dismissed EB-1C Case: Ceramics Wholesale

PUBLIC COPY 
FILE: 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
D 
Office: TEXAS SERVICE CENTER Date: A&j 0 3  ZOO^ 
- - 
SRC 06 027 5 1809 
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. 8 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
c -- 
Robert 
Administrative Appeals Office 
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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 operating as a wholesale distributor of ceramics. It seeks to employ the 
beneficiary as its executive manager. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. $ 1 153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
based on four independent grounds of ineligibility: 1) the petitioner failed to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity; 2) the petitioner failed to establish 
that it would employ the beneficiary in a managerial or executive capacity; 3) the petitioner failed to establish 
that it was doing business for the full one-year time period prior to the date of filing the Form 1-140; and 4) 
the petitioner failed to establish its ability to pay the beneficiary's proffered wage. 
On appeal, the beneficiary, on behalf of the petitioner, disputes the director's conclusions and submits a brief 
in support of his arguments. 
A review of the record on appeal shows that the petitioner provided sufficient documentation to show that it 
was doing business since November of 2004, one year prior to the date the Form 1-140 was filed. This 
documentation was provided in response to the director's request for additional evidence (RFE).' Therefore, 
the AAO hereby withdraws the third ground for the director's denial. The AAO will fully address the three 
remaining grounds in the discussion below. 
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 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. 
8 C.F.R. 5 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been engaged in the "the regular, 
systematic, and continuous" course of business for one year prior to filing the petition. Pursuant to the definition found 
in 8 C.F.R. 9 204.5(j)(2), doing business means "the regular, systematic, and continuous provision of goods andlor 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or office." 
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A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(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 two issues in this proceeding call for an analysis of the beneficiary's job duties during his 
employment abroad as well as his proposed job duties in his prospective position with the U.S. petitioner. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101 (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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (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 
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(iv) 
 receives only general supervision or direction fi-om higher level executives, 
the board of directors, or stockholders of the organization. 
In Part 6, item 3 of the Form 1-140, the petitioner stated that the beneficiary would plan, manage, and 
supervise the operation and activities of the U.S. entity. The petitioner did not provide any information 
regarding the beneficiary's employment abroad. 
Accordingly, on December 6, 2005, the director issued the RFE, which is referenced above, instructing the 
petitioner to provide a list of job duties performed abroad and expected to be performed as part of his 
employment with the U.S. entity. The petitioner was asked to assign a percentage of time that would be 
allocated to each duty listed and to discuss the job titles, job duties and educational levels of the beneficiary's 
subordinates, if any. Additionally, the petitioner was asked to provide evidence of both entities' staffing as 
well as the petitioner's quarterly tax returns for 2005. 
In response, the petitioner provided a letter dated February 27,2006, which included the following description 
of the beneficiary's employment abroad: 
[The beneficiary] work[ed] for our company in Peru as an [olperations [mlanager since 1995, 
being responsible for managing the sales, marketing and purchasing functions of the foreign 
company. Management of operation included supervising purchasing functions. This 
included directing the collection of financial data and the preparation of financial reports and 
statements in order to ascertain adherence to budgetary constrain[t]s and conformance to 
corporate goals. Sales duties required the beneficiary to monitor the performance of the sales 
department in establishing pricing policies, dividing the sales territories and allocating sales 
assets. Administrative duties included monitoring the efficiency of the clerical department 
involved in organizing and preparing bud requests, invoices, expense statements, 
correspondence and customs paperwork. He set sales corporate goals, monitored the 
subordinates['] performance, implemented marketing and advertising campaigns, and 
exercised his decision-making authority pursuant to his conclusions on a daily basis. He had 
complete hiring and firing authority over all managerial and subordinate personnel. 
He was responsible for coordinating, directing and supervising the overall operations of the 
company. He supervised and direct[ed] all employees worlung in marketing and 
development of channels of distributions for merchandise and services. He supervised sales, 
budgets and personnel. He devise[d] and ensure[d] the enforcement of all sales and fiscal 
policies. He analyzed financial data and devised strateges to operate business in a more cost 
effective manner. [The beneficiary] was responsible for devising and organizing financial 
plans and other investments strategies in order to successfully penetrate markets of interest at 
the lowest cost possible. He executed contracts on behalf of the company with important 
clients and vendors. He was also responsible for supervising, managing and directing all 
personnel and had full discretion over the hiring and firing of employees, manage and direct 
all domestic and international sales and marketing functions of the company; recruit[ing] and 
train[ing] sales and marketing personnel; prepare[d] sales manual and conduct[ed] sales 
seminars; fomulate[d] sales goals and policies, establishe[d] incentive programs and 
monitor[ed] performance; establishe[d] hiring and firing standards for sales personnel and 
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administer[ed] [the] same; establishe[d] pricing and mark[-]up policies and review[ed] [the] 
same periodically. 
