dismissed EB-1C Case: Antique Restoration

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P1JBUC copy 
DATE: JUN 1 9 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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. § lI53(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with 
the field office or service center that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. 
§ 103.5. Do not fIle any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l lei) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Plorida company engaged in antique restoration services and commercialization of antique 
goods, and it seeks to employ the beneficiary as its president. Accordingly, the petitioner endeavors 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 director determined that the petitioner failed to establish that it has the ability to pay the beneficiary's 
proffered wage and denied the petition on that basis. 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. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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 Porm 1-140 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 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. 
The primary issue in this proceeding is whether the petitioner has the ability to pay the beneficiary's proffered 
wage. The regulation at 8 C.P.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 
Page 3 
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. 
(Emphasis added.) 
The petitioner indicates that it will pay the beneficiary $28,000.00 per year. On the Form 1-140, the petitioner 
also indicates that the petitioner's gross annual income is $216,08\.31, the net annual income is $22,589.35, 
and it currently employs 5 individuals. 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. 
The petitioner did not submit any documentation evidencing that it paid the beneficiary's proffered salary of 
$28,000 per year. The petitioner did not provide paystubs or Form W -2 to indicate the salary received by the 
beneficiary. As an alternate means of determining the petitioner's ability to pay, the AAO will examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on net income shown on federal income tax returns as a basis for 
determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. 
v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K.CF. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), afJ'd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner submitted an unaudited profit and loss statement for August 1, 2007 through July 23, 2008 that 
stated a net income of $31,535.74, after payment of salaries in the amount of $37,333.30. The petitioner also 
provided Form 1120, U.S. Corporation Income Tax Return, for 2007 that indicated gross receipts of$31,746.00 
and payment of salaries and wages of $4,667.00. 
In response to the director's request for evidence, the petitioner submitted an unaudited profit and loss 
statement for January through December 2009. This statement states a net income of $9.863.66, after payment 
of salaries in the amount of $55,999.96. The petitioner also submitted a second profit and loss statement from 
January I through September 14, 2009 that indicates a net income of $11,348.73, after payment of salaries in 
the amount of $34,666.64. The petitioner does not explain why it paid salaries and wages for three months 
from September until December 2009 in the amount of $21,333.32, when it only paid $34,666.64 in salaries 
and wages for the previous eight months. There is an increase in salaries and wages from September until 
December 2009 that is not explained. It is not clear if there was in fact an increase in salaries paid or if the 
financial statements are inaccurate. 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). 
Page 4 
The petitioner also submitted Form 1120, U.S. Corporation Income Tax Return, for 2009 that indicated 
payment of salaries and wages in the amount of $56,000.00. According to the petitioner's organizational chart, 
the petitioner employs the beneficiary, an operative manager, an administrative assistant, three restorer 
employees, a financial consultant, and a legal consultant. It is not clear how the petitioner can pay the 
beneficiary's salary of $28,000 per year while also paying the salaries of five other employees and two 
consultants. As noted in the tax documents for 2009, the petitioner only paid $56,000 in salaries and wages and 
only has $9.861.00 in taxable income. Thus, the evidence is not sufficient to establish that the petitioner can 
pay the beneficiary's salary of $28,000 per year and pay the salaries of all the employees listed on the 
organizational chart. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N Dec. 158, 165 (Cornrn'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn'r 1972)). In light of the lack of 
sufficient corroborating evidence submitted to establish that the petitioner meets the provisions of 8 C.F.R. 
§ 204.5(g)(2), the AAO cannot approve the instant petition. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. The record lacks substantive job descriptions establishing what 
job duties the beneficiary performed during his employment abroad and the job duties he would perform in his 
proposed position with the U.S. branch office. Conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afJ'd, 
905 F. 2d 41 (2d. Cir. 1990); Aryr Associates. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 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 has not established that the beneficiary was employed abroad or would be employed in 
the United States in a qualifying managerial or executive capacity. For this additional reason, the petition may 
not be approved. 
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 initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afJ'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). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
The petition will be denied 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. The petitioner has not sustained that 
burden. 
ORDER: The appeal is dismissed.