dismissed EB-1C Case: Business

Identifying data deleted to 
prevent clcc,,-i) Jowarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: NOV 1 42011 
IN RE: 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)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § I I 53(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 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 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 Florida 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, § IIS3(b )(1)(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 along with supplemental 
documentation in an effort to overcome the basis for the deniaL 
Section 203(b) of the Act states, in pertinent part: 
(I) 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 I 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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are corning 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 issue in this proceeding is whether the petitioner submitted sufficient documentation to establish that it 
has the ability to pay the beneficiary's proffered wage. 
The regulation at 8 c'F.R. § 204.S(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 
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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. 
In the Form 1-140, filed on January 27, 2009, the petitioner indicated that the beneficiary would receive a 
weekly salary of $1,000, which is equivalent to approximately $50,000 per year. The documentation 
submitted in support of the petition did not establish that the petitioner had the ability to pay the beneficiary's 
proffered wage at the time of filing. 
Accordingly, on July 27, 2009, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide, in part, its 2008 tax return with all schedules, the beneficiary's IRS 2008 Form W-2, and 
the beneficiary's most recent pay voucher identifYing the beneficiary by name and specifYing the 
beneficiary's gross/net pay, his year-to-date income, taxes withheld, and the length of the pay period. 
The petitioner's response included the requested tax return and W-2 statement. The petitioner also submitted 
the beneficiary's pay voucher covering a two-week pay period from July II, 2009 through July 24, 2009. 
The voucher shows that the beneficiary's gross earnings during the two-week period were $923.08, which is 
less than half of the proffered wage indicated in the Form 1-140. 
On October 21, 2009, the director issued a notice denying the petition based on the conclusion that the 
petitioner failed to establish that it had the ability to pay as of the date the petition was filed. The director 
specifically discussed the petitioner's 2008 tax return and the beneficiary's Form W-2 showing his 2008 
earnmgs. 
On appeal, counsel challenges the director's reliance on the petitioner's and the beneficiary's 2008 financial 
documents, asserting that since these documents do not address the petitioner's finances at the time the Form 
1-140 was filed, basing the adverse conclusion on such documents is contrary to the provisions of 8 C.F.R. 
§ 204.5(g)(2), which requires the petitioner to show its ability to pay the proffered wage at the time of filing 
the petition. Counsel also asks the AAO to review newly submitted supporting documentation in the form of 
a 2008 and 2009 owner benefit statements, which were provided by the president of an accounting firm, and 
an unaudited profit and loss statement for January through October 2009. 
After considering counsel's statements and the supplemental documentation, the AAO finds that neither is 
persuasive in overcoming the basis for denial. While the AAO agrees with counsel regarding the probative 
value of financial documents that pertain to the petitioner'S 2008 earnings, the documentation the petitioner 
has submitted on appeal is not sufficient to establish its ability to pay as of January 2009 when the petition 
was filed. The regulation at 8 C.F.R. § 204.5(g)(2) specifically states that "evidence of [the petitioner's] 
ability shall be in the form of copies of annual reports, federal tax returns, or audited financial statements." 
The documents provided by the petitioner on appeal do not fall within any of these three categories. While 
the regulation allows additional material "in appropriate cases," the petitioner in this case has not demonstrated 
why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise paints an inaccurate 
financial picture of the petitioner. 
As properly noted by counsel, the petitioner's 2008 tax return is not relevant to establish the petitioner's 
ability to pay at the time of filing. As addressed above, the documents submitted on appeal, even those that 
· ' 
pertain to the time period of interest, are not the documents required by regulation to determine a petitioner's 
ability to pay. Therefore, the AAO finds that the petitioner has failed to establish that it has the ability to pay 
the beneficiary's proffered wage and this petition cannot be approved on that basis. 
Additionally, while not addressed in the director's decision, the AAO finds that the record fails to establish 
that the beneficiary was employed abroad and would be employed by the U.S. entity within a qualifying 
managerial or executive capacity. 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 his/her 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 I&N Dec. 593, 604 (Comm. 1988). 
In the present matter, the record indicates that the employment abroad and the proposed employment with the 
U.S. entity requires the beneficiary to allocate a considerable portion of his time to carrying out customer 
service-related tasks, including providing pricing quotes and generally communicating with existing and 
potential customers regarding services that the foreign entity andlor the U.S. entity provides. The evidence 
submitted by the petitioner does not readily establish that this non-qualifying aspect of the beneficiary's job 
was and would be only incidental to either position. As such, the AAO cannot conclude that the beneficiary 
was either employed abroad or that he would be employed in the United States in a primarily 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 (ED. Cal. 2001), affd, 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 the additional grounds of ineligibility as 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 dism issed.