dismissed EB-1C Case: Finance

U.S. Department of IIomeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdrninistrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Date: DEC 0 1 2009 
SRC 08 073 50476 
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 further 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. $ 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 or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
r Perry Rhew 
P - 
Chief, Administrative Appeals Office 
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 as its chief financial officer. 
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. 5 1153(b)(l)(C), as a 
multinational executive or manager. 
The director determined that the petitioner failed to establish the ability to pay the beneficiary's proffered 
wage in 2008 and denied the petition on that basis. On appeal, counsel disputes the director's decision and 
asserts that even if the petitioner cannot demonstrate the ability to pay the proffered wage, the petitioner, with 
the assistance of the foreign entity, does have that ability. Additional documentation is submitted in support 
of counsel's contentions. 
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 primary issue in this proceeding is whether the petitioner established its ability to pay the beneficiary's 
proffered wage in 2008. The regulation at 8 C.F.R. 3 204.5(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 beneJiciary obtains law$d permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
(Emphasis added.) 
At Part 6, Item 9 of the Form 1-140, where the petitioner was asked to provide the beneficiary's weekly wages, 
the petitioner indicated that the beneficiary would be compensated approximately $89,900 annually. In 
support of the Form 1-140, the petitioner provided a letter dated December 26, 2007 in which it explained that 
while the beneficiary's total annual compensation for his work in the United States would amount to $89,000, 
the petitioning entity would pay the beneficiary $29,900 with the foreign entity supplying the remaining 
$60,000. In light of the petitioner's explanation, it therefore appears that the proffered wage, i.e., the salary 
that the petitioner intended to pay the beneficiary upon approval of the petition, is $29,900 annually. 
Although the petitioner provided supporting evidence, including foreign bank receipts, representing the 
foreign entity's payment of the beneficiary's wages, as well as several of the foreign entity's bank statements, 
the director determined that additional documentation was needed to establish the petitioner's ability to pay 
the beneficiary's proffered wage. 
Accordingly, on April 21, 2008, the director issued a request for additional evidence (WE), instructing the 
petitioner to submit evidence of its financial ability to pay the beneficiary's proffered wage.' More 
specifically, the petitioner was asked to provide either a copy of its federal tax return, audited statement, or 
annual report for 2007 and 2008 as well as the beneficiary's pay stubs for wages received in 2007 and 2008. 
In response, the petitioner provided a copy of the beneficiary's Form W-2 for 2007 showing that the 
beneficiary was compensated $30,503.09 in 2007; the beneficiary's 2007 pay stubs as well as 2008 pay stubs 
through May 5, 2008, which showed that the beneficiary received weekly compensation of $575.83 in 2007 
and $368.45 in 2008; untranslated payroll receipts in Spanish for 2007 and a portion of 2008, with no clear 
indication as to the company that issued the payments; the petitioner's first quarterly wage report for 2008 
showing the beneficiary's quarterly compensation of $4,789.85; and an unaudited balance sheet accompanied 
by an income statement for the first quarter of 2008. 
After reviewing the petitioner's supporting evidence, the director determined that the petitioner failed to 
establish that it had the ability to pay the beneficiary's proffered wage in 2008. 
In making his determination, the director first examined whether the petitioner employed the beneficiary at 
the time in question. The director noted that 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 director reviewed the documents submitted in response to the RFE and properly determined that, while the 
1 
It is noted that the director erroneously referred to the beneficiary's annual wage as $1,711.53. Per the explanation 
provided by the petitioner in the initial support letter as discussed above, $1,711.53 represents the weekly salary that the 
petitioner and the foreign entity, together, would pay the beneficiary. As discussed above, the U.S. entity would be 
responsible for approximately one third of total weekly compensation making its portion of the proffered wage 
approximately $585 weekly. 
petitioner adequately demonstrated its ability to pay the proffered wage in 2007, the petitioner did not 
similarly demonstrate its ability to pay the proffered wage in 2008. 
As an alternate means of determining the petitioner's ability to pay, the director examined the petitioner's net 
income figure as reflected on the federal income tax return, without consideration of depreciation or other 
expenses. Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the 
proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 
1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); 
see also Chi-Feng Chang v. Thornburgh, 71 9 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. 111. 1982), affd, 703 F.2d 571 
(7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court held the Immigration and Naturalization Service 
(now USCIS) had properly relied on the petitioner's net income figure, as stated on the petitioner's corporate 
income tax returns, rather than on the petitioner's gross income. 623 F. Supp. at 1084. The court specifically 
rejected the argument that the Service should have considered income before expenses were paid rather than 
net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash the 
depreciation expense charged for the year." Chi-Feng Chang v. Thornburgh, 719 F. Supp. at 537; see also 
Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
As the year in question is subsequent to the petition's priority of December 3 1, 2007, the director requested 
that the petitioner provide its 2008 financial documents, including a 2008 federal tax return, a 2008 audited 
financial statement, or a 2008 annual report. In reviewing the submitted documents, the director noted that 
the petitioner provided an unaudited financial statement, which was not in compliance with the regulations or 
the RFE request. In the present matter, as the petitioner failed to submit the requested documents pertaining 
to 2008, neither its net income nor its net current assets for that year can be considered in determining the 
petitioner's ability to pay the beneficiary's proffered wage in 2008. 
