dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal privacy 
PUBLIC COpy 
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 
DATE: FEB 2 1 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 Venezuelan entity that previously employed the beneficiary abroad. Although the foreign 
entity filed the immigrant visa petition, it appears to have filed the petition on behalf of its Florida subsidiary 
so that it might employ the beneficiary in the position of executive vice president. Accordingly, the petitioner 
endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(I)(C) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § l1S3(b)(I)(C), as a multinational executive or 
manager. 
In support of the Form 1-140 the petitioner, the beneficiary's foreign employer, submitted a statement along 
with the U.S. entity's corporate and tax documents. 
After reviewing the record, the director determined that the petition did not warrant approval. Accordingly, 
the director issued a request for additional evidence (RFE) dated November 10, 2009, instructing the 
petitioner to provide evidence establishing that the prospective U.S. employer has the ability to pay the 
beneficiary's proffered wage as of the date the petition was filed. The director stated that showing that the 
beneficiary has been paid the proffered wage could serve as evidence of the U.S. entity's ability to pay. In the 
alternate, the petitioner was instructed to submit the U.S. entity's annual reports, federal tax returns, or 
audited financial statements. 
The response consisted of evidence establishing that the petitioner, i.e., the foreign entity, has the ability to 
pay the beneficiary's proffered wage. 
After reviewing the evidence on record, the director determined that the petitioner failed to establish that the 
prospective U.S. employer has the ability to pay the beneficiary's proffered wage. The director therefore 
issued a decision dated March 4,2010 denying the petition. 
On appeal, counsel disputes the director's decision and submits a supporting statement along with 
supplemental documents in an effort to overcome the basis for denial. 
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. 
Page 3 
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. 
The primary issue in the present matter is whether the petitioner has provided sufficient evidence to establish 
that the beneficiary'S prospective U.S. employer has the ability to pay the 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). 
In determining the petitioner's ability to pay the proffered wage, U.S. Citizenship and Immigration Services 
(USC IS) 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 petitioner's 
ability to pay the beneficiary's salary. 
The petitioner indicated at Part 6, Item 9 of the Farm 1-140 that the beneficiary will be paid a yearly salary of 
$60,000. The petitioner provided no evidence to establish that the beneficiary has been compensated the 
proffered wage. The U.S. entity's 2008 tax return, even if it contained sufficient evidence of the prospective 
U.S. employer's ability to pay, is irrelevant in the present matter because 8 C.F.R. § 204.5(g)(2) requires that 
the ability to pay be established at the time the priority date is established, i.e., as of the date the Form 1-140 is 
filed. The petition was filed in 2009. Therefore, any document pertaining to the U.S. company's finances 
prior to the date the Form 1-140 was filed would not establish that company's ability to pay. 
Although the AAO may examine the prospective employer's net income figure as reflected on the federal 
income tax return, without consideration of depreciation or other expenses, as an alternate means of 
determining the petitioner's ability to pay, the record in the present matter does not contain the U.S. 
employer's 2009 tax return, which would determine how much net income the U.S. entity had at the time the 
Form 1-140 was filed. 
Page 4 
Additionally, while the record shows that the petitioner has provided the u.s. entity's financial statement as 
of December 31, 2009, the April 19, 2010 statement from a certified accountant indicates that the financial 
statement was not reviewed or audited and therefore does not meet the regulatory provisions specified above. 
On appeal, counsel contends that U.S. Citizenship and Immigration Services (USCIS) must follow the 
precedent holding in Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967), where the Regional 
Commissioner considered the "totality of the circumstances," in determining that the petitioner had established 
its ability to pay. Specifically, the Regional Commissioner considered an immigrant visa petition which had 
been filed by a small "custom dress and boutique shop" on behalf of a clothes designer. Id. The district director 
denied the petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of 
the employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, fmancial data, the petitioner's 
reputation and clientele, the number of employees, future business plans, and explanations of the petitioner's 
temporary fmancial difficulties. Despite the petitioner's obviously inadequate net income, the Regional 
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 stipulated wages. 
