dismissed EB-1C Case: Business Management

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identifying data deleted to 
prevell~ cleady u.nwarr~nted 
inv9.§lon of personal privacy 
PUBLIC COpy 
DATE: APR 0 5 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 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. § 1153(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 that basis. 
On appeal, counsel disputes the director's conclusion and states that he plans to submit a brief in support of 
his arguments. However, there is no evidence that the record has been supplemented with any supporting 
documentation since the appeal was filed on April 6, 2010. Therefore, the AAO will consider the record to be 
complete as presently constituted. 
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)(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 this proceeding is whether the petitioner has submitted sufficient evidence to establish its 
ability to pay the beneficiary's proffered wage in accordance with 8 C.F.R. § 204.5(g)(2), which states the 
following 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 
Page 3 
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. 
The petitioner indicated at Part 6, Item 9 on the Form 1-140 that the beneficiary would be paid $1,153.84 
weekly, which equates to an annual salary of approximately $60,000. The record shows that the petitioner did 
not provide any evidence establishing its ability to pay the proffered wage at the time of filing. 
Accordingly, the petitioner issued a request for evidence (RFE) on November 3, 2009, instructing the 
petitioner to submit, in part, either its 2008 tax return or audited statements. 
The petitioner complied with the director's response, providing its 2008 corporate tax return, which showed 
that the petitioner did not earn any income or pay any wages during that tax year. The tax return showed no 
gross income and indicated that the petitioner had deductions totaling to $2,368. 
After reviewing the petitioner's tax return, the director determined that the petitioner failed to establish its 
ability to pay the beneficiary's proffered wage and therefore issued a decision dated March 3, 2010 denying 
the petition. 
On appeal, counsel disputes the director's decision, asserting that the director erroneously relied on the 
petitioner's 2008 tax return, which primarily reflected the company's financial position for 2007. Counsel 
asserts that the documents that would have reflected the petitioner's fmancial position at the time of filing 
were not available when the filing took place and claims that wage forms were filed with the IRS showing 
that the beneficiary was paid "substantial wages" after he obtained L-l nonimmigrant status. 
The AAO finds that counsel's assertions are not persuasive and fail to overcome the director's conclusion. 
As a preliminary matter, the AAO finds that the petitioner's 2008 tax return is not an appropriate measure of 
the petitioner's ability to pay the beneficiary's wage, as the regulation expressly states that the petitioner must 
show its ability to pay at the time of filing the petition. There is no provision requiring the petitioner to 
establish that it was eligible to pay the beneficiary's proffered wage prior to the date the petition was filed. In 
the present matter, since the petition was filed on September 28, 2009, the petitioner's 2008 tax return, which 
would address the petitioner's financial status prior to the date of filing, would be irrelevant to issues 
concerning the petitioner's eligibility. The record has not, however, been supplemented with any 
documentation to corroborate the claims made by counsel in his brief appeal statement where he claimed that 
the petitioner filed wage documentation with the IRS which would establish that the beneficiary was 
adequately compensated by the petitioner. Going on record without supporting 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'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N 
Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503, 506 (BIA 1980). 
· , 
Page 4 
In determining the petitioner's ability to pay the proffered wage, U.S. Citizenship and Immigration Services 
(USClS) generally seeks to detennine whether the petitioner employed the beneficiary at the time the priority date 
was established and, if so, whether documentary evidence establishes that the beneficiary was compensated at a 
salary equal to or greater than the proffered wage. This would be considered prima facie proof of the petitioner's 
ability to pay the beneficiary's salary. 
In the absence of prima facie proof of the petitioner's ability to pay, the petitioner can meet its evidentiary 
burden by providing relevant income tax returns, 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.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), aff'd, 703 F.2d 571 
(7th Cir. 1983). Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. 
Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient. In K. CP. 
Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization Service, 
now USClS, had properly relied on the petitioner's net income figure, as stated on the petitioner's corporate 
income tax returns, rather than the petitioner's gross income. The court specifically rejected the argument 
that the Service should have considered income before expenses were paid rather than net income. 
The petitioner has not provided either prima facie proof or other documentary evidence, such as the 
petitioner's 2009 tax return or 2009 audited financial statements, to establish that the petitioner had the ability 
to pay the beneficiary's proffered wage when the petition was filed. Therefore, the instant petition cannot be 
approved. 
Additionally, the AAO finds that the petition does not warrant approval based on additional grounds, which 
were not previously discussed in the director's decision. 
First, the AAO finds that the petitioner failed to establish that the beneficiary was employed abroad or that he 
would be employed in the United States in a qualifying managerial or executive capacity. The regulation at 8 
C.F.R. § 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed abroad in 
a qualifying managerial or executive capacity for at least one out of the three years prior to his entry to the 
United States as a nonimmigrant to work for the same employer. The director specifically addressed this 
issue in the RFE by instructing the petitioner to provide a detailed analysis of the beneficiary's daily activities 
during his employment abroad. The record lacks a detailed job description that was requested in the RFE. 
Rather, the petitioner relied on paraphrasing the statutory definitions as a means to describe the beneficiary'S 
employment abroad. 
Similarly, the petitioner provided a deficient description of the beneficiary's proposed employment, again 
focusing on paraphrasing the statutory definitions rather than providing a detailed list of the beneficiary'S job 
duties to convey a meaningful understanding of what the beneficiary would be doing on a daily basis. The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), afJ'd, 905 F.2d 41 (2d. Cir. 1990). 
The AAO also finds that the petitioner failed to provided evidence to establish that it satisfied the provisions 
described at 8 C.F.R. § 204.5G)(3)(i)(D), which requires the petitioner to establish that it has been doing 
Page 5 
business for at least one year prior to filing 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. " 
While the petitioner provided numerous invoices to show that it had been doing business, none of the invoices 
predates September 2009, the month during which the petition was filed. It is noted that the August 2009 
invoices that were issued b~ are not relevant, as the petitioning entity was not a party to the 
transaction. Rather, this was a separate entity, which was incorporated on August 26, 2009.1 To determine 
whether the petitioning entity was eligible, at the time of filing, to classify the beneficiary in the immigrant 
category of multinational manager or executive, the evidence submitted must establish that the petitioning entity 
was doing business from September 2008 through September 2009. Here, the petitioner failed to provide 
sufficient evidence to establish that the petitioner meets this filing criterion. 
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. 
I See Exhibit E of the petitioner's RFE response, where the petitioning entity and Orchid Kouture, Inc. are identified as 
two separate corporations.