dismissed EB-1C Case: Electronics Import/Export

(b)(6)
' 
DATE: MAR 0 9 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department or Homeland Security 
U. S. Citizenship and Immigration Services 
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)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: SELF REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your . case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
beadvised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with t_he AAO. Please be aware that 8 C.FR. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
'-/Ron Ro enberg . 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
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; an electronics impmt-expmt company, seeks to employ the beneficiary as its 
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment­
based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
On March 13, 2012 the director denied the petition conch.idlng that the petitioner failed to 
establish: (l) that it will employ the beneficiary in a primarily managerial or executive capacity; 
and (2) that it has the ability to pay the beneficiary the proffered wage. 
On appeal, the petitioner assetts that the director substantially minimized and overlooked 
evidence establishing the beneficiary's and petitioner's eligibility, therefore the decision was 
incorrect. The petitioner submits a brief in supp01t of the appeal. 
. 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 executives or 
managers who have previously worked for a finn, 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 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 
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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 perfmmed by the alien. · 
SeCtion 101(a)(44)(A) of the Act, 8 U.S.C. § 110l(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 depru1ment, subdivision, function, or 
component of the or~anization; ' 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
orgru1ization, 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 s~pervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 
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 
furiction; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) -receives only general supervision or direction from higher level 
executives, the board of directors; or stockholders of the organization. 
II. Employment in the United States in a Managerial or Executive Capacity 
The first issue to be addressed is whether the petitioner established that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
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Page4 
The petitioner filed the immigrant visa petition (Form 1-140) on May 26, 2011. The petitioner 
asset1ed that the beneficiary would be serving in a managerial or executive capacity as manager 
of the U.S. company engaged in the import and expm1 of electronic products, technology 
products, and quality specialized services. The company was established in May 2001 and 
claimed five employees on the Form 1-140. 
In a letter dated May 23, 2011, the petitioner stated that the beneficiary's duties in the United 
States will be primarily managerial would include the following: 
1) Overseeing and coordinating commercial operations, 30% 
2) Establishing appropriate contact and business relationship with customers, 
distributors, and others, reviewing terms and negotiating most favorable deals 
I 
for the company, 30% 
3) Monitoring consumer preference and possible marketing opportumttes, 
assuring a correct positioning within the market promotion of the product or 
service offered, 30% 
4) Assisting sales, setting goals, and analyzing sales statistics to determine sales 
potential and inventory requirements, 10% 
The petitioner further described the beneficiary's duties as follows: 
This position requires the beneficiary to establish the operation of the company, 
organize and oversees [sic] administrative matters, exercise full responsibility for 
recruiting, hiring, training an [sic] dismissing employees. He will ensure the 
coordination of the .departments and workers, impletnent poiicies and adopt 
strategies to improve business holding full authority over all executive decisions 
aiming to achieve the profitability goals set by the corporation . 
. . . . He will handle all policy and business decision [sic] such as negotiation of 
contracts to provide for services, purchases, sales pricing, banking insurance and 
credit terms. He is also responsible for insuring that sales and profit goals are met 
each quarter, has the discretionary authority to reduce costs as he sees fit. 
Further, the petitioner stated that the beneficiary's job duties in the United. States will be 
"identical to his job duties overseas, because we are in the same field of business." Therefore, in 
pertinent pat1, the beneficiary's duty description abroad is as follows: 
As a manager, his main area of responsibility involved participating in the 
preparation of business plan [sic], campaigns, and service developmen~ plans. At 
[the affiliate] he was in charge of analysis of the operational system and 
destination of electronic equipments [sic] and technology to other around the 
world markets; complete analysis of customs process and costs; evaluation of 
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Page 5 
final section of equipment, standard operational procedures for the whole import 
and export activities; final pricing. customs preliminary paperwork; elaboration 
and supervision of products transpm1ation, selection of commodity description for 
foreign customs purposes; project leader for the execution of project of 
transportation commanding crew and organizing use of special equipments [sic] 
for logistics purposes; on a day-to-day basis, the beneficiary was in charge of the 
establishment of operational objectives and work plans, as well as the delegation 
of assignment to subordinate managers; was in charge to develop contacts with 
existing and potential clients; sales presentation such as negotiation of sales 
contracts, including terms, pricing and volume; technical proficiency and consults 
with prospective clients regarding the use of a company products; investigation of 
potential product improvements; managing client profits and loss, expenses and 
performance to quota; investigating and evaluating new business opportunities 
pertaining to alternative channels and customers; marketing intelligence to sales 
management and pmticipation in the development of sales forecast a~d strategies. 
