dismissed EB-1C Case: Computer Software

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: Office: NEBRASKA SERVICE CENTER Date: OCT 0 6 2009 
LIN 09 091 51268 
IN RE: Petitioner: 
Beneficiary: 
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. 5 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
/' 
rry Rhew 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
fj 1153(b)(l)(C). The petitioner, a California corporation, states that it provides computer software 
development and programming services and also operates a bakery under a fictitious name, "Royal Baker." It 
claims to be a subsidiary of Sharrnahd Computing GmbH, located in Germany. The petitioner seeks to 
employ the beneficiary in the position of president. 
The director denied the petition on three independent and alternative grounds, concluding that the petitioner 
failed to establish: (1) that the beneficiary would be employed in the United States in a primarily managerial 
or executive capacity; (2) that the beneficiary was employed by the foreign entity in a primarily managerial or 
executive capacity; and (3) that the petitioner and the foreign entity have a qualifying relationship. 
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 for the petitioner addresses the director's 
finding that the petitioner failed to establish that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity, but does not acknowledge or discuss the remaining two grounds 
for denial of the petition. Counsel asserts that the director placed undue emphasis on the size and staffing 
levels of the petitioning company without considering its current stage of development and "completely 
ignored the fact that clearly beneficiary's activities can be considered those of a 'functional manager."' The 
appeal includes counsel's brief and additional documentary evidence. 
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 or 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 hish 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. 
I. Managerial or Executive Duties with the United States Emplover 
The first issue to be addressed is whether the petitioner established that the beneficiary would be employed by 
the United States entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), defines the term "managerial capacity" as 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 hnction 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 hction 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. $ 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in whch 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. 
The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, on February 13, 2009. The 
petitioner indicated on Form 1-140 that the beneficiary would be employed as president and indicated that 
would perform the following duties: 
[Mlanage customer and technical services, oversees and finalizes the negotiations with major 
software vendors, manages all marketing activities and contacts manufacturers for strategical 
partnerships with a number of software companies, oversee the entire operation of the 
companies, setting goals and procedures. 
In a letter dated February 10, 2009, counsel for the petitioner stated that the petitioner's "principal business is 
computer software development and applications and custom computer programming services." Counsel 
further stated that the petitioner acquired a pastry business known as "Royal Baker" in 2007 and has spent 
over $100,000 upgrading the facilities since the acquisition. Counsel stated that the beneficiary's duties as 
president would include the following: 
Beneficiary will continue to manage customer and technical services particularly Customers 
who purchased a larger number of software licenses. He manages new products, projects in 
software and industry automation, such as solutions for messaging systems and solution for 
water treatment industry. [The beneficiary] oversees and finalizes negotiations with major 
software vendors for [the petitioner]. He manages all marketing activities and contacts 
manufacturers for strategical [sic] partnerships with a number of software companies to 
incorporate our product as part of broader software solutions. For Royal Baker, Beneficiary 
will oversee the entire operation of the companies, setting goals and procedures. He has final 
say in the hiring and firing of employees, determination of advancements and salary 
increases. As President of both companies, he sets organizational structure, policies and 
functions. He heads the decision making in business matters specifically in client issues and 
purchases. 
For both companies, [the beneficiary] visits and develops business relationships with current 
and potential clients. He establishes professional relationship with banking institutions to 
ensure smooth running of operations. He creates and implements the business plan and its 
future plans for expansion. 
The petitioner submitted a copy of its 2007 IRS Form 1120, U.S. Corporation Income Tax Return, which 
indicated that the petitioner reported no salaries, wages, payments to contractors, or cost of labor in 2007. The 
petitioner also provided copies of its IRS Forms 941 and 940, and its California Forms DE-6, Quarterly Wage 
and Withholding Report, for the years 2005 through 2008. The petitioner paid $20,250 to the beneficiary in 
2006, $28,500 to the 
beneficiary in 2005, and no salaries or wages in 2007 or during the first three quarters of 
quarter of 2008, the petitioner paid $6,000 to the beneficiary and $1,950 to = 
The petitioner submitted a copy of its lease agreement signed on November 28,2008. According to the terms 
of the agreement, the petitioner leases a portion of an office or office suite from Mitra Automation, Inc. The 
agreed use of the premises is: "To implement and closely coordinate programming functions of [the 
petitioner] for Mitra Automation software development projects." 
