dismissed EB-1C Case: Business

(b)(6)
DATE: OCT 0 2 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Benefi <? iary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of AdministraTive Appeals 
20 Massachusetts Ave .• N.W. , MS 2090 
Washingt on, DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
FILE : 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Man ager 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 (AAO ) in your case . 
This is a non-precedent decision. The AAO does not announce new construction s of law n or establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsid er 
or a motion to reopen , respectively . Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
} 
_;i-Ron R senberg 
Chief , Admini strative Appeal s Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petitiOn. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Florida corporation that claims to be a subsidiary of the 
beneficiary's former foreign employer located in Pakistan. The petitioner is seeking 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)(l)(C) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
In support of the Form I-140 , the petitioner submitted a letter dated June 20, 2011 containing, in 
part, a description of the beneficiary's proposed duties and a brief statement about the beneficiary's 
prior position with the foreign employer. The petitioner also provided copies of its shareholder 
agreement, corporate meeting minutes and stock certificates in support of its claim that it is a 
subsidiary of the foreign employer. Finally, the petitioner submitted supporting evidence in the 
form of corporate, business, and tax documents pertaining to the beneficiary's foreign employer, the 
petitioner and the petitioner's claimed U.S . subsidiary, 
The director reviewed the petitioner's submissions and determined that the petition did not warrant 
approval. Therefore, the director issued a request for evidence (RFE) dated September 4, 2012 
. informing the petitioner of evidentiary deficiencies. The director requested additional evidence to 
establish: (1) the qualifying relationship between the foreign employer and the petitioner; (2) the 
petitioner's ability to pay the beneficiary; (3) that the petitioner has been doing business for at least 
one year; and (4) the beneficiary ' s qualifying employment with the foreign and proposed employer. 
The petitioner's response to the RFE included several documents already included in the record. In 
addition , the petitioner provided tax returns and quarterly state tax report s for 
Several invoices and bills were submitted to establish the business relationship 
between the beneficiary's foreign employer and during 2010 and 2011. 
After reviewing the record, the director concluded that the petitioner failed to establish: (1) that the 
petitioner has a qualifying relationship with the foreign employer; (2) that the beneficiary would be 
employed in a qualifying managerial or executive capacity; (3) that the petitioner had been doing 
busines s for the previous year; and (4) that the petitioner has the ability to pay the proffered wage. 
Therefore, the director denied the petition on April 3, 2013. 
On appeal, counsel disputes the director's findings as arbitrary and not based upon the evidence in 
the record. Counsel indicated on the Form I-290B, Notice of Appeal or Motion, filed May 2, 2013 
that a legal brief and additional evidence would be submitted within 30 days. The record reflects 
that no additional documentation was provided within this timeframe and the record is considered 
complete. 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
I. The Law 
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. 
II. Qualifying Relationship 
The first issue to be addressed is whether the petitioner established that it has a qualifying relationship 
with the beneficiary's last foreign employer, To establish a "qualifying 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary 's 
foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a 
foreign .office) or related as a "parent and subsidiary" or as "affiliates." See generally 
§ 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.FR. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate 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 qualifying 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. 
In a letter dated June 20, 2011, the petitioner indicated that it is a subsidiary of 
Pakistan. Specifically, the petitioner stated that it "is 50% owned and controlled by 
" The petitioner's Articles of Incorporation show that it was established in 
Florida on April, 4, 2003 and is authorized to issue 1000 shares. The petitioner submitted two share 
certificates to establish the company's ownership. Share certificate no. 2 issued on October 31, 
2008, indicates that holds 500 of the petitioner's shares. The petitioner also 
submitted its stock certificate no. 5 issued on October 31, 2010, which indicates that 
Company 
holds 500 of the petitioner's shares. 
Along with the stock ce1tificates, the petitioner submitted the minutes of a shareholders meeting 
held on October 31, 2010. This document states that 50% of the petitioner's stock is "now owned" 
by However, the minutes also state that and not owned 
the remaining 500 shares the petitioner's stock as of that date. Further, the minutes identified ~ 
as the petitioner's chairperson, vice-president, director, and treasurer. The petitioner also 
provided a shareholder agreement dated October 31, 2010 signed by and 
as shareholders, which states "[i]t is hereby agreed that, all final business and management related 
decisions will be made unanimous and , · will have a final authority on all management 
and policy issues." 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
Finally, the petitioner's initial evidence included a copy of its m.s Form 1120, U.S. Corporation 
Income Tax Return for 2009, which identifies as an officer of the corporation and 
indicates that he holds 0.0% of stock in the company. 
