dismissed EB-1C Case: Consulting

(b)(6)
DATE: 
OCT 2 8 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Servio 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
ilL-~Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the nonimmigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Florida seeking to employ the 
beneficiary as its operations manager. The petitioner states that it is an affiliate of Dolphin Consultants and 
Services, C.A. loc ated in Venezuela. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the 
Act) , 8 U.S.C. § 1153(b)(1)(C) , as a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility. First, the director found 
the petitioner failed to establish that the beneficiary's proposed employment with the petitioner would be in a 
qualifying managerial or executive capacity. The director also concluded the petitioner had not demonstrated 
with sufficient evidence that the beneficiary was employed for at least one year in a managerial or executive 
capacity abroad in the three years prior to his entry into the United States as a nonimmigrant. Lastly, the 
director found that the petitioner had not established that it has the ability to pay the beneficiary his proffered 
wage . 
On appeal, counsel asserts that the director's conclusions are erroneous. Counsel states that the beneficiary 
was employed abroad and will be employed in the United States as a function manager. Further , counsel 
submits the petitioner's 2012 Internal Revenue Service (IRS) Form 1065, Return of Partnership Income, not 
previously submitted on the record, and asserts that this evidence establishes the petitioner's ability to pay 
the beneficiary's wage. 
I. The Law 
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. 
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Page 3 
DISCUSSION: The Director, Texas Service Center, denied the nonimmigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Florida seeking to employ the 
beneficiary as its operations manager. The petitioner states that it is an affiliate of 
located in Venezuela. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility. First, the director found 
the petitioner failed to establish that the beneficiary's proposed employment with the petitioner would be in a 
qualifying managerial or executive capacity. The director also concluded the petitioner had not demonstrated 
with sufficient evidence that the beneficiary was employed for at least one year in a managerial or executive 
capacity abroad in the three years prior to his entry into the United States as a nonimmigrant. Lastly, the 
director found that the petitioner had not established that it has the ability to pay the beneficiary his proffered 
wage. 
On appeal, counsel asserts that the director's conclusions are erroneous. Counsel states that the beneficiary 
was employed abroad and will be employed in the United States as a function manager. Further, counsel 
submits the petitioner's 2012 Internal Revenue Service (IRS) Form 1065, Return of Partnership Income, not 
previously submitted on the record, and asserts that this evidence establishes the petitioner's ability to pay 
the beneficiary's wage. 
I. The Law 
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. 
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NON-PRECEDENT DECISION 
Page4 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form I-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in 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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority . A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m which the 
employee primarily--
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NON-PRECEDENT DECISION 
(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. 
I. The Issues on Appeal 
A. U.S. employment in a managerial or executive capacity 
The first issue to be addressed is whether the petitioner has established that it will employ the beneficiary in a 
qualifying managerial or executive capacity. 
In denying the petition, the director noted the petitioner's failure to differentiate between the beneficiary's 
qualifying and non-qualifying duties. The director found that based on this deficiency, the petitioner failed 
to establish that the beneficiary would primarily perform executive or managerial duties. The director also 
discussed various unresolved discrepancies on the record with respect to the petitioner's staffing levels and 
organizational structure and observed that the evidence failed to establish that the beneficiary would 
supervise professionals. 
On appeal, counsel asserts that, while the beneficiary does in fact supervise professionals, the petitioner 
established that the beneficiary will also be a function manager based on his management of the essential 
operational function within the petitioner's organization. Counsel cites non-precedent AAO decisions 
involving beneficiaries who were found to qualify as function managers . Counsel also states that the director 
failed to appropriately articulate and substantiate his conclusions in the decision. 
The AAO does not find counsel's assertions persuasive. Upon review of the petition and the evidence, and 
for the reasons discussed herein, the petitioner has not established that it will employ the beneficiary in a 
qualifying managerial or executive capacity. 