On November 22, 2011, the director issued a request for additional evidence (RFE) instmcting 
the petitioner to provide, inter alia, evidence establishing that it will employ the beneficiary in a 
qualifying managerial or executive capacity. Specifically, the director requested a more detailed 
description of the beneficim·y's job duties and an explanation of how the beneficiary would be 
able to devote the majority of his time to mm1agerial or executive duties within the petitioner's 
current staffing arrangement. The director also requested the job titles, and duty descriptions for 
all employees to be supervised by the beneficiary, as well as educational requirements and actual 
educational qualifications for any subordinates identified as managers, supervisors or 
professionals. 
In response to the RFE on the-issue, the petitioner submitted a brief asserting that the beneficiary 
had been employed in a primarily managerial capacity while abroad and would continue to be so 
employed while with the petitioner. The petitioner also asserted that it had previously submitted 
"very extensive evidence that suppmts the .approval" of the petition, while acknowledgi;1g that 
"the evidence may not be exactly the ones requested. but [is] comparable." The petitioner 
reiterated the U.S. duty description provided at the time of filing. 
The petitioner did not directly address the director's request for information regarding the 
number and types of employees the beneficiary supervised abroad and would ·supervise in the 
United States. The petitioner stated: "Employees in a small company are likely to have actual 
authority to direct and control some aspect of the company's functions or policies, and their 
petformance of more hands-on activities sometimes can be explained in terms of business 
necessity, as it is this instant case." The petitioner prov-ided a copy of its IRS Form 1120, U.S. 
Corporation Incorrie Tax Return, for 2010, which reflects that the company reported $0 in 
salaries and wages, no payments to contractors, and $17,030 in commissions in the year 
preceding the filing of the petition. 
The director found that the petitioner failed to establish that it would employ the benefidary in a 
qualifying managerial or executive capacity. The director concluded that the beneficiary would 
(b)(6)Page 6 
be primarily engaged in duties that fall outside the scope of ""managerial" or "executive," in part, 
. due to the petitioner's failure to establish that ·the beneficiary will have staff to relieve him from 
perf01ming non-qualifying duties. Further, the director denied the petition, in part, based on the 
petitioner's failure to provide additional evidence of the beneficiary's duties or any information at 
all about other employees as requested in the RFE. 
On appeal, the petitioner submits a brief asserting that the director's denial is erroneous and not 
supported by the weight of the evidence. The petitioner reiterates the position description 
previously provided and asserts that it is fully sufficient to support the approval of the petition. 
Upon review, the petitioner's assertions are not persuasive. The petitioner has not established 
that it will employ the beneficiary in a primarily managerial or executive capacity. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must 
show that the beneficiary performs the high level responsibilities that are specified in the 
definitions. Second, the petitioner must prove that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his or her time on day-to-day 
functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 
30, 1991). . 
When examining the executive or managerial capacity of the beneficiary, the AAO willlook first 
to .the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). 