With regard to the beneficiary's prospective employment in the United States, the petitioner stated the 
following: 
[The beneficiary] has hired an assistant to help him in the operation of the company. This 
assistant is the only one who report[s] directly to him and the duties for that position included 
office job, billing, contact[ing] and execut[ing] the orders pending as well as the shipments. 
[The beneficiary] is in charge of planining], direct[ing] and coordinate[ing] and execut[ing] 
the operations of the company. Formulating policies, managing daily operations and 
planning the use of material and human resources, but [sic] are too diverse and general in 
nature to be classified in any one functional area of management or administration, such as 
personnel, purchasing, or administrative services. Mover over [sic] [the beneficiary], [sic] 
handle[d] and control[led] the day[-]to[-]day of [sic] the [sic] operations in the company. 
[The beneficiary] holds [sic] the position of [elxecutive [mlanager in the U.S. entity. 
According to the success of the company in [the] U[.]S[.]A[.], we hope we will need to hire 
three or four sales persons to cover all the geographic extension[s] where we plan to go and to 
keep going in this process of expansion. Today, our products and services are well[-]known 
and hired. 
He use[s] 40% of his effective working time to [sic] the [ilntemational acquisitions, contacts, 
agreements, shipments and deliveries[;] 30% on sales, marketing, coordination, hiring and 
training[;] [alnd 30% on administrative and executive duties as all the manage [sic] of the 
office. Talung [sic] decisions regarding investments, financial situation of the corporation, 
legal facts connected to the corporation as all the requirements needed for the proper 
operation of our subsidiary in [the] U.S.A. 
[The beneficiary] is in charge of plan[ning], direct[ing] and coordinate[ing] the operations of 
companies. Duties and responsibilities include formulating policies, managing daily 
operations, and planning the use of materials and human resources, such as personnel, 
purchasing, or administrative services. He is able to determine the demand for products and 
services offered by the company and its competitors and identify potential customers. 
Develop pricing strateges with the goal of maximizing the company's profits or share of the 
market while ensuring the company's customer[s] are satisfied. He is prepared to provide 
high level administrative [sic] perform [sic] by conducting research, statistical reports, 
handling information requests, and clerical functions as correspondence, receiving visitors, 
arranging conferences and scheduling meetings. He directs also the actual distribution or 
movement of a product or service to the customer. [He] [cloordinates sales distribution by 
establishing sales territories, [sic] quotas. [He] [a]nalyze[s] sales statistics gathered by staff 
to determine sales potential and inventory requirements and monitor[s] the preferences of the 
customers. 
In a decision dated March 10, 2006, the director denied the petition concluding that the petitioner failed to 
establish that the beneficiary primarily performed qualifying duties during his employment abroad or that he 
would primarily perform qualifying duties as part of his proposed employment in the United States. The 
director specifically noted that the petitioner failed to describe the job duties of the beneficiary's subordinates 
abroad or to provide sufficient information to establish that they were professional or managerial employees. 
Though not specifically noted in the denial, the petitioner also failed to provide the requested percentage 
breakdown of the beneficiary's job duties. 
With regard to the beneficiary's proposed employment, the director referred to the percentage breakdown 
attributed to the beneficiary's general responsibilities and to the portion of the job description where the 
petitioner discussed the beneficiary's assistant. The director noted that the petitioner's Form 941 for the last 
quarter of 2005 during which the Form 1-140 was filed shows only one employee and, therefore, does not 
support the claim that an assistant was hired to help the beneficiary with daily tasks. The director ultimately 
found the absence of a support staff within the petitioning organization an indication that the beneficiary 
would likely perform the petitioner's non-qualifying operational tasks and would not spend a majority of his 
time performing qualifying managerial or executive duties. 
