dismissed EB-1C Case: Diamond Wholesale

(b)(6)
DATE : DEC 2 4 2013 
INRE: Petitioner: 
Beneficiary : 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of llomeland Security 
U. S. Citizenship and Immigration Servi< 
Admini strative Appeals Office (AAO) 
20 Massachusett s Ave., N.W., MS 2090 
Washin gton. DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
Fll.-E: 
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.§ ll53(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. § 1 03.5 . Do not file a motion directly with the AAO. 
Thank you, 
1-~[!.t:Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the preference visa petition . The matter 
is now before the Administr ative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a New York branch office of an Israeli company that seeks to employ the 
beneficiary in the position of "VP Finance & Administration." According} y, 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 concluding that the petitioner did not establish it had the ability to 
pay the proffered wage. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel submits a brief and additional documentation 
and asserts that the evidence of record establishes the petitioner's ability to pay the beneficiary's 
proffered 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. 
The language of the statute is specific in limiting this provision to only those executive s or managers 
who have previously worked for a 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 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 
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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. 
II. Ability to Pay 
The sole issue addressed by the director is whether the petitioner established its ability to pay to the 
beneficiary the proffered wage of $50,000 per year. 
The regulation 8 C.F.R. § 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. 
A. Facts 
The petitioner filed the immigrant visa petition on February 14, 2012. The petitioner, a diamond 
wholesaler established in 2003, stated that the beneficiary has been offered a full time position as its 
VP Finance & Administration. The petitioner indicated on the Form I-140, Immigrant Petition for 
Alien Worker, that 
it has a gross annual income of $4,868,083 and a net annual income of -$2,191. 
The petitioner submitted the following documents relevant to its ability to pay the proffered wage in 
support of the petition: (1) a partial copy of its 2009 Internal Revenue Service (IRS) Form 1120-F , 
U.S. Income Tax Return of a Foreign Corporation, for the tax year ended on October 31, 2010; (2) a 
one-page profit and loss statement for the year ending December 31, 2010 for the Israeli company, 
prepared in the Hebrew language with an uncertified English translation ; and (3) its U.S. bank 
statements for the month s of December 2010 through August 2011. The parent company's profit and 
loss statement shows sales of $4,868,083 and a net income of -$2,191. The petitioning branch 
office's IRS Form 1120-F indicates $341,943 in gross receipts or sales and a taxable income of -
$112,724 . 
On July 5, 2012, the director issued a request for evidence (RFE) in which he instructed the 
petitioner to provide, among other items, additional documentation to establish its ability to pay the 
beneficiary's proffered wage . Specifically the director requested one of three required types of initial 
evidence to include: (1) the petitioner's federal income tax return for 2011; (2) annual reports; or (3) 
audited financial statements. The director also requested evidence of wages paid to the beneficiary 
for 2011 and 2012. 
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In response to the RFE, the petitioner submitted the following documents: (1) its 2010 IRS Form 
1120-F U.S. Income Tax Retum of a Foreign Corporation; (2) IRS Forms 941, Employer 's Quarterly 
Federal Tax Retum, for the last three quarters of 2011 and first two quarters of 2012; (3) IRS Form 
W-2 showing wages paid to the beneficiary and pay statements for 2012 showing wages paid to the 
beneficiary's Israeli bank account by the foreign employer; (4) a 2011 audited financial statement for 
the foreign company ; and (5) a mid-year balance sheet for the foreign employer signed by the CPA. 
The petitioner's 2010 IRS Form 1120-F indicates gross receipts or sales of $159,090 and taxable 
income of -$87,346. In addition, the foreign entity's audited profit and loss statement shows that the 
company had a net loss for 2011. 
In a letter accompanying the RFE response, counsel acknowledged the net loss reported on the 
petitioner's 2010 IRS Form 1120-F. Counsel asserted that the foreign entity pays the beneficiary the 
equivalent of $1743.50 per month in Israel and has net assets in excess of the beneficiary's total 
proffered salary. 
On January 9, 2012, the director denied the petition finding that the petitioner failed to establish its 
ability to pay the beneficiary's proffered salary of $50,000 . The director found that the petitioner did 
not pay the beneficiary the proffered wage and that neither the company's net income nor the 
company's net current assets as reflected on its IRS Form 1065 U.S. Return of Partner ship Income 
for 2010 were sufficient to compensate for the difference between the wages paid and the proffered 
wage. Furthermore, the director observed that the foreign entity's audited financial statement 
showed negative value for net total assets. 