The petitioner provided a short and general duty description stating the beneficiary would be 
. gen.erally responsible for operations, administration, personnel, coordination, executive 
decisions, negotiations, and finance issues. In the same letter, the petitioner stated the 
beneficiary would spend at least 30% of his time on marketing related matters, a responsibility 
not included in the first description. · Finally, the petitioner stated, again in the same letter, that 
the beneficiary's duties in the United States. would be "identical" to the duties the beneficiary 
performed abroad, but the petitioner did not explain how the description of duties abroad 
corresponded with the first two U.S. duty descriptions, which were already inconsistent with 
each· other. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The petitioner's allocation of the beneficiary's time includes 30% overseeing and coordinating 
commercial 
operations. This is a very broad description of responsibilities which fails to offer 
the level of detail necessary to convey an understanding of the beneficiary's actual tasks and 
activities on a regular basis. The remaining time allocation by petitioner also fails to include 
specific and detailed tasks to elaborate on how the beneficiary would allocate his time beyond 
broad generalizations. Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. Overall, the petitioner has failed to provide any detail or. 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties 
(b)(6)
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themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava~ 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner asserts that while employed with the U.S. company the beneficiary will perform as 
a function manager. The term "function manager" applies generally when a beneficiary does not 
supervise or control the workof a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the 
Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or 
regulation. If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must furnish a written job offer that clearly describes the· duties to be performed in 
managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. See 8 C.F.R. § 204.5(j)(5). In addition, the petitioner's 
description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs· the duties related to the 
function. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) 
of the Act (requiring that one "primarily" perform the enumerated managerial or executive 
duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner asserted that the U.S. company is engaged in the business of retail, import & 
export of products and quality specialized services. However, it is unclear exactly what essential 
function the beneficiary is claimed to manage. When viewed together, the three duty 
descriptions included in the petitiqner's initial letter appeared to involve a wide variety of 
responsibilities. Further, based on the evidence, it appears the beneficiary will be expected to not 
only manage various functions but also perform some of the functions. 
According to the information provided on the Form 1-140, the petitioner claims five employees. 
The petitioner correctly observes that a company's size alone, without taking into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa to a 
multinational manager or executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). 
However, it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, 
or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when USCIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. See Systronics, 1.53 
F. Supp. 2d at 15. 
Although the petitioner claims to employ five employees, no evidence has been submitted to 
support this assertion. 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)). Despite the director's RFE, the petitioner failed to present any 
(b)(6)
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additional evidence regarding the staffing of the U.S. company, including the requested job titles 
and job duties for the beneficiary's claimed subordinates. 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). 
Further, the AAO notes that one version of the beneficiary's duties fails to identify any 
supervisory responsibilities, and the petitioner's IRS Form 1120 for 2010 indicates that the 
company paid no salaries or wages in the year preceding the filing of the petition. Therefore, 
while the petitioner sta:tes that the beneficiary's managerial duties include "overseeing ·and 
coordinating commercial operations," establishing relationships with customers and distributors, 
and setting marketing and sales goals, the petitioner has not established who, other than the 
beneficiary, is available to perform the actual day-to-day sales, purchasing, marketing, 
administrative and logistics activities inherent to operating an import-export business . 
. . 
Section 101(a)(44)(C) of the Act requires the AAO to "take into account the reasonable needs of 
the organization, component, or function in light of the overall p4rpose and stage of development 
of the organization, component, or function." The AAO has long interpreted the statute to 
prohibit discrimination against small or medium-size businesses. However, the AAO has also 
consistently required the petitioner to establish that the beneficiary's position consists of 
"primarily" managerial and executive duties and that the petitioner has sufficient personnel to 
relieve the beneficiary fr.om performing operational and administrative tasks. 
Reading section 101(a)(44) of the Act in its entirety, the "reasonable needs" of the petitioner may 
justify a beneficiary who allocates 51 percent of his duties to managerial or executive tasks as 
opposed to 90 percent, but those needs will not excuse a beneficiary who spends the majority of 
his or her time on non-qmilifying duties. The reasonable needs of the petitioner will not 
supersede the requirement that the beneficiary be "primarily" employed in a managerial or 
executive capacity as required by the statute. See Brazil Quality Stones v. Chertoff, 531 F.3d 
1063, 1070 n.lb (9th Cir., 2008). . 
Based on the petitioner's failure to submit a consistent, detailed description of the beneficiary's 
duties and its failure to respond to the director's request for additional evidence of the 
beneficiary's duties and those of his claimed ·subordinates, the petitioner has failed to establish 
that it will employ the beneficiary in a · primarily managerial or executive capacity. For this 
reason, the appeal will be dismissed. · · 
IlL Employment Abroad in a Managerial or Executive Capacity 
The second issue to be addressed is whether the petitioner established that the beneficiary was 
employed by its foreign parent company in a qualifying managerial or executive capacity prior to 
his admission to the United States . 
