dismissed EB-1C Case: Commerce

(b)(6)
DATE: APR 0 9 2013 
INRE: Petitioner: 
Beneficiary: . 
U.S. Department of Homeland Security 
U. S. Citizenship and Inmiigration 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 ·FILE: 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd the decisi~n 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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in· 
accordance w'ith the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such.a motion ca:n be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscls.gov 
(b)(6)
Page2 
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 is engaged in the "commerce [of] fruits and durable 
goods," and it seeks to employ the beneficiary as its general ~anager. 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. § 1153(b)(l)(C), as a 
multinational exe~utive or manager. 
On March 26, 2012, the director denied the petition concluding that the petitioner failed to establish 
that the ben~ficia.fy's proposed employment with the U.S. entity would. be within a qualifying 
managerial or executive capacity or that the petitioner has the ability to pay the beneficiary's 
proffered wage. · 
On appeal, counSel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. · 
Section 203(b) ofthe 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 
tinie 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 eriter the Uriited 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 I-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 tlie 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 aliet;I. 
(b)(6)
Page3 
The first issue that will be addressed in this proceeding calls for an analysis of the beneficiary's job 
duties. Specifically, the AAO will examine the record to determine whether the petitioner submitted 
sufficient evidence to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) mariages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professiona~ 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 fue o·r recominend those as well as other persoml.el 
actions (such as promotion and leave authorization), or if no other 
. I . 
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 fust-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 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(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) establi~hes 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. 
(b)(6)
Page4 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defmed job description, as 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), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F:R. § 204.50)(5). That. being said, however, 
USCIS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the petitioner's business, the employment and remuneration 
of employees, as well as thejob descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the. beneficiary performs the high-level responsibilities that are specified in the defmitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Upon. review. of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a 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.J See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are either in 
an executive or managerial capacity. !d. 
Due to the overly general and vague list o(job duties, the AAO is unable to gain a meaningful 
understanding of how much time the beneficiary spent perfoiming qualifYing tasks versus those that 
would be deemed non-qualifying. 
In describing the beneficiary's position in the United States, the petitioner stated that the beneficiary 
will be responsible for ''planning, developing and implementing company strategy," "planning the 
future expansion of the business and the possibility of franchising the said business," ."developing 
policies and procedures for procurement of services," and "plan and implementing new operating 
procedures to improve efficiency and reduce costs." It is unclear which specific tasks actually fall 
within these broad categories. Merely using the term . "managing" to describe the beneficiary's 
function does not establish that the supervisory t_asks the beneficiary will perform are of a qualifying 
nature.. Going· on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden ofproofin 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)). 
In addition, the job description includes several non-qualifying duties. In describing the beneficiary's 
employment with the petitioner, the petitioner. indicated .that the beneficiary will be responsible for 
"developing and implementing policies and new procedures for sales company"; "determining mark­
up percentages necessary to insure profit, based on estimated 
budget, profit goals and average rate of 
client acquisition"; "oversee the negotiation of contracts with clients";· "formulating pricing policies 
for sales"; "evaluate market fur new profitable. opportunities in order to attain established policies and 
objectives of the company"; and "evaluate market for new profitable opportunities in order to attain 
established policies and objectives of the company." The petitioner has not clarified who actually 
(b)(6)
PageS 
assists the beneficiary in performing the duties of sales, market research, budgeting, and negotiations; 
thus indicating that the beneficiary may be the one to carry out th~se operational functions, which are 
outside the parameters o:K what would be deemed as being within a managerial or executive capacity. 
An ·employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" ·employed in a managerial or executive capacity. See 
sections 10l(a)(44)(A) and (B) of the Act (requiring that ~me "primarily'' perform the enumerated 
managerial or executive duties); see also Matter of Church Scientology lntn '1., 19.1&N Dec. 593, 604 
(Comm'r 
1988). 
The petitioner also provided an organizational chart with all employees supervised by' the beneficiary 
and a brief job description for each employee. According to the organizational chart, the beneficiary 
supervises seven employees at the U.S~ office and seven employees located in other countries and 
other counties. The beneficiary supervises a financial consultant, an administrative manager, and a 
sales manager; and the financial consultant in turn supervises the assistant manager and the secretary. 
The administrative manager supervises four purchase coordinators located outside of the United 
States. The sales manager supervises a sales and oollector supervisor, an assistant sales person, and 
three sales associates that are located in different counties. The petitioner indicated that the three 
sales associates "receive their income through sales commis~ions." · 
The director's denial decision noted a discrepancy in the information regarding the employees of the 
petitioner. The director noted that the Form 941 indicated that the petitioner· employed six 
individuals rather than seven. In addition, the documentation submitted by the petitioner did not 
.indicate the employment o.fthe purchase coordinators or the sales associates. In addition, the director 
noted that some employees do not appear to be working on a· full-time basis and some employees 
listed on the organizational chart are not listed on the Forms 941. Qn the Form 941 for the third 
quarter of 2010, the form does not indicate the employment of the sales manager, the· administrative 
manager and the sales and collector supervisor. 
