dismissed EB-1C Case: Real Estate Project Management

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: DEC 1 9 2014 OFFICE: NEBRASKA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCT IONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
Se lso 8 C.F. . § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Nebraska Service Center Director denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner filed this Form I-140, Immigrant Petition for Alien Worker, 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 
petitioner, a California corporation, is engaged in real estate project management, and claims to be a 
subsidiary of the beneficiary's former employer in Russia. The petitioner seeks to 
employ the beneficiary in the position of Head of Concepts Development Division and Business 
Development. 
The director denied the petition on May 5, 2014, concluding that the petitioner failed to establish the 
beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to us for review. On appeal, counsel submits a brief disputing the director's 
adverse findings. 
I. THE LAW 
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. 
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Pursuant to 8 C.F.R. § 204.5(j)(3)(i)(D), the petitioner must establish that it has been doing business 
for at least one year. In turn, 8 C.F.R. § 204.5(j)(2) provides that "[d]oing business means the 
regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or 
other entity and does not include the mere presence of an agent or offic e. " 
Additionally, the regulations at 8 C.F.R. § 204.5(j)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of 
such a firm or corporation or other legal entity; or 
(B) H the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, 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 
year in a managerial or executive capacity; 
(C) The prospective employer 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 States employer has been doing business for at least 
one year. 
II. THE ISSUE ON APPEAL 
A. U.S. Employment in a Managerial or Executive Capacity 
The issue to be addressed is whether the petitioner established that it will employ the beneficiary in 
a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
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(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 term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. Section 101(a)(44)(C) of 
the Act. 
1. Facts 
The petitioner has offered the beneficiary the position of Head of Concepts Development Division 
and Business Development. In a letter dated June 25, 2014, the petitioner described the 
beneficiary's proposed duties as a functional manager who will "manage an essential Concepts 
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Development and Business Development function of [the petitioner]. " The petitioner provided 
further details of the proffered position as follows: 
Directing and overseeing development and delivery of the product - 55%: 
• Manages the multi-functional project teams providing Clients of [the petitioner] with 
professional project management services and specific project solutions by 
developing project programs, professional expertise, land use planning, architecture 
and landscape design, interior design, financial modeling, mechanical and civil 
engineering, sales and marketing planning support within designated phases of the 
projects; 
• Directs project teams formation and coordinates team structures; 
• Assigns tasks to the project team members and provides them with strategic guidance; 
• Coordinates and provides strategic guidance for work flow and processes; 
• Delineates responsibilities to the Project teams and its leaders; 
• Directs and approves project concepts, approach, budgets and schedules; 
• Manages project design; 
• Coordinates project-related processes and procedures for major real estate projects; 
• Reviews and approves major change recommendations by the project teams leaders; 
• Controls interim and final project deliverables; 
• Controls project teams accountability for following schedules and staying within the 
budget; 
• Supervises design and delivery of presentations for major accounts; 
• Manages all Client relationships, including contracts review and approval; 
• Coordinates project workshops (charettes) [sic] with Client's teams and professional 
teams ensuring delivery of comprehensive solutions to project needs. 
Directing and coordinating talent development in line with strategic 
development needs and project requirements - 25%: 
• Determines staffing needs and notifies executive management of [the petitioner] 
about new hires (employees, subcontractors, and third party service providers); 
• Directs and coordinates market research for potential hires; 
• Oversees and periodically assesses project teams performance; 
• Coordinates and manages analysis of the area of subcontractors' expertise based on 
her professional opinion with the purpose of determination of their capability to 
satisfy project requirements; 
• Hires and terminates senior and junior staff members; 
• Hires and terminates subcontractors; 
• Controls new principals and potential successors' identification process and provides 
them with strategic guidance. 
Leading and managing business development tasks and processes- 20% 
• Directs marketing intelligence and market research, both in-house and with external 
subcontractors; 
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• Manages all providers of marketing services to the Company (media and research 
agencies, independent providers, branding agencies,·design agencies, and etc.); 
• Coordinates brand architecture development for [the petitioner], supervises 
development of communication strategy, directs and approves all branding efforts; 
• Oversees design and maintenance of [the petitioner's] web site; 
• Directs development of company presentations; 
• Controls development of presentation and marketing material for [the petitioner] and 
coordinates and approves targeting and distribution; 
• Oversees new project development and implementation strategy for the project 
management services and concepts design development; 
• Develops and implements pricing policies; 
• Coordinates discounts and special promotional pricing for products or services; 
• Directs contract approval procedure, ensures protection of company interests; 
• Directs participation in competitive bids for new projects, approves marketing and 
presentation material for bids. 
