U.S. Citizenship and Immigration Services

MATTER OF S&PW-, LLC

APPEAL OF TEXAS SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 14, 2016

PETITION: FORM I -140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, which describes its business as "Property Management and Investments," seeks to permanently employ the Beneficiary as its president under the first preference immigrant classification for multinational executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(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, Texas Service Center, denied the petition, concluding that the evidence of record did not establish that the Petitioner will employ the Beneficiary in the United States in a managerial or executive capacity.

The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by not giving consideration to the Beneficiary's prior L-1A nonimmigrant status. The Petitioner maintains that these approvals constitute USCIS recognition and affirmation of the Beneficiary's eligibility. The Petitioner also stated that the Director erred in finding that the Petitioner did not provide enough information about the Beneficiary's job duties. 1

While the appeal was under review, we issued a notice of intent to dismiss (NOID) the petition based on additional information that has since come to light. We have received the Petitioner's response and have taken it into consideration in rendering our decision.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 203(b) of the Act states in pertinent part:

1 We note that the Petitioner devotes much of the appellate brief to a discussion of the Beneficiary's previous employment

with the Petitioner's foreign parent company. While the Director addressed this issue in his request for evidence, the Director did not base the denial on the Beneficiary's foreign employment, and therefore we need not discuss the portions of the appeal that relate to that employment.

Matter ofS&PW-, LLC

(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 q 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, Immigrant Petition for Alien Worker, to classifY a beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor certification is not required for this classification.

The regulation at 8 C.F.R. § 204.5(j)(3) states:

(3) Initial evidence-

(i) Required evidence. A petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that: ·

(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) If 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

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Matter of S&PW-, LLC

(D) The prospective United States employer has been doing business for at least one year,

II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

The Director denied the petition based on a finding that the Petitioner did not establish that it will employ the Beneficiary in a managerial or executive capacity.

Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as "an assignment within an organization in which the employee primarily":

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and ~;ontrols 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), defines the term "executive capacity" as "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.

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(b)(6)

Matter ofS&PW-, LLC

If staffing levels are used as 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.

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.

The Petitioner filed Form 1-140 on January 13, 2015. On the Form I-140, the Petitioner indicated that it had five current employees in the United States.

A. Original Staffing Claims

As a threshold issue, we will discuss the information in the NOID that USCIS issued to the Petitioner, because the information in that notice has an effect on how we view the totality of the evidence of record. To put this information in context, we begin with a discussion of the Petitioner's initial description of the company's staffing.

' The Petitioner submitted an organizational chart, showing four employees, with a fifth position open, and several contractors: ,/

President

I Accountant General Manage:r--- Lawyer

(Independent Contractor) (Independent Contractor)

Business Developer Administrative Assistant

I Sales & Marketing

(Equity Office Solutions, Independent Contractor)

Property Manager (Position Open)

I Independent Contractors

The chart shows the general manager as the intermediary between the Petitioner and all other subordinates. The Petitioner's employee handbook indicates that the general manager is responsible for personnel matters such as hiring and discipline. The Beneficiary's own job description contains several references to the general manager, indicating, for example, that the Beneficiary "oversees the management of the company's real estate properties by ensuring that the General Manager resolves commercial tenant's problems such as maintenance, contract services, collection procedures, and emergency repairs in a timely fashion."

Throughout this proceeding, the Petitioner has identified its general manager as

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Matter of S&PW-, LLC

The Petitioner also submitted job descriptions for the four subordinates listed on the organizational chart, including the still-vacant property manager position:

General Manager: • Responsible for managing the administrative function of the company's leasing

operations; • Responsible for managing the retail centers and leasing properties; • Responsible for supervising the work of another professional employee (the

Administrative Assistant, who has a university degree) in reference to the administration of the retail center leasing and operations of the business;

• Responsible for supervising the Administrative Assistant with accounts payable and accounts receivable;

• Responsible for maintaining contact with the retail center tenants and for negotiating contracts which have to be approve[ d] by the President;

• Supervise other independent contractors and vendors to ensure quality service to satisfy the tenants;

• Assist the President in formulating company policies and procedures; and • Prepare activity reports of the business operations to present to the President.