• In the petitioner's May 23, 2011 letter, it stated that the beneficiary's primary areas of 
responsibility abroad included participating in the preparation of a business plan, campaigns and 
service development plans. The letter also included a long list of duties such as being "in .charge 
(b)(6)Page9 
of analysis of the operational system and destination of electronic equipments and technology to 
other around the world markets ; complete analysis of customs process and costs; and evaluation 
of final section of equipment." Among other very general duties, the beneficiary was in charge 
of standard operating procedures, final pricing, customs paperwork , supervision of products 
transportation, selection of commodity description for foreign customs purposes, and served as 
project leader for the execution of a project. According to the letter, on a daily basis the 
beneficiary was responsible for duties such as the establishment of operational objectives and 
work plans, delegation of assignments to subordinate managers, developing contacts with clients, 
sales, consulting with clients, investigating product improvements , managing profits and losses. 
investigating new business, and development of sales forecast and strategies. Additionally, the · 
petitioner provided a percentage of time the beneficiary spent on management-level duties as 
follows: 
(l) Supervision of subordinates and reviewing creative staff to ensure best 
creative work and best results, 40% 
(2) Maintaining permanent contact ·· with potential clients and manufacturer 
partners, third party associates, and developing a consistent relationship, 30% 
(3) Providing financial analysis and cost control to meet Company objectives 
within the established budget, 20% 
(4) Reviewing contracts, analyzing reports and budgets, l0°h' 
In the RFE, the director requested a more detailed description of the beneficiary's duties, job 
titles for aJI personnel the beneficiary supervised, and for his superiors , In response , the 
petitioner offered none of the requested evidence. The petitioner asserted that the beneficiary 
"was already in a managerial capacity with the Brazilian · affiliat.e" and reiterated some of the 
duties previously mentioned. The petitioner did add that the beneficiary's duties involved the 
"supervision of function managers" in a number of areas but fail'ed to provide specific names, job 
titles or duties in supp011 of this statement. 
As stated above, 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.F.R. § 204.5(j)(5). 
The petitioner's initial description of the beneficiary's duties included many responsibilities that 
would be considered non-qualifying such as developing contacts with. clients, consulting with 
clients, investigating products, and dealing withstandard operating procedures. These types of 
responsibilities · qualify as performing a function not managing a function. Whether the 
beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 
l0l(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what proportion of the 
beneficiary's duties would be managerial functions and what proportion would be non­
managerial. The petitioner initially listed the beneficiary's duties as including both managerial 
and administrative or operational tasks, but failed to quantify the time the beneficiary spent on 
them. This failure of documentation is important because several of the beneficiary's daily tasks 
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already noted do not fall directly under traditional managerial duties as defined in the statute. 
For this reason, the AAO cannot determine whether the beneficiary was primarily performing the 
duties of a manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
While the petitioner followed up the initial description with a breakdown of percentage of time 
the beneficiary spent ori management level tasks, it failed to mention how much of the 
beneficiary's time overall was spent specifically on management-level tasks. This description 
was also short and vague. Supervising subordinates and reviewing creative staff purportedly 
consumed 40% of the beneficiary's time but the petitioner failed to explain the day-to-day details 
or tasks involved, nor did it identify the number of types of employees he is claimed to have 
supervised. Another 30% of the beneficiary's time was spent interacting with others while the 
final 30% appeared to involve finance and other operational activities. Although the petitioner 
allocated time to these general responsibilities it is meaningless without a more detailed and 
specific discussion of the beneficiary's actual daily duties and tasks. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In this matter, the 
petitioner failed to provide sufficiently detailed and consistent duty descriptions to establish that 
the beneficiary would be employed primarily in a managerial or executive capacity. 
The petitioner also asserted that the beneficiary performed primarily as a manager of "function 
managers" while employed abroad. In support of the assertion, the petitioner attributed 40% of 
the beneficiary's time to supervising subordinates and reviewing creative staff but it did not 
explicitly include hiring, firing or any other personnel type actions for those individuals among 
the beneficiary's duties. Furthermore, the petitioner did not provide any evidence to establish 
that the beneficiary actually managed or supervised others. Despite the director.'s RFE, the 
petitioner ignored the opportunity to stipplement the petition with this information. The 
petitioner provided no organizational cha11, no list of employees and no duty descriptions to 
establish that the beneficiary supervised subordinate staff while employed abroad. 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)(l4). 
