dismissed EB-1C Case: Education

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
MAIL STOP 2090 
U. S. Citizenship 
and Immigration 
IN RE: 
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 : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any Mher inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
-q+%v%% 
-64 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation claiming to be engaged in the business of offering courses and 
seminars on speed-reading. It seeks to employ the beneficiary as its president. 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. 3 1153(b)(l)(C), as a multinational executive or 
manager. The director denied the petition on the basis of three adverse findings: 1) the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; 2) the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity; and 
3) the petitioner failed to establish an ability to pay the beneficiary's proffered wage. 
On appeal, counsel disputes the director's conclusioils and submits a brief in support of his arguments. A f~dl 
discussion of the director's findings and counsel's response on appeal will be provided below. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first two issues in this proceeding call for an analysis of the beneficiary's job duties during his 
employment abroad as well as his proposed job duties in his prospective position with the U.S. petitioner. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 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, 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, f~lnctions 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 in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction fkom higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner's senior vice president of marketing and public relations 
submitted an affidavit in which she stated that the beneficiary has discretionary authority with respect to 
contract negotiation, seminar scheduling, marketing and advertisement, and implementing new policies and 
procedures. Additionally, she included the following statements describing the beneficiary's proposed 
employment: 
Directing and coordinating all major functions/components of the organization[,] including 
sales, management, marketing, personnel, and administration; 
Establishing goals and objectives of the organization[,] including sales and marketing 
projections, forecasts, and revenue predictions; 
Negotiating all contracts with existing clientele and new clientele alike; 
Conducting corporate seminars at locations throughout the United States; 
Developing and implementing a procedure for the hiring, training, and evaluation of new 
employees; and 
Exercising discretionary authority with respect to the above duties. 
No information was provided with regard to the beneficiary's cniploylnent abroad. 
On August 23, 2007, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide documentation to assist Citizenship and Immigration Services (USCIS) in determining the 
beneficiary's employment capacity in his overseas position and in his proposed position with the U.S. entity. 
Specifically, the petitioner was instructed to provide statements describing the beneficiary's foreign and 
proposed job duties on a daily basis and each entity's organizational chart illustrating the beneficiary's 
position with respect to others within the respective entity's hierarchy. The director also asked the petitioner 
to explain what specific duties are entailed in conducting seminars, a responsibility that was attributed to the 
beneficiary's position with the U.S. entity. 
In response, counsel provided an undated letter, signed by both counsel and the petitioner, addressing the 
director's concerns. Counsel did not specify whether the beneficiary's employment was within a managerial 
or executive capacity, but rather referred to the beneficiary's position title and stated that the beneficiary's 
duties were "manageriallexecutive." Counsel included the following description of the beneficiary's 
employment abroad in the position of managing directorlpresident: 
(a) 
 [Dleveloping and implementing policies and procedures for sales, marketing, and all 
aspects of the organization; (30%) 
(b) 
 [Hliring all employees of the corporation to ensure its efficient operation; (10%) 
(c) 
 [Elstablishing organization policies and procedures with respect to sales, marketing, 
inventory and purchasing (see above); 
(d) 
 [Olverseeing the marketing plan for [the foreign entity]; (10%) 
(e) 
 [Dleveloping and implementing the sales and managerial staff of the organization (10%); 
(f) 
 [Dlirecting and coordinating the activities of all subordinate personnel, department heads, 
instructors, and new employees (25%); 
(g) 
 [Clontract negotiations, overseeing all seminars, programs, and conferences for [the foreign 
entity] (15%). 
Page 5 
With regard to the beneficiary's proposed U.S. employment, counsel restated the first five responsibilities that 
were initially provided by the petitioner and assigned a percentage breakdown indicating that 40%, 30%, 
lo%, 15%, and 5% would be allotted to each of the five responsibilities, respectively. Counsel reiterated the 
prior claim that the beneficiary would continue to exercise discretionary authority with respect to all of his 
assigned responsibilities. With regard to the beneficiary's responsibility of conducting seminars, counsel 
explained that the beneficiary negotiates with vendors and makes final decisions regarding costs, locations, 
pricing, and duration of the seminars. With regard to contract negotiations, counsel explained that the 
beneficiary identifies all prospective clients. The beneficiary then determines which vendors will be utilized, 
and specifies the type of services to be rendered to the client, the length and location of services, and the 
instructional materials to be offered. 