On appeal, counsel for the petitioner provides a description of the three exhibits being submitted in support of 
his opposition of the denial. The AAO notes that the first two exhibits-an unaudited financial statement for 
the six-month period ending on June 30,2008 and a 2007 tax return-both pertain to the foreign entity. Thus, 
in addition to the fact that the financial statement is inadequate, as it is unaudited, and in light of the fact that 
information regarding finances in 2007 is irrelevant, both documents pertain to the foreign entity and for that 
additional reason are irrelevant in the instant proceeding. Counsel's reference to regulations pertaining to the 
filing of an L-1A nonimmigrant visa are immaterial in the present matter, where the petitioner has filed an 
immigrant petition that is subject to a separate set of regulatory provisions, one of which requires that the 
petitioner, rather than a foreign affiliate, demonstrate its ability to pay the beneficiary's proffered wage 
commencing with the priority date and continuing until the beneficiary has adjusted hisfher status to that of a 
permanent resident. See 8 C.F.R. 4 204.5(g)(2). In light of this provision, the petitioner's third submission-a 
letter from the president of the foreign entity assuring the AAO that the foreign entity has been paying the 
balance of the beneficiary's proffered wage-is also inadequate as a means of demonstrating the petitioner's 
ability to pay. Although the foreign entity's president also indicates that he is willing to make any necessary 
changes in assuring that the U.S. petitioner would pay the full amount of the proffered wage, going on record 
without supporting documentary 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)). 
In light of the above analysis, the petitioner has failed to overcome the basis for denial. Therefore, the AAO 
cannot approve this petition. 
Furthermore, while not specifically addressed in the director's decision, the AAO finds that the petitioner has 
failed to meet the requirement specified in 8 C.F.R. 9 204.56)(3)(i)(C), which states that the petitioner must 
establish that it has a qualifying relationship with the beneficiary's foreign employer. 
The regulation at 8 C.F.R. 5 204.56)(2) states in pertinent part: 
Affiliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In the present matter, the petitioner provided the minutes of an organization meeting that took place on April 
28, 2005 during which thk petitioner's board of directors resolve; that - 
andwould each received 33.3 shares of the petitioner's shares valued at 
$333.33. The petitioner also provided stock certificate nos. 1-3. all dated Auril25.2005. where certificate no. 
certificate no. 3 issued 24 shares to 
 . A comparison of the two documents clearly 
shows two different schemes for the distribution of the petitioner's shares where one scheme allots the same 
number of shares to each of three stockholders with no one stockholder owning a majority of shares, while the 
other clearly makes one individual the majority shareholder. 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 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 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an 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 the record lacks documentation resolving the 
inconsistency discussed above with regards to the petitioner's ownership, it cannot be concluded that the 
petitioner and the foreign entity, regardless of the foreign entity's ownership and control, are similarly owned 
and controlled such as to form a qualifying relationship according to the definitions provided above. 
Lastly, the record does not support the conclusion that the beneficiary was employed abroad or that he would 
be employed by the U.S. entity in a qualifying managerial or executive capacity. The regulation at 8 C.F.R. 
3 204.5Cj)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed abroad in a 
qualifying managerial or executive position for at least one out of the three years prior to his entry to the 
United States as a nonimrnigrant to work for the same employer. With regard to the beneficiary's 
employment in the United States, 8 C.F.R. 3 204.56)(5) requires that the petitioner provide a detailed 
description of the job duties to be performed by the beneficiary in his proposed position with the U.S. entity. 
It is noted that 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 International, 19 I&N Dec. 593,604 (Cornrn. 1988). 
With respect to the beneficiary's foreign employment, the petitioner stated in its initial support letter that the 
beneficiary's responsibilities included supervising five supervisory and managerial employees. However, the 
record is not clear as to whether these subordinates were actually managerial or supervisory, as position titles 
alone are insufficient. Additionally, the petitioner claimed that the beneficiary directed several essential 
functions including preparing the budget, overseeing general accounting, and managing fixed assets and 
inventory. It is noted that in claiming that the beneficiary was a function manager, the description of job 
duties must demonstrate that the beneficiary manages the function rather than performs the duties related to 
the function. Here, the beneficiary's duties with regard to budget preparation included developing overhead 
department information, preparing monthly reports, calculating currency impact, and giving quarterly 
presentations regarding the above. With regard to general accounting, the beneficiary's duties included 
analyzing and reconciling the general ledger, solving problems concerning financial reporting, and conducting 
analysis of the fiscal climate in the market. Lastly, with regard to managing the foreign entity's fixed assets 
and inventory, the beneficiary maintained valuation and depreciation schedules and conducted audits. These 
job duties indicate that the beneficiary performed the underlying duties related to the function. The petitioner 
has failed to establish how these duties can be deemed managerial or executive. 
Similarly, the petitioner's description of the beneficiary's proposed employment also consists of various non- 
qualifying operational tasks, including preparation of financials statements, conducting analysis to determine 
and help resolve various problems, maintaining a cost accounting system and ledger, analyzing and 
reconciling the general ledger, and analyzing and solving problems with regard to financial reporting, 
budgets, and cost accounting issues. The petitioner also indicated that the beneficiary would be responsible 
for conducting business audits, doing cost accounting, and developing information needed for proper budget 
preparation. As with the beneficiary's position abroad, this description of duties is not indicative of a function 
manager. Rather, it is indicative of a professional who performs the duties associated with a key function. It 
appears that the beneficiary's primary concern is to meet the petitioner's financial services needs. While the 
tasks the beneficiary performs and would perform may be essential, they are merely tasks that are necessary 
to provide services and cannot be deemed as qualifying within a managerial or executive capacity. 
Additionally, the petitioner claims that the beneficiary manages an accountant, a purchase manager, and five 
cashiers. However, the five cashiers do not fall within the category of supervisory, professional, or 
managerial personnel. While the purchase manager has a managerial title, the organizational chart on record 
does not show this individual to be managing others. Therefore, it is unclear how the purchasing manager can 
be deemed a manager or a supervisor other than in position title. In light of the above, the AAO cannot 
conclude that the beneficiary would be employed by the U.S. entity in a qualifying managerial or executive 
capacity. 
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. 
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.