dismissed EB-1C Case: Architecture/Design

U.S. Department of Homeland Security 
identifying data deleted t0 
 U.S. Citizenship and Immigration Services 
. , 
prevent cli.ady unwmmted 
 Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
invasion of personal privacj 
 U. S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER 
LIN 08 064 50298 
 Date: SEP 0 4 2009 
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. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 103.5(a)(l)(i). 
/John F. ~ris'som 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager 
or executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (Act), 8 U.S.C. 
5 1153(b)(l)(C). The petitioner is a company located in the State of California that claims to be 
engaged in the design and building business. The petitioner seeks to employ the beneficiary as its 
project managerldesigner. 
The director denied the petition on June 14, 2008, concluding that the petitioner had not established 
that there exists a qualifying relationship between the petitioner and the beneficiary's foreign 
employer. 
On appeal, the petitioner asserts that the director's decision may have resulted from confusion 
created by evidence submitted relating to the relationship between the U.S. and foreign entities, and 
that a previously temporary contractual relationship between the two entities has since been made 
permanent. The petitioner submits further evidence in support of this assertion. 
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 or managers 
who have previously worked for the firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and 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 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. If the alien is already in the United States working for the petitioning 
United States employer or its affiliate or subsidiary, the petitioner must demonstrate that, in the three 
years preceding entry into the United States as a nonimmigrant, the alien was employed by the entity 
abroad for at least one year in a managerial or executive capacity. 8 C.F.R. 5 204.50)(3)(1)(B). 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. 8 C.F.R. § 
204.50)(5). 
At issue in this matter is whether the petitioner has established that a qualifylng relationship exists 
between the U.S. company and the beneficiary's foreign employer. 
In order to qualifL for this visa classification, the petitioner must establish that a qualiflmg relationship 
exists between the United States and foreign entities in that the petitioning company is the same 
employer or an affiliate or subsidiary of the foreign entity. See section 203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. 8 204.50)(2) states in pertinent part: 
ABliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) 
 One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
Multinational means that the qualifylng entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, on December 20, 2007. 
The petitioner did not submit any evidence or information relating to the corporate status or 
ownership of either the U.S. company or the foreign company, or to the relationship between the two 
entities. 
On March 5,2008, the director issued a request for further evidence (RFE). Among other things, the 
director requested documentary evidence to establish the qualifylng corporate interrelationship 
between the U.S. company and the foreign employer of the beneficiary. The director noted that the 
Page 4 
evidence submitted must establish common ownership and/or control between the two entities and 
may include, but is not limited to, annual reports, statements from the organization's president or 
corporate secretary, articles of incorporation, financial statements, and/or evidence of ownership of 
all outstanding stock for both entities. 
In response, the petitioner submitted a letter dated April 7, 2008, signed by the beneficiary as the 
president of the foreign entity, a Mexican design firm named Arko Arquitectura+Diseno. The letter 
states that the U.S. company and the foreign entity have had an association since May 2006, where 
the foreign entity develops the projects of the U.S. company. The petitioner submitted a copy of a 
contract between the two entities, dated May 16, 2006, setting forth the terms of an association 
between the two entities whereby the foreign entity takes responsibility for the design development 
and creation of construction documentation of all of the U.S. company's projects for the duration of 
the contract. The stated term of the contract is from the date of signature through December 16, 
2006. Although the beneficiary claimed in his letter that the contract is renewable every six months, 
the contract does not contain any provisions relating to renewal. 
The petitioner provided no documentary evidence of the ownership and control of the foreign entity. 
The evidence submitted in response to the RFE was sufficient to establish that the petitioner is a sole 
proprietorship owned and operated by Juan Carlos Alcantar. 
On June 14, 2008, the director denied the petition, determining that the petitioner has failed to 
establish that a qualifying relationship exists between the U.S. company and the beneficiary's foreign 
employer. The director found that the temporary legal association of the two companies does not 
qualify the two companies for the requested status, and no evidence was submitted establishing that 
a qualifying relationship between the two entities otherwise exists. 