In the RFE issued on September 4, 2012, the director requested that the petitioner submit additional 
evidence to establish that it has a qualifying relationship with the foreign entity. The director 
specifically advised that this evidence may include but is not limited to submis sion of all stock 
certificates , a stock ledger , and proof of stock purchase. In response, the petitioner resubmitted its 
stock certificates nos. 2 and 5 issued to and in 2008 and 2010, 
respectively, and the minutes of the shareholders meeting dated October 31, 2010 which identifies 
and as the shareholders as of that date . 
The director found the evidence insufficient to establish that the petitioner has a qualifying 
relationship with the foreign entity and denied the petition. 
On appeal counsel provides no new evidence and repeats the same assertions already noted in the 
record. 
Upon review , the petitioner has not established that it has a qualifying relationship with the 
beneficiary's foreign employer. 
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 United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 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. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to establish whether a stockholder maintains ownership and control of a 
corporate entity . The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting actual control of the entity. See 
Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all relevant documents, 
USCIS is unable to determine the elements of ownership and control. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
The petitioner has submitted insufficient evidence to support its claim that owns 50% 
of the company's stock. Further, based on a review of the shareholder's agreement, even if the 
petitioner had established 50% ownership, it has not established the required 
element of control. 
First, the petitioner's evidence of ownership was incomplete and inconsistent. Specifically, the 
petitioner submitted only stock certificate numbers two and five reflecting 50% share ownership by 
and 50% share ownership by The omission of certificates one , three, 
and four raises questions regarding the existence and content of these missing certificate s. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec . 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Notwithstanding the stock certificates provided, the petitioner claims that the company ownership is 
now split between and in equal parts . However, the petitioner failed to 
explain the transition of shares from Rather, the petitioner's evidence appeared to 
show that three separate shareholders cutTently own 50% of the company's stock. Despite an RFE 
from the director regarding stock holdings and company ownership, the petitioner provided no 
evidence to con·oborate s acquisition of the stock. The petitioner did not submit a 
share certificate ledger or registry or copies of all issued stock certificates to establish the 
petitioner's shareholders. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b )(14). Absent copies of all 
issued and outstanding stock certificates, cancelled certificates , and a stock ledger, the critical 
element of ownership cannot be determined. 
Even if the petitioner had submitted complete and consistent documents reflecting ownership of the 
company as claimed, the voter agreement appears to gives final authority over 
management and policy issues but the agreement, as written, is too vague and requires additional 
explanation to sufficiently demonstrate s full power and authority to control the 
entity based on its claimed 50% ownership. 
Furthermore, other documentation the petitioner provided in support of this pet1t10n introduces 
additional unre solved incon sistencies . Specifically, the petitioner's meeting minutes dated October 
31, 2010 indicate that the beneficiary is president of the petitioning company ; however, the 
petitioner's tax forms and annual company report filings indicate that was and 
continues to be the petitioning company's president creating a question as to the validity of the 
documentation. If USCIS fails to believe that a fact stated in the petition is true, USCIS may reject 
that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. INS, 876 F.2d 1218, 
1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D .C.1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
(b)(6) NON-PRECEDENT DECISION 
Page 7 
For these reasons, the petitioner has not established that it has a qualifying relationship with the 
beneficiary's foreign employer and the appeal will be dismissed. 
In addition to being a subsidiary of the petitioner claims that it is "the 100% parent 
corporation" of a Florida corporation established in March 2006 
which is also the beneficiary's cunent U.S. employer. The petitioner's claim appears to be crucial in 
creating a link between the foreign employer and the petitioning entity. However, the petitionerhas 
not submitted consistent evidence to support its claim. 
The record reflects that filed an I-140 immigrant petition on behalf 
of the beneficiary in February 2009. At that time, submitted a copy of 
its un-dated stock certificate number "0" indicating that 10 shares, out of 1,000 authorized shares, 
were issued to 
In support of the current petition, the petitioner has submitted a copy of stock certificate no. 3 for 
which is dated June 16, 2011 and identifies the petitioner as the 
owner of ten shares of the company. According to the minutes of a special meeting of the board of 
directors of the directors resolved to issue ten shares of the 
company to the petitioner in exchange for $10.00, and also resolved that the ten shares previously 
issued to be cancelled. The petitioner has not submitted copies of stock 
certificates no. 2 or 3 or a stock ledger for and thus it cmmot be determined 
whether any or all of the remaining 990 authorized shares have been issued. 