The petitioner also submitted a letter dated March 24, 2005 from 
 managing director of its 
claimed parent company, Sharmahd Computing, GmbH. ~r explains that the company's product "SC 
UniPad," is mainly sold in the United States and therefore requires the ongoing operation of the U.S. office. 
Specifically, he mentions that the U.S. customers expect a telephone hotline for sales and technical support 
issues during normal business hours, prompt response to electronic mail inquiries, and a clear understanding 
of U.S. business conventions. fiu-ther notes that customers who have purchased a larger number 
of software licenses may require 2417 support from a service technician, while other customers expect 
integrated hardware-software solutions that must be developed through the cooperation of hardware vendors 
and dealers in the United States. Finally, stated that the U.S. office was established, in part, to aid 
the company in locating strategic partnerships with other software companies who may be willing to 
incorporate the petitioner's product into a larger software solution. 
Finally, the petitioner provided a copy of a fictitious business name statement indicating that the petitioning 
company registered the name "Royal Baker" in July 2007. The petitioner provided evidence that the 
beneficiary passed a "Food Safety Manager Certification Examination" on November 6, 2007, and submitted 
copies of current licenses for the bakery. 
The director found the initial evidence insufficient to establish that the beneficiary would be employed in a 
primarily managerial or executive capacity. Accordingly, on March 6, 2009, the director issued a request for 
evidence (RFE), in which he instructed the petitioner to submit, inter alia, the following: (1) a more detailed 
position of the beneficiary's duties which explains the actual specific day-to-day tasks he will perform, 
supplemented by an estimate of the amount of time the beneficiary will dedicate to each specific duty; (2) a 
detailed organizational chart for the U.S. company which includes the names and a detailed description of job 
duties for all employees subordinate to the beneficiary; (3) copies of IRS Form W-2 for all employees for 
2007 and 2008; and (4) a copy of the petitioner's 2008 corporate tax return, if available. 
In a response dated March 30, 2009, counsel for the petitioner restated verbatim the position description for 
the beneficiary that was included in his letter dated February 10, 2009. The petitioner submitted a list of the 
U.S. company's employees as follows: 
Operations Manager ($30,000; Full time) 
Duties: Reports directly to the president. Handles sales transactions, use professional 
accounting background to supervise overall financial and related issues. Supervises kitchen 
activities, as well as product development. 
Kitchen Supervisor (Commissioned; Full time) 
Duties: Reports directly to the Operations Manager. Is in charge of the kitchen. Reports 
inventory status. Directs the workers. Determines Kitchen Workers work hours. Also in 
charge of new product development. 
Kitchen Worker ($8.00 per hour) 
Duties: Works in the kitchen, seals products, restocks inventory, helps prepare the dough. 
Kitchen WorkerDish washer ($8.00 per hour) 
Duties: Works in the lutchen, washes dishes, cleans equipment, packages product. 
The director denied the petition on June 21, 2009, concluding that the petitioner failed to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. The 
petitioner noted that the petitioner submitted a vague and non-specific job description that was insufficient to 
establish that his primarily duties would be managerial or executive in nature. The director noted that, despite 
the petitioner's claim that it employs an operations manager, a supervisor and two kitchen workers, the record 
contains no evidence of wages paid to three of these employees, and evidence of only minimal wages paid to 
the operations manager. The director concluded that, absent evidence of a subordinate staff, it is reasonable 
to conclude that the beneficiary is in fact involved in the day-to-day operations of the business, rather than 
performing primarily managerial or executive duties. The director emphasized that it was not the size of the 
business, but rather the lack of a detailed position description for the beneficiary and the lack of evidence that 
other employees are available to operate the business, which were the determining factors in the denial of the 
petition. 
On appeal, counsel for the petitioner once again reiterates the position description for the beneficiary that was 
included in his letters dated February 10 and March 30,2009. Counsel states: 
Petitioner has submitted a statement on its letterhead reflecting the duties of the beneficiary, 
as president and Chief Executive Officer, at the time of filing the petition. This letter 
discusses the job descriptions of his subordinates. Finally, the letter describes a typical, not an 
eventful day for the executive. The nature and scope of the duties described in this letter, the 
status and activities of his subordinates [sic] staff and his responsibilities and obligations 
clearly demonstrate that substantially all of his activities are at the managerial or executive 
level. 