In order to determine whether the beneficiary would be employed in a qualifying executive or managerial 
capacity, US CIS will look first to the petitioner's description of the job duties. See 8 C.P.R. § 204.5U)(5). In 
support of the petition, the petitioner generally explained the beneficiary's duties in the United States in his 
capacity as operations manager as follows: 
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Under the supervision of the stockholders board, coordinates the generation and 
application of production plans for the manufacturing facility. It's [sic] responsible for 
the production and quality aspects of the end products made at the facility . It's [sic] 
directly responsible for the training and operations of all the personnel related to the 
manufacturing facility. Gives final approval of the end products ready for sale and/or 
export. 
The petitioner also explained various other duties for the beneficiary, including but not limited to: (1) 
planning, organizing and controlling the usage of raw materials, (2) planning and executing training 
programs for the operations department, (3) leading and supervising the construction and maintenance of all 
tooling used in the manufacturing facility, (4) assisting operators in the correct usage and operation of 
equipment, (5) maintenance of production performance records, (6) planning and executing all diagnostic 
processes, and (7) planning and coordinating all manufacturing personnel in their job performance. 
The director found that the duty description submitted with the petition was insufficient to establish that the 
beneficiary primarily performed qualifying executive or managerial duties. As such, the director requested 
that the petitioner submit a more definitive description of the beneficiary's job duties in the United States 
including a listing of all specific daily duties and the percentage of time the beneficiary will spend on each 
duty. In response, the petitioner provided the following job duty description: 
ACTIVITY 1: Administrative Tasks : 
1.1- Management and coordination of production orders. 
1.2- Establish the resources needed for a particular job order; instruct the Purchase/Sales 
department for the required acquisitions. 
1.3- Production reports compilation from all the work stations of the factory. Review 
and make charts for cost analysis and control of time per equipment used, to have the 
monthly production report for the shareholders. 
1.4- Revise and control the quality assurance manual of the production Facilities, amend 
and monitor the changes needed to comply with the construction codes and regulations 
for security glass manufacturing. 
ACTIVITY 2: Human Resources: 
2.1-. Has the final decision in the selection of the production and maintenance personnel 
being hired for the plant operations. 
2.2- Recommend and approve salary wages based on the interview and capacity of the 
individuals as well as their performance in the jobs assigned. 
2.3- Has the ability to hire and fire production and maintenance personnel, based on 
his/her qualifications and commitments with the tasks assigned. 
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NON-PRECEDENT DECISION 
2.4- Trains the production and maintenance personnel in the use of the production 
equipment and the processes required to accomplish a perfect piece of glass, meeting the 
customer requirements . 
ACTIVITY 3: Engineering Tasks: 
3.1- Based on the custom glass to be made, designs the mold and tooling required for the 
satisfactory completion of the piece of pieces to be made. Establish the type and shape of 
the molding for each particular piece. Monitors the construction of the molds with the 
outsourced personnel assigned the job. 
3.2- Develop the thermal parameters and heating profiles for the furnace operator to be 
able to bend the glass and monitors with him the results obtained. Adjust as needed 
based on the results. 
3.4- Perform the cutting maps of the patterns to be made, and perform all the 
compensation calculations for the size and shape to obtain final bent shape needed. 
Laminated bent glass is composed of two or more pieces bent together; the final shape 
has to match the customer template given, or AutoCAD drawing design. 
3.5- Create the technical data sheet of the glass product, and indicate the quality 
assurance check parameters for the production personnel. Every piece is custom made, 
the technical data sheet parameters are exclusive of each one, based on the final use of 
the glass, code compliance, security needed, etc. 
3.5- Manages and designs the modifications needed to be done to the production 
equipment in order to obtain a custom made glass as required by the customer. 
ACTIVITY 4: Operational Tasks: 
4.1- Monitors directly all the operational processes of the production personnel, solving 
day-to-day occurrences with the products being manufactured . 
ACTIVITY 5: Production Maintenance tasks: 
5.1- Instructs the maintenance personnel on the correct operation of the machinery, 
including all the deviations that have occurred and diagnostics to be made in order to be 
able to correct the fault. 
5.2- Selects the maintemince contractor for the assessment of the fault needed to be 
corrected, such as electrical, mechanical, etc. 