Additionally, the record includes copies of IRS Forms 1120, U.S. Corporation Income Tax Returns 
for for the tax years 2008, 2010 and 2011. In each tax year, 
identified the beneficiary as its sole owner and he signed the returns in his capacity 
as "owner." The petitioner did not resolve the inconsistencies of ownership of 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Based on the foregoing deficiencies and inconsistencies, the evidence of record does not establish 
that the is a subsidiary of the petitioning company. 
III. Proposed Employment in a Managerial or Executive Capacity 
The second issue addressed by the director is whether the petitioner established that the beneficiary 
would be employed in the United States, in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
(b)(6)Page 8 
NON-PRECEDENT DECISION 
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. § 1101(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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
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. § 204.50)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as 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), aff'd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). The AAO 
reviews the totality of the record, which includes not only the beneficiary's job description, but also 
takes into account the nature of the petitioner's business, the employment and remuneration of other 
employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The petitioner has not established that it will employ the beneficiary in a qualifying managerial or 
executive capacity. According to its Form I-140 filed on August 24, 2011, the petitioner imports 
and distributes cutlery and beauty instruments and has ten employees. A letter from the petitioner 
dated June 20, 2011 included position descriptions for the beneficiary as well as for the positions of 
vice president, senior executive, office administrator, marketing manager, sales representative, 
shipping, warehouse/shipping manager, and a quality control/custom manufacturing position. 
The petitioner listed eight general areas of responsibility for the beneficiary and indicated the 
number of hours he would spend on each area on a weekly basis as follows: 
10 Hours - Direct and coordinate personnel engaged in marketing, sales and 
import/distribution functions through assignment of tasks and responsibilities to the 
vice president (operations), marketing manager, and office administrator. 
5 Hours - Formulate administrative policies for short term business practices based 
upon analysis of financial and sales data. 
5 Hours - Oversee development of goals and policies related to improving business 
operations implemented by the Vice President. 
2 Hours- Review budgets and costs and adjust financial planning accordingly .. 
8 Hours- Analyze data and coordinate production and scheduling at Pakistan suppliers. 
3 Hours - Confer with the Vice President regarding department policies and discuss 
required changes to improve programs and reduce costs. 
2 Hours Allocate funds to support appropriate functions regarding 
importing/distributing, quality control, and purchasing operations. 
(b)(6)
Page 10 
NON-PRECEDENT DECISION 
5 Hours- Direct and coordinate production and delivery of customer orders, special 
manufacturing requirements, etc. 
The petitioner also stated in its letter in support of the petition that the beneficiary serves in the dual 
role of president for both the petitioner and As the petitioner's 
president, the beneficiary is "responsible for hiring and firing employees and directing all functions 
regarding the financial , managerial, sales, production, purchasing and marketing activities." The 
petitioner failed to incorporate all of these duties into the hourly chart of the beneficiary's activities. 
Further , the petitioner's duty description lacks specificity. The duties the petitioner did list were 
broadly described and provided little insight into what the beneficiary was to do 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 
905 F.2d 41 (2d. Cir. 1990). 
In response to the director's request for further evidence, the petitioner resubmitted the same June 
20, 2011 letter and nothing more relating to this issue. The purpose of the reque st for evidence is to 
elicit further information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. § 103.2(b)(8). Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). On appeal the 
petitioner provided no brief and no additional evidence for consideration. 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must 
show that the beneficiary performs the high-level responsibilities that are specified in the 
definitions. Second, the petitioner must prove that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his or her time on day-to-day functions. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991) . 
A review of the general duties the petitioner described suggests that the beneficiary will be involved 
in non-qualifying tasks such as directing supervision of lower level employees, substantial 
involvement in financial matters, and substantial involvement in coordin ation of production, 
scheduling and delivery for the busine ss. Based on the number of hours allocated to these activities 
the petitioner has not established that the beneficiary would be primarily engaged in qualifying 
duties. 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 Intn'l. , 19 I&N 
Dec. 593 , 604 (Comm'r 1988). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the 
petitioner 's busine ss, and any other factor s that will contribute to a complete understanding of a 
beneficiary ' s actual duties and role in a business. 
