dismissed EB-1C Case: Computer Hardware Distribution

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: - Office: VERMONT SERVICE CENTER Date: JUN 0 1 2005 
EAC 03 051 53189 
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 : 
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 P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a New Jersey corporation engaged in the import, export, and distribution of scanners and 
computer parts. It 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)(l)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1153(b)(l)(C), as a multinational executive or 
manager. The director determined that the beneficiary would not be employed in a managerial or executive 
capacity and denied the petition. 
On appeal, counsel disputes the director's conclusion and submits documentation in support of his arguments. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(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 issue in this proceeding is whether the beneficiary would be employed in a managerial or executive 
capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
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(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 l(a)(44)(B) of the Act, 8 U.S.C. 9 1 10 l(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 
(iv) receives only general supervision or direction from higher level executives; 
the board of directors, or stockholders of the organization. 
In support of the petition, the petitioner submitted the beneficiary's employment verification, which contained 
the following description of the job duties to be performed by the beneficiary under an approved petition: 
As managing director [the beneficiary] is responsible for developing and instituting 
corporate [olperational policies including, long and short-term goals, financial 
forecasting, [and] evaluation criteria. [The beneficiary is allso in charge of developing 
international market penetration strategy, allotment of corporate resources for overseas 
operations and establishing the integrated distribution policy for domestic and 
international markets. 
[The beneficiary's] responsibilities also include[] evaluating and reviewing the 
performance of all departments, including, [sic] production, marketing, administrative, 
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(finance) and [rlesearch and development and instituting any necessary changes to meet 
the established goals and guidelines. 
The employment verification also indicated that the beneficiary's salary would be $60,000 per year plus stock 
options. Additionally, the petitioner submitted two organizational charts dated October 24, 2002 illustrating 
the organizational structures of the foreign and U.S. entities. The foreign entity's organizational chart 
contained the name of the company's president and the beneficiary as the managing director, a position that is 
directly subordinate to the president. Although the chart indicated that the company also had administrative, 
sales, production, and other staff members, none of the staff were specifically identified by name and position 
title. The petitioner's organizational chart named the beneficiary as the company president and listed the 
following four departments: administration and accounting, sales and marketing, import and export, and the 
customer service department. The petitioner did not specifically identify any of its employees by name or 
position title. The petitioner submitted the beneficiary's tax return and wage statement for 2001 showing 
earnings of $48,000, as well as its own 2001 tax return showing $32,400 paid in officer compensation and no 
money paid in salaries and wages. 
On July 9, 2003, the director issued a request for additional evidence noting various discrepancies between 
the petitioner's claim regarding its ownership and the information provided in its 2001 tax return regarding 
the same issue. The petitioner was instructed to submit all W-2 wage and tax statements it issued in 2001 and 
2002, as well as its two most recently filed quarterly tax returns. The petitioner was also asked to provide the 
names, job titles, and brief job descriptions of its employees. The director stated further that the evidence of 
record suggests that the beneficiary would be "primarily handling uncomplicated paperwork" rather than 
primarily performing qualifying tasks. The petitioner was asked to comment on the director's observation. 
In response, the petitioner submitted a 2001 W-2 statement for showing gross earnings of 
$32,400 and a 1042-S statement showing the beneficiary's 2001 gross earnings of $39,000. The petitioner 
also submitted a letter dated September 26, 2003 providing the position titles, educational levels, and names 
of the petitioner's four employees, including the beneficiary. The petitioner provided a job description only 
for the beneficiary, not for any of its other claimed employees. The petitioner also provided the following 
description of the beneficiary's job duties: 
The beneficiary is responsible for contract negotiations, primarily with the United State[s] 
Government Immigration Service and the Defense [Dlepartment as well as other 
governmental agencies and other major suppliers or users in the field to whom he is 
supplying specialized scanners. He sets policy for the company including whom we will not 
supply with specialized scanners. He makes all executive determinations and keeps the 
parent company in Korea apprised of all developments in the field top [sic] enable them to 
improve the engineering of the product. 
The petitioner also submitted a letter dated September 23, 2003 fiom its accountant. The accountant 
explained the discrepancies in the petitioner's 2001 tax return, which accounted for a one-year time period 
from July 1, 2001 to June 30,2002. He stated that Schedule E of the tax return erroneously indicated that the 
beneficiary owned 20% of the petitioner's stock and that the beneficiary's 40% ownership share would be 
reflected in future tax returns. The accountant also stated that was shown in Schedule E 
erroneously and that the beneficiary's $37,000 compensation, which should have appeared in Schedule E, was 
included somewhere else in the tax return. The accountant did not specify where in the tax return she 
accounted for the $37,000. The accountant further explained that the petitioner's corporate tax return 
addresses a different period of time than personal tax returns and wage statements and suggested that this 
difference in reporting periods may account for certain discrepancies in compensation. 
