dismissed EB-1C Case: Commercial Printing

DATE: 
JUN 1 9 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: Innnigrant 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. § I I 53(b)(l)(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 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 
with the field office or service center that originally decided your case by filing a Form I·290B, Notice of 
Appeal or Motion, with a fee of$630. The specific requirements for filing such a motion can 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, 
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 limited liability company, organized in the state of New Jersey, which 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)(I)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § lI53(b)(I)(C), as a multinational executive or manager. 
On August 30, 2010, the director denied the petition concluding that (1) the petitioner failed to establish 
that the beneficiary'S proposed employment with the U.S. entity would be within a qualifying managerial 
or executive capacity, (2) the petitioner failed to establish that the beneficiary'S employment abroad was 
within a qualifying managerial or executive capacity, and (3) the petitioner failed to establish that it has the 
ability to pay the beneficiary's proffered wage. The petitioner subsequently filed an appeal. The director 
declined to treat the appeal as a motion and forwarded the appeal to the AAO for review. On appeal, 
counsel disputes the director's findings and provides an appellate brief laying out the grounds for 
challenging the denial. Counsel submits a brief and additional evidence in support of the appeal. 
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 ifthe 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 that 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. See 8 C.F.R. 
§ 204.50)(5). 
Page 3 
The first issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
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 101 (a)(44)(B) of the Act, 8 U.S.C. § I 10 1 (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. 
In examllllllg 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.S(j)(S). Published case law clearly supports 
the pivotal role of a clearly defined 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.V. 1989), affd, 90S F.2d 
41 (2d. Cir. 1990); see also 8 C.F.R. § 204.S(j)(S). uscrs reviews the totality of the record, which 
Page 4 
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 the job 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. 
In the present matter, an analysis of the record does not lead to an affirmative conclusion that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
In the March 4, 2010 support letter, the petitioner indicated that the beneficiary's job responsibilities as 
president of the U.S. company include "carries out executive duties," and "sets all corporate policies as 
well as all corporate strategies for investment and development." The petitioner stated that the beneficiary 
was in charge of expansion projects such as the plan to "purchase a large industrial and commercial 
printing facility," and "the investment, allocation and administration of a $3 million-$5 million capital 
investment made in the company by its parent," and "the company will hire over 100 employees in the next 
12-15 months." In response to the director's notice of intent to deny, the petitioner provided a job 
description of the duties that will be performed by the beneficiary, and an organizational chart of the 
petitioner. 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that fails 
to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner stated that 
the beneficiary will set all corporate policies, strategies, investment and development, formulate strategy 
for company liquidation, and organize the management of the day to day business operation with respect to 
production, technology and administration. Reciting the beneficiary's vague job responsibilities or broadly­
cast business objectives is not sufficient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to provide any detail or explanation of the beneficiary's activities 
in the course of his daily routine. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The petitioner's descriptions of the 
beneficiary's position do not identifY the actual duties to be performed, such that they could be classified as 
managerial or executive in nature. The job description submitted by the petitioner provides little insight 
into the true nature of the tasks the beneficiary will perform. 
The petition, filed on March 23, 2010, stated that the petitioner employs 4 individuals. In response to the 
director's notice of intent to deny, the petitioner submitted an organizational chart with several positions, 
and the petitioner wrote in the names of the positions filled which were 5 employees, including the 
beneficiary. On appeal, counsel for the petitioner explains that the organizational chart was submitted five 
months after the 1-140 was filed and the new employees were hired between June 2010 and August 2010. 
However, there is no evidence in the record that any employee, except for the beneficiary, was actually 
hired by the petitioner. The petitioner submitted Form 1120, U.S. Corporation Income Tax Return, for 
2009, that indicated the petitioner paid $78,165.00 in salaries and wages. The petitioner also submitted one 
W-2, Wage and Tax Statement, for 2009 that indicated the petitioner paid the beneficiary a salary of 
67,664.67. The petitioner did not provide a Form W -2 or 1099 for any other employees, and it did not 
provide quarterly wage tax statements or paystubs to indicate that any other employee aside from the 
beneficiary was employed by the petitioner. This indicates that the petitioner's only full-time employee is 
the beneficiary. As noted by the director, the organizational chart and the evidence submitted by the 
petitioner do not coincide with each other and thus, it is impossible to determine the true organizational 
hierarchy of the petitioner. The petitioner did not provide any corroborating evidence that the petitioner 
Page 5 
actually employs the individuals listed in the organizational chart. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In the instant case, the AAO must review the beneficiary's job duties at the time of filing the petition. 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). According to the Forms 1120 and 
W -2, the petitioner paid a salary to the beneficiary only. Thus, it appears from the record that the 
beneficiary may be performing several, if not all, of the finance operations and business development 
activities, and all of the various operational tasks inherent in operating a business on a daily basis, such as 
paying bills, handling customer transactions, and negotiating contracts. Based on the record of proceeding, 
the beneficiary's job duties are principally composed of non-qualifying duties that preclude him from 
functioning in a primarily managerial or executive role. 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 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
Intn '/.,19 I&N Dec. at 604. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § I 101 (a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals 
and policies" of the organization. Inherent to the definition, the organization must have a subordinate level 
of managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual 
will not be deemed an executive under the statute simply because they have an executive title or because 
they "direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise 
"wide latitude in discretionary decision making" and receive only "general supervision or direction from 
higher level executives, the board of directors, or stockholders of the organization." ld. 
The beneficiary's job duties, as described by the petitioner, are not indicative of an employee who is 
primarily focused on the broad goals and policies of the organization. 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), aJj'd, 905 F.2d 41 (2d. Cir. 1990). The petitioner has not established that the beneficiary is primarily 
engaged in directing and controlling a subordinate staff comprised of professional, managerial or 
supervisory employees, nor has it indicated that he is charged with managing an essential function of the 
petitioning organization. See section 101 (a)(44)(A) of the Act. Therefore, the AAO is not persuaded that 
the beneficiary would be employed in a primarily managerial capacity. 
