dismissed EB-1C Case: Business

(b)(6)
f;' , 
DATE: 
MAR 0 9 2013 
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 FILE: 
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. § 1153(b)(l)(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 concerrung 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 in 
accordance with the instructions on 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)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
·Acting Chief, Administrative Appeals Office 
www.uscls.gov 
(b)(6)Page2 
DISCUSSION: The preference. visa petition was denied by the Director, Texas Service Center. The. 
petitioner subsequently filed an appeal with the Administrative Appeals Office (AAO). The appeal was 
dismissed and the matter is now before the AAO on motion to reopen and reconsider. Although the AAO will 
grant the petitioner's motion in order to address newly submitted evidence, the prior decision dismissing the 
appeal will be affirmed. 
The petitioner is a United States branch office of a foreign company headquartered in · . Syria. The 
petitioner 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 multinationa_l 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. The director rejected the petitioner's offer of documents 
addressing the foreign branch's ability to pay, instructing the petitioner that evidence of ability to pay must 
necessarily pertain to the U.S. branch where the beneficiary's proposed employment would take place. 
The AAO concurred with the director's analysis and 90nclusion, pointing out that the petitioner failed to 
provide acceptable forms of documentation. The AAO specifically rejected the petitioner's offer of a 
statement from the foreign branch's. financial manager as permissible. supporting evidence, stating that the 
record lacks evidence showing that the foreign entity employs more than 100 employees and beyond that, that 
the foreign entity's ability to pay cannot be used to determine the prospective U.S. employer's ability to pay. 
The AAO also Issued additional findings beyond those found ,in the director's decision. Namely, the AAO 
determined that the petitioner failed to provide sufficient evidence to show that: (1) the beneficiary was 
employed abroad in a qualifying managerial or executive capacity; (2) the beneficiary would be employed by 
the petitioning U.S. employer in a qualifying managerial or executive capacity; and (3) the U.S. petitioner is 
doing business in the United States. Additionally, the AAO addressed the issue of credibility, pointing that 
the petitioner provided inconsistent evidence with regard to its ownership of a claimed 
U.S. subsidiary. 
Section 203(b) of the Act states in pertinent part: 
(1) Prim1.ty 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 ts 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 Qther 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 
· mana&erial or executive. 
(b)(6)
Page3 
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 subsi~iary. 
A United States employer may file a petition on Form 1-140 for classi:f:ication 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 en;tployed 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 frrst issue to be addressed in this proceeding is whether the petitioner has provided sufficient evidence to 
establish that it has the ability to pay the beneficiary's proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer 
has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the 
time the priority date is established and continuing until the beneficiary obtains· lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual reports, 
federal tax returns, or audited financial statements. 
(Emphasis added.) 
As a preliminary matter, nowhere in the above provision is there any indication that U.S. Citizenship and 
Immigration Services (USCIS) considers the records of the entire organization when addressing the issue of 
ability to pay. To the contrary; as emphasized in the AAO's prior decision, a number of regulatory 
provisions, including 8 C.F~R. § 204.5(g)(2), are concerned only with documents pertainmg to the prospective 
U.S. employer. Regardless of the fact that the petitioner is a branch office of, and not wholly separate from, 
the beneficiary's employer abroad, the key concern in establishing the ability to pay is to determine that the 
branch that operates in the United States is able to compensate the beneficiary's proffered wage. The 
petitioner's submission of credible and reliable evidence to establish that the main branch office abroad 
employs at least 100 employees is therefore irrelevant in this matter and wili not be examined, as this 
evidence does not establish the U.S. entity's ability to pay. 
Counsel has indicated that he was the catalyst for the petitioner'·s decision to operate in the United States as a 
branch of the foreign entity rather than as a separate parent, subsidiary, or affiliate entity. Counsel contends 
that the purpose of advising the petitioner to operate as a branch office was so that the petitioner would not be 
considered individually separate from its counterpart, which operates abroad. The underlying contention is 
that the petitioner will get more favorable treatment 'if it is considered as part of one large organization than if 
the petitioner is considered by itself as a separate entity. However, the language of 8 C.F.R. § 204.5(g)(2) is 
unambiguous in expressly stating that the key focus in determining the ability to pay is the financial status of 
the "prospective United States employer." . 