Counsel further states that, pursuant to 8 C.F.R. §204,5(j)(4)(ii), the director is required to take into account 
the reasonable needs of the petitioning organization in light of its overall purpose and stage of development 
when considering the petitioner's staffing levels as a factor in determining whether the beneficiary will be 
employed in a primarily managerial or executive capacity. Counsel asserts that the petitioner "was a little over 
two years old when it submitted the present petition," and clearly requires a president to run the business "at 
this critical stage in development." The AAO notes that the petitioner was in fact incorporated in California in 
' Page 7 
2002, seven years prior to the filing of the instant petition, and the petitioner indicates that the beneficiary has 
served as the president of the U.S. company since that time. 
Counsel further alleges that "the staffing of the company is composed primarily of companies under contract 
with Petitioner," and asserts that the director erred by finding "that the petitioner cannot show the necessary 
staffing levels to support the executive nature of Beneficiary's position." Counsel asserts "the number of 
actual employees, as opposed to other staffing arrangements, should not be considered dispositive in 
disqualifying Beneficiary as an executive or manager." In addition, counsel states that "the definition for 
executive capacity does not make any reference to the supervision of other employees, especially subordinate 
managers." Counsel claims that "it should not be of greater significance that there are few if any actual 
employees" as long as the beneficiary performs the duties outlined in the statutory definition. Counsel states 
that "all of the activities are demonstrated either directly by contract or by inference in the nature of the 
business relationships established and underscore the basic executive duties of the beneficiary." 
Counsel further contends that the beneficiary's managerial and executive capacity is demonstrated by the fact 
that the petitioner has been able to "maintain its staff and modestly increase its sales" during an economic 
recession. Counsel states that the beneficiary "is needed in a executive/managerial capacity to 'stay the course' 
until the economy improves enough to support further growth." 
Finally, counsel argues that the director "fails to consider the obvious fact that beneficiary's activities can be 
characterized as a 'functional manager."' Counsel asserts that the regulations "seem to imply that if the 
employer1Petitioner can show that the same employee manages an 'essential function' of the company, 
however, the percentage of the employee's managerial duties or the number of employees supervised is 
irrelevant." Counsel cites unpublished AAO decisions in support of his claim that it is unnecessary for 
functional managers to be employees of large organizations. 
In support of the appeal, the petitioner submits copies of IRS Forms W-4, Wage and Tax Statement (2009) 
and Form 1-9, Employment Eligibility Verification (Rev. 02/02/09), for the beneficiary, and the individuals 
previously identified as the operations manager, kitchen supervisor and kitchen workers. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
Prior to addressing this issue, the AAO must emphasize that the critical facts to be examined are those that 
were in existence at the actual time of filing the petition. It is a long-established rule in visa petition 
proceedings that a petitioner must establish eligibility as of the time of filing. A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 
1998). 
Page 8 
A. Employer's Position Description 
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.F.R. 5 204.56)(5). 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. Id. In addition, the definitions of executive and managerial 
capacity each have two parts. First, the petitioner must show that the beneficiary performs the high-level 
responsibilities that are specified in the definitions. Second, the petitioner must show 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). 
The petitioner's initial description of the beneficiary's duties offered little insight into what he does on a day- 
to-day basis as president of a company that operates a computer software development business and 
wholesale bakery. The beneficiary's job description includes vague duties such as "manages customer and 
technical services for Customers who purchased a larger number of software licenses"; "manages new products, 
projects in software and industry automation"; and "manages marketing activities and contacts to manufacturers 
for strategical [sic] partnerships." Based on this brief description, the beneficiary's exact role in marketing, 
selling, designing the petitioner's products and providing the petitioner's services could not be discerned. The 
petitioner did not indicate how the beneficiary would carry out his responsibilities or clearly indicate that 
subordinate employees would relieve him from performing non-qualifying duties associated with his assigned 
functions. 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). 
The beneficiary's duties with respect to the "Royal Baker" business were described in even vaguer terms. For 
example, counsel indicated that the beneficiary will "oversee the entire operation," set goals and procedures, 
"head the decision making in business matters," and "set organizational structure, policies and functions." 
