remanded EB-1C Case: Real Estate Management

(b)(6)
DATE: MAR 2 8 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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. All documents related to this matter have been returned to the office that 
originally decided your case. Any further inquiry must be made to that office. 
Thank you, 
~4-1--Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will 
be withdrawn and the record remanded for the entry of a new decision based upon all the evidence in 
the record. 
The petitioner filed this immigrant petition 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)(l)(C), as a multinational executive or manager. The petitioner, a Florida 
corporation states that it operates a real estate management company. It seeks to employ the 
beneficiary as its president. 
The director denied the petition, concluding that the petitioner failed to establish that it has the 
ability to pay the beneficiary's proffered wage. 
On appeal, counsel disputes the director's conclusions and submits a supporting statement along 
with supplemental documents in an effort to overcome the basis for denial. 
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. 
A United States employer may file a petition on Form I-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 
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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. 
II. Ability to Pay 
The sole issue addressed by the director is whether the petitioner established that it has the ability to 
pay the beneficiary's proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, 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 in 
the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on March 22, 2011. It 
indicated on the Form I-140, at Part 6, that it will pay the beneficiary a salary of$67,000.00 per year. 
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. 
In the present case, the petitioner submitted copies of the beneficiary's Internal Revenue Service 
(IRS) Form W-2, Wage and Tax Statement for 2011 and 2012, paystubs and payroll summary. 
According to the Form W-2 for 2011, the petitioner paid the beneficiary a salary of$70,001.58. The 
beneficiary's Form W-2 for 2012 indicates that the petitioner 
paid him a salary of$85,000.00. The 
petitioner has shown its ability to pay the proffered wage and the director's adverse finding will be 
withdrawn. 
III. Employment in a Managerial or Executive Capacity 
Although the director's sole ground for denial will be withdrawn, the petitioner has submitted 
insufficient evidence to establish that the beneficiary would be employed in a primarily managerial 
or executive capacity as those terms are defined at sections 101(a)(44)(A) and (B) of the Act. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal 
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the true nature of the employment. Fedin Bros. Co, Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), ajj'd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.50)(5). In addition, USCIS 
reviews the totality of the record, which includes not only the beneficiary's job description, but also 
takes into account the nature of the petitioner's business, the employment and remuneration of 
employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The petitioner stated on the Form I-140, Immigrant Petition for Alien Worker, that it is engaged in 
real estate management and employs four individuals. The petitioner seeks to employ the 
beneficiary as its President. 
In a letter submitted in support of the petition, counsel provided a description of the beneficiary's 
proposed duties indicating that the beneficiary would allocate 50% of his time to duties categorized 
as "Executive Direction," 20% of his time to "Executive Management" duties and, 30% of his time 
to "Executive Marketing" duties. While the petitioner provided a list of duties to be performed 
within each area of responsibility, it failed to convey what the beneficiary would be doing on a day­
to-day basis as the president of a real estate management company. 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 her 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, a.ffd, 905 F.2d 41 (2d. Cir. 1990). 
The record as presently constituted also includes inconsistent information regarding the petitioner's 
staffing levels and organizational structure. At the time of filing, the petitioner listed the 
beneficiary's subordinates as the Operations Manager, Rental Account Manager, Director of 
Property Sales and Acquisitions, Negotiator Real Estate, and Real Estate Secretary. However, 
according to the petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, for the first 
quarter of 2011, the petitioner had only four employees at the time of filing. In addition, the 
petitioner stated on the Form I-140 that its current number of employees as of March 2011 was four. 
The petitioner also provided copies of IRS Forms W-2 for 2010. The evidence reflects that the 
petitioner paid $1,842.00 to the Director of Property Sales and Acquisitions, $7,791.00 to the 
Operations Manager, $6,722.00 to the Rental Account Manager, and $1,136.98 to the Negotiator 
Real Estate. According to the documentation submitted, it does not appear that the petitioner 
employs the secretary as listed on the organizational chart. 
Further, based on the information reported on the petitioner's quarterly tax returns, it does not appear 
that the petitioner employed the individuals listed on the organizational chart on a full-time basis. 
As the beneficiary was the only full time employee, it is not clear who would perform the non­
managerial duties that are necessary to run a business such as marketing, bookkeeping, budgeting, 
negotiations, customer service, as well as day-to-day clerical, administrative and bookkeeping tasks. 
The petitioner has not identified employees within the petitioner's organization, subordinate to the 
(b)(6)
NON-PRECEDENT DECISION 
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beneficiary, who would relieve the beneficiary from performing routine duties inherent to operating 
the business. 
Thus, the petitioner provided an overly vague description of the beneficiary's duties which failed to 
establish what percentage of his time would actually be allocated on qualifying tasks. Further, the 
record as presently constituted does not establish that the petitioner has the organizational structure 
to support the beneficiary's claimed executive position. 
The record also contains insufficient and incomplete information regarding the nature and scope of 
the petitioner's operations. In the Form I-140, the petitioner stated that it is engaged in real estate 
management. However, the petitioner submitted the City of Plantation Local Business Tax 
Certificate that classified the petitioner as "Real Estate Broker/ Appraiser/Office." In addition, the 
beneficiary is licensed by the State of Florida by The Department of Business and Professional 
Regulation Division of Real Estate as a Sales Associate. 
Moreover, in response to the Notice of Intent to Deny, the petitioner stated that the beneficiary is not 
employed by True Faith Real Estate, a separate company which lists properties under his name, and 
explained that it is customary for real estate associates to contract with a broker for the purpose of 
listing or adv.ertising properties. However, this information does not clearly explain why the 
beneficiary was selected as the listing agent while performing the duties of president for a separate 
company. 
Overall, the record is unclear with respect to the nature of the beneficiary's duties and the nature and 
scope of the petitioner's operations and organizational structure, information which is material to a 
determination regarding the beneficiary's employment capacity. 
Accordingly, the director is requested on remand to issue a request for evidence to the petitioner, 
asking for additional evidence to establish that the beneficiary would be employed in a qualifying 
managerial or executive capacity, and to clarify its staffing levels and the nature of the business as of 
the date of filing. 
IV. Doing Business 
Finally, the record as presently constituted lacks evidence to establish that the petitioner has been 
doing business for at least one year prior to filing the Form I-140. See 8 C.F.R. § 204.5G)(3)(i)(D). 
The Form I -140 was filed on March 21, 20 11. In an effort to establish that it meets the above 
criterion, the petitioner submitted invoices showing that the petitioner provided property 
management services between May and October 2010. Thus, the petitioner did not submit evidence 
to establish that it has been doing year for the entire year prior to filing the Form 1-140. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
(b)(6)
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initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), a.ff'd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
In view of the foregoing, the previous decision of the director is withdrawn. The petition is 
remanded to the director for further consideration, and if appropriate, the issuance of a new request 
for evidence or notice of intent to deny. The director may request any additional evidence considered 
pertinent. Upon review of all the evidence, the director will enter a new decision which, if adverse 
to the petitioner, is to be certified to the AAO for review. 
ORDER: The decision of the director dated July 31, 2013 is withdrawn. The matter is 
remanded for further action and consideration consistent with the above 
discussion and entry of a new decision, which, if adverse, shall be certified to 
the AAO for review.