dismissed EB-1C Case: Construction

I 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal DP~V~CY 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
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 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its general manager. 
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. 5 1153(b)(l)(C), as a 
multinational executive or manager. The director denied the petition based on two independent findings: 
1) the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity 
and 2) the petitioner failed to establish its ability to pay the beneficiary's proffered wage. 
On appeal, the petitioner disputes the director's conclusion and addresses some of the director's adverse 
findings. 
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 a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(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 first issue in this proceeding is whether the petitioner 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. 5 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) 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 fiom higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted an undated letter in which the beneficiary's role was 
described as that of a manager whose primary responsibility would be to organize, direct, and supervise the 
construction and home improvement and repair services the petitioner provides to its clientele. The petitioner 
stressed the beneficiary's autonomy and discretionary decision-making authority and provided a brief 
percentage breakdown of the beneficiary's key job responsibilities. As the director included the list of job 
responsibilities in the denial, the AAO need not repeat this information in the current decision. The petitioner 
also provided its organizational chart, which depicts the beneficiary at the top of the staffing hierarchy. The 
chart shows an administrative manager, a maintenance manager, and a sales manager as the beneficiary's 
direct subordinates. A maintenance assistant is placed at the lowest level of the organization and is depicted 
as the maintenance manager's subordinate. 
Page 4 
On September 30, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner 
to provide a more detailed description of the beneficiary's specific day-to-day tasks the beneficiary would 
perform in his proposed job assignment as well as the percentage of time that would be allocated to each 
listed task. The petitioner was also asked to provide its federal tax return for 2006, including all schedules 
and attachments, as well as all four quarterly wage withholding returns for 2007 naming all of the petitioner's 
employees. 
In response, the petitioner provided another description of the beneficiary's proposed employment. As the 
director restated the job description, verbatim, in his decision, the AAO need not restate this information in 
the current decision. The petitioner also provided quarterly wage withholding returns for the first, second, 
and fourth quarters of 2007. It is noted that the Form 1-140 was filed on May 29, 2007 and therefore falls 
within the time period of the second quarterly withholding return during which the petitioner named two 
employees-the beneficiary and the individual who was identified as the sales manager in the petitioner's 
original organizational chart. Although the petitioner provided its 2007 federal tax return, no salaries, wages, 
or officer compensation is shown as having been paid and large portions of the form are incomplete despite 
the petitioner's submission of a copy of IRS Form W-3 showing $35,938 paid in wages and copies of two IRS 
Form W-2s, one issued to the beneficiary and the other issued to the sales manager. 
In a decision dated January 22,2009, the director denied the petition noting that the evidence shows only two 
employees working for the petitioner at the time of filing, despite the petitioner's organizational chart, which 
identified a total of five employees, the same number that the petitioner provided in the Form 1-140. The 
director further observed a number of factual inconsistencies in the various tax documents the petitioner 
provided, including different versions of the petitioner's wage withholding returns for 2006 and IRS Forms 
W-2 for 2006, which listed inconsistent wages paid to the beneficiary and his spouse. The director found that 
the petitioner misrepresented the company's staffing and concluded that the petitioner failed to submit 
credible evidence to establish that the beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity. 
On appeal, the petitioner submits a letter dated February 17, 2009, claiming that the beneficiary would fill the 
role of a function manager and provided another brief overview of the beneficiary's alleged responsibilities in 
his proposed position. These statements, however, show the petitioner's lack of understanding of the role of a 
function manager and are generally not supported by the documentation on record. 
First, 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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish 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. 5 204.5(j)(5). In the present matter, the petitioner did not and does not identify a specific essential 
function that the beneficiary would manage. Rather, the petitioner focuses on the beneficiary's leadership 
position as the head of the organization and lists job responsibilities that include personnel management, a 
concept that is separate and distinct from the concept of function management. 
Page 5 
Second, the petitioner's claim that the beneficiary would oversee and guide senior managers and department 
managers is entirely inconsistent with the documentation that has been presented, which indicates that the 
petitioner was staffed with only two employees at the time the petition was filed. While the beneficiary may 
reach certain business goals by sparing the petitioner the added expense of a support staff, the petitioner's 
needs do not override the statutory provisions, which require that the beneficiary's time be primarily devoted 
to managerial or executive-level tasks. Here, the lack of an adequate support staff at the time of filing would 
likely result in the beneficiary having to perform various non-qualifying administrative and other operational 
tasks. Although some non-qualiQing tasks are permitted, any petitioner that plans to employ a beneficiary in 
a managerial or executive capacity must establish that the non-qualifying tasks are only incidental to the 
beneficiary's job and do not consume the primary portion of the beneficiary's time. In the present matter, the 
petitioner has not provided sufficient evidence to establish that the operational tasks are merely incidental. 
Rather, the beneficiary appears to be devoting a majority of his time to such tasks. 