As noted, the remainder of the beneficiary's "management" time appeared to include non­
qualifying duties such as accounting, marketing and sales, though the lack of detail prevents a 
determination of how much time was spent on those non-qualifying duties. The petitioner 
provided a second duty description stating that the beneficiary's main responsibility involved 
participating in business plans, campaigns, and service development plans. On a day-to-day 
basis, the beneficiary was in charge of establishing operational objectives and work plans, 
developing client contacts, sales presentation including negotiating terms, pricing, and volume 
of sales contracts, consulting with clients and delegating assignments to subordinate managers. 
Once again the description offers no indication of how much time the beneficiary spent 
·performing non-qualifying duties in relation to how much time he allocated to performing in a 
managerial capacity. Based on the evidence, it appears the beneficiary may have been engaged 
in performing actual operations and functions and while it is permissible to do so, the petitioner 
has not established that the beneficiary was performing primarily in a managerial or executive 
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Page II 
capacity. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform 
the enumerated managerial or executive duties); see also Matter of Church Scientology Intn '1., 19 
I&N Dec. 593, 604 (Comm'r 1988). 
Notably, the petitioner also asserted that the beneficiary had been employed with an affiliate 
prior to arriving in the United States, however, it did not identify the beneficiary's actual dates of 
employment with the foreign entity in the original petition, in its response to the RFE, or on 
appeal. Only a review of the entire case file including a prior immigrant petition reveals a mere 
assertion that the beneficiary was employed with the affiliate from 2005 until the beneficiary left 
for the United States in 2007. Furthermore, 
the beneficiary's 2008 resume failed to mention the 
foreign company as his employer. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. at 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). 
The petitioner failed to establish that the beneficiary was employed in a qualifying managerial or 
capacity abroad for at least one year within the relevant three-year time period and failed to 
respond to the director's request for additional evidence to support its claims. F~r these 
additional reasons, the appeal will be dismissed. 
IV. Ability to Pay 
The third and final issue addressed by the director is whether the petitioner established that it has 
the ability to pay the beneficiary's proffered wage of $780 per week, or $40,560 annually. 
The regulation at 8 C.F.R. § 204.5(g)(2) states the following, in pertinent part: 
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 arulUal repmts, federal tax 
returns, or audited financial statements. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine 
whether the petitioner employed the beneficiary at the time the priority date was established. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary 
equal to or greater than the proffered wage, this evidence will be considered prima facie proof of 
the petitioner's ability to pay the beneficiary's salary. In the present matter, the petitioner did not 
establish that it had previously employed the beneficiary. 
(b)(6)
Page 12 
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. 1.986} 
(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. y. 
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 expens~s 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 May 26, 2011, the AAO must examine the petitioner's tax 
return for 2010. The petitioner's IRS Form 1120 for calendar year 2010 presents a net taxable 
income of -$50,337.00. Therefore, the petitioner could not pay a proffered wage of $780 per 
week (or $40,560 per year) for full time employment out of this income. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO 
will review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities. Net current assets identify the amount of 
"liquidity" that the petitioner has as of the 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 schedule L of IRS Form 1120 for calendar year 2010 the petitioner has net current 
assets in the amount of $16,004.00 . Based on this information, the petitioner's net current assets 
of $16,004.00 are not greater than the proffered salary of $780.00 per week for the year 
therefore , the petitioner has not established an ability to pay the proffered salary. 
Therefore, . the director properly determined that the evidence of record did not establish the 
petitioner's ability to pay the proffered wage. The petitioner has not addressed this issue or 
submitted additional evidence of its ability to pay the beneficiary's wage in support of the appeal. 
For this additional reason the appeal must be di~missed. 
(b)(6)
Page 13 
V. Qualifying Relationship 
Beyond the decision of the director, a remaining issue to be discussed is whether the petitioner 
has established that it has a qualifying relationship with the beneficiary's claimed foreign 
employer. To establish a "qualifying relationship" under the Act and the regulations, the 
petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are 
the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" 
or as "affiliates." See generally§ 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 
C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The petitioner asserted the beneficiary was previously employed by its Brazilian parent 
company, In support of its assertion of a qualifying relationship 
between the foreign and U.S. company, the petitioner provided copies of brochures, invoices, 
and bills of sale. Further, the petitioner asserted "besides ownership controlled by the same 
group of individuals, the business relationship between the U.S. employer and foreign entity 
must exist due to the nature of import & export of products." 