With regard to the director's request for organizational charts illustrating the hierarchies of the foreign and 
U.S. entities, counsel stated that both charts were submitted as part of Exhibit A in response to the RFE. 
However, the AAO's page-by-page review of the petitioner's entire record of proceeding was fruitless in 
locating the necessary documentation. To confuse matters further, counsel submitted a master exhibit list 
enumerating each document that was being submitted in response to the RFE. It is noted that Exhibit A is 
listed as containing the RFE and Exhibit B is listed as containing the response to the RFE. That being said, 
the petitioner provided a list of contractors and their geographic locations, stating that these individuals report 
directly to the petitioner's vice president. The petitioner further stated that these individuals are responsible 
for commencing contract negotiations with prospective clients and vendors. 
Additionally, the record shows photocopies of various documents that the petitioner submitted in support of a 
previously filed Form 1-129 L-1A nonimmigrant petition. Such documents include an organizational chart of 
the U.S. oetitioner as of Februarv 12. 2003 and a seoarate organizational chart that aooears to rewesent the 
a J 
hierarchical structures of two affiliate foreign entitik, an- 
both of which are shown as being owned by the beneficiary and his wife. 
 The 
organizational chart that represented the U.S. entity identified the beneficiary as the corporate development 
manager with seven subordinates, including an accountant, a web consultant, a computer consultant, three 
operations managers in three different regions within the United States, and the beneficiary's wife as the 
marketing director, who is shown as having three subordinates, including a public relations employee, a 
marketingladvertising employee, and a marketing/promotions employee. It is noted that only one of the 
operations managers' positions appears to have been filled as of the date on the chart, as only one position was 
qualified with the name of an employee. Despite the director's specific request, the petitioner has not 
provided a more recent block organizational chart for the U.S. entity, thereby precluding USCIS from being 
able to determine whether additional employees were hired since February 2003. It is noted that failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 4 103.2(b)(14). 
The other organizational chart noted above shows two foreim entities with different hierarchies. 
 The 
his wife as managing directors. The beneficiary's direct subordinate is shown to be a vice president of the 
South African Operations. Her immediate subordinates include three instructors and an administrative 
assistant. The second entity shows the beneficiary, his wife, and an office manager as the company's only 
employees. Since the chart shows the beneficiary and his wife as being currently located in the United States, 
it appears that the office manager is currently the sole remaining employee at -. 
After reviewing the petitioner's submissions, the director issued a decision dated January 9, 2008 denying the 
petition. The director acknowledged the similarities between the nonimmigrant L-1A visa classification and 
the immigrant multinational manager or executive visa classification, and pointed out that there are 
differences that may lead to denial of the immigrant petition even when the nonimmigrant petition(s) was 
approved. The director went on to scrutinize one of the above described organizational charts, as no chart had 
been submitted directly in response to the RFE, and went on to note that the petitioner failed to clarify 
whether the list of employees submitted in response to the WE represented the foreign or U.S. entity. 
Ultimately, with regard to the beneficiary's foreign employment, the director found that the job description 
failed to clarify the specific daily job duties that were performed. With regard to the beneficiary's proposed 
employment, the director found that the petitioner failed to establish who would perform the daily operational 
tasks such that the beneficiary would be relieved from having to do so. While the AAO does not agree with 
the director's affirmative finding, that the primary portion of thc beneficiary's time \vould be spent perfol-mi112 
daily operational tasks, the AAO finds the record to be lacking an adequate description of the beneficiary's job 
duties and further finds that the petitioner failed to provide sufficient evidence establishing that it was ready 
and able to relieve the beneficiary from having to primarily perform non-qualifying tasks on a daily basis at 
the time the Form 1-140 was filed. 
On appeal, counsel first points to USCIS's prior approvals of the petitioner's L-1A employment of the 
beneficiary in the same capacity as what is proposed in the current petition. This argument, however, was 
previously addressed and rejected by the director and will be rejected again on appeal, as it is not persuasive. 
First, each nonimrnigrant and immigrant petition is a separate record of proceeding with a separate burden of 
proof; each petition must stand on its own individual merits. USCIS is not required to assume the burden of 
searching through previously provided evidence submitted in support of other petitions to determine the 
approvability of the petition at hand. In the present matter, the petitioner has provided copies of various 
documents previously submitted with regard to issues that arose from the petitioner's latest filing of the Form 
1-129 to extend the petitioner's employment of the beneficiary in the L-1A visa category. It is noted that the 
AAO has reviewed these documents and finds that the submissions do not establish that the beneficiary's 
employment with the petitioning organization has been within a qualifying managerial or executive capacity. 