The second issue in this matter is whether the beneficiary's employment abroad was within a qualifying 
managerial or executive capacity. An analysis of the record does not lead to an affirmative conclusion that 
the beneficiary was employed abroad in a qualifYing managerial or executive capacity. 
Page 6 
The petitioner claimed in its March 4, 2010 letter that the beneficiary has served continuously for nearly 18 
years with the foreign company. The petitioner stated that the beneficiary "grew the small company into a very 
big and important player within a Chinese niche printing market." In response to the notice of intent to deny, 
the petitioner stated that the beneficiary's duties as president with the foreign company included "the 
development and implementation for strategies for joint ventures, sales, purchasing, advertising, and fmance 
(40%)," "creating and oversight of all departments doing research and new product development (30%)," and 
"oversight of strategies for market research (30%)." This description provides little insight into what the 
beneficiary primarily did on a day-to-day basis as president ofthe foreign entity. The petitioner did not explain 
the strategies of development the foreign company had. The petitioner also did not explain what employees 
and departments assisted the president in performing his job duties. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. Again, the actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108. Accordingly, the evidence of record is insufficient to establish that the beneficiary was employed by 
the foreign entity in a primarily managerial or executive capacity. 
The petitioner also submitted an organizational chart of the foreign company that indicated over 200 
employees. The petitioner also submitted resumes for the beneficiary, the Director of Finance, the Office 
Manager, the Director of Quality, the Director of Production, and the Deputy Director SalesiMarketing. 
The petitioner did not submit a list of duties performed by the employees, or evidence of employees such as 
tax documents or paystubs. 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 AAO acknowledges that USCIS has previously approved an L-l A petition filed by the petitioner on 
behalf of the beneficiary. It must be noted that many 1-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant 1-129 L-l petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 
2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22; Fedin Brothers Co. Ltd. v. Sava, 
724 F. Supp. 1103. There is a significant difference between a nonimmigrant L-IA visa classification, 
which allows an alien to enter the United States temporarily, 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. Cf §§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see 
also § 316 of the Act, 8 U.S.C. § 1427. Because USCIS spends less time reviewing 1-129 nonimmigrant 
petitions than 1-140 immigrant petitions, some nonimmigrant L-l A petitions are simply approved in error. 
Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. § 214.2(1)(14)(i) (requiring no 
supporting documentation to file a petition to extend an L-1A petition's validity). 
Despite the previously approved petition, USCIS does not have any authority to confer an immigration 
benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the 
Act. Each petition filing is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In 
making a determination of statutory eligibility, USCIS is limited to the information contained in that 
individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Based on the lack of required evidence of 
eligibility in the current record, the AAO fmds that the director was justified in departing from the previous 
nonimmigrant petition approval by denying the instant petition. 
Page 7 
The third 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 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. 
(Emphasis added.) 
The petitioner indicates on the Form 1-140, at Part 6, that it will pay the beneficiary $100,000.00 per year. 
On the Form 1-140, the petitioner also indicated that the petitioner's gross annual income is $150,000, and 
the net annual income is negative $2,533.00, and it currently employs 4 individuals. 
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. 
In the present case, the pelltlOner did not submit any documentation evidencing that it paid the 
beneficiary'S proffered salary of $100,000 per year. The petitioner provided a Form W-2 for 2009 that 
stated the beneficiary received a salary of $67,664.67 in 2009. On appeal, counsel for the petitioner 
contends that the beneficiary "was only issued his L-IA visa in February 2009 and by the time he started 
earning wages at the company in March 2009, the first quarter of 2009 was almost over." However, the 
1120, U.S. Corporation Income Tax Return, indicated that it had a negative net annual income so it would 
have been impossible for the petitioner to pay a salary of $100,000.00 to the beneficiary. 
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); KC.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), afJ'd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner provided Form 1120, U.S. Corporation Income Tax Return, for 2009 that indicated gross 
receipts of $150,000.00, and payment of salaries and wages of $78,165.00, and a negative net income of 
$2,533.00. However, according to the petitioner's organizational chart, the petitioner employs five 
individuals as of 2010. It is not clear how the petitioner can pay the beneficiary's salary of $100,000 per 
Page 8 
year while also paying the salaries of four other employees when it had a negative income in 2009, after 
only paying $78,165.00 in salaries and wages. Thus, the evidence is not sufficient to establish that the 
petitioner can pay the beneficiary's salary of $100,000 per year and pay the salaries of all the employees 
listed on the organizational chart. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SojJici, 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)). 
On appeal, counsel for the petitioner contends that the foreign company "was about to invest $3 million -
$5 million in expansion plans for the Petitioner." The petitioner did not submit any documentation 
evidencing that the foreign company has committed that money to the petitioner, and that the money can be 
used to pay the beneficiary's salary, and not just for expansion expenses. Furthermore, the petitioner must 
establish eligibility at the time of filing the 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 denial decision also stated that based on the beneficiary's ownership of the U.S. company, the 
beneficiary will not be an employee. On appeal, the petitioner submits a letter from Sunny Printing 
Equipment Consulting and Cooperation Company that stated that although it owns 25.03% of the foreign 
company, it owns 51 % of its voting power. The letter states that "this was our prerequisite for our 
investment in [the foreign company] so that we can have ultimate control over all business decisions, 
including, but not limited to matters related to employees and investment." This letter is insufficient 
evidence of the shareholder that has control over the foreign company. The petitioner failed to present 
articles of organization, agreements, amendments or any documentation to corroborate the claim made in 
this letter. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SojJici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter afTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
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.