dismissed EB-1C Case: Business

i~fLlng data deleted to 
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PUBLIC COPY 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: QCT 2 2 2009 
LIN 06 221 52895 
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 1153(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. fj 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, as required by 8 C.F.R. 103.5(a)(l)(i). 
verry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Pennsylvania corporation that seeks to employ the beneficiary as its chief 
executive officer (CEO). Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. fj 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that it had the ability to pay the beneficiary's proffered wage commencing on and 
continuing beyond the date the Form 1-140 was filed; and 2) the petitioner failed to establish that it 
would employ the beneficiary in a managerial or executive capacity. 
On appeal, the beneficiary, on behalf of the petitioner, disputes both grounds for denial and submits 
a statement as well as additional documentation in support of his arguments. 
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 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. 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 first issue to be addressed in this decision is whether the petitioner met the requirements for the 
ability to pay the beneficiary's proffered wage as specified in 8 C.F.R. 5 204.5(g)(2), which states the 
following, 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 either 
in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
On June 20, 2007, the director issued a request for additional evidence (WE) instructing the petitioner 
to provide additional evidence establishing eligibility for the immigration benefit sought. The director 
notified the petitioner that the record lacked sufficient evidence establishing that it had the ability to pay 
the beneficiary's proffered wage of approximately $120,000 annually from the date of filing the Form I- 
140 and continuing forward. The petitioner was also notified of the types of documentation that could 
be submitted in order to establish its ability to pay. 
In the decision dated October 25, 2007, the director summarized the documents submitted in response 
to the above request. The director observed that the petitioner did not employ the beneficiary at the 
time the petition was filed and fwther noted that while the petitioner claimed in the response to the RFE 
that it employed the beneficiary as of June 1, 2007, no evidence was submitted to establish the 
beneficiary's current wages. The director then analyzed the information provided by the petitioner via 
its 2006 corporate tax return, which showed a negative taxable income and liabilities that outweighed 
the petitioner's net current assets.' With regard to the subcontract the petitioner submitted in response to 
the WE, the director found that this document does not serve as reliable evidence of the petitioner's 
ability to pay. 
On appeal, the beneficiary submits a letter dated November 20, 2007, referring to the petitioner's 
2007 profit and loss statement, which shows current profit of $274,483.52. This document, 
however, is not persuasive in establishing the petitioner's ability to pay. First, the provisions of 
8 C.F.R. § 204.5(g)(2) expressly require that the petitioner's ability to pay be established as of the 
priority date, i.e., the date the Form 1-140 is filed. In the present matter, the petition was filed on 
August 16,2006, thereby imposing upon the petitioner the burden of establishing its ability to pay as 
of that date, which predates the submitted profit and loss statement. Thus, even if the AAO were to 
consider the submitted profit and loss statement, the submitted document does not establish the 
petitioner's ability to pay as of August 2006. Second, the petitioner has cited no authority to support 
its reliance on an unaudited profit and loss statement as an appropriate means for establishing the 
ability to pay. Therefore, the petitioner's 2007 profit and loss statement will not be accorded any 
probative value in the current proceeding. 
Additionally, the beneficiary refers to a contract proposal, which shows the monetary amount 
allotted to pay for labor, including the beneficiary's salary. Again, the petitioner has cited no 
' See page two of the denial dated October 25,2007. 
authority to support its reliance on a proposed contractual budget as a means for establishing the 
petitioner's ability to pay the proffered wage. Moreover, even if this document were considered, the 
cost breakdown of labor shows that the beneficiary would be compensated a total of $90,000, which 
is approximately $30,000 less than the proffered wage. 
Accordingly, in light of the above, the AAO finds that the petitioner has failed to provide sufficient 
evidence to establish that it had the ability to pay the beneficiary's proffered wage commencing on 
and continuing beyond the date the Form 1-140 was filed. Therefore, based on the above findings, 
this petition cannot be approved. 
The other issue in this proceeding is whether the beneficiary would be employed in the United States 
in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 8 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means 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 controls 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. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means 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. 
In support of the Form 1-140, the petitioner submitted a brief list of the beneficiary's proposed job 
responsibilities. As the director incorporated this information into the decision denying the petition, 
the AAO need not repeat this information in the current discussion. 