These duties merely paraphrase the statutory definition of executive capacity. See section 101(a)(44)(B) of the 
Act. 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. 
Furthermore, upon review of the initial position description, the director specifically requested that the 
petitioner provide a detailed job description, including the beneficiary's specific duties and the percentage of 
time the beneficiary would allocate to each duty. The petitioner did not submit the requested job description 
as requested by the director. Instead, counsel reiterated verbatim the initial job description, which was already 
reviewed and deemed to be insufficient. Therefore, the petitioner's claim fails on an evidentiary basis. Failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). 
Although the director specifically cited the lack of a detailed position description as a determining factor in 
the denial of the petition, neither counsel nor the petitioner has sought to clarify the beneficiary's actual duties 
on appeal, or to provide a breakdown of the percentage of time the beneficiary devotes to managerial and 
executive duties as opposed to operational functions. Rather, counsel reiterates the initial position description 
and suggests that, since the beneficiary is a function manager "the percentage of the employee's managerial 
duties. . . . is irrelevant." 
Counsel's argument is unpersuasive. Whether the beneficiary is a managerial or executive employee turns on 
whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial or 
executive. See sections 101(a)(44)(A) and (B) of the Act. Based on the current record, the AAO is unable to 
determine whether the claimed managerial duties constitute the majority of the beneficiary's duties, or 
whether the beneficiary primarily performs non-managerial administrative or operational duties. Although 
specifically requested by the director, the petitioner's description of the beneficiary's job duties does not 
establish what proportion of the beneficiary's duties is managerial in nature, and what proportion is actually 
non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
The AAO notes that there is little concrete evidence in the record regarding the U.S. company's activities in 
the computer soflware development sector. The foreign entity's managing director indicates that the U.S. 
company was established to ensure the availability of telephone and e-mail support for customers with sales 
and technical support inquiries, to provide 2417 technical support for major customers, to provide integrated 
hardware-software solutions by developing relationships with U.S. hardware vendors, and to seek strategic 
partnerships. The petitioner's lease agreement signed in November 2008 indicates that the petitioner is 
required "to implement and closely coordinate programming hnctions . . . for Mitra Automation software 
development projects," while occupying a portion of Mitra Automation's premises. The petitioner does not 
claim to have any personnel in the United States subordinate to the beneficiary to perform non-qualifying 
duties associated with customer and technical support activities, or to perform the "programming functions" 
referenced in the lease agreement. There are various unsubstantiated claims regarding the petitioner's use of 
contracted staff, but no probative evidence that the petitioner utilizes the services of contractors to conduct the 
technical and customer support aspect of the business. 
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. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Therefore, it is reasonable to conclude, and has not been shown otherwise, that the beneficiary performs all 
managerial and non-managerial functions associated with the petitioner's computer software business. The 
petitioner has failed to establish any clear distinctions between the proposed qualifying and non-qualifying 
duties of the beneficiary, and failed to establish that anyone besides the beneficiary is available to perform 
customer and technical support, marketing and other non-qualifling functions associated with operating this 
aspect of the U.S. business. Collectively, this brings into question how much of the beneficiary's time can 
realistically be devoted to managerial or executive duties. The statute requires that the beneficiary primarily 
perform duties that are managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. As discussed 
above, the petitioner bears the burden of documenting what portion of the beneficiary's duties will be 
managerial or executive and what proportion will be non-managerial or non-executive. Republic of Transkei 
v. INS, 923 F.2d at 177. Given the lack of these percentages, the record does not demonstrate that the 
beneficiary will function primarily as a manager or executive. 
B. Personnel Manager 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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)(A)(iv) of the Act; 8 C.F.R. 3 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 5 214.2(1)(1)(ii)(B)(3). 
With respect to the bakery operations, the petitioner claims that the beneficiary manages a staff of four 
workers responsible for operating the petitioner's bakery, including an operations manager, a kitchen 
supervisor, and two kitchen workers. The petitioner submitted evidence that it employed the operations 
manager during the last quarter of 2008; however, she received wages that were significantly lower than her 
stated salary of $30,000. The wages of $1,950 paid over a three-month period would be commensurate with 
part-time employment. As noted by the director, the petitioner has not submitted evidence that it employs the 
kitchen supervisor or the two kitchen workers. 
