dismissed EB-1C Case: Cleaning Services

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FILE: OFFICE: TEXAS SERVICE CENTER 
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 
Date: FEB 2 4 2011 
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. § 1 1 53(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 1-290B, 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, 
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. Although the record shows that the 
petitioner submitted the Form I-290B with the proper fee, the petitioner's check was returned due to 
insufficient funds. Pursuant to 8 C.F.R. § 103.2(a)(7)(ii), whenever a check is returned as not payable, the 
petitioner is to be given 14 calendar days to pay the filing fee and any associated service charges. Failure to 
pay the filing fee and additional charges will result in the appeal being rejected as improperly filed. Service 
records indicate that the fee was timely paid and that the appeal should therefore have been forwarded to the 
AAO for review. However, the director erroneously deemed the Form I-290B as improperly filed and treated 
it as a motion, which was subsequently dismissed. As the director erred in finding that the appeal was 
improperly filed, the decision dismissing the motion to reopen and reconsider is hereby withdrawn and the 
petitioner's appeal will be considered below in its entirety. 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 denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that the beneficiary would be employed in the United States in a managerial or executive capacity; 
and 2) the petitioner failed to establish an ability to pay the beneficiary's proffered wage. On appeal, counsel 
submits a brief, challenging the director's reliance on the Matter of Ho precedent decision. Counsel questions 
the relevance of the precedent decision and its applicability to the specific circumstances presented in the 
current matter. 
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 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 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 
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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 beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section lOI(a)(44)(A) of the Act, 8 U.S.c. § IIOI(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III 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 IOl(a)(44)(B) of the Act, 8 U.S.C. § I 10 I (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Page 4 
In support of the Form 1-140, the beneficiary, on behalf of the petitioner, submitted a letter dated July 10, 
2007 in which she stated that she assumes the top-most position with the petitioner's organizational hierarchy. 
The beneficiary also stated that her duties would include the following: general management of the 
company's finances and administering payroll; supervising vendor negotiations; interviewing, hiring, and 
training staff; directing marketing activities; communicating with attorney and accountant; overseeing the 
submission of records to government agencies; and working with advisors to expand the business. 
On March 18, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
list the beneficiary's daily job duties with the U.S. entity and the percentage of time that would be spent 
performing each task. The director also asked for a copy of the petitioner's organizational chart illustrating 
the organizational hierarchy at the time the Form 1-140 was filed. The petitioner was instructed to state the 
job titles and describe the job duties of all employees listed in the organizational chart and to explain how 
such employees allow the beneficiary to be employed within a qualifYing managerial or executive capacity. 
In response, the petitioner submitted a letter dated June 11,2009, addressing the issues discussed in the RFE. 
The letter described the petitioner's business as one involved in the cleaning of commercial and residential 
properties. The beneficiary's position was described as follows: 
[The beneficiary] is in charge of hiring and firing of personnel needed that provided cleaning 
to the clients. [She] supervises each of the employees and making sure that their duties are 
performed and done in a timely manner[.] [The beneficiary] also schedules the work routes 
that are then distributed to the cleaners. [She] provides quotes and determines amounts to be 
charged for each contract. Together with the accountant, [the beneficiary] revise[s] accounts 
payables and revises bank statements of the corporation. [She] coordinates with the office 
assistant the accounts payable, invoices and the purchasing of materials needed for each 
contract. [She] elaborates the monthly budget to match the forecasted clientele. 
The letter does not include the requested percentage breakdown for each of the job duties listed above. The 
letter did, however, provide job descriptions for the petitioner's sales person, office assistant, cleaners, and 
accountant. The petitioner also provided a copy of its organizational chart, which identifies the beneficiary at 
the top of the hierarchy as the company's president, followed by an accountant, sales manager, and office 
assistant as her three direct subordinates. The bottom tier of the chart includes one commercial cleaner and 
one residential cleaner. The chart indicates that both cleaners are supervised by the office assistant. 
Additionally, the petitioner provided its state quarterly wage reports for all four quarters in 2007 as well as its 
federal quarterly tax returns, all showing that the petitioner had one employee in 2007. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish that 
the beneficiary's proposed position would be within a qualifYing managerial or executive capacity. The 
director therefore issued a decision dated October 29,2009 denying the petition. Among the adverse findings 
listed, the director noted that the beneficiary's description of job duties indicates that the beneficiary would be 
performing the non-qualifYing operational tasks. The director further determined that the petitioner's tax 
documents indicate that the petitioner had only one employee at the time of filing and that it was therefore 
unable to relieve the beneficiary from having to perform non-qualifYing tasks. Lastly, the director observed 
that while the Form 1-140 shows that the petitioner had five employees at the time of filing, a total of six 
employees were identified on the petitioner's organizational chart, thus creating an inconsistency. The 
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director cited the precedent decision in Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988), which 
established that the petitioner must resolve any inconsistencies in the record by submitting independent 
objective evidence. Matter of Ho also established that any inconsistency in the petitioner's submissions may 
result in a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Id. at 591. 