On January 24, 2014, the director sent a request for evidence ("RFE"). In part, the director requested 
a detailed job description of the beneficiary's specific tasks on a normal business day including the 
percentage of time spent on each task. In addition, the director requested a list of employees 
including the names of all employees, employees' titles, a clear description of their job duties, 
educational level, and whether they worked part-time or full-time. The director also requested a 
description of the foreign entity's products and services, including the exact production and 
administrative tasks necessary to produce the product and services, and who performs those tasks, 
and tasks related to goal-setting, policy-making, and discretionary decision-making. Further, the 
director requested an organizational chart and Form W -2 and/or 1099 MISC for all employees 
employed by the petitioner in 2013. 
In response, the petitioner resubmitted the beneficiary's job duties for the proffered position. The 
petitioner also submitted the beneficiary's detailed work schedule The petitioner also submitted an 
organizational chart of the petitioner, and a more specific chart of the petitioner's "Intra-Company 
Concepts Development Division and Business Development 2014." In this chart, the petitioner is 
the Vice President and Head of Concepts Development Decision and Business Development who in 
turn supervises the following: Director, Business Development, IT Administrator (Russia office); 
Marketing (contract); Designer (contract); Director, Planning (1099); Junior Architect 
(1099); two Senior Project Managers; two Project Managers; Senior Project Manager ( ) 
and manager. The organizational chart also lists six project teams that work with the petitioner. As 
noted in the RFE response, the petitioner stated that the beneficiary "supervises project teams of 
major U.S. architectural companies retained by [the petitioner] for the clients of [the petitioner]." 
The petitioner also stated that it does "not pay salary directly to the project team contractors" but 
instead "bills clients for the work done and transfers money to the architectural firms whose project 
teams performed the work." The petitioner also provided Forms W -2 and 1099 for individuals 
employed by the petitioner in 2013. 
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The director denied the petition concluding the petitioner failed to establish that the beneficiary 
would be employed by the petitioner in a qualifying managerial or executive capacity. In denying 
th� petition, the director determined that the petitioner provided an overly broad job description that 
failed to convey an understanding of what the beneficiary will primarily do on a day-to-day basis. 
2. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of 
the record, starting first with the petitioner's description of the beneficiary's proposed job duties. See 
8 C.F.R. § 204.50)(5). A detailed job description is crucial, as the duties themselves will reveal the 
true nature of the beneficiary's foreign and proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The AAO will then 
consider this information in light of other relevant factors, including job descriptions of the 
beneficiary's subordinate employees, the nature of the business that is conducted, the petitioner's 
subordinate staff, and any other facts contributing to a comprehensive understanding of the 
beneficiary's actual role within the petitioning entity. While an entity with a limited support staff 
will not be precluded from the immigration benefit sought herein, it is subject to the same burden of 
proof that applies to a larger entity with a moderate or large subordinate staff. In other words, 
regardless of an entity's size or support staff, the petitioning entity must be able to provide sufficient 
evidence showing that it has the capability of maintaining its daily operations such that the 
beneficiary would be relieved from having to primarily perform the operational tasks. 
In the present matter, upon review of the totality of the record, the evidence does not support a 
finding that the beneficiary would allocate his time primarily to the performance of tasks that are 
within a qualifying managerial or executive capacity. 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's proposed 
duties that fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the 
petitioner stated vague duties such as the beneficiary will "direct project teams formation and 
coordinates team structures;" "coordinates and provides strategic guidance for work flow and 
processes;" "delineates responsibilities to the Project teams and its leaders;" "coordinates project­
related processes and procedures for major real estate projects;" and, "oversees new project 
development and implementation strategy for the project management services and concepts design 
development. The petitioner did not, however, define the petitioner's vision, mission, goals and 
policies, or clarify the strategy plan and the financial and operations responsibilities of the 
organization. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily 
job duties. The petitioner has failed to provide any detail or explanation of the beneficiary's 
activities in the course of his daily routine. The actual duties themselves will reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The petitioner's 
descriptions of the beneficiary's position do not identify the actual duties to be performed, such that 
they could be classified as managerial or executive in nature. 
