dismissed EB-1C Case: Diversified Business

(b)(6)
DATE:SEP 2 5 Z013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service: 
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(~)(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 rna)' file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice ofAppeal or Motion (Form I-290B) 
within 33 days of , the .date of this decision. Please ·review the ForiD 1-290-P instructions ~t 
http://www.uscis.gov/forms for the latest information on fee, tiling locatii:)ll, ~nd other requirements. 
See also 8 C.F.R. § 103.5. Do n~t tile a motjon directly with the AAO. 
Thank you, 
~;;~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary in the United States as its chief 
executive officer_. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration al)d Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(C), as a multinational executive or manager. 
In support of the Fotm I-140 the petitioner submitted a statement dated May 11, 2012, which contained 
relevant information pertaining to the petitioner's eligibility. The petitioner indicated that it owns several 
subsidiary corporations in the United States and further stated that the beneficiary "applies her trading 
expertis~ in special, one-of-a-kind pianos," which is part of one of the petitioner's 
wholly owned U.S. subsidiaries. The petitioner claimed to have formed other subsidiaries, one of which 
involves tilapia fish farming. The petitioner provided various business documents showing evidence of its 
business transactions prior to its acquisition by the beneficiary's foreign ,employer. The petitioner also 
provided organizational charts pertaining to itself and the beneficiary's employer abroad. The organizational 
chart depicting the petitioner's orgimizational hierarchy as of May 2012 identified six employees including 
the beneficiary. 
The director revieWed the petitioner's submissions and determined that the petition did not Warrant approval. 
The director therefore issued a request for evidence (RFE) dated October 15, 201i informing the petitioner of 
various evidentiary deficiencies. The director instructed the petitioner to provide evidence establishing that 
the beneficiary Would be employed in a qualifying managerial or executive capacity. Such evidence was to 
include a job description delineating the beneficiary's proposed duties and the percentage of time the 
beneficiary would allocate to each specific job duty, accompanied by evidence of salaries or wages paid to all 
in-house and contracted employees. The director pointed out that the petitioner'~ staff of five employees may 
not be sufficient to support the beneficiary in a position where she would primarily perform job dt1ties within 
a qualifying managerial or executive capacity. Next, the director pointed out that the petitioner's sul;>sidiaries 
are separate business entities and thus instructed the petitioner to provide evidence demonstrating that it, i.e., 
the petitioner, has been doing business for at least one year prior to filing the petition. Finally, the director 
asked the petitioner to provide evidence of its ability to pay the beneficiary's proffered wage <::ommencing 
with the priority date and going forward through the date the RFE was issued. 
The petitioner's response included a statement from counsel dated December 31, 2012 in which she 
resubmitted the petitioner's original job description, which was included with the petition and other 
. supporting evidence. Counsel claimed that the petitioner used only contract labor in 2011 and. indicated that 
the company currently has six employees, all of whom were hired in 2012 .. Counsel asked the director to 
consider business documents that reflected business transactions that took place prior to the petitioner's recent 
change in ownership a,nd further claimed that the beneficiary incorporated on 
February 27, 2012 and later merged this company with the petitioning entity ''after she acquired the majority 
1 The record indicates that the director initially issued an identical RFE on July II, 2012 and further shows that a 
response to that RFE was provided. It is t.mclear why the duplicate RFEs were issued. However, all evidence submitted 
in each response has been considered in making a determination with regard to the instant appeal. 
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shares of the company~" Counsel claimed that the beneficiary "purchased controlling shares of [the 
petitioner] in May 2012" and merged it with , which, according to counsel, was also established 
as a subsidiary. With reg(l.td to the petitioner's ownership in a fish farming enterprise, counsel stated that 
actual production had not yet 
begun when the response was filed. FiQ3lly, with regard to the petitioner's , 
ability to pay, counsel offered bank records for the petitioner's three U.S~ subsidiaries, asserting that the 
subsidiaries ' comb~l)ed . "c~sh on hand" as shown in their respective bank statements far exceeds the 
beneficiary's proffered wage. 