ACTIVITY 6: Marketing Tasks: 
6.1- When requested, visit customer's projects to advise on solutions for specialty glass 
needs, designs, codes compliance, local regulations, and specialty applications . 
6.1- Trains customers in the techniques to take measurements for bent glass 
manufacturing. Help them with the limitations, correct used of materials, and availability 
of them in the US market. 
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NON-PRECEDENT DECISION 
6.3- Assists customers in projects to substitute imported specialty glass from abroad, 
with glass made in the plant, with the warranty that lead time and problem solving is 
immediate. 
The petitioner also provided an hourly breakdown of time spent by the beneficiary in a typical work day on 
the various "activities" listed above. The petitioner indicated that the beneficiary also performs after-hours 
"operating of the autoclave (extra cycles)" at times, "depending on customer request." 
On appeal, counsel contends that the beneficiary qualifies as a function manager in his capacity as operations 
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. § 110l(a)(44)(A)(i) and (ii). 
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. § 1101(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 in managing the essential function, 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. See 8 C.P.R. § 204.5(j)(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. 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 Int'l., 19 I&N Dec. 593, 
604 (Comm'r 1988). 
In this matter, the petitioner has not established that the beneficiary will be employed as a function manager 
as the duty description presented includes primarily non-qualifying operational duties . Also, the petitioner 
fails to document what proportion of the beneficiary's duties would be managerial functions and what 
proportion would be non-managerial. The petitioner lists the beneficiary's duties as including both 
managerial and administrative or operational tasks, but fails to meaningfully quantify the time the 
beneficiary spends on each type of task. Although the petitioner provided a listing of daily duties and 
percentages of time spent on tasks, the tasks indicated in the daily breakdown were only the general 
categories of tasks listed herein, such as "engineering tasks " or "operational tasks," which included many 
non-qualifying day-to-day operational duties. Indeed, non-qualifying duties predominate the beneficiary's 
duty description, including the following listed duties: establishing resources for job orders, creating 
production reports, training personnel in the use of equipment , designing molds and tooling, developing 
thermal parameters and heating profiles and adjusting them as needed, performing the cutting maps for glass 
patterns, matching glass shapes to customer specifications, creating technical data sheets, and visiting 
customer sites in order to provide goods and services. Therefore, the AAO cannot determine whether the 
(b)(6)
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Page 9 
beneficiary is primarily performing the duties of a function manager since the petitioner has provided a duty 
description that includes many day-to-day operational duties without specifying how much time is spent on 
these tasks. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). In fact, given 
the job duty description presented, the AAO finds it more likely that the beneficiary primarily performs non­
qualifying operational duties. Again, 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 Int'l., 19 I&N Dec. 593, 
604 (Comm'r 1988). 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the 
petitioner's business, the employment and remuneration of employees, and any other facts contributing to a 
complete understanding of a beneficiary's actual role in a business. The 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 an executive or manager position . 
As noted by the director, there are unresolved discrepancies in the record regarding the petitioner's staffing 
levels and organizational structure. For this reason, it is unclear whether the petitioner's operations 
department has sufficient employees to relieve the beneficiary from performing primarily non-managerial 
duties. The petitioner has provided inconsistent information regarding its staffing levels. The Form I -140, 
Immigrant Petition for Alien Worker, was filed on August 16, 2012 and the petitioner must therefore 
establish eligibility as of that date. On the Form 1-140, the petitioner indicated that it had eight employees, 
while a support letter submitted concurrently stated that the petitioner employed nine employees . Also, the 
organizational chart submitted in support of the petition reflected that the petitioner employed ten employees. 