On appeal, the beneficiary, on behalf of the petitioner, submits a statement dated April 6, 2006 in an effort to 
overcome the grounds of ineligibility cited in the director's decision. While the beneficiary generally states 
that both the position abroad and the proposed position in the United States entail a broad range of 
responsibilities, he failed to provide any further detail or to address the specific comments made by the 
director regarding the beneficiary's position abroad. Furthermore, the information provided fails to establish 
that the beneficiary's employment abroad was primarily comprised of qualifying managerial or executive 
tasks. The petitioner's description of the beneficiary's overseas employment is replete with general oversight 
responsibilities. However, reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 
41 (2d. Cir. 1990). In the present matter, the petitioner failed to specify the actual duties the beneficiary 
performed on a daily basis in an effort to carry out the goals and responsibilities enumerated in the response 
to the RFE. Without this necessary information, the AAO cannot conclude that the beneficiary primarily 
performed tasks of a qualifying nature during his employment abroad. 
With regard to the beneficiary's proposed position in the United States, the beneficiary explained that he "has 
to fulfill and cover all the positions in [the] United States office." He further admits that he "has been doing 
everything related with the business" and stated that hiring additional employees is planned for the future. 
However, a petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future 
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Cornrn. 1971). In the present matter, the evidence of record suggests that the petitioner did not 
have the requisite support staff to relieve the beneficiary from having to primarily perform the daily 
operational tasks at the time the Form 1-140 was filed. Thus, while the AAO does not dispute that the 
beneficiary has the ultimate decision-malung authority and is the senior-most employee within the petitioner's 
organizational hierarchy, such is inevitable when the beneficiary is the sole employee. In order to merit 
classification of multinational manager or executive, the petitioner must establish that the beneficiary would 
primarily perform managerial duties under section 10 1 (a)(44)(A) of the Act, or executive duties under section 
10 1 (a)(44)(B) of the Act. Without others to relieve the beneficiary from having to primarily perform the non- 
qualifying operational tasks, the petitioner lacks the ability to enable the beneficiary to primarily perform 
tasks within a managerial or executive capacity. 
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Additionally, in examining the executive or managerial capacity of the beneficiary, Citizenship and 
Immigration Services (CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 
€j 204.50)(5). In the instant matter, the description of the beneficiary's job duties is general and does not 
convey an understanding of exactly what the beneficiary will be doing on a daily basis. Thus, while the AAO 
can conclude, based on the beneficiary's own admissions and in light of the lack of support personnel, that the 
beneficiary's time would primarily be consumed with daily operational tasks, the job description provided is 
devoid of the necessary detail that would enable the AAO to determine what actual tasks the beneficiary 
would carry out on a daily basis. Despite the beneficiary's claim that additional staff would eventually be 
hired as the business expands, the petitioner has not demonstrated that it has reached a level of organizational 
complexity wherein managerial tasks constitute significant components of the duties performed on a day-to- 
day basis. Therefore, based on the evidence furnished, it cannot be found that the beneficiary has been 
employed abroad or will be employed in the United States in a qualifying managerial or executive capacity. 
The remaining issue in this proceeding is whether the petitioner has established its 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 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the denial, the director provided a comprehensive analysis, which first focused on the beneficiary's current 
salary, as a salary equal to or greater than the proffered wage is considered prima facie proof of the 
petitioner's ability to pay the beneficiary's salary. In the present matter, the Form 1-140 did not indicate what 
the beneficiary's proffered wage would be under an approved petition. Accordingly, the director addressed 
this issue in the RFE to which the petitioner responded claiming that the beneficiary's proffered wage would 
be $36,000 per year. The 2005 quarterly wage statements showed that beneficiary was compensated $3,600 
for the quarter, or $14,400 per year, which was also the beneficiary's compensation during 2004 according to 
the 2004 W-2 statements submitted. Therefore, the petitioner did not provide prima facie evidence of its 
ability to pay the beneficiary's 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.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), affd, 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 CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax retums, 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 
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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, 7 19 F. Supp. at 537; see also Elatos Restaurant Corp. v. Suva, 632 F. Supp. at 1054. 
As the petition's priority date falls on November 15, 2005, the AAO must examine the petitioner's tax return 
for 2005. The petitioner's IRS Form 1120 for calendar year 2005 presents a net taxable income of $3,063. 
Thus, even when adding the net income to the $14,400 that the beneficiary was compensated in 2005, the 
AAO cannot conclude that the petitioner could pay a proffered wage of $36,000 per year. 
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. As properly 
determined by the director in the denial, the beneficiary's net current assets for 2005 were $27,502, which is 
still $8,500 short of the beneficiary's proffered wage of $36,000. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd, 345 F.3d 683 
(9th Cir. 2003). 
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. fj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.