In the RFE dated June 20, 2007, the director instructed the petitioner to provide a detailed job 
description listing the beneficiary's specific tasks and assigning the percentage of time that would be 
devoted to each task. 
In response, the petitioner submitted a letter dated August 27, 2007, which indicates that the 
beneficiary "manages the organization, [and] supervises and controls professional employees." The 
petitioner also indicated that the beneficiary assumes the role of CEO and program manager with 
respect to the administration of government contracts. With regard to the director's request for a 
percentage breakdown of the beneficiary's proposed tasks, the petitioner resubmitted the description 
that was previously offered in support of its nonimmigrant petition in which it sought to classify the 
beneficiary as an L-1A intracompany transferee. 
Nevertheless, the director included the percentage breakdown in his October 25, 2007 decision. As 
such, the AAO need not repeat this information in the current decision. In assessing the petitioner's 
submissions, the director found that the petitioner failed to establish that it would employ the 
beneficiary in a qualifying managerial or executive capacity. The director noted that the petitioner's 
limited staffing does not warrant the employment of the number of executives it claims to have 
based on the position titles provided for the beneficiary's subordinate employees. The director also 
found that non-qualifying tasks would be inherent to the beneficiary's proposed position. 
On appeal, the beneficiary places great emphasis (and asks the AAO to do so as well) on the 
petitioner's current stage of development. The beneficiary indicates that the beneficiary did not 
receive funds to commence research on its project until November 2006 and that as a result 
additional staffing was not necessary at the time of filing. This argument erroneously suggests that 
USCIS should waive the petitioner's statutorily imposed burdens to account for the company's early 
stage of development. Contrary to the beneficiary's suggestion, however, the petitioner must 
establish its eligibility at the time the petition is filed; a petition cannot be approved at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 
I&N Dec. 45, 49 (Comm. 1971). Thus, the AAO cannot take into account the beneficiary's 
assurances that additional staff would eventually be hired once the petitioning entity progresses to 
the next stage of development. 
The beneficiary further states that he is currently "responsible for all aspects of the company's 
development including negotiation . . . of development funding." The beneficiary claims that he is 
' Page 6 
also responsible for purchasing equipment and supervising subcontractors and further indicates that 
he is the primary contact for political representatives and the U.S. Armed Forces. The beneficiary 
explains that he will eventually supervise the office staff, laboratory and knitting staff, and non- 
woven material production staff. 
Based on the beneficiary's explanation the AAO cannot conclude that the petitioner had the ability to 
employ the beneficiary in a qualifying capacity at the time the petition was filed. It is noted that an 
employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988). In the present matter, the beneficiary's explanation indicates that the petitioner was 
in its primary stage of development at the time the petition was filed and did not have the ability to 
properly staff its organization such that the beneficiary could be relieved from having to primarily 
perform non-qualifying tasks. 
Additionally, while the director expressly instructed the petitioner to provide a detailed list of the 
beneficiary's proposed tasks, the petitioner provided a job description that primarily consisted of 
general job responsibilities and broad business objectives, such as directing, coordinating and 
controlling the foreign and U.S. entities, managing the petitioner's current contract, expanding the 
U.S. entity, and pursuing a strategic partnership with another company. The AAO notes that 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. See 8 C.F.R. 
5 204.5(j)(5). The actual duties themselves will reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter, the job description fails to identify the beneficiary's specific daily job duties. 
Therefore, in light of the various deficiencies described above, the AAO finds that the petitioner has 
failed to establish that the beneficiary would be employed by the U.S. entity in a qualifying 
managerial or executive capacity. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not specifically addressed in the director's decision. 