Despite these claims that the company had eight to ten employees, the petitioner's IRS Form 941 Employer's 
Quarterly Federal Tax Return from the second quarter of 2012, the quarter preceding the filing of the 
petition, shows that the petitioner employed only five employees. The petitioner's Florida Department of 
Revenue quarterly wage report for the fourth quarter of 2012 indicates that the petitioner employed a total of 
four employees. However, in contradiction, the petitioner's organizational chart submitted in response to the 
director's RFE in the first quarter of 2013 indicates that the petitioner employed twelve 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. 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). Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
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Further, the petitioner's payroll documentation does not corroborate its employment of the beneficiary's 
claimed subordinates. The petitioner's initial organizational chart submitted in August 2012 indicates that 
the beneficiary has the following subordinates: (1) - Laminated Deeartment, (2) 
- Cutting Department, (3) - Laminated Department, ( 4) - Furnace 
Operator. The chart also showed an open position for an "Autoclave Operations" position. 
submitted in response to the RFE showed the same personnel and indicated that the 
The chart 
ad 
filled the open position in 
itS employment of Mr. and Mr. 
The petitioner submitted weekly payment stubs confirming 
as of the date of filing and through November 2012. 
However, the submitted payroll documentation reflects that Mr. has not been paid since June 2012 
and Mr. had not been paid since April 2012. The petitioner did not claim to employ Mr. 
at the time of filing and it is unclear when or if this employee was hired. Based on the payroll 
documentation, another employee who received wages as of August 2012 when the petition was filed was 
however, he did not appear on either organizational chart. Mr. was identified in an 
employee list as a cutting operator who reports to the beneficiary but his absence from the organizational 
chart has not been explained. 
The only other employee who been documented is a "sales logistics" employee, who was 
listed on the petitioner's Florida Employer's Quarterly Report in the fourth quarter of 2012. In sum, the 
incomplete and inconsistent payroll documentation submitted on the record further suggests that the 
petitioner employs far fewer employees than asserted in the provided organizational charts. Again, 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). 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial or executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the cited non-precedent 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, non-precedent 
decisions are not similarly binding. Further, the major deficiencies in this matter are the petitioner's failure 
to provide consistent information regarding the number and types of employees working for the company at 
the time of filing, as well as the prevalence of non-qualifying duties in the petitioner's description of the 
beneficiary's duties. This determination decision does not rest on the size of the petitioning company. 
In conclusion, the petitioner has submitted a duty description for the beneficiary that suggests he is primarily 
engaged in the performance of non-qualifying day-to-day operational duties. Further, the petitioner provided 
inconsistent evidence related to its staffing levels and thus has not established that it employs operational 
employees necessary to relieve the beneficiary from primarily performing non-qualifying duties. As such, 
the petitioner has not established that it will employ the beneficiary in a qualifying managerial or executive 
capacity. For this reason, the appeal must be dismissed. 
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B. Employment with the foreign employer in a managerial or executive capacity 
The next issue to be addressed is whether the petitioner has established that the beneficiary was primarily 
employed in a qualifying managerial or executive capacity with the foreign employer. 
As noted, the director concluded that the petitioner had not demonstrated that the beneficiary was employed 
for at least one year in a managerial or executive capacity in the three years preceding his entry into the 
United States on nonimmigrant status. Specifically, the director emphasized that the petitioner had not 
established that the beneficiary's subordinates were professionals, managers or supervisors. 
On appeal, counsel asserts that the director's conclusion is erroneous since the beneficiary managed an 
essential function within the foreign employer and therefore qualified as a function manager consistent with 
the statutory definition of "managerial capacity." Counsel further states that the director failed to articulate 
and substantiate why the evidence presented was insufficient. 
The AAO does not find counsel's assertions persuasive. Upon review of the petition and the evidence, and 
for the reasons discussed herein, the petitioner has not established that the foreign entity employed the 
beneficiary in a qualifying managerial or executive capacity. 
In order to determine whether the beneficiary was employed in a qualifying executive or managerial 
capacity, U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's description of 
the job duties. See 8 C.P.R. § 204.5(j)(5). In the RFE, the director requested that the petitioner submit 
additional evidence relevant to the beneficiary's foreign employment , including a definitive statement from 
the foreign company describing the specific daily duties of the beneficiary and the percentage of time he 
spent on each duty. In response, the petitioner submitted the following duty description for the beneficiary in 
his capacity as manager of the foreign employer's operation department: 
• Addressing the projected business plan of the Company as it is approved at the 
Board of Directors Annual Meeting (of which he forms part). 