As noted, the petitioner claims to be engaged in the import and distribution of cutlery and sporting 
goods and states that it has ten employees . Although the petition was filed in August 2011, the 
petitioner initially submitted evidence of wages paid to employees in 2010 only , including copies of 
its IRS Forms 941, Employer's Quarterly Federal Tax Return , and Florid a Forms UCT-6, 
Employer's Quarterly Report. This evidence reflects that the petitioner's staffing levels varied 
between a low of two employees and a maximum of eight employees in 2010 . The petitioner 
provided a list of claimed current employees that corresponded to the employee s named in the 
quarterly report for the fourth quarter of 2010. These employees included a vice president, a senior 
executive, a marketing manager, an office administrator, two sales representatives, a shipping 
employee , a warehouse and shipping manager and a quality control/custom manufacturing 
employee. The petitioner provided brief job duty descriptions for each position. 
In the RFE, the director specifically requested that the petitioner submits copies of its IRS Forms 
941 for all four quarters of 2011. The petitioner failed to submit this evidence in response and 
instead submitted quarterly tax filings for Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition . 8 C.P.R. § 103.2(b)(14). Therefore, the record contains no corroborating evidence of the 
petitioner's staffing levels as of the date of filing the petition in August 2011. The petitioner' s 2009 
tax returns and 2010 quarterly tax filings are insufficient to support the petitioner's claim of ten 
employees as of the date of filing, and the record does not corroborate the information provided in 
the petitioner's organizational chart and employees list. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceeding s. Matt er of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998). 
In sum, the petitioner has submitted an inadequate description of the beneficiary's duties and 
insufficient evidence of its organizational structure. Accordingly, the petitioner has not established 
that the beneficiary will be employed in a primarily managerial or executive capacity, as required 
by section 203(b)(l)(C) of the Act, and for this additional reason, the appeal will be dismi ssed. 
IV. Doing Business 
The third issue addressed by the director was whether the petitioner presented evidence to establi sh 
that it had been doing business for one year prior to filing the petition, as required by 8 C.F.R. 
§ 204.5U)(3)(i)(D). 
The regulation at 8 C.P.R. § 204.5(j)(2) states in pertinent part: 
(b)(6)Page 12 
NON-PRECEDENT DECISION 
'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. 
The director determined and the AAO agrees that the petitioner did not submit sufficient evidence 
to establish that it had been doing business for one year prior to filing the instant petition. The 
petition was filed on August 24, 2011 and therefore the petitioner's evidence must reflect regular 
and continuous business activities since August 2010. 
The petitioner indicated on the Form I-140 that it has gross annual income of $1,830,870, a figure 
that was reported on the petitioner's IRS Form 1120 for the 2009 tax year. The petitioner included 
payroll documents for 2010, company brochures and photographs of buildings reflecting the 
petitioner's name and cunent address. 
In the RFE, the director requested that the petitioner submit additional evidence that it has been 
doing business, including, but not limited to, receipts, invoices and reports as well as a copy of the 
petitioner's import/export license and contracts or agreements with shipping and receiving 
companies. The director also requested copies of the petitioner's most recent IRS Form 1120, 
annual report or audited financial statement, and evidence of wages paid to employees in 2011. 
In response to the RFE, the petitioner submitted 2010 and 2011 tax returns for 
along with evidence of wages paid to this unrelated company's employees in 20ll. 
The petitioner also submitted copies of invoices for goods shipped from to 
in 2010 and 2011. However, none of the included documentation was responsive 
to the director's request that the petitioner provide additional evidence of its regular and continuous 
business activities since 2010. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
In summary, the petitioner has failed to provide sufficient evidence that it was doing business as 
defined in the regulations during the year preceding the filing of the petition. For this additional 
reason, the appeal will be dismissed. 
V. Ability to Pay 
The fourth and final issue is whether the petitioner established its ability to pay the beneficiary's 
proffered wage of $35,000 per year. See 8 C.F.R. § 204.5(g)(2). 
In determining the petitioner's ability to pay the proffered wage, users 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 
(b)(6) NON-PRECEDENT DECISION 
Page 13 
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. Sava, 632 F. Supp . at 1054. 
As the petition's priority date falls on August 24, 2011, the AAO must examine the petitioner's tax 
return for 2011, which should have been available at the time the petitioner submitted its response 
to the director's RFE on December 3, 2012. As the petitioner provided a copy of only its 2009 IRS 
Form 1120 at the time of filing, the director specifically requested relevant tax documentation 
which the petitioner failed to submit. Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). The petitioner 
failed to establish that it had the ability to pay the beneficiary the proffered wage and for this 
additional reason the appeal will be dismissed. 
VI. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.