The petitioner subsequently filed a Porm 1-290B seeking to appeal the director's decision. In a supplemental 
appellate brief, counsel challenges the director's reliance on Matter of Ho, claiming that "the evidence 
submitted in this case in favor of the corporate relationship is relevant, probative and credible." Counsel's 
statement, however, implies an overall lack of understanding of the director's grounds for denial, neither of 
which made mention of the petitioner's corporate relationship. While the facts in Matter of Ho are admittedly 
different from the facts in the matter at hand, the general principle that was established in the precedent 
decision can be applied to any number of cases with distinct factual scenarios. Thus, the mere fact that there 
are fewer inconsistencies in the present case than there were in Matter of Ho does not preclude the director 
from applying one of the BIA's key findings in the precedent decision. 
Additionally, it is noted that the inconsistency discussed in the director's decision is not the only 
inconsistency on record. After conducting its own comprehensive review of the petitioner's submissions, the 
AAO found another considerable inconsistency. Specifically, in reviewing the petitioner's state quarterly 
wage reports and its federal quarterly tax returns for 2007, all four quarters in the state and federal documents 
show that the petitioner had only one employee at the time of filing. The state quarterly wage statements 
identified the beneficiary as the only employee. Considering that the petitioner previously claimed five 
employees on the Porm 1-140 and then named six employees on the organizational chart that was intended to 
depict the petitioner's organizational hierarchy at the time of filing, the fact that the quarterly reports show 
that the petitioner had only one employee at the time of filing (and continuing into 2008) indicates that the 
information provided by the petitioner is at the very least unreliable and appears to be lacking in credibility. 
Thus, counsel's argument is without merit. 
Additionally, counsel does not address the director's valid observations that resulted in the overall 
determination that the beneficiary would not be employed by the U.S. petitioner within a qualifying 
managerial or executive capacity. When examining the executive or managerial capacity of the beneficiary, 
the AAO will look first to the petitioner's description of the job duties. See 8 C.P.R. § 204.50)(5). The AAO 
will then consider this information in light of the petitioner's organizational hierarchy, the beneficiary's 
position therein, and the petitioner's overall ability to relieve the beneficiary from having to primarily perform 
the daily operational tasks. In the present matter, the record contains documentation indicating that the 
beneficiary was the petitioner's sole employee at the time of filing. This fact coupled with the beneficiary's 
job description, which indicates that the beneficiary would carry out the petitioner's daily operational tasks, 
indicate that the petitioner has failed to overcome the first ground that was cited as a basis for the denial. 
Similarly, counsel failed to address the director's second ground for denial, which addresses the petitioner's 
lack of ability to pay the beneficiary's proffered wage. The regulatory requirement discussed at 8 c.P.R. 
§ 204.5(g)(2) states the following, 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 
Page 6 
the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence. Evidence of this ability shall be either in the form of copies of annual reports, federal 
tax returns, or audited financial statements. 
According to Part 6, Item 9 of the Form 1-140, the beneficiary's proffered wage is $674 per week, or 
approximately $35,048 annually. 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 petitioner's ability to pay the beneficiary's salary. In the present matter, the petitioner 
compensated the beneficiary $19,650 in 2007 when the petition was filed. Therefore, the record does not show 
that the beneficiary has been paid a salary equal to or greater than 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.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), affd, 703 F.2d 571 (7th Cir. 1983). In K.CP. 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. 
In the present matter, the petitioner has not provided documentation such as a tax return or an annual report 
for 2007 establishing its ability to pay the proffered wage. Although the petitioner did provide the 
beneficiary's 2006 IRS Form W-2 showing compensation in the amount of$15,600 as well as the petitioner's 
2008 corporate tax return showing officer compensation in the amount of $15,600 and zero net taxable 
income, neither document accounts for the time period during which the petition was filed. Moreover, even if 
the AAO were to rely on either document, neither establishes the petitioner's ability to pay $35,048 annually 
as the beneficiary's proffered wage. Therefore, on the basis of this second adverse determination, the instant 
petition may not be approved. 
Additionally, while not addressed in the director's decision, the AAO finds that the record lacks evidence to 
establish that the petitioner meets the initial filing requirement discussed at 8 C.F.R. § 204.5(j)(3)(i)(D), 
which states that the petitioner must establish that it has been doing 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." Although the petitioner submitted eleven invoices showing its 
business activity in 2008 and 2009, these invoices are not relevant for the purpose of establishing whether the 
petitioner was doing business during the relevant one-year period prior to the filing of the Form 1-140. 
Page 7 
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 ground of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, service records show the petitioner's previously approved L-1 employment of the beneficiary. 
With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, each nonimmigrant 
and immigrant petition is a separate record of proceeding with a separate burden of proof; each petition must 
stand on its own individual merits. USCIS is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. The approval of a nonimmigrant petition in no way guarantees that 
USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 
immigrant petitions after approving prior nonimmigrant 1-129 L-l petitions. See, e.g., Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Regardless, 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.