Administrative Assistant: • Responsible for Accounts Receivable and Accounts Payable; • Responsible for assisting the General Manager with the administration and

management of the retail center and the other commercial properties; • Responsible for payroll and bookkeeping; • Responsible for answering the phones, making calls and for other forms of

communication; and • Responsible for assisting the General Manager and commercial brokers in filling

out lease contracts.

Property Manager: • Establish rental rate by surveying local rental rates, calculate overhead costs,

depreciation, taxes, and profit goals; • Attract tenants by advertising vacancies, obtain referrals from current tenants, and

explain advantages of location and services; • Contract with tenants by negotiating leases; • Direct the collection of rents and security deposits and payment of bills; •. Maintain property by investigating and resolving tenant complaints; enforcing

rules of occupancy; inspecting vacant units and completing repairs, and planning renovations;

• Maintain building systems by contracting for maintenance services, and supervlSlng repmrs;

• Secure property by contracting with security patrol service, and installing and maintaining security devices;

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(b)(6)

Matter of S&PW-, LLC

• Enforce occupancy policies and procedures by confronting violators; • Prepare reports by collecting, analyzing, and summarizing data and trends; and • Assisting the President in selecting commercial brokers in order to purchase and

lease commercial properties.

Business Developer: • Identify investment opportunities by researching different industries and related

events, publications, and announcements; • Locate or propose potential business deals by contacting potential partners; • Screen potential business deals by analyzing market strategies, deal requirements,

terms, and financials; • Develop negotiating strategies and positions by studying integration of new

ventures with company strategies and operations; • Close new business deals by coordinating requirements; _ • Protect organization's value by keeping information confidential; and • Update job knowledge by participating in educational opportunities; reading

professional publications and maintaining personal networks.

The record shows that the Petitioner owns commercial properties in Texas. Also, the Petitioner holds minority interests in and each of which own commercial properties. At the time the Petitioner filed the petition, there were active leases for the Petitioner's property in and the prop~rty owned by The remaining sites were still under development or negotiation at the time of filing. Office lease agreements for tenants of the property indicate that the Petitioner does not collect rental payments directly. Instead, a management company called collects those payments. This appears to be the same company identified on the organizational chart as '

lease agreements identify another third party property management company,

B. Site Investigation and NOID

In previously filed nonimmigrant petitions, the Petitioner indicated that it operates a cattle ranch. The Petitioner's 2013 IRS Form 1120, U.S. Corporation Income Tax Return, which was the Petitioner's most recent tax return when it filed the Form I-140 petition, did not reflect any real estate activity. Instead, the Petitioner claimed a loss under "gross farm income" and reported all salaries paid as "Farm Wages." The information submitted with Form I-140, however, did not mention ongoing farming activity, and the above-referenced employee job descriptions did not include duties relating to farming or livestock.

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(b)(6)

Matter ofS&PW-, LLC

USers officers visited various sites related to the Petitioner and the Beneficiary? They attempted, without success, to contact the Petitioner in person and by telephone at its business office location during normal' weekday business hours. The visiting officers concluded that the company is minimally active, has no need for full time employees, and is not involved in the day-to-day operations of a property management company such as collecting rent and providing maintenance services to rental properties.

In addition, USeiS officers determined that identified as the Petitioner's general manager, works on a ranch that trains cutting horses. The ranch is in Texas, over 100 miles east of the Petitioner's address of record in She told USCIS that she occasionally does paperwork for the Petitioner, but the available evidence indicates that her primary contact with the Beneficiary is working with horses owned by the Beneficiary's family. There is no credible evidence that she has worked as the Petitioner's general manager, with the duties listed in the submitted job description. Because the Petitioner has described the general manager as a central figure in coordinating the company's property management and real estate business activity, the above information has serious implications for the credibility and reliability of the Petitioner's claims regarding its business, including its claims regarding the duties performed by the Beneficiary and its other employees.