The AAO has already discussed the petitioner's outdated organizational chart and found that this document 
does not establish the petitioner's eligibility. While the petitioner also provided a copy of the letter that was 
submitted in support of the prior L-1A petition, the beneficiary's employment is described using the same 
inadequate terminology as has been used in the current filing. Thus, if the prior L-1A petition had been 
approved on the basis of the documents that are currently before the MO, such approval would have been 
material and gross error on the part of the director and would therefore be currently subject to revocation. 8 
C.F.R. 9 214.2(1)(9)(iii)(A)(5). 
Second, the approval of a nonimmigrant petition, or even multiple petitions as in the petitioner's case, in no 
way guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. The 
AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Comm. 1988). That being said, the AAO's authority over the service 
centers is comparable to the relationship between a court of appeals and a district court. Even if a service 
center director had approved the nonimmigrant petitions on behalf of the beneficiary, the AAO would not be 
bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 
2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Therefore, for the reasons stated above, the prior approvals of the petitioner's prior nonimmigrant petitions 
will not guide the outcome in the present matter. 
Next, counsel focuses on the director's finding that the evidence of record indicates that the beneficiary would 
primarily perform the petitioner's daily operational tasks. While the AAO concludes that the record does not 
support the director's affirmative finding, it nevertheless maintains its affirmation of the director's denial. 
More simply stated, the director's affirmative finding suggests that the record has sufficient documentation to 
formulate a basis upon which to make an informed determination as to the job duties the beneficiary performs 
daily. The AAO, however, finds that the rccord does not contain the necessary job description upon which 
the director could have based his finding. To the contrary, the MO finds that the job descriptions provided 
by the petitioner and by counsel are replete with vague terminology, which, while suggestive of a managerial 
or executive capacity employee, does not define the specific tasks that have been and would be performed on 
a daily basis. 1t is noted that reciting thc bcneficin~y's vague job responsibilities or broadly-cast busincss 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
See 8 C.F.R. $ 204.56)(5). Case law supports USCIS's emphasis on daily tasks, finding that the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter, the job descriptions attributed to the beneficiary's employment lack the necessary details 
that would reveal with any degree of certainty what job duties the beneficiary performed during his 
employment abroad and what job duties he would perform during his employment in the United States. For 
instance, with regard to the beneficiary's foreign employment, the petitioner previously stated that 30% of the 
beneficiary's time would be allotted to developing and implementing policies and procedures for sales and 
marketing. However, the petitioner provided no information as to the types of policies and procedures 
referenced or the specific tasks involved in developing and implementing the policies and procedures; nor did 
the petitioner explain who within the organization was responsible for the sales and marketing tasks. 
The petitioner further stated that 10% of the beneficiary's time was allotted to hiring employees, thereby 
suggesting that this type of human resource issue is something that was dealt with regularly rather than 
sporadically on a need basis. However, there is no documentation to support that new employees were 
regularly hired on a weekly or even monthly basis. Although the job description indicated that another 15% 
of the beneficiary's time was spent overseeing seminars, programs, and conferences, the petitioner failed to 
define the beneficiary's specific job duties in relation to such oversight. It is unclear whether the beneficiary 
was overseeing these events while others were actually conducting them or whether the beneficiary's 
oversight included his direct involvement in conducting the events, which would suggest the performance of 
non-qualifying daily operational tasks. When reviewed comprehensively, this breakdown suggests that at 
least 55% of the beneficiary's time has not been attributed to specific tasks, thereby increasing the likelihood 
that the beneficiary spent the primary portion of his time performing tasks of a non-qualifying nature. 
Similarly, with regard to the beneficiary's proposed employment, the petitioner attributed 40% of the 
beneficiary's time to directing and coordinating all major functions. However, broad terms like directing and 
coordinating must be defined with more specific job duties. In other words, how was the beneficiary carrying 
out these broad job responsibilities? The petitioner attributed another 30% of the beneficiary's time to 
establishing goals and objectives. Again, the petitioner provided no further information to explain which 
goals and objectives the beneficiary would be in charge of establishing and who specifically would cany them 
out once they have been established. Thus, at least 70% of the beneficiary's time has been attributed to 
Page 8 
undefined job duties. The petitioner cannot expect the MO to determine the nature of job duties which it has 
failed to reveal. Thus, with regard to the beneficiary's foreign and proposed employment, the petitioner has 
neglected to convey a meaningful understanding of the tasks performed and to be performed on a daily basis. 