On appeal, counsel for the petitioner explains that the foreign parent company paid the beneficiary 
wages of $1,743.50 per month in Israel for a total of $20,922 annually and that "combined with the 
U.S. salary beneficiary actually received $25,880/year in compensation." Furthermore, counsel 
asserts that the petitioner's bank statements for 2011 show that the petitioner had sufficient liquid 
assets to pay the balance of the beneficiary's proffered salary. Finally , counsel states that the foreign 
entity's mid-year audited balance sheet for 2012 showed a net balance of over $642,000. 
The petitioner also provides the following documentation in support of the appeal: (1) copies of U.S. 
bank statements showing "more than sufficient funds in any given month to support the payment of 
the $50,000/year salary offered"; (2) a CPA statement detailing the actual salary paid to the 
beneficiary in 2011 and 2012; (3) a letter from 
the petitioner's bank stating that it has a line of credit 
for $1.2 million ; (4) a letter from the petitioner's CPA stating that the company' s profit for 2012 was 
$339,000.; (5) an excerpt from the 2011 financial statement showing the company has an inventory 
of diamonds valued at $1,385,844; and (6) IRS Form W-2 for 2012 showing that the beneficiary 
received $18,850 in wages during the year in which the petition was filed. 
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B. Analysis 
Upon review, the petitioner has not demonstrated its ability to pay the beneficiary's proffered wage 
as of the date the petition was filed. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine whether 
the petitioner employed the beneficiary at the time of filing. 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 provided an IRS Form W-2 for 2012 reflecting its payment of 
$18,850 in wages to the beneficiary. The beneficiary was paid an additional salary in Israel, but 
even if the two amounts were combined, the beneficiary's total salary payments were less than 
$40,000 in 2012. 
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, 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 14, 2012 and the petitioner's tax return for 2011 or 
2012 has not been made available, the AAO must examine the petitioner's tax return for 2010. The 
petitioner's IRS Form 1120-F U.S. Return of Foreign Corporation for 2010 (for the fiscal year ended 
on October 31, 2011) presents a net taxable income of -$87,346. Therefore, for tax year 2010, the 
petitioner did not have sufficient net income to pay the difference between wages actual! y paid to the 
beneficiary and the proffered wage. The petitioner also provided a foreign audited profit and loss 
statement for the foreign company showing a new income of -$5,037. 
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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. 
According to petitioner's Form 1120-F U.S. Income Tax Return of Foreign Corporation for 2010, 
Schedule L, the company has a net current assets of $0 and current liability of $0. Therefore, the 
petitioner cannot establish the ability to pay the proffered salary. 
In response to the RFE, the petitioner provided the foreign company's audited financial statement for 
2011. Under the subheading "Current Assets," the balance sheet shows cash, accounts receivable, 
and inventory for a sub-total of $1,618,283 in assets. The statement has lines for "Client" and 
"Various debts due" without further explanation of the sources of the income. The balance sheet 
shows total current assets of $2,020,686. The petitioner also shows "Current Liabilities" designated 
as "Banks," "Checks due" and "Suppliers," again without further explanation, for a total of 
$2,050,411. The petitioner, therefore, shows total net assets of -$29,725. Counsel asserted that the 
2011 audited financial statement reflects net assets of $642,587, but did not explain how this figure 
was derived, given that the sum of the line items categorized by the preparer as "Current Liabilities" 
was greater than the sum of those categorized as "Current Assets." 
On appeal, the petitioner provides a letter from 
the petitioner's accountant showing a profit for the 
year of $339,000. The regulation at 8 C.P.R. § 204.5(g)(2) makes clear that where a petitioner relies 
on financial statements to demonstrate its ability to pay the proffered wage, those financial 
statements must be audited. Any document containing foreign language submitted to USCIS shall 
be accompanied by a full English translation which the translator has certified as complete and 
accurate, and by the translator's certification that he or she is competent to translate from the foreign 
language into English. 8 C.P.R. § 103.2(b)(3). As there is no full English translation of an 
accountant's report accompanying these statements, the AAO cannot conclude that they are audited 
statements. Therefore, the financial statements produced in the compilation are representations of 
management and are not reliable to demonstrate the ability to pay the proffered wage. 
