dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLlCCO~Y 
FILE: r,I01DTr'C. TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Avenue, N.W .. MS 2090 
Washington, DC 20529~2090 
u.s. Citizenship 
and Immigration 
Services 
Date: DEC 2 2. 201:1 
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. § IIS3(b)( I )(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. § I 03.S(a)(1 lei) 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 
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 Texas corporation that seeks to employ the beneficiary as its president and chief executive 
officer (CEO). 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 denied the petition based on two grounds of ineligibility: I) the petitioner had failed to establish that 
it had been doing business in the United States for one year prior to filing this petition as required by 8 C.F.R. 
§ 204.5(j)(3)(i)(D); and 2) the petitioner failed to establish that it has the ability to pay the beneficiary's proffered 
wage. On appeal, the petitioner submits a brief disputing the director's findings. 
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 
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 first issue in this proceeding is whether the petitioner had been doing business for at least one year prior to 
the date it filed the Form 1-140. 
The regulation at 8 C.F.R. § 204.5(j)(2) states that 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." 
According to the receipt dated stamped on the first page of the petition, the service center received the completed 
Form 1-140 on February 5, 2009. Therefore, pursuant to 8 C.F.R. § 204.5(j)(3)(i)(D), the petitioner must establish 
Page 3 
that it has been engaged in the "the regular, systematic, and continuous" course of business since February 5, 
2008. See 8 C.F.R. § 204.5(j)(2). However, according to Part 5, Item 2 of the Form 1-140 and the petitioner's 
Certificate of Filing, the petitioning entity was established on October I, 2008, thereby indicating that the 
petitioner could not have been doing business for longer than four months prior to filing the petition. 
Accordingly, on April 20, 2009, the director denied the petition concluding that the petitioner had not been doing 
business for one year prior to filing the 1-140 petition. The director properly pointed out that it is factually 
impossible for the petitioner to have been doing business prior to the date it was created. 
On appeal, counsel cites to portions of 8 C.F.R. § 214.2(1), which applies to any petitioner that seeks L-l 
nonimmigrant classification for its beneficiary. In particular, counsel focuses on 8 C.F.R. § 214.2(l)(7)(i)(A)(3), 
which applies to a beneficiary who is coming to the United States to open or be employed in a new office. The 
AAO notes, however, that the petitioner in the present matter seeks to classifY the beneficiary as an employment­
based immigrant pursuant to section 203(b)(I)(C) of the Act. Therefore, the regulatory provisions contained in 
8 C.F.R. §214.2(1) do not apply in the matter at hand. The AAO acknowledges that both the immigrant and 
nonimmigrant visa classifications rely on the same definitions of managerial and executive capacity. See 
§§ 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § IIOI(a)(44). However, there are significant differences 
between the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cj §§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427. 
In the present matter, the petitioner must refer to the regulations contained in 8 C.F.R. § 204.5(j) to determine the 
filing requirements that apply to the type of immigration benefit the petitioner is seeking to obtain on behalf of the 
beneficiary. The regulations governing the employment-based immigrant petition that the petitioner has filed in 
the present matter do not allow for a new office petitioner. The regulation at 8 C.F.R. § 204.5(j)(3)(i)(O) 
expressly states that the petitioner is required to establish, at the time of filing, that it has been doing business for 
at least one year prior to the date the Form 1-140 is filed. Although counsel states that the petitioner has acquired 
an ownership interest in another U.S. corporation that has been doing business since October 2007, the AAO 
finds that this information is irrelevant in the present matter, as the petitioner must establish that the entity filing 
the Form 1-140 has been doing business for the requisite amount of time. Here, the entity that has been doing 
business since October 2007 is not the entity that has filed the instant Form 1-140 on behalf of the beneficiary. 
Therefore, its business activity is irrelevant in the context of the petitioner's eligibility. As the petitioner has not 
been doing business since February 2008, it has failed to satisfY the requirements discussed at 8 C.F.R. 
§ 204.5(j)(3)(i)(O) and on the basis of this initial finding, the instant petition cannot be approved. 
The second issue addressed in the director's decision is whether the petitioner 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 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
Page 4 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the denial, the director noted that the petitioner failed to submit evidence to support the claim that the 
beneficiary would be compensated at a weekly rate of $692.23. Accordingly, the director concluded that the 
petitioner failed to establish that it meets the criteria set forth at 8 C.F.R. § 204.5(g)(2). 
On appeal, counsel challenges the director's finding on the basis of the petitioner's net income and net current 
assets, which he claims are sufficient to pay the beneficiary the proffered wage. However, the AAO notes 
that the evidence establishing the petitioner's net income and net current assets is in the form of unaudited 
statements of revenues and expenses and a 2008 balance sheet pertaining to the petitioner's U.S. subsidiary, 
As the submitted documents do not pertain to the petitioner's 
financial status, the have no probative value in this proceeding and will not be given any evidentiary weight. 
Additionally, the AAO notes that even if the petitioner were to submit its own unaudited balance sheets and 
financial statements for 2008, such documents would have very limited probative value in this proceeding. 
First, 8 C.F.R. § 204.5(g)(2) requires that the petitioner establish its ability to pay at the time the priority date 
is established, i.e., as of February 5, 2009. The documents submitted, even if they pertained to the petitioning 
entity, do not address the relevant time period. Second, the statements submitted were unaudited and thus do 
not fit the criteria of the documents that are expressly listed at 8 C.F.R. § 204.5(g)(2) as acceptable means of 
establishing the petitioner's ability to pay. Although 8 C.F.R. § 204.5(g)(2) indicates that other 
documentation may be accepted in "appropriate cases," the petitioner has not provided evidence to explain 
why the documentation that is expressly allowed by regulation would not illustrate an accurate depiction of 
the petitioner'S financial status at the time of filing. 
In determining the petitioner's ability to pay the proffered wage, 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 petitioner's ability to pay the beneficiary's salary. As the 
petitioner does not claim to have employed the beneficiary at the time of filing, it cannot provide prima facie 
proof of its ability to pay. 
As an alternate means of determining the petitioner's ability to pay, the AAO would 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), ajj'd, 703 F.2d 571 (7th Cir. 1983). As the petitioner did not provide any financial 
documents pertaining to the petitioning entity, the AAO cannot conduct the necessary analysis. It is noted 
that going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». As the petitioner in the present 
matter has not provided relevant documentation regarding its financial status at the time the Form 1-140 was 
Page 5 
filed, the AAO cannot conclude that the petitioner had the ability to pay the beneficiary's proffered wage and 
for this additional reason, the instant petition cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. Specifically, the AAO finds that the petitioner has failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity pursuant 
to 8 C.F.R. § 204.5G)(3)(i)(A) or that he would be employed by the U.S. entity in a qualifying managerial or 
executive capacity pursuant to 8 C.F.R. § 204.5(j)(5). Although the petitioner provided job descriptions for 
both the beneficiary'S foreign and proposed positions, neither included sufficiently detailed information 
disclosing the beneficiary'S specific daily job duties and thus neither description successfully demonstrated 
that the primary portion of the beneficiary'S time in his foreign and proposed positions has been and would be 
spent performing managerial- or executive-level job duties. 
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), afj'd, 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 
met that burden. 
ORDER: The appeal is dismissed.