dismissed EB-1C Case: Business And Real Estate Investment

DATE: 
INRE: 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
OFFICE: TEXAS SERVICE CENTER 
MAR 1 9 2012 
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 
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. § 1153(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 Florida corporation that is engaged in business and real estate investment and 
seeks to employ the beneficiary as its president and general manager. 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. 
The director denied the petition based on the determination that the petitioner failed to establish that 
it would employ the beneficiary in a managerial or executive capacity. 
On appea~ counsel disputes the director's decision and contends that the director issued erroneous 
[mdings and did not utilize all the documentation submitted with the petition in order to determine 
the petitioner's eligibility. The AAO reviewed the entire record to make its determination. 
Section 203(b) ofthe 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. 
Page 3 
The issue raised by the director in this proceeding calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary would be 
employed 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; 
(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) ofthe 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. 
In support of the Fonn 1-140, counsel submitted a letter dated January 17, 2008 stating that the 
petitioner is a "business that consists of the operations of a Pizzeria and residential and commercial 
property management services (of numerous active real estate properties in Miami and Orlando, and 
a restaurant in Miami); it continuously seeks to invest in high yielding active business 
opportunities. " 
In response to the director's notice of intent to deny, counsel submitted a list of duties to be 
perfonned by the beneficiary as follows: 
• Establish current and long term objectives, plan, and policies 
• Dispense advice, guidance, direction, and authorization to carry out procedures 
• Oversee the soundness of the corporation's financial structure 
• Negotiation with banks and other credit lenders to get the best financing deals for 
equipment 
• Review operating results ofthe corporation and correct unsatisfactory results 
• Establish and maintain an effective system of communications throughout the 
organization and remain informed of all new developments in the industry 
• Represent the organization with major customers, shareholders, the fmancial 
community, and the public 
• Direct and coordinate promotion of services perfonned to develop new markets, 
increase market share, and obtain leverage over the competition 
• Analyze budget to identify areas in which reductions can be made, and allocate 
operating budget items 
• Follow-up with administrative and operations personnel and review activity, 
operating, and sales reports to determine changes in operations if required 
• Recruit, hire, and tenninate personnel and maintain adequate staff to meet 
activities' demand 
• Provide day-to-day guidance to all aspects related to the corporation's sound and 
profitable operation. 
The petitioner also submitted a business plan that indicated the different investments made by the 
petitioner, and outlined the marketing and sales strategies for the pizzeria owned by the petitioner. 
In addition, the business plan has an organizational chart of the U.S. company. According to the 
chart, the beneficiary is the president that supervises the legal consultant, accounting services and a 
vice-president, who in turn supervises a property management person and the pizzeria general 
manager. The property management person has two unidentified employees and the pizzeria has 3 
cooks, 3 delivery employees and 3 cashiers. The only two names listed in the organizational chart 
are the beneficiary and the vice-president. No individuals are listed for the other positions. In 
addition, the petitioner did not submit job descriptions for any position other than the position held 
by the beneficiary as president. 
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. § 204.5(j)(5). In the instant case the 
description ofthe beneficiary's job duties is too general to convey an understanding of exactly what 
the beneficiary will be doing on a daily basis and how much 0 f his time would be spent on 
qualifying tasks versus the non-qualifying ones. For instance, the description of duties indicates that 
Page 5 
a great deal of the beneficiary's time would be spent developing policies and strategies. However, 
the petitioner does not clarify with sufficient detail what the beneficiary would actually be doing in 
his effort to develop policies and strategies or why that effort would occupy a great deal of his time. 
Furthermore, the petitioner indicated that the beneficiary would "direct and coordinate promotion of 
services performed to develop new markets, increase market share, and obtain leverage over the 
competition"; "analyze budget to identify areas in which reductions can be made, and allocate 
operating budget items"; and "review activity, operating, and sales reports to determine changes in 
operations if required." None of these duties can be deemed as qualifying duties, especially when 
there is no evidence 0 f a staff that would prepare the reports or assist with the marketing strategies. 
