dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal privacy 
PUBLIC COpy 
DATE: 
MAR 20 2012 
INRE: 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 
OFFICE: TEXAS SERVICE CENTER 
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 limited liability company that seeks to employ the beneficiary as its managing 
director. 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)(I)(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 that basis. 
On appeal, counsel disputes the director's conclusion and submits a brief in support of his 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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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)(I)(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 primary issue in this proceeding is whether the petitioner submitted sufficient evidence 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: 
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 
Page 3 
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 petition, filed on June 12, 2009, the petitioner indicated that the beneficiary would receive a salary of 
$30,000 per year. The petitioner also submitted its income tax returns for the years 2007 and 2008, which 
showed no net income and $53 of net income, respectively. Additionally, the petitioner submitted a 
supporting statement dated May 6, 2009, claiming to have $306,897 in assets. 
The director determined that the petitioner failed to establish eligibility and therefore issued a request for 
evidence (RFE) dated August 12, 2009. The director instructed the petitioner to submit, in part, evidence of 
its fmancial ability to pay the beneficiary'S proffered wage of $30,000. The director informed the petitioner 
that properties cannot be used to establish the ability to pay and further noted that neither of the petitioner's 
previously submitted tax returns establish its ability to pay. 
In response, counsel submits a statement dated October 28, 2009, listing the evidence the petitioner was 
submitting to establish its ability to pay. Counsel indicated that the petitioner was submitting the petitioner's 
audited financial statement, bank statements, lease agreements, and the petitioner's 2007 and 2008 tax returns. 
In reviewing the petitioner's submissions, the AAO questions the probative value of the petitioner's 2007 and 
2008 tax returns, as both documents were submitted initially in support of the petition and both were deemed 
insufficient to establish the petitioner's ability to pay. Additionally, the AAO finds no evidence that an 
audited financial statement was submitted. In fact, the record contains a letter dated October 28, 2009 from 
an accountant who stated that she would be unable to audit the petitioner's accounts within the time 
constraints the petitioner specified. The record was therefore supplemented with an unaudited statement of 
the beneficiary'S net worth. 
Accordingly, the director determined that the evidence submitted initially in support of the petition and in 
response to the RFE was insufficient to determine that the petitioner had the ability to pay the beneficiary's 
proffered wage. The director therefore issued a decision dated January 20,2010 denying the petition. 
On appeal, counsel submits a document titled, "Addendum I," in which he asserts that the record contains 
evidence of the petitioner's 2009 financial structure, income, investments, and contributions, all of which 
establish the petitioner's ability to pay the beneficiary'S proffered wage. Counsel once again emphasizes the 
petitioner's real estate holdings as evidence of the ability to pay. Counsel goes on to state that the director's 
decision is contrary to the Board ofImmigration Appeal's holding in Matter ofSonegawa, 12 I&N Dec. 612 
(Reg. Comm. 1967), contending that the director failed to consider the petitioner's particular circumstances as 
well as its expectation for increase in business and profits. 
The AAO fmds that counsel's assertions are not persuasive and fail to overcome the director's findings. 
In determining the petitioner's ability to pay the proffered wage, U.S. Citizenship and Immigration Services 
(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 
" . '\ 
Page 4 
petitioner's ability to pay the beneficiary's salary. In the present matter, the record does not contain evidence 
establishing that the petitioner had previously paid the beneficiary the proffered wage. 
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.V. 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); KC.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), afJ'd, 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 June 12, 2009, the AAO must examine the petitioner's 2009 tax return, 
which the petitioner provided in support of the appeal. A review of the 2009 tax return shows that the 
petitioner had a net income loss of $1,658. Therefore, the petitioner cannot establish its ability to pay based 
on a showing of its net income. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Net current assets identify the amount of "liquidity" that the petitioner has as of the 
date of filing and is the amount of cash or cash equivalents that would be available to pay the proffered wage 
during the year covered by the tax return. As long as the AAO is satisfied that the petitioner's current assets 
are sufficiently "liquid" or convertible to cash or cash equivalents, then the petitioner's net current assets may 
be considered in assessing the prospective employer's ability to pay the proffered wage. A company's year­
end current assets are shown on Schedule L, lines [1 through 6]. Its year-end current liabilities are shown on 
lines [15 through 17). If the total of a company'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. 
The petitioner's net current assets during the year in question amounted to $13,618, which is significantly less 
than the amount indicated as the beneficiary's proffered wage. The petitioner's real estate holdings cannot be 
considered as evidence of the petitioner's ability to pay, as real property does not establish the petitioner's 
liquid assets that could realistically be used to pay the beneficiary's proffered wage. 
Additionally, the AAO rejects counsel's assertion that the holding in Matter ofSonegawa should be applied to 
the petitioner in the present matter. In Matter of Sonegawa the Regional Commissioner 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 inadequate net income in Matter of Sonegawa, the Regional 
· '. 
Page 5 
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 of the petitioner's circumstances, the Regional Commissioner determined that the 
petitioner had established the ability to pay the beneficiary the wage offered. 
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. USC IS 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. 
Counsel implies that the AAO should consider the income generated by the petitioner's foreign affiliate, as 
the foreign entity is claimed as the guarantor able to pay the beneficiary's salary. Counsel also urges the 
AAO to consider the petitioner's accountant's statement attesting to the petitioner's "sound financial 
position. "I However, many of the relevant facts in Matter of Sonegawa are significantly different from those 
in the instant matter. More specifically, 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 factors are true ofthe u.s. employer in the present matter. Moreover, the claim that the petitioner's 
foreign affiliate is able to 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). The AAO concludes 
that the petitioner has failed to establish that it has the ability to pay the wage offered. On the basis of this 
conclusion, the instant petition cannot be approved. 
Additionally, the AAO fmds, beyond the director's decision, that the petitioner has failed to establish that the 
beneficiary's employment abroad and his proposed employment with the U.S. entity encompassed and would 
encompass job duties that are primarily within a qualifYing managerial or executive capacity. The record 
indicates that a significant portion of the beneficiary's time was and would be allocated to daily operational tasks 
that do not fit within the statutory definition of 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 
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 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.