First, 8 C.F.R. 5 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was 
employed abroad in a qualifying managerial or executive position for at least one out of the three 
years prior to his entry to the United States as a nonimmigrant to work for the same employer. In the 
instant matter, the director specifically addressed this issue in the RFE by instructing the petitioner to 
provide a detailed list of the beneficiary's daily tasks accompanied by an estimate of time that was 
devoted to each individual task. The petitioner's response included copies of documents submitted 
earlier with regard to the petitioner's filing of an 1-129 nonimmigrant petition on behalf of the same 
beneficiary. Specifically, the petitioner stated that the beneficiary's job duties abroad were primarily 
the same as the job duties he would perform in his proposed position with the U.S. entity. As such, 
the AAO would apply similar reasoning in concluding that the petitioner failed to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. 5 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing 
business for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 4 204.5(j)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods and/or 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." In the present matter, the petitioner has indicated that it is a research and development 
enterprise whose income is dependant on obtaining government contracts. In a document titled, 
"Appeal Submission-Issue#2," the petitioner stated that while it was incorporated in 2003, "it did 
not acquire premises and begin significant operations as a company until May of 2006." This 
explanation leads the AAO to believe that the petitioner was not doing business as of August 2005, 
or one year prior to the filing of the instant petition. As such, the AAO concludes that the petitioner 
has failed to establish that it meets the requirements specified in 8 C.F.R. 4 204.5(j)(3)(i)(D). 
Third, by virtue of the beneficiary's claimed ownership of the U.S. petitioner, it appears more likely 
than not that the beneficiary will not be an "employee" of the United States operation. As explained 
in 8 C.F.R. 4 204.5(j)(5), the petitioner must establish that the beneficiary will be "employed" in an 
executive or managerial capacity. It is noted that "employer," "employee," and "employed" are not 
specifically defined for purposes of the Act even though these terms are used repeatedly in the context 
of addressing the multinational executive and managerial immigrant classification. Section 
203(b)(l)(C), 8 U.S.C. 4 1153(b)(l)(C), requires beneficiaries to have been "employed" abroad and to 
render services to the same "employer" in the United States. Further, section 101(a)(44), 8 U.S.C. ?j 
1 101 (a)(44), defines both managerial and executive capacity as an assignment within an organization in 
which an "employee" performs certain enumerated qualifying duties. Finally, the specific definition of 
"managerial capacity" in section 10 1 (a)(44)(A), 8 U.S.C. ?j 1 10 1 (a)(44)(A), refers repeatedly to the 
supervision and control of other "employees." Neither the legacy Immigration and Naturalization 
Service nor U.S. Citizenship and Immigration Services (USCIS) has defined the terms "employee," 
"employer," or "employed" by regulation for purposes of the multinational executive and managerial 
immigration classification. See, e.g., 8 C.F.R. 5 204.5 and 8 C.F.R. 5 214.2(1). Therefore, for 
purposes of this immigrant classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 3 18, 322-323 (1 992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at 5 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which the petitioner claims is ultimately owned and controlled 
by the beneficiary, who purports to assume a role as the petitioner's principal. There is no evidence 
that anyone other than the beneficiary himself is in a position to exercise any control over the work 
to be performed by the beneficiary. As such, it appears the beneficiary is the employer for all 
practical purposes. He will control the organization; set the rules governing his work; and share in 
all profits and losses. 
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). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
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, af'd, 
345 F.3d 683. 
As a final note, the beneficiary repeatedly references the previously approved L-1 employment of 
the beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted 
that, in general, given the permanent nature of the benefit sought, immigrant petitions are given far 
greater scrutiny by USCIS than nonimmigrant petitions. The AAO acknowledges that both the 
immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and 
executive capacity. See $$ 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 8 11 01 (a)(44). Although the 
statutory definitions for managerial and executive capacity are the same, the question of overall 
eligibility requires a comprehensive review of all of the provisions, not just the definitions of 
managerial and executive capacity. There are significant differences between the nonimmigrant visa 
classification, which allows an alien to enter the United States temporarily for no more than seven 
years, and an immigrant visa petition, which permits an alien to apply for permanent residence in the 
United States and, if granted, ultimately apply for naturalization as a United States citizen. C' 44 
204 and 214 of the Act, 8 U.S.C. $8 1154 and 1184; see also 5 316 ofthe Act, 8 U.S.C. 8 1427. 
In addition, each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof; each petition must stand on its own individual merits. USCIS is not 
required to assume the burden of searching through previously provided evidence submitted in 
support of other petitions to determine the approvability of the petition at hand in the present matter. 
The prior nonimmigrant approvals do not preclude USCIS from denying an extension petition. See 
e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The 
approval of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant 
petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions after 
approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported 
assertions that are contained in the current record, the approval would constitute material and gross 
error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 
1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1 988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Accordingly, 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. 8 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.