dismissed EB-1C Case: Food Distribution

US. Department of Homeland Security 
U.S. citizens hi^ and Immigration Services 
- 
OfJice ofildmmrstratzve Appeals MS 2090 
kf*& :sj , Washington, DC 20529-2090 
{r 
C U. S. Citizenship 
and Immigration 
Services 
SRC 07 213 51421 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 5 103.5 for the 
specific requirements. All motions must be submitted to the ofice 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. 5 103.5(a)(l)(i). 
Jo F Grissom 
v 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C). The petitioner, a Florida corporation, states that it is engaged in gourmet food supply and 
coffee distribution. It seeks to employ the beneficiary as its general manager. 
The director denied the petition on two independent and alternative grounds, concluding that the petitioner 
failed to establish: (I) that the beneficiary would be employed in the United States in a primarily managerial 
or executive capacity; and (2) that the petitioner has the ability to pay the proffered annual wage of 
$39,433.16. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, the petitioner asserts that the beneficiary has been and will be 
employed in a primarily managerial or executive position. The petitioner contends that the director's 
conclusion is "solely based on suppositions, unsupported, and questionable allegations, contrary to the 
documentation on record." The petitioner submits a brief and evidence in support of the appeal. 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 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 issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 9 1 101(a)(44)(A), defines the term "managerial capacity" as 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, 
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. 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 10 l(a)(44)(B) of the Act, 8 U.S.C. 9 1 10 l(a)(44)(B), defines the term "executive capacity" as 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 from higher level executives, the board 
of directors, or stockholders of the organization. 
The immigrant visa petition was filed on July 3, 2007. The petitioner indicated on Form 1-140 that the 
beneficiary would be employed as the general manager of the U.S. company, which claimed to employ six 
people as of the date of filing. 
The petitioner submitted a position description for the position of general manager, indicating the percentage 
of time the beneficiary allocates to each duty as follows: 
To make with the promotion department and marketing department the new offers and 
advertising plan (1 0%) 
Training for all Departments Manager about new products, advertising plan and business 
strategic [sic] and To Supervise the managers['] activities and to check that the goals 
were reached. (1 0%) 
To check the financial statements of the business and To do the business budged [sic] 
and check the income and expenses statements (1 0%) 
To authorize the expenses and check the payment and Bank Account management and 
all relative it (5%) 
To make new contracts with national and international providers and to check the sales 
invoices (1 5%) 
To generate growing planning and check the results (30%) 
To create and generate new strategies and plans to increase the business (15%) 
Periodic Meeting with Department Managers (2%) 
Other functions relative with his position (3%) 
The petitioner also included a separate list of 20 "specific functions" performed by the beneficiary, but did not 
clarify how much time the beneficiary spends on the following duties: 
Design together with all other corporate departmental directors such programs and 
strategies as shall be following in carrying out the business plan. . . . 
Approve, alter or reject such proposals as are prepared by the different departments in 
their respective areas. . . . 
Directs and coordinates activities involved with production, sale, and distribution of the 
coffee and food products. 
Define the specific tasks of each individual within the company. This includes the 
assignment of tasks to each one of the employees and officers of the company . . . 
He is responsible for [the petitioning company] maintaining an integrated approach to all 
four basic functions as described in the business plan, to wit: production, marketing, 
financial controls and adequate utilization of human resources available. 
He coordinates activities of clerical personnel in establishment or organization: analyses 
[sic] and organizes office operations and procedures, such as typing, bookkeeping, 
preparation of payrolls, flow of correspondence, filing, requisition of supplies, and other 
clerical services. 
Evaluates office production, revises procedures, or devises new forms to improve 
efficiency of workflow. 
Reviews clerical and personnel records to ensure completeness, accuracy, and 
timeliness. 
Coordinates activities of various clerical departments or workers within department. 
Prepare organizational budget and monthly financial reports. Hire, training, and 
supervise clerical staff. May compile, store and retrieve managerial data, using 
computer. 
He is in charge of coordinating teamwork among the different departments and 
personnel in the enterprise. 
He Determines variety and quantity of the coffee products and other food products to be 
produced, according to orders and sales projections. 