After con_sidering the petitioner's response, the director determined that the petitioner failed to meet several 
statutory and regulatory ctjteti _a_. First, with regard to the beneficiary'·s proposed employment, the dire.ctor 
found that the beneficiary's job description lacked details 3boutthe beneficil}ry's specific tasks and further 
stated that the petitioner's staffing was not sufficient to support the beneficiary in a primarily managerial or 
executive capacity. Moving on to documents pertaining to the foreign entity's business activity, the director 
determined that the petitioner failed to provide certified English translations, which are required when 
submitting foreign language doclnrtents; and thus {aHe<J to establish that the foreign entity continues to 
provide goods and/or services on a regular, systematic, and continuous basis. Next, with regard to the 
beneficiary's business activity in the United States, the director took note of the petitioner;s claim at Part 5, 
No. 2 of the Form h 140, where the petitjoner indicated that it is a farming and trading enterprise and pointed 
out that the supporting documents the petitioner submitted indicated that its fish farming subsidiary W:;ts 
issued an assumed name certificate on May 7, 2012 and that its piano retail business was established on 
February 27, 201 z. Qiven t.he facts addressed herein, the director determined that neither the fish farming nor 
the 
piano retail operation had been doing business for one year at the time the petitio!! Was filed in May 40 l ~ ­
Finally, the director determined that the petitioner failed to provide requested evidence establishing its ability 
to Pl1Y th_e benefici:;try' s proffered wage. In light of these adverse findings, the director issued a decision dated 
March 1, 2013 denying the petition. 
On appeal, counsel explains that the petitioner was originally a real estate development company until it was 
acquired by the foreig(l entity where the beneficiary had been previously employed. .Counsel further 
explained that 2012 tax documents for the petitioner's employees were not av3.ila!Jle when the RFE was first 
issued and therefore offers IRS Form W-2 statements from 2012 in support of the appeal. Counsel asserts 
that it is unnecessary to provide full translations of the foreign entity;s invoices given that the invoices are 
bilingual and already carry English language translations. With regard to the issue of the petitioner doing 
business, counsel focuses on the U.S. entity's change of business direction from real estate development, 
which . t_lw compa11y engaged in prior to its change in ownership, to May 2011 when the foreign entity 
acquired the petitioner a.M changed its business direction to inciJ.Ide varying enterprises, such as i'ntematiol}al 
trading of high-'end pianos, tilapia fatming, fast food franchising, and real est{lte acquisition. Finally, with 
regard to 'the petitioner's ability to pay, counsel points out that the benefidary only had authorization to work 
fot two months in 2012 and for three months in 2013 until her work authorization was revoked upon denial of 
the Form 1-140. Nevertheless, counsel asserts that the petitioner had sufficient cash to pay the beneficiary's 
proffered wage and indicates that the petitioner plans to submit further evidence showing that wages were 
paid to the beneficiary. 
The record shows th~t the petitioner has supplemented the record with a second statement from counsel as 
wei! as additional documents in support of the appeal. 
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Page4 
After reviewing the petitioner's submissions, the MO finds that the peti~IOIH!r has provided sufficient 
evidence to establish that the foreign entity continues to do business abroad. As counsel properly pointed <'>lit; 
the foreign entity's invoices, which are a testament to the ongoing provision of goods and/or services, are 
formatted With both a, C.h.i.nese a11d an English language text and thus do not require separate English language 
translations. the invoices ' account for tiine periods that extend well beyoi1(j t_Qe ga~e the petition was filed _and . . 
thus indicate that the foreign entity continues to do business. Therefore, the AAO hereby withdraWs one of 
the fot.JI"adverse findings that were cited as grounds for denial. 
The remainder of this decision will focus on the three remaining grounds to include the . question of whether 
the beneficiary's proposed employment with the U.S. petitioner would be within a qualifying managerial or 
executive capacity, whethet the petitioner Wa.s doing busilleSs for one year prior to filing the inst<mt. petition, 
and whether the petitioner had the ability ~o pay the beneficiary's proffered wage as of the date the petition 
wasfiled. · 
Section 203(b) of the Act states in pertin,erit part: 
(l) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
ate aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) · Certain l\1ultinatio11al Executives and Managers. -- An alien is described 
in this subparagraph if the alien; in·. the 3 ye(l(S preceding the . ti.ine pf the 
alien's. applic~tion for c~assification and admission into the United States 
. under this subparagraph, has been employed for at least 1 year by a firm or 
corporation ot other legal entity or an affiliate or subsidiary tbereof apd who_ 
seeks to enter the United States in order t_o continue to render services to the 
same employer or· to a subsidiary or affiliate thereof in a capacity that is 
manilgerial ot executive .. 
The langmige of the statute is specifiC in limiting this provision to only those eX:ec].!tives and man(lgers who 
have previously worked for a firm, corporation or oiher 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 Sta_tes employer 'i:nay file a petition 011 Fm;m 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 fat tbi.s . . . . .. ·· _. . . · . ... ·. · _ _ · .. · ·-- ~ - . 