We issued a notice of intent to dismiss (NOID) based on the above information. We stated:

It appears that the Beneficiary's principal activity is horse ranching, rather than real estate management. While your company has invested in a small number of commercial properties, a separate management company, rather than your employees, handles the management of those properties. This information contradicts the information that you have provided regarding the company's principal business activities; the Beneficiary's primary role with your company;· and role as general .manager of your company.

The regulation at 8 C.F.R. § 204.5G)(5) requires you to clearly describe the Beneficiary's intended duties with your company. The job description you submitted relies upon certain information regarding the nature of your company's business activities and the roles of its employees. USCIS' field research indicates that this information is not correct, and therefore cannot form a valid basis for granting immigration benefits. We cannot approve the petition unless the infonnation provided with that petition is true. See section 204(b) of the Act, 8 U.S.e. § 1154(b).

2 The Department of Homeland Security and USC IS have the right to verify any information the Petitioner submits to

establish eligibility for the claimed immigration benefit. The legal right to verify this information is conferred by 8 U.S.C. §§ II 03, 1155, 1184, and 8 C.F.R. parts I 03, 204, 205, and 214 . "

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(b)(6)

Matter ofS&PW-, LLC

The Petitioner' s response to the NOID does not address many of the key issues we raised in that notice. The Petitioner submits a letter from the local post office, referring to problems with mail delivery, but this does not explain why no one answered the telephone or the door when USCIS officers repeatedly attempted to contact the Petitioner directly. We did not dispute the Petitioner's ongoing rental of the space, and therefore the Petitioner's response that it "has been renting this location since 2010 without any break" does not address our concerns about the Petitioner's business activity.

In an affidavit, the Beneficiary states: "I did not disclose our horse-related farm operations [in the petition] because I was under the mistaken belief that our horse-related activities were not relevant for immigration purposes." Eligibility rests, in part, on the Beneficiary's activities on behalf of the petitioning U.S. employer. If the horse ranch belongs to the Beneficiary personally, rather than to the Petitioner, then the Beneficiary is correct that the ranch activity cannot establish eligibility because it does not relate to the Petitioner's business. If, however, the horse ranch is part of the petitioning entity's business activity, then its omission from the petition is highly relevant because it would mean that the Petitioner provided an incomplete, and therefore inaccurate, picture of its business activity.

The Petitioner had previously stated that its general manager, is a full-time employee, "[r]esponsible for managing the retail centers and leasing properties," "supervising the work of ... the Administrative Assistant," and "[s]upervis[ing] other independent contractors and vendors," among several other duties. As shown above, inquiries by USCIS officers did not support any of these claims. The Petitioner's response to the NOID does not address this major issue. Therefore, the Petitioner's entire claimed personnel structure (consisting mostly of the Beneficiary, and the Beneficiary's immediate family) is suspect. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988).

Most of the Petitioner's response to the NOID consists of deeds, leases, and other documents relating to the Petitioner's ownership of commercial rental properties. Responding to our finding that the Petitioner "has invested in a small number of commercial properties," the Beneficiary states: "Two million dollars is not a small' amount of money." In the NOID, we referred to the "number of commercial properties," not to the value of those properties. When the issue is how much time and effort · the Petitioner devotes to property management, the number of properties is more relevant than the price the Petitioner paid for those properties.

The NOID response shows that the Petitioner purchased several properties in 2016, more than a year after the petition's filing date of January 13, 2015 . The Petitioner must establish eligibility at the time of filing the petition. 8 C.F .R. § 103 .2(b )(1 ). US CIS cannot properly approve the petition at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'! Comm'r 1971). We note that several of the properties discussed in the NOID response are held not by the Petitioner directly, but by partnerships in which the Petitioner holds a minority interest. At the time of filing, the Petitioner directly owned one property in and one property in and only the property was under lease.

