dismissed EB-1C Case: Business

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal privacy 
PUBLtCCOPY 
DATE: MAR 1 4 2012 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.c. § I 153(b)(1)(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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 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 
-Page 2 
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 New York corporation that 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)(1)(C), as a multinational 
executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated July 29,2009, invoices showing the 
foreign entity's sales transactions during various time periods, an unsigned copy of the petitioner's 2008 
federal tax return, and a copy of the petitioner's stock certificate. 
The director reviewed the petitioner's submissions and determined that additional documentation was 
required. The director therefore issued a request for evidence (RFE) dated October 21, 2009 in which the 
director listed various documentary deficiencies. The RFE included a request for evidence pertaining to the 
petitioner's ownership and financial status as well as evidence of the petitioner's staffmg, work performed by 
the petitioner's employees, a list of the beneficiary's proposed job duties, and the percentage of time the 
beneficiary would allocate to each of his proposed job duties. The director instructed the petitioner to provide 
evidence showing that the beneficiary either manages or directs the management of a function within the 
petitioning entity and to establish that the beneficiary does not directly perform the function that he manages. 
The petitioner provided a response statement dated October 27, 2009, which included a list of the 
beneficiary'S proposed responsibilities and the percentage of time that would be allocated to each 
responsibility. The statement was written by the petitioner's vice president, who claimed to be the 
beneficiary'S direct subordinate~ The vice president indicated that the petitioner has 15 sales representatives 
throughout the United States and provided the representatives' contact information. The petitioner also 
provided various corporate and financial documents that addressed other portions of the RFE. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity or that the petitioner 
had the ability to pay the beneficiary's proffered wage at the time of filing. Additionally, the director relied 
on the common law definition of the term "employee" in concluding that the petitioner and the beneficiary do 
not have an employer-employee relationship. The director therefore issued a decision dated February 12, 
2010 denying the petition based on these three findings. 
On appeal, counsel submits a brief addressing the grounds for denial. Counsel states that the beneficiary does 
not engage in sales activity or oversee the sales representatives. He claims that the beneficiary is a function 
manager and that the number of employees the petitioner has should not be a determining factor. He further 
asserts that the director erroneously disregarded the petitioner's early stage of development and cites 
numerous unpublished AAO decisions in support of his assertions. 1 Additionally, counsel contends that the 
petitioner's stockholders support the petitioner through loans and payment of the beneficiary'S salary. 
I While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in 
the administration of the Act, unpublished decisions are not similarly binding. 
Page 3 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the director's denial. The 
petitioner's submissions have been reviewed and all relevant documents that pertain directly to the key issue 
in this matter will be fully addressed in the discussion below. 
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)(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 first issue to be addressed in this proceeding is the beneficiary'S employment capacity in his proposed 
position with the petitioning U.S. entity. Specifically, the AAO will examine the record to determine whether 
the petitioner submitted sufficient evidence to establish that it would employ the beneficiary in the United 
States in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the 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; 
Page 4 
(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), provides: 
The term "executive capacity" means an assignment within an organization 1ll 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 examining the executive or managerial capacity of the benefIciary, the AAO will look fIrst to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will also consider the 
petitioner's organizational hierarchy in an effort to gauge whether the petitioner was adequately staffed and 
had the necessary human resources to ensure that the beneficiary would be relieved from having to primarily 
perform the daily operational tasks. 
The petitioner indicated in Part 5, Item 2 of the Form 1-140 that it was staffed with two employees and five 
sales personnel at the time of fIling. While the petitioner submitted a list of 15 sales representatives in 
response to the RFE, thus indicating that it had acquired additional representatives since the petition was filed, 
the AAO notes that a petitioner must establish eligibility at the time of fIling. 8 C.F.R. §103.2(b)(1). 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). The AAO notes counsel's focus on 
language in an unpublished AAO decision where it was claimed that the benefIciary would primarily perform 
tasks of a qualifying nature after the petitioning entity advanced beyond the start-up phase of development. 
As noted above, the petitioner must establish that the facts and circumstances that existed at the time of fIling 
were such that the petitioner had the ability to employ the benefIciary in a qualifying managerial or executive 
capacity. If the petitioner is unable to employ the beneficiary in a qualifying capacity at the time of fIling, 
then U.S. Citizenship and Immigration Services (USCIS) may not approve the petition. 
Page 5 
The beneficiary's job description is a key factor in establishing whether the beneficiary would be employed in 
a qualifying capacity. Published case law supports the prominent role of a detailed job description, holding 
that the actual duties themselves reveal the true nature of the employment. 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). The job description provided is 
overly vague and focuses on broad job responsibilities that can be applied to any individual with a top 
placement in any organization. While the petitioner indicated that the beneficiary would direct and manage 
daily activities, establish and develop goals and policies, and manage and direct marketing and advertising, all 
of which signify that the beneficiary has a heightened degree of discretionary authority over the petitioner's 
business operation, none of these statements help to determine what specific tasks the beneficiary performs on 
a daily basis. Despite the fact that the petitioner's RFE response supplemented these broad statements with a 
percentage breakdown, the time distribution fails to provide any insight into the beneficiary's actual daily job 
duties. Without specific information about the beneficiary's daily tasks, the AAO cannot determine whether 
the beneficiary would spend the primary portion of his time performing tasks that are necessary to produce a 
product or to provide services. 