On appeal, counsel for the petitioner states that the organizational chart was submitted· by the 
petitioner in respo'nse to the director's request for evidence and it reflected additional personnel that 
were hired after the 1-140 petition was filed. The petitioner also provided Forms 1099 for 2011 for 
the contractors. However, the evidence submitted to support the new organizational chart was for the 
year 2011 and not for the time when the 1-140 was filed in November 2010. The petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). The petitioner did not 
provide sufficient evidence of its staffing, including contractors, when the I-140 was filed in 
November 201 O; Going on record without supporting documentary evidence is not sufficient for 
·purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 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)). 
In addition, in response to the director's concern that some of the petitioner's employees were 
working part-time, counsel on appeal stated that "it is important to emphasize that in the event an 
employee cannot. work in the· company for a determined period of time due to insurmountable 
circumstances, it is not possible to conclude that his tasks, when working, are not considered full 
(b)(6)
Page6 
time." The petitioner failed to establish that the petitioner's employees, ·at the time of filing the 
instant petition, were working on a full-time basis rather than a part-time basis. In addition, even if 
the petition~r's employees were workirig· part-time, the petitioner failed to establish that the 
employees could perforin the day-to-day tasks of operating a business while working on a part-time 
schedule. The petitioner has not clarified the ·hours worked by each employee and whether it is 
sufficient t~e to prevent the beneficiary from being oblig~ to devote .the majority of his time to 
performing non-qualifying operational duties. It is incumbent upon the petitioner to resolve any 
' ' inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). IfUSCIS fails 
to believe that a fact stated in the petition is true, USCIS may reject that fact. Section 204(b) of the 
Act, 8 U.S.C. § 1154(b); see also Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann 
Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). The petitioner has not established that. the beneficiary would be working in a 
qualifying managerial or executive ·capacity in the United States. For this reason, this petition cannot 
be approved. 
The second issue in this proceeding 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: 
Any petition filed by or for an employment-based imniigrant 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 ~tatements. 
(Emphasis added.) 
The petitioner indicates on the Form I-140, at Part 6, that it will pay the beneficiary $28,800.00 per 
year. 
In response to the· director's request for evidence, the petitioner stated that the petitioner "has the 
ability to· pay the proffered wage in favor of our client, because the company, after of [sic] deduce its 
cost of sales and expenses, ·in which there are included the salaries, reached a positive result; 
inclusive its profit was over of the opportunity cost of the capital"in the market." 
Upon review, the petitioner has not established that it has the ability to pay the proffered wage of 
$28,800 at the time of filing. 
In determining the petitio~er'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 
(b)(6)
Page7 
to pay the beneficiary's salary. In this case, the petitioner did not provide evidence that the 
beneficiary received the salary of $28,800 in 2010 such as a Form W-2, paystubs, or tax returns. 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 inrome 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. Sawi, 623 F. Supp. 1080 (S.D.N.Y. 
1985); Ubeda v. Palmer'; 539 F. Supp. 647 (N.D. Ill. 1982), a.ff'd, 703 F.2d 571 (7th Cir. 1983). 
In reviewing Form 1120, U.S. Corporation Income Tax Return, for 2010, the petitioner paid $67,920 
is salaries and wages, and it has a taxable income of $16,304.00.· It is not clear how the petitioner 
paid the beneficiary's salary of $28.800.00 and oould pay full-time ·salaries to the additional six 
employees and contractors when only paying $67,920.00 in salaries and wages for the 
year and with a 
taxable income of $16,304.00. Although the petitioner had a positive net income, the petitioner did 
not establish that it can pay 
the beneficiary's salary in addition to the salaries of the six employees. 
The petitioner has submitted no evidence to establish that the U.S. employer has the realistic financial 
ability to directly remunerate the beneficiary. For this additional reason, this petition may not 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), a.ff'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). 
The record lacks substantive job descriptions establishing what job duties the beneficiary performed 
during his employment abroad, and documentation of the employees employed by the foreign 
company. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of 
proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.ff'd, 905 F. 2d 41 
(2d. Cir. 1990); Avyr Associates, Inc .. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual 
duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. at 1108. Based on the evidence submitted, the petitioner has not established that the 
beneficiary was employed by the foreign entity in a qualifying managerial or executive capacity. For 
this additional reason, this petition cannot be approved. 
An application or petition that fails to ci>mply 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), a.ff'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). · 
(b)(6)
Page 8 
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. § t'361. The petitioner has not sustained that 
burden. 
ORDER: The appeal is dismissed.