Moreover, while the director acknowledged some information in the petitioner's tax returns that indicates the 
employment of sub-contractors, it is noted that any time spent supervising, directing, or overseeing the work 
of the petitioner's sub-contractors cannot be considered as being a qualifying managerial or executive duty. As 
the service provided by the petitioner is to act as a general contractor and oversee the work of sub-contractors, 
any duties performed by the beneficiary to provide this service would not be deemed to be a qualifying 
managerial or executive task. It is noted that 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 10 1 (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 International, 19 I&N 
Dec. 593, 604 (Comm. 1988). As such, the AAO cannot conclude that the petitioner has established that it 
would employ the beneficiary in a primarily managerial or executive capacity. 
Lastly, with regard to the various documented inconsistencies discussed in the director's decision, it is noted 
that the petitioner must resolve any inconsistencies in the record by submitting independent objective 
evidence. Any attempt by the petitioner 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). In the present matter, the petitioner indicates that the inconsistencies were the 
result of accountant errors, which purportedly stemmed from the petitioner's changing of accountants. 
However, 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)). The petitioner's explanation 
is insufficient to resolve the types of significant inconsistencies that were addressed in the director's decision. 
While the AAO acknowledges that the discrepancies that were noted were with regard to 2006 documents and 
therefore do not address the petitioner's eligibility at the time of filing, the AAO cannot overlook or discount 
the fact that inconsistent tax documents were submitted without proper resolution. It is noted that doubt cast 
on any aspect of the petitioner's proof may 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. at 591. In light of the 
petitioner's failure to resolve the discrepancies noted in the director's decision, the AAO must question the 
reliability of the remainder of the documentation submitted in support of the petition. 
Regardless, even if the AAO were to focus its analysis entirely on the documentation that pertains to the 
relevant time period during which the petition was filed, the evidence does not establish that the petitioner 
was adequately staffed to relieve the beneficiary from having to primarily perform non-qualifying operational 
Page 6 
tasks. Despite the petitioner's claims, the record does not contain evidence of an organizational hierarchy that 
contains senior and department managers for the beneficiary to oversee. While it is likely that the beneficiary 
would oversee the work of contracted labor, as previously discussed, any tasks the beneficiary would perform 
in the course of overseeing the contract labor would be deemed non-qualifying. In light of the above, the 
AAO cannot conclude that the beneficiary would be employed in a capacity where the primary portion of his 
time would be allocated to managerial or executive level tasks. 
The second issue in this proceeding is whether the petitioner has established that it has the ability to pay the 
beneficiary's proffered wage. 
The regulation at 8 C.F.R. 5 204.5(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 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, U.S. Citizenship and Immigration Services 
(USCIS) will first examine whether the petitioner employed the beneficiary at the time the priority date was 
established. If the petitioner establishes by documentary evidence that it employed the beneficiary at a salary 
equal to or greater than the proffered wage, this evidence will be considered prima facie proof of the petitioner's 
ability to pay the beneficiary's salary. In the present matter, the petitioner claims that it has employed the 
beneficiary since prior to the filing of the Form 1-140. However, there is no indication that the beneficiary has 
been paid a salary equal to or greater than the proffered wage. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 7 19 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. 111. 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, 7 19 F. Supp. at 53 7; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
In the present matter, the director expressly stated in his decision that the petitioner's 2007 tax return 
contained no information in Schedule L that would allow an analysis of the beneficiary's net current assets 
and whether such assets were sufficient to make up the difference between the amount of wages paid and the 
beneficiary's proffered wage. 
On appeal, the petitioner merely supplements the record with bank statements. However, the petitioner fails 
to explain why the documentation expressly named in 8 C.F.R. 5 204.5(g)(2) would provide an inaccurate 
illustration of the petitioner's finances and its ability to pay the beneficiary's proffered wage. The submission 
of bank account statements does not meet the criteria set forth by relevant regulatory provisions and therefore 
can only be afforded minimal probative value. As such, the petitioner has failed to provide sufficient 
evidence establishing its ability to pay the beneficiary's proffered wage at the time of filing. 
Furthermore, while not addressed in the director's decision, the AAO finds that the petitioner failed to meet 
the provisions of 8 C.F.R. 5 204.5(j)(3)(i)(B), which states that the petitioner must establish that the 
beneficiary was employed abroad in a qualifying managerial or executive position for at least one out of the 
three years prior to his entry to the United States as a nonimmigrant to work for the same employer. In the 
instant matter, the director specifically addressed this issue in the WE by instructing the petitioner to provide 
a detailed description of the beneficiary's daily activities during his employment abroad. However, the 
petitioner failed to provide the requested information. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 4 103.2(b)(14). As the petitioner 
failed to provide the requested documentation, the AAO cannot conclude that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity. 
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. 200 1 ), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, with regard to the petitioner's reference to its approved L-1 employment of the beneficiary, 
the AAO notes that each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof; each petition must stand on its own individual merits. USCIS is unable to assume 
the burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. The prior nonimmigrant approvals 
do not preclude USCIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way 
guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS 
denies many I- 140 immigrant petitions after approving prior nonimmigrant I- 129 L- 1 petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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. 5 1361. The petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.