As indicated in Matter of Sonegawa, USCIS may, at its discretion, consider evidence relevant to a petitioner's 
fmancial ability that falls outside of a petitioner's net income and net current assets. USCIS 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 urges the AAO to consider the petitioner's relatively early stage of development and to apply the 
reasoning employed by the Regional Commissioner in Matter of Sonegawa. !d. 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 of the U.S. employer in the present matter. Thus, despite any evidence showing that the foreign petitioner 
has and would continue to supply all the funding necessary to fmancially support the U.S. business operation, the 
fact remains that the prospective U.S. employer must establish its own ability to pay the beneficiary's proffered 
wage, notwithstanding the ability ofthe foreign entity to meet that burden. See 8 c.P.R. § 204.5(g)(2). 
Lastly, in a statement dated April 28, 2010 from the foreign entity's chief financial officer,_ 
claimed that the petitioner and the U. S. entity "have approximately 900 employees and 
over 130 indirect employees in the United States." Similar information was reiterated in the April 28, 2010 
written statement of the U.S. entity's chief financial officer, who also indicated that between 
them, the foreign petitioner and the prospective U. S. employer have more than 100 employees in the United 
States. Although the regulations at 8 C.F.R. § 204.5(g)(2) clearly state that evidence in the form of a 
statement from a company fmancial officer can be considered for companies employing 100 or more workers, 
no evidence has been provided that the prospective U.S. employer has 100 or more employees, which would 
allow consideration of its financial officer's written statement. Going on record without supporting 
Page 5 
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. 1998) (citing Matter Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). The AAO also points out that directed the AAO's 
attention to an audited annual report. However, as indicated above, the statement the 
certified public accountant who wrote the April 19, 2010 statement, confrrmed that the u.s. entity's financial 
report was not audited or reviewed. Therefore, at least one of the facts asserted by in her 
statement is contrary to the evidence on record. 
While . ted in her April 28, 2010 statement that the foreign petitioner has been and will 
continue to pay the beneficiary's salary pursuant to a contractual agreement between it and the beneficiary's 
U.S. employer, the AAO again emphasizes the regulatory provision that requires the prospective United 
States employer to establish its ability to pay the proffered wage. In analyzing the ability to pay the proffered 
wage, the fundamental focus is whether the prospective employer is making a "realistic" or credible job offer 
and has the financial ability to satisfy the proffered wage. Matter of Great Wall, 16 I&N Dec. 142, 145 
(Acting Reg. Comm'r 1977). In the present matter, there is no evidence that the u.s. employer was able to 
pay the beneficiary's proffered wage at the time the petition was filed. On the basis of this conclusion, the 
instant petition cannot be approved. 
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). 
While not addressed in the director's decision, the beneficiary'S foreign employer, which is separate from the 
U.S. entity that seeks to employ the beneficiary in the United States, is not qualified to file a Form 1-140 on 
the beneficiary's behalf. Unlike the L-IA nonimmigrant visa classification, only the U.S. employer can file 
the Form 1-140 visa petition on behalf of the beneficiary. Companies organized under the laws of a foreign 
country may file such a petition if it is specifically filed by a qualified branch office of such an entity, as 
opposed to the foreign office. The express provisions of 8 C.F.R. § 204.50)(1) state: "A United States 
employer may file a petition on the Form 1-140 .... " Only a U.S.-based branch office, affiliate, or subsidiary 
of a foreign organization may file such a petition. Matter of A. Dow Steam Specialities, Ltd., 19 I&N Dec. 
389 (Comm'r 1986); see also, Matter of Thornhill, 18 I&N Dec. 34 (Comm'r 1981) (denying an immigrant 
visa petition because the status of the petitioner was neither settled, stabilized, nor permanent). 
As previously noted, the petitioner in the present matter is not the United States employer, but rather the 
foreign entity that employed the beneficiary abroad prior to his entry to the United States to be employed by 
the U.S. entity. The instant Form 1-140 was filed by an entity that is not eligible to file it. The petition cannot 
be approved for this additional reason. 
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.