Without this fundamental information, the AAO cannot conclude that the beneficiary was employed abroad 
and that he would be employed in the United States in a qualifying managerial or executive capacity. 
Counsel further notes that the director failed to address an updated list of individuals who are claimed to be 
part of the beneficiary's organization. While this may be true, the AAO must note that the petitioner 
presented the list without providing an adequate discussion as to which entity, i.e., the U.S petitioner or tlic 
beneficiary's foreign employer, employs the individuals that were listed. While some individuals are 
associated with regions within the United States, others are associated with other countries. It is unclear 
where these alleged eluployees are located, what specific f~~nctions they carry out, and who oversccs the tasks 
that they pcrform. Furtlicmn~orc, the petitioner pl-o~rided no documentation to estnhlisl~ its ow11 employme~it of 
these individuals. Going on record without supporting docun~entary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, in light of the 
lack of information provided by the petitioner, counsel's argument is simply baseless. While the petitioner 
has submitted an organizational chart in support of the appeal, it is noted that the petitioner was put on notice 
of the required evidence and given a reasonable opportunity to provide it for the record before the visa 
petition was adjudicated. As the petitioner failed to submit the requested evidence, the AAO will not consider 
the newly submitted evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter 
of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. 
In summary, the record as constituted at the time of the director's review did not warrant approval of the 
petition. As discussed above, the petitioner failed to provide adequate job descriptions for the beneficiary's 
foreign and proposed positions, nor did the petitioner illustrate organizational hierarchies with adequate 
support personnel capable of relieving the beneficiary from having to primarily perform either operation's 
daily operational tasks. In light of these findings, the MO cannot conclude that the petitioner established its 
eligibility to classify the beneficiary as a multinational manager or executive. On this initial basis, the AAO 
cannot instruct the director to approve the petitioner's Form 1-140. 
The third issue that was addressed in the director's decision is whether the petitioner has the ability to pay the 
beneficiary's proffered wage. 
The regulation at 8 C.F.R. 9 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the present matter, the petitioner indicated at Part 6, No. 9 of the Form 1-140 that the beneficiary would be 
compensated $60,000 annually under an approved petition. Although the petitioner is not required to 
compensate the beneficiary the proffered wage prior to the petition's approval, the regulatory provisions 
above are clear in requiring the petitioner to establish the ability to pay the proffered wage at the time the 
Form 1-140 is filed. Id. It stands to reason that the petitioner's ability to pay is assumed if the petitioner 
provides documentation showing that the beneficiary is actually getting compensated the proffered wage at 
the time of filing. In the present matter, the petitioner provided the beneficiary's Form 1040, joint tax return 
for 2006 for the beneficiary and his wife, showing that their total income earned for the year prior to the filing 
of the petition was $36,368, an amount that falls far short of the proffered wage. 
Therefore, USCIS may examine the net income figure reflected on the petitioner's federal income tax return, 
without considering 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 COT. v. Sava, 632 F. Supp. 1049, 1054 (S .D.N.Y. 1986) (citing Tongatapu Woodcrafi Hawaii, 
Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 
(N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 
F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). If the net income the petitioner 
demonstrates it had available during the pertinent period added to the wages paid to the beneficiary during the 
period do not equal the amount of the proffered wage or more, USCIS will review the petitioner's assets. 
In the present matter, the petitioner filed the Form 1-140 on March 26, 2007, while the petitioner's most 
current tax return on record is for 2006. Thus, even if the 2006 tax return showed that the beneficiary was 
receiving the proffered wage in 2006, USCIS could not rely on the outdated document to establish whether 
the petitioner had the ability to pay the beneficiary's proffered wage in 2007. 