• Planning, organizing, and controlling the usage of raw materials and technical 
resources to achieve maximum yield of end products. 
• Meeting with potential customers for business opportunities and evaluation of 
projects. 
• As a member of the Board of Directors, he discusses and reviews the Company 
Policies regarding the Industrial Safety (for both equipment and personnel), 
Quality Assurance Policies, and the evaluation of new Projects. 
• Reviewing monthly performance records of production prior to discussion with 
the Board of Directors. 
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NON-PRECEDENT DECISION 
• Working together with the Administration and Human Resources department to 
evaluate the performance of the employees under his supervision and directing 
the administration and human resources department to hire or fire personnel. 
• Approving the salary rises or modifications of working conditions proposed by 
his supervised personnel. 
• Working together with the Engineering Department and Sales and Logistic 
Department, planning and controlling maintenance procedures, Repair Orders, 
and general maintenance. 
• Verifying the monthly reports on production and directing the appropriate 
modifications 
if required to increase production. 
• Reviewing the coordination of the Training Program proposed for the workers, 
for assessment of new standards and new equipment, in-house or with outside 
companies. 
• Controlling and approving Purchase Orders, acquisition of new Equipment and 
Materials for different Departments and manufacturing processes. 
• Dictating the policies of maintenance for preventative and predictive 
maintenance programs of the equipment and tooling. 
• Supervising and Controlling 
the standards of Quality obtained, to comply with 
the Quality Assurance Policies of the Company. 
• Working together with the Legal and Administrative Departments, for changes 
and assessment of any legal issues and personnel concerns. 
• The supervised personnel in the department he runs are mainly professionals who 
have been working for the company for several years now; they are all full-time 
workers . 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
The petitioner was directly requested by the director to submit a detailed list of daily duties, including the 
percentage of time spent on each duty with the foreign employer. However, the petitioner did not submit the 
percentages of time the beneficiary spent on each task listed above. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.P.R. § 103.2(b)(14). 
Further, 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 duties 
offered by the petitioner are vague and provide little probative value as to the beneficiary's actual day-to-day 
activities . For example, the petitioner stated that the beneficiary's duties included addressing the projected 
business plan, meeting with potential customers for business opportunities and evaluation of projects, 
discussing and reviewing company policies, planning and controlling maintenance procedures, reviewing the 
NON-PRECEDENT DECISION 
Page 13 
coordination of the trammg program, dictating maintenance policies , and supervt smg and controlling 
standards of quality. In each case, the petitioner provides no details, specifics or documentation to 
substantiate how these duties qualified as managerial or executive in nature . The lack of specificity or 
examples in the provided duties casts doubt as to whether they represent the beneficiary's actual primary 
duties, particularly in light of the duties provided for the beneficiary in the United States which are 
predominantly comprised of non-qualifying day-to-day operational duties . Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature . Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings . Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasur e Craft 
of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
On appeal, counsel contends that the beneficiary qualifies as a function manager based on his management 
of an essential function within the foreign employer's organization. Again, the statutory definition of 
"managerial capacity" allows for both "personnel managers" and a "function managers." See section 
101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). The term "function manager" 
applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead 
is primarily respon sible for managing an "essential function" within the organization. See section 
10l(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential function" is not defined by 
statute or regulation. Again, 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 in managing the 
essential function, 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. 
See 8 C.P.R. § 204.5(j)(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. 
When examining the managerial or executive capacity of a beneficiary, US CIS review s the totality of the 
record, including descriptions of a beneficiary 's duties and his or her subordinate employees, the nature of the 
petitioner's business, the employment and remuneration of employees, and any other facts contributing to a 
complete understanding of a beneficiary's actual role in a business. The 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 an executive or manager position. 