Since the petitioner must establish that the beneficiary would primarily perform qualifying duties, it 
must be determined that the beneficiary would not spend a majority of his time performing these 
non-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 
International, 19 I&N Dec. 593, 604 (Comm. 1988). In the instant case, the record lacks sufficient 
information to indicate what specific duties the beneficiary would primarily be performing. As such, 
the AAO cannot affirmatively conclude that the beneficiary would primarily perform managerial or 
executive duties. 
The petitioner submitted Form 1120, U.S. Corporation Income Tax Return, for 2006,2007 and 2008. 
In those three years, the petitioner did not pay any compensation of officers. In addition, the 
petitioner paid zero salaries and wages in 2006, and paid $28,594.00 in salaries and wages in 2007, 
and paid $14,200.00 in salaries and wages in 2008. In response to the notice of intent to deny, the 
petitioner submitted Form W-2 for all employees of2008. The petitioner employed 6 individuals in 
2008 but according to the yearly salary, they were all part-time employees. The wages and salaries 
paid by the petitioner in 2008 totaled to $14,200 for six employees. In addition, the petitioner did 
not provide a W-2 Form for the beneficiary or the vice-president. According to the tax returns, the 
petitioner does not hire any full-time employees and the six employees that were hired in 2008 
barely received a salary for that year. The organizational chart submitted by the petitioner is not 
corroborated by the tax returns. 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). Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency 
of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 
591 (BIA 1988). 
The record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. The fact that an individual manages a 
small business does not necessarily establish eligibility for classification as an intracompany 
transferee in a managerial or executive capacity within the meaning of section 101 (a)(44) ofthe Act. 
The record does not establish that a majority of the beneficiary'S duties have been or will be 
primarily directing the management of the organization. The record indicates that a preponderance 
ofthe beneficiary'S duties have been and will be directly providing the services of the business. The 
petitioner has not demonstrated that the beneficiary will be primarily supervising a subordinate staff 
Page 6 
of professional, managerial, or supervisory personnel who relieve him from performing 
nonqualifying duties. The petitioner has not demonstrated that it has reached a level of 
organizational complexity wherein the hiring/firing of personnel, discretionary decision-making, and 
setting company goals and policies constitute significant components of the duties performed on a 
day-to-day basis. Nor does the record demonstrate that the beneficiary primarily manages an 
essential function 0 f the organization or that he operates at a senior level within an organizational 
hierarchy. Based on the evidence furnished, it cannot be found that the beneficiary will be employed 
primarily in a qualifying managerial or executive capacity. For this reason, the petition may not be 
approved. 
While not addressed in the director's decision, the AAO fmds that the petitioner failed 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.) 
The petitioner indicates on the Form 1-140, at Part 6, that it will pay the beneficiary $1,200.00 per 
week, or approximately $60,000.00 per year. In response to the director's intent to deny, counsel for 
the petitioner stated that the petitioner has the ability to pay the proffered wage and submitted 
corporate income tax returns for 2007 and 2008, and a fmancial statement that shows the petitioner's 
current assets as $1,896,546.57. 
On the Form 1120, U.S. Corporation Income Tax Return, for 2007, the petitioner declared gross 
receipts or sales of $216,774.00, and a net operating loss of $70,904.00. According to the Form 
1120 for 2008, the petitioner declared gross receipts or sales of $49,875.00. In addition, in both 
2007 and 2008, the petitioner did not pay compensation to the officers. It paid $28,594.00 in salaries 
and wages in 2007, and $14,200.00 in salaries and wages in 2008. According to the tax returns, the 
petitioner does not have the ability to pay the proffered wage to the beneficiary. 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.CP. 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). 
The petitioner has not established that it has the financial ability to remunerate the beneficiary. For 
this additional reason, the petition may not be approved. 
Page 7 
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 Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds 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.