Counsel does not directly address this deficiency in his brief, but the petitioner does submit copies of IRS 
Forms W-4, Wage and Tax Statement (2009), and DHS Forms 1-9, Employment Eligibility Verification (Rev. 
02/02/09), for all claimed employees of the company, including the beneficiary. Any USCIS Forms 1-9 
presented by a petitioner must be accompanied by other evidence to show that these employees have 
commenced work activities. Forms 1-9 verify, at best, that a business has made an effort to ascertain whether 
particular individuals are authorized to work; they do not verify that those individuals have actually begun 
working. See Matter of Ho, 22 I&N Dec. 206, 212 (Assoc. Comrn. 1998). Similarly, Forms W-4 are 
insufficient as evidence that an employee has actually been receiving wages. 
Furthermore, in this matter, it appears that the petitioner's employees have backdated their Forms W-4 and 
Forms 1-9. For example, the submitted documents indicate that the beneficiary and the operations manager 
purportedly signed the 2009 versions of the Forms W-4 in September 2008, when the form was not released 
to the public until December 2008. See htt~://www.irs.rrov/auu/uicklist/list/formsInstructions.html?value= w- 
4&criteria=formNumber (noting a posted date of December 22, 2008). The AAO also notes that the 
purported kitchen workers signed the DHS Forms 1-9 on September 30, 2008, prior to the form's date of 
publication - "Form 1-9 (Rev. 02/02/09) N Page 4" - that is annotated at the bottom of the page. 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). 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. Id. at 591. 
In the absence of such evidence as pay stubs and payroll records for 2009, the petitioner has not established 
that the petitioner, as of the date of filing, employs a subordinate staff who would relieve the beneficiary from 
performing non-qualifying duties associated with operating the petitioner's bakery other than one part-time 
operations manager. Furthermore, the record indicates that the beneficiary himself undertook the required 
training and examination to become a food safety manager, which further suggests that he has been directly 
involved in the operation of the bakery. The petitioner's evidence must substantiate that the duties of the 
beneficiary and his or her subordinates correspond to their placement in an organization's structural hierarchy; 
artificial tiers of subordinate employees and inflated job titles are not probative and will not establish that an 
organization is sufficiently complex to support a "personnel manager." In the present matter, the totality of 
the record does not support a conclusion that the beneficiary's one documented subordinate is a supervisor, 
manager, or professional, notwithstanding her stated job title of "operations manager." Rather, the evidence 
suggests that the beneficiary and the operations manager would both be required to perform the non- 
managerial duties associated with operating a bakery in order for that business to remain productive. 
C. Function Manager 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101 (a)(44)(A)(ii) of the Act, 8 U.S.C. 6 1 101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. However, if a petitioner claims that the beneficiary is 
managing an essential function, the petitioner must kish a written job offer that clearly describes the duties 
to be performed, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8 
C.F.R. § 204.50)(5). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate 
that the beneficiary manages the function rather than performs the duties related to the function. In this 
matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In the 
case of a function manager, where no subordinates are directly supervised, these other factors may include the 
beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision of 
employees within the scope of the function managed, and the value of the budgets, products, or services that 
the beneficiary manages. Even if the beneficiary does not directly supervise employees, it is the petitioner's 
obligation to establish that someone other than the beneficiary performs the day-to-day non-managerial tasks 
of the function managed. 
Counsel's unsupported assertion that the beneficiary manages all the essential functions of the corporation is 
insufficient to meet the petitioner's burden of proof. Even if it were proven, the fact that the beneficiary 
manages a business would not necessarily establish eligibility for classification as an intracompany transferee 
in a managerial or executive capacity within the meanings of sections 101(a)(15)(L) of the Act. See 52 Fed. 
Reg. 5738.5739 (Feb. 27, 1987). The record must establish that the majority of the beneficiary's actual duties 
are managerial or executive in nature. The actual duties themselves reveal the true nature of the employment. 
Fedin Bros. v. Sava, 724 F. Supp. at 1 108. 