Finally, on appeal, counsel for petitioner asserts that USCIS may consider evidence relevant to a 
petitioner's financial ability that falls outside of a petitioner's net income and net cunent assets. 
Therefore, petitioner submits copies of bank statements showing balances in excess of the 
beneficiary's proffered wage each month. The petitioner's reliance on the balances in its bank 
account is misplaced. First, bank statements are not among the three types of evidence, enumerated 
in 8 C.P.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While 
this regulation allows additional material "in appropriate cases," the petitioner in this case has not 
(b)(6)
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demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise 
paints an inaccurate financial picture of the petitioner. Second, bank statements show the amount in 
an account on a given date, and cannot show the sustainable ability to pay a proffered wage. Third, 
no evidence was submitted to demonstrate that the funds reported on the petitioner 's bank statements 
somehow reflect additional available funds that were not reflected on its tax retum(s), such as the 
petitioner's taxable income (income minus deductions) or the cash specified on Schedule L that is 
considered in determining the petitioner's net cmTent assets. 
The petitioner also provides a letter from a bank stating that it has a "credit facility" of $1,200,000. 
In calculating the ability to pay the proffered salary, USCIS will not augment the petitioner's net 
income or net current assets by adding in the petitioner's credit limits, bank lines, or lines of credit. 
A "oank line" or "line of credit" is a bank's unenforceable commitment to make loans to a particular 
borrower up to a specified maximum during a specified time period. A line of credit is not a 
contractual or legal obligation on the part of the bank. See John Downes and Jordan Elliot 
Goodman, Barron's Dictionary of Finance and Investment Terms 45 (5
1
h ed. 1998). 
Since the line of credit is a "commitment to loan" and not an existent loan, the petitioner has not 
established that the unused funds from the line of credit are available at the time of filing the 
petition . As noted above; a petitioner must establish eligibility at the time of filing; a petition cannot 
be approved at a future date after the petitioner becomes eligible under a new set of facts. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). Moreover, the petitioner's existent loans 
will be reflected in the balance sheet provided in the tax return or audited financial statement and 
will be fully considered in the evaluation of the petitioner's net current assets. Comparable to the 
limit on a credit card, the line of credit cannot be treated as cash or as a cash asset. However, if the 
petitioner wishes to rely on a line of credit as evidence of ability to pay, the petitioner must submit 
documentary evidence, such as a detailed business plan and audited cash flow statements, to 
demonstrate that the line of credit will augment and not weaken its overall financial position. 
Finally, USCIS will give less weight to loans and debt as a means of paying salary since the debts 
will increase the petitioner's liabilities and will not improve its overall financial position. Although 
lines of credit and debt are an integral part of any business operation, users must evaluate the 
overall financial position of a petitioner to determine whether the employer is making a realistic job 
offer and has the overall financial ability to satisfy the proffered wage. Matter of Great Wall, 16 
I&N Dec. 142, 145 (Acting Reg . Comm'r 1977). 
In the present matter, the petitioner has submitted no evidence to establish that the prospective U.S. 
employer - the U.S. branch office of the Israeli company- has the financial ability to directly 
remunerate the beneficiary at the proffered wage. Accordingly, the appeal will be dismi ssed. 
III. Employment in a Managerial or Executive Capacity 
Although not addressed by the director, a remaining issue in this matter is whether the petitioner 
established that the beneficiary has been employed abroad and would be employed in the United 
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States in a qualifying managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the 
Act. 
The petitioner stated that the beneficiary was employed abroad and would be employed in the United 
States in the position of vice president of finance and administration. Counsel described her dutie s 
as follows: 
1. Provide financial advice and direction, reporting to the President; 
2. Develop and maintain external financial relationship with banker s, auditors , credit 
ratings , agencies , investment institutions and financial advisors; 
3. Direct and supervise administrative and office management personnel for 
operations; 
4. Prepare, produce, and review financial information for company reports, 
including presenting financial interpretation and analysis of reports and taxes and 
financial reporting purposes. Track income and expense, budgets and provide 
financial advice and direction; 
5. Determine all financial requirements including cash management, investment and 
borrowing policies, cash management, accounting and financial reporting. 