While the AAO acknowledges that the petitioner is part of a single multinational organization, whose main 
branch operates in Syria, it is not the intent of 8 C.F.R. § 204.5(g)(2) to consider all documents that broadly 
(b)(6)Page4 
demonstrate the financial solvency of the entire organization. Therefore, regardless of the fact that the foreign 
operating branch and the petitioner are part of the same organization, only those documents that establish the 
·financial ability of the u.s·.-based branch will be considered. Counsel has not pointed to any statute, 
regulation, or precedent decision that contradicts the AAO's objective analysis. While counsel interprets the 
AAO's reiterations as an indication that the AAO is "stubbornly trying to maintain an unsupportable 
position;" he does not point to any legal authoritY to contradict the AAO's discussion, which is based on the 
express language of the regulatory provision in question. 
The AAO allowed the petitioner ample opportunity to provide any evidence that is relevant to determining the 
u.s. branch's ability to pay the beneficiary's proffered wage, indicating its willingness to consider a variety 
of-documents in addition to those that are expressly enumerated at 8 C.F.R. § 204.5(g)(2). However, counsel 
finds !his approach objectionable as well, asserting that the AAO "does not have the authority to declare a 
new procedure specifically for branch offices." Counsel's assertions are. not supported by the language in 8 
C.F.R. § 204.5(g)(2), which states that additional evidence not expressly cited in the regulation can also be 
considered.) While the regulation expressly mentions profit/loss statements, bank account records, and 
. personnel records among the additional documents that USCIS may consider, there is no indication that this is 
an exhaustive list o(the types of evidencethe AAO may review. See 8 C.F.R. § 204.5G)(3)(ii), which allows 
USCIS broad discretion to request additional evidence where it deems appropriate to do so. 
In light of the above, the AAO fmds that the petitioner has failed to establish its ability to pay the 
beneficiary's proffered wage and thus has not shown that the appeal was erroneously dismissed .. 
The next two issues to be addressed in this proceeding call for an analysis of the beneficiary's respective 
positions with the foreign entity abroad and with the foreign entity's u.s. branch office. 
Section l01(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(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. 
(b)(6)
Page5 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m which the 
employee primarily--
(i) directs the management ofthe 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 examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's 
description of the beneficiary's job duties. See 8 C.F.R. § 204.50)(5). Published case law 
supports the pivotal role of a clearly defmed job description, deeming the actual duties themselves as the 
factors that determine the true nature of the employment. Fedin Bros. Co., Ltd. v . .Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), ajfd, 905 F.2d 41 (2d. Cir. 1990). 
In the prior decision,. the AAO informed the petitioner that the record lacked the necessary inforination 
determining the job duties the beneficiary performed during his employment abroad and the job duties he 
"'would perform during his proposed employment at the U.S. branch office. Despite the AAO's focus on the 
beneficiary's actual job duties, the petitioner failed to supplement its written motion with additional job 
descriptions containing detailed lists of job duties. Instead, counsel focuses his attention on the AAO's 
citation of a precedent decision which requires the petitioner to support its claims by submitting documentary 
evidence. Specifically, counsel asserts that reliance on Matter of Soffici, 22 I&N Dec. 158 (Comm. 1998), 
which cites to the precedent set in Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972), should be limited to those cases where there are factual discrepancies or anomalies. Counsel's 
reasoning, however, is not supported by the cited case law, as the associate coiiunissioner's decision in Matter 
of Soffici does not indicate that supporting evidence is needed only for the purpose of clarifying factual 
inconsistencies. Rather, the associate commissioner focused on the lack of supporting evidence establishing 
that the petitioner · met some of the key statutory requirements that pertain to the alien entrepreneur 
classification pursuant to section 203(b)(5) of the Act. 
As a matter of policy, counsel's assertions are not reasonable. Counsel cannot expect that the petitioner rely 
solely on third party attestations as a means for supporting the petitioner's claims. For instance, if the 
petitioner were to claim that its organizational hierarchy is comprised of a certain number of employees . 
assUming certain specified positions within the hierarchy, it is not unreasonable for USCIS to require the 
petitioner to· provide supporting documentary evidence, such as payroll documents or quarterly wage 
statements, to establish the existence of the claiined staffing. Simply having someone attest to the 
information ·as a means of corroborating the petitioner's claim is not sufficient. If such reasoning were to be. 
broadly applied, any company, regardless of its ability to meet the statutory and regulatory requirements, 
could make any number of claims knowing that no contemporaneous supporting evidence is required as a 
means. of corroboration. 