As discussed above, the beneficiary's job description appears to include non-qualifying duties associated with 
the petitioner's day-to-day functions, and the petitioner has not sufficiently identified a subordinate staff who 
would relieve the beneficiary from performing routine duties inherent to operating the company on a day-to- 
day basis. The fact that the beneficiary has been given a managerial job title and is the sole full-time 
employee of the company is insufficient to elevate his position to that of a "function manager" as 
contemplated by the governing statute and regulations. The petitioner has not articulated with any specificity 
what function or functions are managed by the beneficiary, or what percentage of his time is devoted to 
managing such functions. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SoJEci, 22 I&N Dec. at 165. 
D. Executive Capacity 
On appeal, counsel also asserts that the beneficiary will serve in an executive capacity based on his job duties, 
and that there is no requirement that an executive supervise subordinate staff. 
The AAO notes that 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. 
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of 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-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 
' Page 13 
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." Id. 
In this matter the petitioner has not demonstrated that the beneficiary will primarily direct the management of 
or establish the goals and policies of the organization. As of February 2009, the petitioner had not attained 
the organizational complexity wherein hiringlfiring personnel, discretionary decision-making, and setting 
company goals and policies would constitute significant components of the beneficiary's duties performed on 
a day-to-day basis. The petitioner has offered no evidence that when the petition was filed it employed or 
otherwise utilized the services of individuals who would carry out the petitioner's operational tasks, thereby 
relieving the beneficiary from performing primarily non-qualifying duties. 
E. Reasonable Needs 
Finally, on appeal, counsel for the petitioner asserts that the "service failed to take into account the reasonable 
needs of petitioner in light of its overall purpose and stage of development." Counsel correctly observes that 
a company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. As required by section 
101 (a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, USCIS must take into account the reasonable needs of the organization, 
in light of the overall purpose and stage of development of the organization. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and Immigration 
Services 469 F. 3d 13 13, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 
175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
At the time of filing, the petitioner was a seven-year-old company that claimed to have four employees and a 
gross annual income of $100,000. The petitioner provided evidence that it employs the beneficiary and one 
part-time operations manager who works in the petitioner's bakery. The AAO notes that the petitioner did not 
submit evidence that it employed any subordinate staff members who would perform the actual day-to-day, 
non-managerial operations of the two distinct business operated by the U.S. company. The petitioner 
reasonably requires employees to market and promote its software products and services, respond to 
telephone and electronic mail inquiries from customers, regarding sales and technical issues, maintain 
relationships with vendors, and handle the company's day-to-day financial and administrative tasks, in 
addition to performing the various non-managerial tasks associated with operating a wholesale bakery. 
Page 14 
Based on the petitioner's representations, it does not appear that the reasonable needs of the petitioning 
company might plausibly be met by the services of the beneficiary as president and one part-time employee. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this 
essential element of eligibility. 
On appeal, counsel refers to several unpublished decision in which the AAO determined that the beneficiary 
met the requirements of serving in a managerial and executive capacity for L-1 classification even though he 
was the sole employee. Counsel has not established that the facts of the instant petition are analogous to those 
in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on 
all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Based upon evidence submitted, it is reasonable to conclude, and has not been show otherwise, that the 
beneficiary has been and will be performing the services of the U.S. entity rather than performing primarily 
managerial or executive duties as its president. 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 Intrl., 19 I&N Dec. 593, 
604 (Comm. 1988). The petitioner has not demonstrated that the beneficiary will be functioning at a senior 
level within an organizational hierarchy other than in position title. Accordingly, the petitioner has failed to 
demonstrate that the beneficiary has been or will be employed primarily in a qualifying managerial or 
executive capacity. For this reason, the appeal will be dismissed. 
11. Managerial or Executive Duties with the Overseas Emulover 
The second issue to be address is whether the petitioner established that the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. 
At the time of filing, counsel for the petitioner stated that the beneficiary was employed as managing director 
of the foreign entity from 1997 until 2002. The petitioner did not submit a detailed description of the 
beneficiary's duties. In the RFE issued on March 6, 2009, the director requested that the petitioner describe 
the duties for the beneficiary's foreign position and explain the specific day-to-day tasks that were involved 
with the completion of each duty. The director also requested a detailed organizational chart for the foreign 
entity that corresponds with the dates of the beneficiary's employment abroad. 