On appeal, the petitioner claims that the original six-month contract between the two entities was 
renewed continually for two years and has been renewed and altered into a permanent association as 
of May 15, 2008. The petitioner submitted (1) a copy of the contract, dated May 15, 2008, setting 
forth the term of the permanent association between the two entities; and (2) a letter dated July 1, 
2008, signed by the beneficiary as the president of the foreign entity, confirming the petitioner's 
explanation regarding the contractual association between the two entities. The petitioner also 
stated, "Independently of this renewals [sic], [the U.S. company] has permanent control along with 
the president of the [foreign entity] over the company since the creation of the first contract." No 
other evidence was submitted on appeal. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to 
establish that a qualifjllng relationship exists between the U.S. company and the beneficiary's foreign 
employer. 
In this instance, based on the record as it is presently constituted, the claimed relationship between 
the U.S. company and the beneficiary's foreign employer is purely a contractual one. Whether it is 
based on a contract renewable every six month period or one that renders the association between the 
two entities permanent, it remains that a relationship based on a contractual arrangement in which 
one entity provides certain services for the other, without more, does not meet the statutory 
requirement that the petitioning company be the same employer or an affiliate or subsidiary of the 
foreign entity. See section 203(b)(l)(C) of the Act; see also Matter of Schick, 13 I&N Dec. 647 (Reg. 
Comm. 1970) (finding that no qualifying relationship exists where the association between two 
companies was based on a license and royalty agreement that was subject to termination since the 
relationship was "purely contractual"). 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between U.S. and foreign entities 
for purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 
593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); 
Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership 
refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the 
establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N Dec. at 595. 
Here, the petitioner has failed to provide any documentation that would shed light on the legal status 
or ownership of the beneficiary's foreign employer. Without such information, the AAO can not 
determine whether the U.S. and foreign entities may be considered "the same employer," or are 
affiliates or parent and subsidiary, as the regulations require. However, based on the petitioner's 
consistent statements, there is nothing in the record to suggest that the two entities share any 
common ownership and control. 
As such, the evidence of record is insufficient to establish that there exists a qualifjllng relationship 
between the U.S. and foreign entities. For this reason, the petition will be denied. 
In light of the above, the AAO finds that the petitioner has failed to establish that a qualifjllng 
relationship exists between the U.S. and foreign entities. For this reason, the petition will be denied. 
Beyond the decision of the director, the AAO finds that the petitioner has failed to establish that the 
petitioner was doing business for at least one year prior to the filing of the petition. 
The regulation at 8 C.F.R. tj 204.5(j)(3)(i) states: 
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: 
(D) The prospective employer has been doing business for at least one 
year. 
Further, the regulation at 8 C.F.R. 5 204.5(j)(2) states: 
Doing business means the by a firm, corporation, or other entity and does not include 
the mere presence of an agent or office. 
Along with the Form 1-140, the petitioner submitted an undated information sheet relating to the 
U.S. company, which states that the company was established in 2002, has 13 employees, and has a 
gross annual income of $1,200,000. The petitioner also provided the name of the ownerlpresident 
(noting that he is a "sole proprietor") and the company's license number with an expiration date of 
December 3 1, 2007. The petitioner also submitted copies of an "active license" in the petitioner's 
name issued by the State of California Contractors State License Board, with an expiration date of 
June 30, 2009, and a business license in the petitioner's name issued by the City of Coronado, 
California, with a December 3 1,2007 expiration date. 
In the RFE, the director requested further evidence to establish that the petitioner has been doing 
business for at least one year prior to the filing of the petition, including documentation to establish 
that the entity has conducted a regular, systematic, and continuous provision of goods andlor 
services. 
In response, the petitioner submitted additional business licenses in the petitioner's name issued by 
the City of Chula Vista, California, valid from October 10,2005 through December 12,2007, and by 
the City of Imperial Beach, California, valid from January 3 1,2008 through January 3 1, 2009. The 
petitioner also referred to the May 16,2006 contract between itself and the foreign entity. 