. classification. The prospective employer in the United States must furnish a job offer in the form ofa 
statement which indicat~s 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 perfotrned by the alien. 
The first iSSlle to be actdressed in this discussion is tbe ben~ficiary's proposed employment with the US. 
entity. The AA() will review the evidence to detetrniile whether the petitioner estabiished that it would 
employ the beneficiary in a qualifying managerial or ~xecutive capacity. . 
(b)(6)
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Sectiori 10l(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 in which the 
employee primarily'"-
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
. ( ii) supervises and controls the work. of other supervisory, professio11al, 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 (ll"e directly supervised~ has the 
authority to hire and fire or recommend those as well. as other personn._el 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy ot With respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or fu_nction 
for which the employee has authority. A first-line supervisor is not 
considered to be acting it} a managerial .capacity merely by virtue of the 
supervisor's stipervisocy duties unless the employees supervised are 
professional. 
/ Section 10l(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 \Vhich the 
employee primarily--
(i) directs the management of the organization or a major component ~r function 
of t~e organization; 
_ (ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretioniifY de(>ision-making; and 
(iv) receives only general supervision or direction from higher level exe<;utives, 
the _board of directors, or stockholders of the organization. 
In general, when examining the executive or managerial capacity of the beneficiary, tbe· AAO reviews the 
totality of the record, starting first with the petitioner's description of the beneficiary's job duties. See 8 C.P.R.. 
(b)(6)
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§ 204.5U)(5). A detailedjob description is crucial, as the duti~s themselves will reveal the true nature of the 
beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1 108 (E.D.N.Y. 1989), affd , 905 
F.2d 41 (2d. Cir. 1990) .. The AAO will then consider this information in light of other rele.vant factors, such 
as job duties and responsibilities of the beneficiary's subordinates, the nature of the petitioner's business and . . ' 
the size of its staff, and any other factors that may contribqte to a comprehensive understanding of the 
beneficiary's role within the petitioner's organizational hierarchy. 
In the present matter, the nature of the petitio net's business is such that its key focus is on the operations of its 
Sl.lbsidiaries, whose respective levels of function and operation at the time of filing were entirely unclear. As 
the petitioner did not indicate what specific activities it would undertake, other than overseeing the 
functioning of its subsidiary businesses, the beneficj~'s role within the petitioner's organization becomes 
, equally unclear. For instance, the petitioner indicated that the beneficiary would allocate ten hours pet week 
' to managing and supervising the work of executives and managers of the petitioner's U.S. subsidiaries, setting 
goals a:l)d objectives, and reviewing executive and fina~cial reports regarding the 'petitioner's various projects. 
However, to the extent that this portion of the benefiCiary's time would be essyntially spent managing the 
petitioner's business investments, such activities would be mote akin to tasks ~equired to provide Services and 
thus would not be deemed as tasks within a qualifying managerial or executive capacity. An employee who 
''primarily" performs the tasks necessary to produce a product or 
to provide services is not considered to be 
"p~imarily'; employed in a managerial or executiVe capacity. See sections 't0l(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). 
The petitioner went on to state that five hours of ~he beneficiary's time would be spent working with 
department managers to evaluate "commercial offers including evaluating the competitiveness of the bids'' 
being propose<J. However, the petitioner did not explain the nature of the "commercial offers" or bids or how 
the offers and bids fi,t in with the type of business the petitioner's Form 1-140 indicates it conducts. Similarly, 
although the petitioner indicated that the beneficiary would spend four hours per week executing agteement _S 
and consulting with accountants and lawyers regarding key projects, the petitioner did not specify the nature 
of the agreements or the beneficiary's specific role in their execution. 
Additionally , the petitioner claimed that the beneficiary would engage in cont~act negotiation ·and travel to 
meet with "high end customers, suppliers, [and] sellers" for a total of fourteen nours pet week. However, 
without further information, these job duties cannot be deemed as being within a qualifying managerial or 
executive capacity . 