In the RFE , the director requested definitive statements addressing the beneficiary's specific daily 
job duties and the percentage of time spent on each duty in both the United States and Israel. The 
director also requested information regarding the beneficiary's subordinate s in the United States and 
abroad, including their job titles, education level and whether they work full or part-time. The 
director observed that the initial evidence was "lacking detail." 
In response to the RFE, the petitioner re-submitted essentially the same list of job duties provided in 
its initial letter. The petitioner indicated that the beneficiary allocate s 20% of her time to develop 
and maintain financial relationships. The petitioner stated that the beneficiary allocates 30% of her 
time to direct and supervise administrative and operations personnel and added that this 
responsibility includes "review and approval of merchandise imported and exported; daily inventory 
control and final approval of all orders received ," and "to approve or decline customer orders and 
terms of payment and delivery." The petitioner stated that the beneficiary allocates 30% of her time 
to preparing, producing and reviewing financial information, adding that this responsibility includes 
daily cash flow supervision and review and approval of expen ses and payments. Finally, the 
petitioner stated that the beneficiary allocates 20% of her time to the previously stated responsibility 
for determining all financial requirements. 
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.P.R. § 204.50)(5). Here , while the petitioner 
has consistently stated that the beneficiary has been and will be responsible for overseeing the 
finances and administration of the company, it failed to provide a detailed description of the 
beneficiary's "specific daily duties" as expressly requested by the director. Specifics are clearly an 
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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), affd, 905 F.2d 41 (2d. Cir. 1990). 
Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. § 103.2(b)(14). The position description as written suggests that 
the beneficiary is involved in all financial functions and business transactions of the company and 
does not adequately distinguish between the qualifying and non-qualifying duties associated with 
these functions. For example, the petitioner has not explained what specific tasks the beneficiary 
performs related to "daily inventory control," "daily cash flow supervision," and tracking income 
expenses, and such duties are not clearly managerial or executive in nature. 
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 director provided the petitioner with an opportunity to identify the beneficiary's subordinates, 
their job titles and duties, their education levels, and to indicate whether they are full- or part-time 
employees. In response, the petitioner indicated that the beneficiary supervises an unidentified 
number and type of "clerks" and provided no additional information regarding these employees. It is 
thus unclear whether these are the "administrative and office management operations personnel" 
referenced in the beneficiary's position description. The petitioner also identified tax, insurance, 
banking, bookkeeping and accounting workers who were categorized as "outside contractor, part 
time personnel." The petitioner did not provide their job duties or other information requested by the 
director. Again, the failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). The petitioner has neither 
presented evidence to document the existence of these employees nor identified the specific services 
these individuals provide. Additionally, the petitioner has not explained how the services of the 
part-time contracted employees obviate the need for the beneficiary to engage in the day-to-day 
administrative and financial activities of the company. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The record shows that the petitioner has three employees including the beneficiary and paid $3,000 
in professional fees in its most recent fiscal year. The record does not establish the number or types 
of employees working in Israel or the identity of the petitioner's regular payroll employees. Overall, 
the evidence of record is insufficient to establish that the beneficiary was or would be relieved from 
performing routine duties associated with the day-to-day operations of the finance and 
administration functions that she is claimed to manage. The petitioner has not specifically identified 
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office or administrative personnel working for either organization, nor has it established that its part­
time contract workers would be engaged in the company's daily cash flow , order processing , expense 
accounts and inventory control processes, all of which are encompassed in the petitioner's 
description of the beneficiary's duties. 
Based on the petitioner's failure to provide a description of the beneficiary's specific daily duties and 
to identify and document the duties employed by any claimed subordinates, the petitioner has not 
established that the beneficiary was employed abroad or would be employed in the United States in a 
qualifying managerial or executive capacity. An individual will not be deemed an executive under 
the statute simply because they have an executive title or because they "direct" the enterprise or a 
department or function as the sole managerial employee. The petitioner must establish that someone 
other than the beneficiary is available to perform the non-qualifying duties associated with the 
functions or activities she is claimed to manage or director. For these additional reasons, 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), affd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons with each considered as an independent 
and alternative basis for denial. 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.