The petitioner provided a copy of IRS Form 1040, U.S. Individual Income Tax Return, for the year 
2006 in the name of along with Schedule C, Profit or Loss from Business (Sole 
Proprietorship). The petitioner's Form 1040, Schedule C reflects that the company had gross receipts 
of $1 10,000 in 2006, and a net loss of $7,520. Finally, the petitioner submitted a copy of a single 
bank statement for a business checking account in the name of ", Contracting 
America," for the period February 9 through March 11, 2008, which shows an ending balance of 
$9,03 1.34. 
Upon review, the evidence of record is insufficient to establish that the petitioner has been doing 
business for the year preceding the filing of the petition. First, the possession of valid business 
licenses at best indicates that the petitioner is licensed to conduct business, not that it has actually 
conducted a "regular, systematic, and continuous provision of goods andlor services" as required by 
the regulations. Similarly, the contract between the petitioner and the foreign entity only establishes 
that the two entities have formed a contractual association, and does not demonstrate that any 
business has actually been conducted by the entities, during the term of the contract. Further, while 
the petitioner claimed that it has a gross annual income of $1,200,000 (for an unspecified period of 
time) there is no documentation in the record to support this claim. The petitioner's 2006 tax return 
reflects considerably less income, and is insufficient to establish that the petitioning entity was in 
fact doing business in 2007. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 
I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972)). 
Absent more recent evidence of business activities, such as the petitioner's 2007 income tax return, 
invoices, receipts, payroll records, etc., the AAO finds the evidence of record insufficient to 
establish that the petitioner was doing business during the year preceding the filing the petition. For 
this additional reason, the petition will be denied. 
In addition, the AAO finds that the petitioner has failed to establish that it has the ability to pay the 
beneficiary the proffered wages for his position in the United States as required by the regulations. 
The regulation at 8 C.F.R 8 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. 
 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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
The petitioner stated on Form 1-140 that it will employ the beneficiary full-time at a wage of $800 
per week, or $41,600 annually. 
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 matter, the petitioner did not establish that it had 
previously employed the beneficiary. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance 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.C.P. 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), affd, 703 F.2d 571 (7th Cir. 1983). 
In K.C.P. Food Co., Inc. v. Sava, the court held the Immigration and Naturalization Service (now 
USCIS) had properly relied on the petitioner's net income figure, as stated on the petitioner's 
corporate income tax returns, rather than on the petitioner's gross income. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before 
expenses were paid rather than net income. Finally, there is no precedent that would allow the 
petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang 
v. Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Suva, 632 F. Supp. at 1054. 
As the petition's priority date falls on December 20, 2007, the AAO must examine the petitioner's 
tax return for 2007, which has not been provided for review. The petitioner's Form 1040, Schedule 
C for calendar year 2006 presents a net loss of $7,520. Therefore, the evidence of record does not 
establish that the petitioner has sufficient net income to pay the proffered salary. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO 
will review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities. Net current assets identify the amount of "liquidity" 
that the petitioner has as of the date of filing and is the amount of cash or cash equivalents that 
would be available to pay the proffered wage during the year covered by the tax return. The 
petitioner's net current assets are not reflected in the Form 1040, Schedule C, and the AAO cannot 
determine whether the petitioner has sufficient net current assets to pay the proffered wages. 
Therefore, the evidence submitted is insufficient to establish that petitioner's ability to pay the 
proffered wage, and the petition will be denied for this additional reason. 
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), afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989) (noting that the AAO reviews appeals on a de novo basis). When the AAO denies a petition 
on multiple alternative grounds, a plaintiff can succeed on a challenge only if it is shown that the 
AAO abused its discretion with respect to all of the AAO's enumerated grounds. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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. 5 1361. Here, 
that burden has not been met. Accordingly, the director's decision will be affirmed and the petition 
will be denied. 
ORDER: The appeal is dismissed.