dismissed EB-1C Case: Business

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals 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)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 9 103.5 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. 8 103.5(a)(l)(i). 
eny Rhew 
Administrative Appeals Office 
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 Pennsylvania corporation that seeks to employ the beneficiary as its president and chief 
executive officer. 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. 
5 1 153(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner failed to establish its ability to pay the beneficiary's proffered 
wage and denied the petition. On appeal, counsel disputes the director's conclusion and submits a brief in 
support of her 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 issue in this proceeding is whether the petitioner has the ability to pay the beneficiary's proffered wage. 
The regulation at 8 C.F.R. tj 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 in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
At Part 6, Item 9 of the Form 1-140, which was received by U.S. Citizenship and Immigration Services on 
November 13, 2006, the petitioner indicated that the beneficiary's proffered wage is $106,800 annually. In 
support of the Form 1-140, the petitioner provided an unaudited financial statement for the six-month period 
that ended on June 30, 2006. The petitioner also provided its 2005 tax return showing a net taxable income of 
negative $1,006,792. 
On July 23, 2007, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide documentation establishing its ability to pay the proffered wage that was specified in the Form 1-140. 
The petitioner was given the option of submitting either its complete 2006 tax return with all schedules or, if 
the beneficiary had been previously paid by the petitioner, evidence of the salarylwage that was paid. 
In response, counsel submitted a letter dated October 22, 2007 in which she stated that while the issue of the 
instant Form 1-140 is currently pending, the foreign entity would pay the beneficiary's salary. Counsel further 
stated that the petitioner has net assets that are six times greater than the beneficiary's proffered wage and that 
the ability to pay is therefore evident. Additionally, the petitioner submitted its own corporate tax return for 
2006 as well as the foreign entity's audited financial statement for 2006. 
In a decision dated August 5, 2008, the director denied the petition concluding that the petitioner failed to 
establish the ability to pay the beneficiary's proffered wage. Based on a thorough analysis of the petitioner's 
2005 and 2006 tax returns, the director determined that neither the net income nor the net assets in the 
submitted tax returns established the petitioner's ability to pay the proffered annual wage of $106,800. 
On appeal, counsel submits a brief, asserting that the director did not properly weigh the submitted evidence 
and that the decision was therefore erroneous. Counsel points out that 8 C.F.R. 5 204.5(g)(2) allows the 
director discretionary review of additional evidence and urges the director to use his discretion to consider the 
petitioner's bank account records and payroll documents. Counsel contends that evidence of the petitioner's 
payment of employee salaries is an accurate indicator of the petitioner's ability to pay the beneficiary's 
proffered wage. Counsel's arguments, however, are not persuasive. 
While counsel is correct in pointing out that the above regulation allows additional material "in appropriate 
cases," the petitioner in this case has not demonstrated why the documentation that is expressly specified at 
8 C.F.R. 5 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the petitioning entity. 
Therefore, the AAO does not find that the director erred in focusing his analysis on the information provided in 
the petitioner's tax returns. Furthermore, the AAO finds that counsel places undue emphasis on the business 
relationship between the petitioner and its foreign parent entity, which has paid and continues to pay the 
beneficiary's salary. More specifically, counsel relies on the parentlsubsidiary relationship between the two 
entities in its attempt to meet the ability to pay requirement. However, regardless of the common degree of 
ownership and control shared by the two entities, the law does not allow U.S. Citizenship and Immigration 
Services (USCIS) to consider the foreign entity's financial status in determining the U.S. petitioner's ability to pay 
the beneficiary the proffered wage. As such, the foreign entity's audited financial statement, which the petitioner 
submitted in response to the RFE, will not be considered. 
