remanded EB-1C Case: Real Estate

MATTER OF H-USA, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 4, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a real estate consultancy and sales company, seeks to permanently employ the 
Beneficiary as its commercial director under the immigrant classification of a multinational 
executive or manager; See Immigration and Nationality Act (the Act) § 203(b)(1)(C), 8 U.S.C. 
§ 1153(b)(l)(C). The Director, Texas Service Center, denied the petition. The matter is now before 
us on appeal. The decision will be withdrawn and the matter will be remanded for a new decision. 
I. 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 alien:s 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 the alien 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. 
A United States employer may file Form I-140 to classify a beneficiary under section 203(b)(l)(C) of 
the Act as a multinational executive or manager. 
II. ISSUE ON APPEAL- ABILITY TO PAY 
The Director's only stated ground for denial of the petition was that the Petitioner did not establish its 
ability to pay the Beneficiary's proffered wage. The regulation at 8 C.F.R. § 204.5(g)(2) states: 
Matter of H-USA, Inc. 
Ability of prospective employer to pay wage. Any petltwn 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 a case where 
the prospective United States employer employs ·1 00 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. In appropriate cases, 
additional evidence, such as profit/loss statements, bank account records, or personnel 
records, may be submitted by the petitioner or requested by the Service. 
The Petitioner filed Form I-140 on July 15, 2013. On that form, the Petitioner stated that it would 
pay the Beneficiary $55,000 per year, and that it had one employee in the United States. Other 
materials in the record show that the Beneficiary is that employee, having last entered the United 
States on May 21, 2013. 
The Director denied the petition on May 8, 2015, concluding that the Petitioner had not established 
its ability to pay the Beneficiary's proffered wage from the filing date onward. The Director noted 
that the Petitioner's 2012 income tax return showed negative net income and disclosed no 
information about the company's assets. The Director acknowledged that the Petitioner had 
submitted copies of bank statements, but found that these documents "cannot show the sustainable 
ability to pay a proffered wage." 
On appeal, the Petitioner submits a brief disputing the denial and addressing the director's adverse 
findings. The Petitioner also submits additional financial documentation as evidence of its ability to 
pay the proffered wage, including audited financial statements for 2013 and 2014. 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). Upon reviewing the entire record of proceeding as supplemented by the petitioner's 
submission on appeal, we conclude that the record now contains sufficient evidence to overcome the 
basis for the director's decision. · 
Specifically, the totality of the evidence now establishes that the Petitioner has the ability to pay the 
proffered wage from the priority date. Nevertheless, review of the record reveals another potential 
ground for denial, which prevents us from approving the petition outright. 
III. BEYOND THE DIRECTOR'S DECISION 
Because we review the record on a de novo basis, we may identify additional grounds for denial 
beyond what the Service Center identified in the initial decision. See Siddiqui v. Holder, 670 F.3d 
736, 741 (7th Cir. 2012); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS, 891 F.2d 
997, 1002 n. 9 (2d Cir. 1989). In this instance, review of the record reveals information which may 
2 
(b)(6)
Matter of H-USA , Inc. 
undermine the Petitioner's claim that the Beneficiary's position meets the statutory definitions of a 
managerial and/or executive capacity at section 101(a)(44) of the Act, 8 U.S.C. § 1101(a)(44). 
On the petition, the Petitioner claimed to employ one employee. The record reflects that the 
Beneficiary was the Petitioner's sole employee at the time of filing. The Petitioner has asserted that the 
Beneficiary fills a managerial role by directing the activities of personnel at 
vice president of sales at stated in a letter dated June 
17,2013: 
[The Petitioner] has been working with 
two years .... 
as an independent contractor for the last 
[The Petitioner] has total access and direct contact to associates, secretaries 
and brokers. has a team of employees helping [the Petitioner] to prepare real 
-estate events and to prospect potential Brazilians [sic] clients to network. 
stated that the 
and 
team working with the Petitioner includes "two Brazilian Realtors: 
both work at as Sales Associate Brokers." 
Subsequently, in response to the RFE, the Petitioner submitted an organizational chart, identifying 
various employees as "Independent Contractor[ s ]" working for the Petitioner and reporting to 
the Beneficiary. This contrasts with statement that it is the Petitioner who ''has been 
working with as an independent contractor." The Petitioner's fmancial documents, including 
tax returns and audited statements, do not show any payments to contractors. documented 
payments to the Petitioner indicate that the Petitioner is contractor, rather than the other way 
around. 
The Beneficiary's 2012 IRS Form 1040, U.S. Individual Income Tax Return, on which the Beneficiary 
identified his occupation as "real estate broker assoc." The record documents commission payments 
from to the Petitioner. Taken together, this information suggests that the Beneficiary sells real 
estate under contract to The record does not support the Petitioner's claim that the Petitioner 
has contracted with to provide support staff to the petitioning company. 
Beyond the evidence in the record, we have uncovered additional information that bears on this issue. 
Although the petitioner bears the burden to establish eligibility for the benefit 
sought, USCIS may verify information submitted to meet that burden. Agency 
verification methods may include, 
but are not limited to, review of public records and 
information; contact via written correspondence, the Internet, facsimile or other 
electronic transmission, or telephone; unannounced physical site inspections of 
residences and places of employment ; and interviews . See generally sections 103, 
3 
(b)(6)
Matter of H-USA, Inc. 
204, 205, 214, 291 of the Act; 8 U.S.C. §§ 1103, 1154, 1155, 1184, 1361 (2012); 
8 C.P.R. § 103.2(b)(7) (2014). 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542,543-44 n.3 (AAO 2015). 
Publicly available information, consulted in an attempt to verify the Petitioner's claims, further 
undermine the Petitioner's assertions regarding the nature of the Beneficiary's relationship to 
Florida state records list the Beneficiary and as licensed "Real Estate Sales Associates" 
employed by 
respectively.1 As of December 28, 2015, own web site2 listed 
and the Beneficiary as "Realtor-Associates" at offices at This 
information casts further doubt on the assertion that and are contracted 
subordinates of the Beneficiary. Instead, it appears to place the individuals on an equal footing. 
The Petitioner's claim that the Beneficiary is a manager rests largely on the assertion that 
employees perform non-qualifying operational tasks on the Beneficiary's behalf. The above 
information is in conflict with that claim. Therefore, it is not evident that the Petitioner has met its 
burden ofproofto establish that the Beneficiary primarily performs qualifying managerial functions. It 
is also possible that the Petitioner has misrepresented the nature of the Beneficiary's work with 
Although the Petitioner has overcome the stated basis for denial, we cannot properly approve the 
petition unless and until the Petitioner resolves this additional issue. Any future decision by the 
Director on this petition must into account the above information, as well as any further information that 
additional USCIS inquiries may bring to light. 
III. CONCLUSION 
The Petitioner has overcome the only stated ground for denial of the petition, and therefore the 
Director's decision cannot stand. Nevertheless, the petition cannot be approved unless and until the 
Petitioner has addressed concerns regarding the nature of the Beneficiary's position with the petitioning 
company and his relationship with Therefore, we withdraw the denial of 
the petition and remand the matter for a new decision consistent with the above discussion. The burden 
remains on the Petitioner to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
1 Sources: 
December 28, 20 15); 
accessed December 28, 2015). 
2 Sources: 
4 
(last accessed 
(last 
Matter of H- USA, Inc. 
ORDER: The decision of the Director, Texas Service Center is withdrawn. The matter is 
remanded to the Director, Texas Service Center for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofH-USA, Inc., ID# 14985 (AAO Jan. 4, 2016) 
5