_In reviewing the I business documents that have been presented, it appears that the petitioner's key business 
focus is to invest funds to .set up subsidiaries, which would then engage in various business activities. These 
subsidiaries, however, when individually incorporated, are entities entirely separate from the petitioning 
entity itself, which, despite its.role as an investor and possibly a manager of these separate enterprises, can11ot 
be deemed as engaging in the business a<;tiviti~s of the subsidiaries. Given the structure of this business 
atrange!Jlent, l}ny time the beneficiary herself would spend managing the petitioner's investments, including 
overseeing the execution . of contractual agreements or even overseeing the work of the executives ot 
managers whom the subsidiary entities employ, would not be deemed as time spent performing tasks within a 
qualifying managerial ot executive capacity. While the AAO acknowledges that no beneficiary is required to 
(b)(6)
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Page7 
allocate 100% of his or her time to managerial- or executive-level tasks, the petitioner must establish that the 
non-qualifying tasks the beneficiary would perform would be only incidental to the position in question. 
In the present matter, given the petitioner's f~il\lre to est~bli§h tlu~t it, in its own right, would be engaged in 
the sale of products and/or services, the lllariagetial or executive capacity of the beneficiary's proposed 
employment is nearly impossible to gauge, as the petitioner's key focus in the supporting evidence has been 
the business activities of the petitioner's subsidiaries rather than those of the petitioner itself. Although the 
record indicates that the petitioner had six employees shortly ~fter the petition was filed, it is unclear how 
these individuals' purportedjob assignments fit within the petitioner's business scheme and, more critically, 
how these individuals would relieve the beneficiary from having to allocate her time primarily to directly 
managing tbe petit_ioner' s subsidiary businesses. 
Lastly, the AAO finds that counsel's statements on appeal, in which he claimed that the beneficiary merged 
with the petitioning entity ''after she acquired the majority shares of the company" 
and further stated that the beneficiary "purchased controlling shares of [the petitioner] in May 2012" and 
merged it with are not supported by the evidence of record and are not consistent with any of 
the petit_ioner' s own claims. The record in the present matter bears no evidence to establish that the 
beneficiary had any ownership interests in the petitioner or its subsidiaries, nor is there any indication that the 
petitioner's subsidiaries were ever merged with the petitioner itself such as to create a single entity. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. Tbe unsupported assertions of counsel do not constitute evidence. Matter of Obaigben(l, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Maner of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BiA 1980). Counsel's claims are confusing and faii to further the petitioner's objective in 
establishing eligibility for the benefit sought herein. 
In conclusion, the AAO finds that the record does 'not support a finding that the beneficiary's proposed 
employment would be within a qualifying managerial or executive capacity and on the basis of this initial 
conclusion, this petition cannot be approved. 
Next, the AAO will determine whether the record contains sufficient evidence to establish that the petitioner 
meets the filing criteria cited at 8 C.P.R. § 204.5(j)(3)(i)(D), which requires the petitioner to establish that it 
had been doing business for at least one year prior to filing the Form 1-140. The regulation at 8 C.P.R. 
§ 204.5(j)(2) defines doing business as the regular, systematic, and continuous provision of goods and/or services 
by a firm, corporation, or other entity and does not include the mere presence of an agent or office. 
As properly pointed out in the director's decision, the Form 1-140 at Part 5, No.2, indicates that the petitioner 
is engaged in the business of farming and trading. Looking to the additional statements that provide a more 
comprehensive explanation of the petitioner's business, it does not appear, nor has al)y evidence been 
submitted, to establish that the petitioner itself engages in either of these business activities. Rather, as has· 
been discussed in counsel's various statements, the petitioner has assumed the role of an investor in its 
purchase and incorporation of various types of enterprises, which themselves do or would engage in fish 
farming arid trade of collectible pianos, respectively. While the petitioner's purchase of these various types of 
business may be deemed as business transactions, there is no evidence in the record to suggest th~t the 
petitioner engaged in the purchase, setup, and management of subsidiary entities on a regular, systematic, and 
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continuous basis for one year prior to filing the instant petition. In fact, the record shows that the petitioner 
did not actually establish the subsidiary that engages in the trade of high-end pianos until February of 2012, 
only three months priorto filing the instant petition. 
·Counsel attempts to explain the petitioner's lack of business activity by focusing on the petitioner's stage of 
development. . Counsel points out that prior to its change in ownership, the petitioner was a real estate 
development business and has since changed business direction. In essence, counsel describes a successor-in­
interest r.elationship where the petitioner purchased a previously existing business and thus became its 
successor. However, the record lacks any evidence of, and in fact contradicts, a finding that the petitioner 
could be a successor-in-interest to the previously existing entity. 
The generally accepted definition of a successor-in-interest is: ,;One who follows another in ownership or 
control of property. A successor in interest retains the same rights as the original owner, with no change in 
substance." Black's Law Dictionary 1473 (8th Eg. 2004). A mere transfer of assets, even one that takes up a 
predecessor's business activities, does not necessarily create a successor-in-interest. !d.; see also Holland v. 
