity or that 
it has the ability to pay the Beneficiary's proffered salary. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-G-1-, LLC, ID# 395342 (AAO June 22, 2017) 
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