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(b)(6)

Matter ofS&PW-, LLC

The record amply establishes that the Beneficiary has invested heavily in commercial real estate, at least partly through the petitioning company. Ownership of investment properties, however, is not enough to establish the Beneficiary's eligibility as a multinational manager or executive. On Form I-140, the Petitioner identified its type of business as "Property Management and Investments." The Petitioner stated that the Beneficiary "oversees the management of the company's real estate properties by ensuring that the General Manager resolves commercial tenant's problems such as maintenance, contract services, collection procedures, and emergency repairs in a timely fashion." The record does not support these foundational claims. The Petitioner has not established that the general manager performs these duties, and therefore the credibility of both her job description and the Beneficiary's job description, as well as the nature of the Petitioner's business activities, is in doubt.

A new letter from confirms that the Beneficiary "hired to manage his property . . . in Texas," and that' also manages his other properties." does not appear

to perform any of the responsibilities listed in the general manager's job description, and the letter from does not indicate that the Beneficiary or any of the Petitioner's employees actively exercise managerial authority over functions or employees.

We note that the Petitioner's organizational chart mentioned but only in the context of "Sales & Marketing" and property maintenance. The Petitioner indicated that it handled property management in-house, consistent with the company's self-identification as a property management company. If has been handling the Petitioner's property management functions, as the letter indicates, then the organizational chart and job description contained incorrect and/or incomplete information regarding that company's role.

The NOID response includes copies of the Petitioner's profit and loss statements for 2013-2015. The statements are either inaccurate or incomplete, because they do not reflect expenses shown elsewhere in the record. The itemized lists of expenses do not include salaries, wages, or payroll expenses; the only expense higher than $11,000 in any year was property taxes on the Petitioner's holdings. This document, therefore, does not reflect that the Petitioner had any employees in 2013, 2014, or when it filed the petition in 2015. The Petitioner, however, had previously submitted copies ofiRS Forms W-2, showing that the company paid over $100,000 per year in wages and salaries in both 2013 and 2014.

We also note that, according to a new letter from the Petitioner's accountant, the Petitioner's estimated 2015 income was $159,892 for "Farm," and $141,650 for "Rental." The profit and loss statement for the same year, however, states the Beneficiary's rental income as $126,709.96, and does not refer to farm income at all. The Petitioner does not explain why these figures are not consistent. The accountant's letter sheds no light on the matter, saying only that "several errors were found" in the Petitioner's 2014 income tax return, which the Petitioner has not submitted. The Petitioner's submission of significantly divergent financial information raises further questions about the reliability of its evidence.

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Matter ofS&PW-, LLC

Section 204(b) of the Act, 8 U .S.C. § 1154(b ), provides for the approval of immigrant petitions only upon a determination that "the facts stated in the petition are true." False, contradictory, or unverifiable claims inherently prevent a finding that the petitioner's claims are true. See Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir. 1989); Systronics Corp. v. INS., 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988).

When examining the executive or managerial capacity of a given beneficiary, we will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). 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. !d. .

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 prese~ce 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.

For the reasons discussed above, we cannot conclude that the Petitioner has provided complete and accurate information about the Beneficiary's proposed duties, the petitioning company and its staff. We do not doubt that the Beneficiary exercises authority over the petitioning company; however, there are too many unresolved inconsistencies in the record to allow us to determine what duties he actually performs, such that we can conclude that his duties are primarily managerial or executive in nature. Further, the Petitioner has not responded to our initial finding in the NOID that it appears that the Beneficiary's principal activities relate to horse ranching rather than real estate management. The Beneficiary's statement that he did not believe that the horse-related activities are relevant does not resolve the issue of what tasks he performs related to that business and what proportion of his duties are actually allocated to the horse ranch.