Simply listing some ofthe non-qualifying tasks that the beneficiary does not perform is not sufficient, as there 
may be numerous others that the beneficiary does perform. The petitioner was given the opportunity to 
provide a list of the beneficiary's specific daily tasks in response to the RFE. Instead, the petitioner restated 
the original job description and simply added a percentage breakdown to an otherwise deficient list of broad 
job responsibilities. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to the proposed position. 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 1&N Dec. 593, 604 (Comm. 1988). 
Due to the petitioner's failure to supplement the record with a detailed description of the beneficiary's 
proposed employment and given the petitioner's relatively small organizational hierarchy at the time of filing, 
the AAO finds that the record lacks sufficient supporting evidence to establish that the petitioner was ready 
and able to employ the beneficiary in a primarily managerial or executive capacity when the Form 1-140 was 
filed. Based on this initial determination, the AAO finds that the petitioner has failed to establish eligibility 
and the petition must therefore be denied. 
Next, the AAO will address the second basis for denial-the conclusion that the petitioner failed to establish 
that it had the ability to pay the beneficiary's proffered wage at the time of filing. 
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 
-Page 6 
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). 
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. While the 
record indicates that the petitioner did employ the beneficiary at the time of filing, no evidence was provided to 
establish how the beneficiary was remunerated. Therefore, the record lacks prima facie proof to meet the 
provisions of8 C.P.R. § 204.5(g)(2). 
Although the AAO may examine the prospective employer's net income figure as reflected on the federal 
income tax return, without consideration of depreciation or other expenses, as an alternate means of 
determining the petitioner's ability to pay, the record in the present matter does not contain the u.s. 
employer's 2009 tax return, which would determine how much net income the u.s. entity had at the time the 
Porm 1-140 was filed.2 
Additionally, counsel asserts that the director placed undue emphasis on the petitioner's net profits as 
provided in the petitioner's 2008 tax return, citing the precedent holding in Matter of Sonegawa, 12 I&N Dec. 
612 (Reg. Comm. 1967), in support of his assertion. More specifically, counsel asserts that in Matter of 
Sonegawa the Regional Comniissioner approved a visa petition, despite the petitioner's net income loss, 
emphasizing the reasonable expectation for the petitioner's future increase in profit. Despite the petitioner's 
obviously inadequate net income in Matter of Sonegawa, the Regional Commissioner looked beyond the 
petitioner's uncharacteristic business loss and found that the petitioner's expectations of continued business 
growth and increasing profits were reasonable. Id. at 615. Based on an evaluation of the totality ofthe petitioner's 
circumstances, the Regional Commissioner determined that the petitioner had established the ability to pay the 
beneficiary the stipulated wages. 
As indicated in Matter of Sonegawa, USCIS may, at its discretion, consider evidence relevant to a petitioner's 
financial ability that falls outside of a petitioner's net income and net current assets. USCIS may consider such 
factors as the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, or any other evidence that USCIS deems to be relevant to the petitioner's ability to pay the 
proffered wage. 
In the instant matter, counsel implies that the AAO should consider the petitioner's relatively early stage of 
development and asks the AAO to apply the reasoning employed by the Regional Commissioner in Matter of 
Sonegawa. !d. Many of the relevant facts in Matter of Sonegawa, however, are significantly different from 
those in the instant matter. The petitioner in Matter of Sonegawa had been doing business for eleven years and 
also had a business reputation, clientele, and a history of paying wages, all of which could be used to estimate 
future earnings and the ability to pay the proffered wage. See 12 I&N Dec. 612. It is noted that none of these 
Page 7 
factors are true of the u.s. employer in the present matter. Moreover, the claim that the petitioner's stockholders 
are willing to loan the petitioner money and pay the beneficiary's salary is irrelevant, in light of the regulatory 
burden that requires the prospective U.S. employer to establish its own ability to pay the beneficiary's proffered 
wage, notwithstanding the ability of the petitioner's stockholders to meet that burden. See 8 C.F.R. § 204.5(g)(2). 
That being said, the record shows that the beneficiary owns I 90 out of 200 shares of the petitioner's stock and is 
therefore the majority shareholder. As such, the very claim that the beneficiary's salary would be paid by the 
petitioner's stockholders indicates that the beneficiary would in essence be paying himself. 
The record lacks evidence to show that the petitioner had the ability to pay the beneficiary's proffered wage as 
required by regulation. On the basis of this second fmding of ineligibility, the instant petition cannot be approved. 
In light of the above deficiencies, the AAO finds that there is no need to address the employer-employee issue, 
which the director cited as another basis for the 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.