In reviewing the denial, the AAO finds that the director accurately summarized relevant portions of the 
petitioner's 2006 tax return, which supports the director's conclusion. Specifically, the director looked at the net 
income the petitioner had available during the pertinent period, keeping in mind that the petitioner did not pay 
the beneficiary's wages during that period. As stated in the director's decision, the petitioner's net income in 
2006 was negative $2,181,402, and therefore clearly was insufficient to cover the beneficiary's proffered 
wage. The director also reviewed the petitioner's assets, excluding depreciable assets, which cannot be 
considered as they will not be converted to cash during the ordinary course of business and will not, therefore, 
become funds available to pay the proffered wage. The director calculated the petitioner's net current assets 
by considering the year-end current assets, which are shown on Schedule L, lines 1 through 6, in light of year- 
end current liabilities, which are shown on lines 16 through 18. If the total of a corporation's end-of-year net 
current assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, 
the petitioner is expected to be able to pay the proffered wage using those net current assets. In the present 
matter, the director properly found that the petitioner's liabilities were $134,641 greater than its assets in 2006 
and that the petitioner therefore did not have any net current assets that could have been used towards 
payment of the beneficiary's proffered wage. 
In light of the above, the AAO finds that the director properly concluded that the record lacks evidence to 
establish that the petitioner had the ability to pay the beneficiary's proffered wage at the time of filing, a 
burden that the petitioner must sustain on the filing date of the petition and continuing through the date the 
beneficiary adjusts hislher status to that of a permanent resident. 8 C.F.R. 5 204.5(g)(2). Neither counsel's 
appellate brief nor the petitioner's additional submissions on appeal help to overcome the director's 
conclusion. Therefore, on the basis of this determination the instant petition cannot be approved. 
Additionally, while not addressed in the director's decision, the AAO finds that the petitioner failed to 
establish that it would employ the beneficiary in a qualifying managerial or executive capacity. As stated 
above, the petitioner is required to establish that the beneficiary's proposed position would be within a 
managerial or executive capacity where the primary portion of the beneficiary's time would be spent 
performing job duties of a qualifying nature. 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 examining the executive or managerial capacity of the beneficiary, USCIS 
will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 204.56)(5). 
In the present matter, in support of the Form 1-140, the petitioner provided a description of the beneficiary's 
proposed employment. The petitioner stated that the beneficiary would develop and implement business 
plans, objectives, and corporate policies; manage and support the company's software development and 
identify business opportunities; manage the company's finances by approving and implementing a business 
plan, allocating resources, and reviewing financial statements and reports; conduct feasibility studies; and 
supervise the management and professional staff. 
The director determined that the above job description was insufficient to establish that the beneficiary's 
proposed position would be within a qualifying capacity. Accordingly, the director addressed this deficiency 
by including instructions in the RFE for the submission of a supplemental job description listing the 
beneficiary's specific job duties and the percentage of time that would be attributed to each duty. Although 
the petitioner provided a response letter dated October 17, 2007, which attributed a percentage of time to 
general job responsibilities, the supplemental job description primarily consisted of restated portions of the 
previously submitted job description. The petitioner stated that 40% of the beneficiary's time would be 
devoted to planning and developing business objectives, strategies, and organizational policies; 35% of his 
time would be attributed to analyzing and evaluating existing business activity and product development; 10% 
of his time would be attributed to supervising and reviewing the work of subordinates; and the remaining 15% 
of his time would be devoted to meeting and communicating with senior executives to formulate and 
implement business policies. Although the petitioner restated other portions of the initially provided job 
description, no specific daily tasks were mentioned. 
In the present matter, despite the beneficiary's placement at the top of the petitioner's organizational hierarchy, 
as illustrated in the organizational chart, the petitioner failed to provide a meaningful understanding of the 
specific tasks the beneficiary would perform on a day-to-day basis. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting 
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), aj'd, 905 F.2d 41 (2d. Cir. 1990). While the beneficiary's discretionary 
authority is also material to meeting the statutory requirements, the actual duties themselves reveal the true 
nature of the employment. Id. As the petitioner failed to clarify the beneficiary's proposed employment by 
enumerating the daily job duties, the AAO cannot determine whether the beneficiary would be employed in a 
qualifying managerial or executive capacity. 
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), affd, 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 ground of ineligibility discussed above, this 
petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.