The Petitioner has not met its burden of proof to show that it is a property management and investment company with sufficient organizational complexity to warrant the employment of a general manager who coordinates major property management functions, or that the Beneficiary would be employed primarily as a manager or executive overseeing the business through that general manager.

C. Approval of Prior Nonimmigrant Petitions

On appeal, the Petitioner submits copies of documents from previous nonimmigrant petitions filed on the Beneficiary's behalf. The Petitioner argues that the approval of those petitions establishes that the Beneficiary qualifies as a multinational manager or executive, and that the Director did not explain why this petition did not produce the same outcome. The Petitioner also maintains that the Director has1 "failed to identify the legal and factual grounds upon which the denial was based and failed to consider the totality of the evidence presented."

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Matter of S&PW-, LLC

The Petitioner states:

While· an agency has broad discretion in the granting or denying of a visa a Court shall reverse the decision where it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. See e;g., Omni Packaging, Inc. v. INS, 733 F. Supp. 500, 504 (D. P.R. 1990); accord Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, *7 (E.D. La.); accord Khamisani v. Holder, 2011 U.S. Dist. LEXIS 34962, *8 (S.D. Tex. Mar 31, 2011).

The Petitioner cites Omni Packaging, Inc. v. INS to support the proposition that denial of an immigrant petition, following the approval of nonimmigrant petitions with comparable requirements, is an abuse of discretion without a specific explanation as to how the previous approvals were in error. The Petitioner does not, however, note that the court in Omni Packaging revisited the issue and later determined that the Immigration and Naturalization Service (USCIS's predecessor agency) had properly denied the immigrant petition and that it was not estopped from finding that the alien was not manager or executive after having determined that he was manager or executive for purposes of issuing an L-1 visa. See Omni Packaging, Inc. v. INS, 930 F. Supp. 28 (D.C.P.R. 1996).

As in Omni Packaging, the initial court decision in Louisiana Philharmonic did not order the approval of the immigrant petition, but instead remanded the matter for further review. The denial of the petition remained in place and was affirmed by higher courts. 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).

In Khamisani, the Court ruled in the government's favor, granting summary judgment with prejudice because "the record does not disclose a material fact issue." Khamisani v. Holder, 2011 WL 1232906, at *7 (S.D. Tex. Mar. 31, 2011).

None of the cited cases held that it is necessarily arbitrary, capricious, or an abuse of discretion to deny an immigrant petition for a multinational manager or executive when the beneficiary has previously been granted an analogous noninimigrant status. USCIS must explain the grounds for denial, but the prior approval of L-lA nonimmigrant status does not create a presumption of eligibility or shift the burden of proof from the Petitioner to USCIS.

Furthermore, notwithstanding the findings from the US CIS site visits, the Petitioner's own petition documents show a material change in the nature of the Petitioner's business. Copies of previous nonimmigrant petition materials show that, when the Petitioner first filed a Form 1-129, Petition for a Nonimmigrant Worker, in 2011, the Petitioner previously held itself out as a "Property Management and Cattle Business," operating a feedlot on a ranch personally owned by the Beneficiary (not by the petitioning company). As recently as 2013, as the Petitioner's IRS Form 1120 tax return attests, the Petitioner derived its income entirely from farming (relating to its operation of a cattle feed lot); it owned commercial properties but did not report the collection of any rent that year. In the Form I-140 immigrant petition, none of the job descriptions show any involvement with the" Beneficiary's ranch or livestock business. Therefore, the petitions do not all reflect identical circumstances, as the Petitioner

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Matter ofS&PW-, LLC

claims on appeal. As we have already discussed, there is reason to question the Petitioner's description of its current business, and therefore the exact role of anyone it employs, including the Beneficiary.

Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that i,t seeks to employ the Beneficiary in a managerial or executive capacity in the United States.

III. CONCLUSION

The petition will be denied and the appeal dismissed for the above reason. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofS&PW-, LLC, ID# 100132 (AAO Nov. 14, 2016)

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