The petitioner has failed to provide a consistent description of the foreign company's staffing levels and 
personnel structure during the beneficiary's period of employment abroad . For instance, an original support 
letter submitted with the Form I-140 stated that the beneficiary had eight subordinates while employed with 
the foreign employer, while the provided organizational chart includes only six subordinates. Additionally, 
the foreign entity's financial documentation from 2010 and 2011 reflects that it paid only 26,000 
in salary in all of 2010 and 39,000 Venezuelan Bolivars in salary in all of 2011, casting doubt as to 
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Page 14 
whether the foreign employer supported the 21 employees listed in the organizational chart, articularly 
considering that the petitioner indicates that the beneficiary alone earned 18,720 in 
2010 and 15,600 in 2011. Although the aforementioned payroll documentation is not 
relevant to the beneficiary's asserted period of employment as a manager with the foreign employer from 
August 2007 to January 2009, the petitioner has not submitted payroll or financials for the relevant period of 
time. However, the petitioner claims the foreign employer has undergone steady growth subsequent to the 
beneficiary's transfer to the United States. Again, 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). Overall, the evidence submitted fails to 
illustrate the personnel structure of the company during the relevant time period abroad and does not support 
a finding that the beneficiary was relieved from performing non-managerial functions associated with the 
day-to-day duties of the operations department. 
Lastly, the petitioner has submitted little documentation or details relevant to the beneficiary ' s claimed 
period of employment with the foreign employer from 2007 to 2009. 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. at 165 (citing Matter of Treasure Craft of California , 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
In conclusion, the petitioner has submitted a vague duty description for the beneficiary that fails to establish 
that he was primarily engaged in the performance of qualifying managerial or executive duties. Further , the 
petitioner has provided insufficient evidence related to the beneficiary's employment abroad. As such, the 
petitioner has not established that the foreign entity employed the beneficiary in a qualifying managerial or 
executive capacity. For this additional reason, the appeal must be dismissed. 
C. Ability to pay 
The last issue to be addressed is whether the petitioner has established that the petitioner has the ability to 
pay the beneficiary's proffered wage. 
The director concluded, following a review of the petitioner's 2010 and 2011 IRS Forms 1065 U.S. Return of 
Partnership Income, that the petitioner did not have sufficient income or assets to pay the beneficiary's 
proffered salary of $54,000 per year. 
On appeal, counsel submits a copy of the petitioner's 2012 IRS Form 1065, which was previously 
unavailable, and contends that this evidence establishes the petitioner's ability to pay the beneficiary. 
Counsel also provides documentation that demonstrates that the petitioner has a line of credit to supplement 
its income from the 
8 C.P.R. § 204.5(g)(2) states: 
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NON-PRECEDENT DECISION 
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 a case where the prospective 
United States employer employs 100 or more workers, the director may accept a 
statement from a financial officer of the organization which establishes the prospective 
employer's ability to pay the proffered wage. In appropriate cases, additional evidence, 
such as profit/loss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by the Service . 
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 petitioner has not established that it employed and paid the beneficiary the full proffered wage at 
the time of filing or subsequently. 
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), affd, 703 F.2d 571 (7th Cir. 1983). 
In K.C.P. Food Co., Inc . v. Sava, precedent case law, the court held that 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. After analyzing the petitioner's tax documentation from 2012, the petitioner has not 
established that the beneficiary has sufficient net income to compensate the beneficiary . The petitioner's IRS 
Form 1065 for calendar year 2012 presents a net taxable income of -$60,395. As such, the petitioner could 
not pay a proffered wage of $54,000 per year out of this income. 
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 
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Page 16 
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. 
To find the difference between current assets and current liabilities, USCIS looks to the IRS Form 1065, 
Schedule L Balance Sheets. Schedule L of the petitioner's IRS Form 1065 for 2012 reflects that the 
petitioner has $41,327 in current assets and $4,271 in current liabilities. Therefore, the petitioner has shown 
net current assets of $37,056, or an insufficient amount of net assets to pay the beneficiary's proffered wage 
of$54,000. 
Therefore, the petitioner has not established that the petitioner has the ability to pay the beneficiary's 
proffered wage. For this additional reason, the appeal must be dismissed. 
III. Conclusion: 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
. alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.