(b)(6)
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Page6 
Even if the AAO were to focus on third party attestations, such as the affidavit of 
(which has been submitted in support of this motion), the AAO questions the relevance of this 
document, which pertains entirely to the beneficiary's role within Regardless of the 
petitioner's ability to show ownership of: , the fact remains thatthe latter entity did not file this 
petition on behalf of the beneficiary. The petition was filed by the U.S. branch of a foreign entity, whose 
alleged business purpose in the United States, according to Part 5, Item 2 of the Form 1-140, is to engage in 
sales and international transactions. While a foreign entity's purchase of ownership shares in a U.S. entity, as 
the petitioner claims to have done with regard to . qualifies as an international transa~tion, the 
beneficiary's role ~ the continued operations of the purchased entity is not relevant. The petitioner must 
provide an adequate discussion of the actual job duties the beneficiary performed in his position with 
. overseas and the job duties he would be expected to perform for that entity's u.s. branch 
operation. Here, the petitioner has failed to provide the key infoimation delineating the beneficiary's specific 
job duties either abroad or in the United States. Without such information, the AAO cannot affirmatively 
conclude that the beneficiary was employed abroad or that he would be elllployed in the United States in a 
qualifying managerial or executive capacity. 
Next, the AAO will determine whether the petition~ provided evidence to establish that it has been and 
continues to provide goods and/or services on a regular, systematic, and continuous basis. See 8 C.F.R. 
§ 204.5(j)(2) .. 
The petitioner has not supplemented the record with any new documents pertaining to the business activities 
of Company's U.S. branch operation. As discussed in the AAO's orevious decision, · 
providing documents to show tpat the petitioner's claimed U.S. subsidiary- -is doing 
business in the United States is not relevant to a discussion of whether the petitioner itself is doing business in 
the United States. The record contains no evidence to . establish that the u.s~ branch office of the 
beneficiary's foreign employer is providing goods and/or services on a regular, systematic, and continuous 
basis. The single transaction of purchasing a business in the United States is not sufficient to show that the 
petitioner continued to engage in similar such transactions. Therefore, the AAO finds that the U.S. branch office 
is not more than ''the mere presence of an agent or office." /d. 
Third, as pointed out in the AAO's prior decision, even if the AAO were to consider the business activities of 
, the petitioner has submitted insufficient and conflicting information regarding itS ownership 
of that corporation.· To r.eiterate the AAO's prior observations, the petitioner previously provided stock 
certificates numbered one, two; and three to establish the petitioner's acquisition of stock. 
However, the AAO noted that 
stock certificates numbered two and three were endorsed on the back, without a 
date, representing that the share certificates w~e transferred to 
Additionally, the petitioner submitted a letter from President of 
who provided an explanation that seemingly corroborated the general claim of the petitioner's ownership interest 
in :. The AAO rejected > statement, finding that the statement did not constitute 
documentary evidence pursuant to Matter of Soffici, 22 I&N Dec. at 165. As previously noted, counsel's 
objections to the AAO's citing of Matter of So.ffici to support the need for corroborating documentary evidence 
were not valid, particularly when the AAO's purpose in seeking documentary evidence, in place of written 
attestations, was to resolve a perceived anomaly. Contrary to counsel's objections, the AAO was justified in 
requiring that the petitioner provide documentation to support the claims made in Mr. statement, which. 
(b)(6)
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Page7 
were not consistent with the evidence on record The fact that the petitioner has not produced the required 
evidence to cure this deficiency will result in another adverse finding on this issue as well. 
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 (ED, Cal. 2001}, a.ff'd, 345 F.3d 683 
(9th Cir. 2003);see also Soltane· v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
. appeals on a de novo basis). Based on all of the grounds of ineligibility discussed above, including those that 
were not originally cited in the director's decision, the denial of the petition will be affirmed. 
The AAO hereby affirms its prior decision dismissing the appeal for the above stated reasons, with each 
considered as an independent and alternative basis for dismiss~!. In visa petition proceedings, the burden of 
proving eligibility for the benefitsought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 1361. ·The petitioner has not sustained that burden .. 
' 
ORDER: The AAO 's .decision dated February_ 7, 2012 will be affirmed. 
i 
..