In response, counsel for the petitioner provided the following position description: 
In his capacity as the Managing Director of [the foreign entity], [the beneficiary] oversaw and 
coordinated the development of software systems for marketing and sales support in industry, 
including systems for product presentation using electronic media and for product selection 
such as projection software and ordering assistance. Under his guidance, the company 
developed the SC Unipad, a multilingual software solution that was marketed internationally. 
. . . Specifically, he oversaw the 5 employees, all of whom had advanced degrees in computer 
science or engineering (except who is a qualified accountant.) He directed 
capital expenditures, designated product parameters and directed employees in all aspects. 
The petitioner submitted a list of the foreign employees dated December 18, 2008. The list includes a chief 
executive officer, a part-time employee in the accounting and law department (paid by commission), and three 
part-time software development employees, also paid by commission. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary was 
employed by the foreign entity in a primarily managerial or executive capacity. The director observed that the 
failed to submit the requested detailed description of the beneficiary's duties and the requested organizational 
chart for the foreign employer. 
On appeal, counsel for the petitioner does not address this issue or otherwise acknowledge this ground for 
denial of the petition. Consequently, the AAO affirms the director's determination and will dismiss the appeal. 
The AAO concurs that the brief position description provided in response to the RFE fell significantly short 
of providing the level of detail and specificity requested. Again, 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. Suva, 724 F. Supp. at 1108. 
Furthermore, the director specifically requested an organizational chart reflecting the staff of the foreign 
entity during the beneficiary's period of employment abroad. Based on the petitioner's representations, the 
beneficiary was employed by the foreign entity in Germany from 1997 until 2002. Rather than providing the 
requested organizational chart depicting the staff of the foreign entity during the relevant time period, the 
petitioner provided a list of the foreign entity's employees as of December 2008. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 
103.2(b)(14). 
111. Qualifving Relationship 
The third and final issue addressed by the director is whether the petitioner established that it has a qualifying 
relationship with the foreign entity. To establish a "qualifying relationship" under the Act and the regulations, 
the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same 
employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally 5 203(b)(l)(C) of the Act, 8 U.S.C. 5 1 153(b)(l)(C); see also 8 C.F.R. !j 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The petitioner claims to be a wholly-owned subsidiary of Sharmahd Computing GmbH, a German company. 
At the time of filing, the petitioner submitted copies of the U.S. company's articles of incorporation, by-laws, 
and minutes of the first meeting of incorporators and directors held on February 24, 2002. The meeting 
minutes indicate that the company issued 1,000 common shares with no par value to the foreign entity in 
exchange for an unidentified amount of cash. The same document also indicates that the company directors 
agreed to issue 100, rather than 1,000, shares of stock. 
The petitioner also submitted a copy of its stock certificate #2, issued on May 15,2002. The stock certificate, 
which was not signed by the company's officers, indicates that 10,000 shares, all of the petitioner's authorized 
shares, were issued to the foreign entity. 
In the request for evidence issued on March 6,2009, the director noted that the stock certificate submitted was 
unsigned and that the petitioner had failed to provide a copy of its stock certificate number 1. The director 
instructed the petitioner to provide further documentary evidence to establish the claimed qualifying 
relationship between the petitioner and the foreign entity including, but not limited to, the stock ledger and 
copies of all issued stock certificates for the U.S. company. 
In his letter dated March 30, 2009, counsel for the petitioner explained that the U.S. company's stock 
certificate #I was voided due to typographical errors, and that share certificate #2 is the only certificate 
currently issued. The petitioner re-submits the company's organizational minutes, indicating that 1,000 shares 
were issued to the foreign entity, and re-submitted a copy of its stock certificate #2. The newly submitted 
copy of stock certificate #2 was signed by the beneficiary in his capacity as president of the petitioner. 
The petitioner also submitted a copy of its stock transfer ledger. The first entry in the ledger states "Void by 
errors." It does not indicate when or to whom the shares were issued or when it was voided. The second entry 
on the stock ledger indicates that 10,000 shares were issued to the foreign entity on stock certificate #2 in 
exchange for $50,000. The date of issuance is not completed on the ledger. Counsel stated in his letter that 
the petitioner was also submitting "Form 25102(f) Notice of Issuance of Shares," but the AAO notes that this 
document was not included in the petitioner's response. 