Williams Mountain Coal Co., 496 F.3d 670, 672 (D.C. Cir. 2001). An asset transaction occurs when one 
business organization sells property - such as real estate, machinery, or intellectual property - to another 
business organization. While tile merger or consolidation of a business organization illto :tnother will give 
rise to a successor-in-interest relationship because the assets and obligations are transferred by operation of 
law, the purchase of assets from a predecessor will only result in a successor-in-interest relationship if the 
parties agree to the tr:tnsfer and assumption of the essential rights and obligations of the predecessor 
necessary to carry on the business in the same manner with regard to the assets sold. See generally· 19 Am. 
Jur. 2d Corporations§ 2170 (2010). 
Considering the generally accepted definition of successor-in-interest, a petitioner may establish a valid 
successor relationship for immigration puq)oses. However, in order to do so, the petitioner must fully 
describe atid document the transfer and assumption of the ownership of all, or the relevant part of, the 
predecessor by the claimed successor. 
Evidence of transfer of ownership inust show that the successor not 6nly purchased assets from the 
predecessor, but also assumed the essential rights and obligations of the predecessor necessary to carry on the 
business in the same manner as the predecessor. The successor must continue to operate the same type of 
business as the predecessor and the essential business functions must remain substantially the same as before 
the ownership transfer. 
Applying the analysis set forth above to the instant petition, the documentation submitted by the petitioner 
does not meet the evidentiary requirements. By definition, the actions required to establish a successor-in­
interest must be more than the mere acquisition of one company's stock by another comp:tny, even where both 
companies continue to exist and do business. In the present matter, the record clearly indicates that the 
petitioner is not, in fact, engaged in the same business as that of its predecessor. Furthermore, aside from 
providing stock certificates to show that the petitioner has purchased the stock of a previously existing U.S. 
entity, the petitioner has not provided the requisite documentary proof. 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 
(b)(6)
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Page 9 
I&N Dec. 190 (Reg. Comm. 1972)). Rather, while the documents on record indicate that the petitioner may 
have acquired ownership interest from the previous owners of , there is little 
evidence to suggest that the petitioner became successor-in-interest. 
In light of the above, the AAO finds that the petitioner has· failed to establish that it had been doing business 
for one year prior to filing the instant Form I-140 and the petition m.ust therefore be denied. 
Finally, the AAO will address the issue of the petitioner's ability to pay the beneficiary's proffered wage of 
$75,000 per year. Tne regulation at 8 C.F.R. § 204.5(g)(2) states. in pertinent part: 
Ability of prospective employer to pay wage. Any petiti~n filed by or for an employment­
based immigr~_nt which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer ba.s 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 perm~nent residence. Evidence of this ability 
shall be in the forlil of copies of l!.OO:\lal reports, federal ~ax returns, ot audited financial 
statements. 
In determining the petitioner's ability to pay the. proffered wage, the AAO will first examine whether the 
petitioner employed the beneficiary at the titne tbe priodty date was established. lf.the petitioner estl!,blish~s 
by documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered 
wage; this evidence would be considered prima facie proof ofthe petitioner's ability to pay the beneficiary's 
salary. In the present m(ltter; the petitioner indicates that the beneficiary did not have. work authorization and 
therefore could not be empioyed at the petitioning entity a~ the time the petitioner Was filed. 
Although the petitioner had t_he opportunity to establish its ability to pay through alternate means - namely by 
providing evidence of its riet income figure as reflect~ on its federal income t_ax return - the petitioner hl!.s not 
provided such information . Rather, the petitioner has provided the beneficiary's pay stubs for November and 
December 2012 showing that the beneficiary was compensated a total of $12,500, which when prorated 
works out to be the beneficiary's proffered wage. for the two months during which she worked for the 
petitioner in 2012. However, establishing that the petitioner had the abil.ity to pay in November and 
December of 2012 does not relieve the petitioner of the burden of having to establish that it had the ability to 
pay in May 2012 when the instant petition was filed. As the petitioner has not provided evidence of its ability 
to pay as of the Form 1-140 filing date, the instant petition cannot be approved. 
The petition. will be deiliecf for the above stated reasons, with el!,ch considered as an independent and 
alternative basis for denial. · In visa petition proceedings, the burden of proving eligibility for the benefit 
sougbt remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 
I&N Dec. 127, 128 (BIA 2013). The petitioner bas not sustained that burden. 
O~PER: The appeal is dismissed.