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The job description also includes several non-qualifying duties such as the beneficiary will "manage 
project design;" "coordinates project-related processes and procedures for major real estate projects;" 
"controls interim and final project deliverables;" "manages all Client relationships, including 
contracts review and approval;" "directs and coordinates market research for potential hires;" 
"manages all providers of marketing services to the Company (media and research agencies, 
independent providers, branding agencies, design agencies, and etc.); " "develops and implements 
pricing policies;" and, "directs participation in competitive bids for new projects, approves 
marketing and presentation material for bids." It appears that the beneficiary will be in charge of 
market research, marketing, negotiations and financial operations rather than directing such activities 
through subordinate employees. An employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Intn 'I., 19 I&N Dec. at 604. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary will perform are only incidental to the position in question. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm'r 1988). 
The petitioner states that the beneficiary is a function manager since she will manage the essential 
function of the Concepts Development and Business Development for the petitioner. The term 
"function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
is managing an essential function, the petitioner must furnish a written job offer that clearly 
describes the duties to be performed in managing the essential function, i.e. identify the function 
with specificity, articulate the essential nature of the function, and· establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.P.R. § 
214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the 
function. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 
593, 604 (Comrn'r 1988)). In this matter, the petitioner has not provided evidence that the 
beneficiary will manage an essential function for the petitioner. 
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In addition, the information regarding the staff of the petitioner is not consistent. The petitioner 
submitted an organizational chart titled, "Intra-Company Concepts Development Division and 
Business Development 2014." In this chart, the petitioner is the Vice President and Head of 
Concepts Development Decision and Business Development who in turn supervises the following: 
Director, Business Development, IT Administrator (Russia office); Marketing (contract); Designer 
(contract); Director, Planning (1099); Junior Architect (1099); two Senior Project 
Managers; two Project Managers; Senior Project Manager ( ) and manager. The 
organizational chart also lists six project teams that work with the petitioner. However, upon review 
of the Forms W -2 and Forms 1099 for 2013, several of the employees listed on the organizational 
chart do not appear to be employees or contract workers for the petitioner. For example, the 
petitioner submitted five Forms 1099 for 2013; however, the organizational chart of the Concepts 
Development Division and Business Development department indicated 11 contract employees or 
contracted companies working with the petitioner. In addition, all five Forms 1099 for 2013 were 
for amounts under $7,000. Thus, it does not appear that any of the contract workers were full-time 
positions. In addition, the organizational chart indicated that some of the employees are based on 
Russia but the petitioner did not provide any evidence to establish that these employees from the 
parent company are in fact working for the petitioner. 
In addition, the petitioner submitted two Forms W-2 for 2013 for the beneficiary and 
who is the Regional Director, East Coast and not a subordinate of the beneficiary. Thus, it 
is not clear which employees, if any, are the beneficiary's subordinates who would relieve her from 
performing the tasks necessary to provide a service. It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Although the petitioner states that the petitioner has contractual employees, the petitioner has neither 
presented evidence to document the existence of these employees nor identified the services these 
individuals provide. Additionally, the petitioner has not explained how the services of the contracted 
employees obviate the need for the beneficiary to primarily conduct the petitioner's business. 
Without documentary evidence to support its statements, the petitioner does not meet its burden of 
proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998). 
In the instant matter, the job description submitted by the petitioner provides little insight into the 
true nature of the tasks the beneficiary performed abroad. While the petitioner has provided a 
breakdown of the percentage of time the beneficiary spent on her duties, the petitioner has not 
articulated whether each duty was managerial or executive. 
On appeal, the petitioner contends that the beneficiary has already met regulatory and evidentiary 
criteria with U.S. Citizenship and Immigration Services ("USCIS") previous granted L-1A 
classification to the beneficiary. It must be noted that many I-140 immigrant petitions are denied 
after USCIS approves prior nonimmigrant I-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 
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1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the 
consequences of an approved petition, there is a significant difference between a nonimmigrant 
L-lA visa classification, which allows an alien to enter the United States temporarily, and an 
immigrant E-13 visa petition, which permits an alien to apply for permanent residence in the United 
States and, if granted, ultimately apply for naturalization as a United States citizen. Cf §§ 204 and 
214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427. Because 
USCIS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, 
some nonimmigrant L-lA petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 29-30; see also 8 C.P.R. § 214.2(1)(14)(i)(requiring no supporting documentation 
to file a petition to extend an L-lA petition's validity). 
If the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute 
material and gross error on the part of the director. We are not required to approve applications or 
petitions where eligibility 'has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm'r 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged 
errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), 
cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the beneficiary, we would not be bound to follow the contradictory decision of 
a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
III. CONCLUSION 
The petition will be denied and the appeal dismissed 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner 
has not sustained that burden. 
ORDER: The appeal is dismissed.