The petitioner's response to the RFE included a copy of the company's IRS Form 1120, U.S. Corporation 
Income Tax Return, for 2008. At Form 1120, Schedule K, the petitioner responded "No" when asked if any 
foreign or domestic corporation, partnership or trust owned directly 20% or more, or owned, directly or 
indirectly, 50% or more of the total voting power of all classes of the corporations' stock. The petitioner 
responded "Yes" where asked whether one foreign person owns, directly or indirectly at least 25% of the 
petitioner's stock or voting stock. The petitioner indicated that it has a German owner who holds 100% of the 
company's stock, but it there is no supplemental information to identifying the owner. According to Form 
1120, Schedule L, the value of the petitioner's issued common stock is $10,000, not the $50,000 sum 
indicated on the petitioner's stock ledger. 
The director denied the petition, concluding that the petitioner failed to establish that the petitioner and the 
foreign entity have a qualifying relationship. The director noted the unresolved discrepancy between the 
organizational minutes, which indicate that 1,000 shares would be issued to the foreign entity, and the 
petitioner's stock certificate #2, which indicated that 10,000 shares were issued. The director concluded that 
the evidence as a whole was insufficient to establish the claimed qualifying relationship. 
On appeal, counsel does not acknowledge, much less attempt to overcome, the director's finding that the 
petitioner submitted insufficient evidence to establish the claimed parent-subsidiary relationship. Counsel's 
arguments on appeal are limited to a discussion of the beneficiary's employment with the U.S. company. 
Accordingly, the AAO will affirm the director's decision and dismiss the appeal. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Cornrn. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, USCIS is unable to deterrnine the elements of ownership and control. 
As noted by the director, the record contains an unresolved discrepancy with regard to the number of shares 
actually issued to the foreign entity. The company's organizational meeting minutes indicate that the 
petitioner's directors agreed to issue either 100 or 1,000 shares to the foreign entity on February 24, 2002, 
while the only submitted stock certificate indicates that the foreign entity was issued 10,000 shares on May 
15, 2002. There is also an unresolved discrepancy with respect to the amount paid in exchange for the 
issuance of the petitioner's stock. The petitioner indicates in its stock transfer ledger that the foreign entity 
paid $50,000 for the issued shares, but reports on its corporate tax returns that its issued stock has a value of 
$10,000. 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. 
at 591-92. 
Finally, the AAO finds the incomplete entry in the petitioner's stock transfer ledger with respect to stock 
certificate #1 insufficient to establish that the certificate was in fact voided. It is reasonable to expect the 
petitioner to have available a copy of the voided certificates to substantiate its claim that it was in fact 
canceled due to a typographical error. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 
165. 
Page 18 
Based on the foregoing discussion and the petitioner's failure to contest this issue on appeal, the petition will 
be denied for this additional reason. 
IV. Ability to Pay 
Beyond the decision of the director, the remaining issue in this matter is whether the petitioner established 
that it has the ability to pay the beneficiary's proffered annual salary of $50,000 as required in the regulation 
at section 204.5(g)(2). The regulation at 8 C.F.R 9 204.5(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 either in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
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. The record shows that the petitioner paid the beneficiary wages of $6,000 in 2008. The petitioner has 
not provided evidence that it was paying the beneficiary the proffered salary of $1,000 per week as of 
February 2009 when the petition was filed. 
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), afd, 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 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. 
As the petition's priority date falls on February 13, 2009, USCIS should examine the petitioner's tax return for 
2009. However, the petitioner will not be required to file its 2009 tax return until after January 2010 and the 
document remains unavailable. Therefore, the AAO will review the petitioner's 2008 corporate tax return. 
The petitioner's Form 1120 presents a net loss of $10,847.00. The petitioner does not have sufficient net 
income to pay the proffered salary. 
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. The petitioner's IRS 
Form 1120 for calendar year 2008 presents net assets of $3,452. The petitioner could not pay a proffered 
wage of $52,000 per year out of these current assets. 
Based on the foregoing, the petitioner has not established that it has the ability to pay the beneficiary's 
proffered wage. For this additional reason, the petition cannot 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), afd. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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), afd. 345 F.3d 683 (9th Cir. 2003). 
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. 8 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.