The petitioner failed to provide any evidence of common ownership or control between the U.S. 
and foreign companies. Instead, the petitioner provided several documents that appeared to 
illustrate a transfer of ownership of all stock in the petitioning company from an individual 
named · to the beneficiary in February 2008. These documents included: 
(1) The "Minutes of Combined Meeting of Stockholders and Directors" dated 
February 11, 2008, in which it was "resolved that the shares (stock) of the corporation 
would be assigned as following [beneficiary] - ·1,000 shares common stock" which 
represented 100% of the outstanding shares entitled to vote; 
(2) a "Waiver of Notice -- Combined Meeting" dated February 11, 2008, reflecting 
that the holder of the 1,000 shares of common stock prior to "the assignment" above 
was one individual named ___ who was also identified as president, 
director, and secretary; 
(3) a document reflecting resignation as vice-president, treasurer, 
and director on October 20, 2007 and resignation as president, secretary and director 
on February 22, 2008; 
(4) a document indicating the petitioner's intent to sell the company and an instruction 
to : to execute the sale; 
(5) a document entitled "Stock Transfer" dated February 11, 2008, in which l 
· transferred, for unstated value received, 1,000 shares of the petitioner's 
common stock, represented by certificate number one; 
(6) a sales agreement between the beneficiary (buyer) and l . (seller) 
reflecting the sale of the petitioning cop1pany, dated February 11, 2008; and 
(7) a "closing statement" reflecting details of the sale to include a payment agreement 
for the "balance of the purchase price of $10.00", dated February 11, 2008. 
The petitioner failed to provide a copy of the only stock ·share certificate referenced. 
(b)(6)
Page 14 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and 
foreign entities for purposes of this visa classification. Matter of Church Scientology 
International, 19 I&N Dec. 593 (Comm'r 1988); see also M{ftter of Siemens Medical Systems, 
Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In 
the context of this visa petition, ownership refers to the direct or indirect legal right of possession 
of the assets of ail entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an 
entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are 
not sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, ·corporate 
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to 
determine the total number of shares issued, the exact number issued to the shareholder, and the 
subsequent percentage ownership and its effect on corporate control. Additiona1ly, a petitioning 
company must disclose all agreements relating to the voting of shares, , the distribution of profit, 
the management and direction of the ~ubsidiary, and any other factor affecting actual control of 
the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, USCIS is unable to determine the elements of ownership and control. 
Notwithstanding the stock transfer and company sale referenced in the documents already listed, 
the record contains several years of Internal Revenue Service (IRS) Forms 1120, U.S. 
Corporation Income Tax Return. According to the 
tax returns, the petitioning company was 
wholly owned by ~ in 2007. In 2008 and onward however, the tax returns 
reflect that the company was wholly owned by 'L " No evidence was 
provided to establish the ownership or control of either of these foreign companies. 
Furthermore, this. evidence contradicts the documentation provided, which indicates that the 
beneficiary owns the petitioning company. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec . 582, 591-92 (BIA 1988). 
In response to an RFE regarding the qualifying relationship the petitioner asserted that the 
petitioner and the claimed parent company "share the same field of activities" and noted that the 
petitioner "meets the criteria of being a similar industry in the field of import and export" but 
provided no additional relevant evidence for consideration. 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). 
Therefore the petitioner failed to provide evidence establishing common ownership between the 
U.S. and foreign company sufficient to establish a qualifying relationship required under the 
statute. For this additional reason, the petition cannot be approved~ 
(b)(6)
Page 15 
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 decis.ion. See Spencer Enterprises, Inc. v. United States, 229 F.Supp. 2d 1025, 1043 
(E.D. Cal. 2001), a.ff'd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004)(noting that the AAO reviews appeals on a de novo basis). 
VI. Conclusion 
The petition will be denied and the appeal dismissed for the above stated reasons, with. each 
considered as an independent and alternative basis for the decision. 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. _§ 1361. 
ORDER: The appeal is dismissed.