That being said, the petitioner's 2006 tax return does not establish its ability to pay the beneficiary's proffered 
wage of $60,000 per year. First, the petitioner's net income for 2006 was only $2 and thus was not sufficient 
to establish the ability to pay. Second, a review of the petitioner's net current assets, i.e., the difference 
between its current assets and current liabilities, shows that the latter (the sum of schedule L, lines 16-1 8) is 
equal to $57,993, which is greater than the petitioner's net current assets (the sum of schedule L, lines 1-6), 
which is equal to $20,975. Thus, even if the petitioner's prior tax returns were relevant, they fail to establish 
the company's ability to compensate the beneficiary's proffered wage. As such, the AAO cannot conclude 
that the petitioner met the requirements of 8 C.F.R. tj 204.5(g)(2) at the time of filing. For this additional 
reason, this petition cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 3 204.56)(3)(i)(D) states that the petitioner must establish that it has been doing business for at 
least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 3 204.56)(2) states that doing business 
means "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." In the present matter, the petitioner describes 
itself as a service provider. More specifically, the petitioner claims that it generates income by providing speed 
reading courses and seminars to various clients. While the petitioner has provided its 2006 tax return showing 
gross receipts and sales totaling $1 81,511, this document is insufficient to enable the AAO to conclude that the 
income was generated through the provision of services on a "regular, systematic, and continuous" basis for the 
immediate prior year. See id. The petitioner provided no invoices or receipts showing that it was rendering its 
services in the manner prescribed by regulation. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Therefore, the petitioner has failed to establish that it meets the requirements of 8 C.F.R. § 
204.5Cj)(3)(i)(D). 
Second, given the petitioner's description of its business organization and the beneficiary's proposed 
relationship to this business, it appears more lilccly than not that the beneficiary will not bc an "clllploycc" of 
the United States operation. As required by 8 C.F.R. Ej 204.5Cj)(3)(C), the petitioner must establish that the 
prospective employer in the United States is the same employer or a subsidiary or affiliate of the fin11 or 
corporation or other legal entity by which the a1icl.i \\.as cmplo)~cd oycrseas. See S C.F.R. $ 7_04.5Cj)(3) for 
definitions of ilf'jliate and s~lbsitliilry. It is noted that "employer" and "employed" arc not specifically dcfi~~cd 
for purposes of the Act even though these ternls are uscd repeatedly in the coiltext of addressing tllc current 
employment-based immigrant classification. However, section 101(a)(44), 8 U.S.C. Ej 1101(a)(44), defines both 
managerial and executive capacity as an assignment within an organization in which an "employee" performs 
certain enumerated qualifying duties. 
Furthermore, the Supreme Court of the United States has determined that where a federal statute fails to 
clearly define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." Nationwide 
Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as follows: 
In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which the 
product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the duration 
of the relationship between the parties; whether the hiring party has the right to assign 
additional projects to the hired party; the extent of the hired party's discretion over when and 
how long to work; the method of payment; the hired party's role in hiring and paying 
assistants; whether the work is part of the regular business of the hiring party; whether the 
hiring party is in business; the provision of employee benefits; and the tax treatment of the 
hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 8 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the common- 
law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the 
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. ofAmerica, 390 U.S. 254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational manager or 
executive, when a worker is also a partner, officer, member of a board of directors, or a major shareholder, the 
worker may only be defined as an "employee" if he or she is subject to the organization's "control." See 
Clackamas, 538 U.S. at 449-450; see also New Compliance Manual at Ej 2-III(A)(l)(d). Factors to be 
addressed in determining whether a worker, who is also an owner of the organization, is an employee include: 
rn 
 Whether the organization can hire or fire the individual or set the rules and regulations of the 
individual's work. 
rn 
 Whether and, if so, to what extent the organization supervises the individual's work. 
Whether the individual reports to someone higher in the organization. 
o 
 Jlihctl~cl and, if so, to ~vllat cxtent the lildi\ idual is ablc to i~lflucllce tllc organization. 
Whether the parties intended that the individual be an employee, as expressed in written 
agree~l~cnts or contracts. 
o 
 Whether the illdividual shares in thc profits, losscs, aid liabilities of tl:~ orgailiz3tio11. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the beneficiary 
will be an "employee" employed in a managerial or executive capacity. The petitioner is a corporation, which 
is ultimately owned and controlled by the beneficiary and his wife, with the beneficiary assuming a role as the 
petitioner's principal. There is no evidence that any other individual has any control over the work to be 
performed by the beneficiary. 
In view of the above, it appears that the beneficiary will be a proprietor of this business and will not be an 
"employee" as defined above. It has not been established that the beneficiary will be "controlled" by the 
petitioner or that the beneficiary's employment could be terminated. To the contrary, the beneficiary is the 
petitioner for all practical purposes. He will control the organization; he cannot be fired; he will report to no 
one; he will set the rules governing his work; and he will share in all profits and losses. Therefore, based on 
the tests outlined above, the petitioner has not established that the beneficiary will be "employed" as an 
"employee." 
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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.