On December 17, 2003, the director denied the petition concluding that the evidence of record does not 
establish that the beneficiary would be employed in a qualifying capacity. The director cited the various 
discrepancies regarding the ownership of the petitioning entity and pointed out that the beneficiary's Form 
1042-S wage statement for 2001 appears to have been altered. The director also noted the petitioner's failure 
to submit W-2 wage and tax statements for all but one of its employees. The director stated that the 
accountant, in his attempt to explain the various mistakes made in the petitioner's 2001 tax return, made an 
additional error by stating that the beneficiary was shown as a 20% shareholder of the petitioning entity. The 
director questioned the accuracy of the remaining information in the petitioner's 2001 tax return in light of the 
numerous mistakes made by the accountant in the initial filing of the tax return and subsequently in 
explaining those mistakes. 
On appeal, counsel states that the director's decision is incorrect and submits a statement from the 
beneficiary's foreign employer in support of the prior claim that the beneficiary owns 40% of the petitioner's 
stock. The petitioner also submitted a letter from the petitioner's accountant claiming that the 2001 Form 
1042-S showing the beneficiary's earnings of $39,000 was incorrect and states that the beneficiary's true 
gross earnings for 2001 were $48,000. The Form 1042-S reflecting the amended gross earnings was 
submitted. However, the accountant did not explain why this significant error occurred or why the initial 
Form 1042-S appeared to have been altered. The petitioner also submitted what appears to be the Internal 
Revenue Service's (IRS) copy of the beneficiary's filed tax return showing the beneficiary's gross earnings as 
$48,000. However, the IRS did not indicate which year is reflected in the tax filing. Finally, the petitioner 
submitted an amended tax return showing changes made to its total income claimed for the 2001 tax year. 
The petitioner provided no additional information regarding the beneficiary's duties or the duties of its 
support staff, which is purportedly comprised of three to four other individuals. 
Upon review, the evidence of record does not establish that the beneficiary would be employed in a 
managerial or executive capacity. In examining the executive or managerial capacity of the beneficiary, CIS 
will look first to the petitioner's description of the job duties. See 8 C.F.R. 8 204.5Cj)(5). 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 answer a 
critical question in this case: What does the beneficiary primarily do on a daily basis? The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 11 03, 
1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The petitioner has failed to specify what actual 
duties the beneficiary would perform and what duties the purported support staff would perform in an effort 
to relieve the beneficiary of having to perform non-qualifying duties. The petitioner's only submitted tax 
return is replete with errors and discrepancies regarding the petitioner's ownership and salaries the petitioner 
paid to its employees. 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). Furthermore, doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). In the instant case, the petitioner 
submitted a written explanation from its accountant in an effort to reconcile the conflicting information 
submitted in its tax return. However, the explanation failed to specify where in the tax return the petitioner 
accounted for all of the salaries of its claimed employees and made additional errors, which had not 
previously appeared in the original tax return. Although the petitioner claimed to have a total of four 
employees in its initial 1-140 petition and claimed to have five employees in the supporting organizational 
chart, the petitioner only submitted wage statements for two employees-the beneficiary and one other 
employee. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). Thus, the record as presently constituted contains documented proof for only two 
employees and fails to provide adequate descriptions of their duties. As such, the AAO cannot affirmatively 
determine that the beneficiary would primarily perform managerial or executive duties. For this reason, this 
petition cannot be approved. 
Beyond the decision of the director, the petitioner has not established its ability to pay the beneficiary's 
proffered wage. The regulation at 8 C.F.R. 9 204.5(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 
the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence. Evidence of ths ability shall be either in the form of copies of annual reports, federal 
tax returns, or audited financial statements. 
In the instant case, the petitioner has submitted conflicting evidence regarding the beneficiary's actual salary 
for the year prior to filing the 1-140 petition. However, even if the AAO were to assume that the beneficiary 
got paid $48,000 as claimed in his tax return and in the corresponding Form 1042-S, the petitioner indicated 
that the beneficiary would be paid $60,000 per year. The petitioner has submitted no documentary evidence 
in the form of its recent quarterly tax returns or the beneficiary's actual W-2 statement for 2002 to suggest that 
it has the ability to pay the beneficiary's proffered wage, which is significantly higher than the wage it paid 
the beneficiary in 200 1. 
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), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional issues discussed in the paragraphs above, this 
petition cannot be approved. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.