Develops budget for business operation, utilizing experience and knowledge of current 
market conditions. 
Directs sales activities, following standard business practices. Plans product distribution 
to customers, and negotiates with suppliers to arrange purchase and delivery of the 
supplies. 
Implements, through subordinate managerial personnel, policies to utilize human 
resources, machines and materials productively. 
Hires and discharges employees. Train subordinates in all phases of the business 
activities. 
Investigates and resolves food quality and service complaints. 
He is the authorized representative of [the petitioner] in any important decision to be 
taken, such as for instance: execute new agreements, choose such banking agencies 
where corporate funds are to be kept, include new extensions plans, choose service 
supplies, negotiate the best conditions for the company. . . . 
[The beneficiary] is further in charge of proposing a solution for any unforeseen 
circumstances as might affect regular business operations. 
He is further in charge, along with accountant and legal advisors, of seeing that the 
company is in compliance with all legal requirements. . . . 
The petitioner submitted an organizational chart indicating that the beneficiary supervises a sales manager and 
a marketing manager. The chart also depicts a salesman/assistant manager subordinate to the sales manager, 
and an employee identified as "driver and routine tasks." The petitioner submitted position descriptions for 
each employee. As the descriptions are part of the record, they will not be repeated here. 
Finally, the petitioner provided copies of its 2006 Forms W-2, Wage and Tax Statement, evidencing wages 
paid to employees in the year preceding the filing of the petition. The petitioner also submitted copies of its 
state quarterly wage reports for 2006. The petitioner paid wages of $109,619 in 2006. 
The director issued a request for additional evidence on March 5, 2008, instructing the petitioner to submit, 
inter alia: (1) an explanation regarding the beneficiary's day-to-day duties and the percentage of time the 
beneficiary spends performing each duty; (2) detailed position descriptions for the beneficiary's subordinates; 
(3) copies of the beneficiary's Forms W-2 for 2006 and 2007; (4) copies of the company's IRS Forms 941 and 
state quarterly payroll taxes filed for 2006, 2007 and 2008; (5) evidence related to the company's use of 
contractors, if applicable; and (6) clarification as to the nature of the petitioner's business, including an 
explanation regarding who performs the day-to-day sales and marketing duties. 
The petitioner's response included a five-page job description for the beneficiary. The description included a 
list of twenty-two duties and indicated that the beneficiary's primary duties are in the areas of planning, 
control, organization, and staffing. The description also included a chart listing his "specific functions" as 
follows: 
Directs the activities of the Dept. managers to ensure that all departments' managers are 
fulfilling the expectations and responsibilities of their work. (10%) 
Page 6 
Analyzes market trends and economic conditions to forecast potential sales or contracts 
for new projects and practices the Company can engage in. (10%) 
Meets with Providers to maintain in public relations and ensure the Company has a 
Representative standing behind the work of all subordinate Managers. (10%) 
Deal with Financial Institutions in Obtaining lines of credit and meet all financial needs 
of the Company. 
Sets up an operational Budget and coordinates the activities of the Dept. Managers to 
properly allocate the funds necessary for all operations to fully develop. (5%) 
Will represent The Company before any Governmental Agency (1 0%) 
Responsible for complete operation, administration and management of the business. 
(1 0%) 
Plans and develops organizational Policies and Goals and implements its [sic]. (1 0%) 
Develop new market Goals in order to achieve maximum profit. (5%) 
Confers with Administrative Personnel and reviews the activities and analyzes reports to 
determine any changes that need to take place in the program and operations. (1 0%) 
Responsible for laying out the different Plans the USA Company will pursue and 
conferring with the President in order to gain full approval of all Company Managers. 
(10%) 
To prepare and to sent [sic], monthly-basis, a Managerial Report to the Board of 
Director of the Parent company. (5%) 
The petitioner further indicated that the beneficiary's areas of authority include signing checks, hiring and 
firing employees, determining salaries for employees, signing policy and procedures, approving importation 
invoices and exportation, approving budgets, approving purchase orders, and representing the company in any 
legal actions. 
The petitioner submitted a copy of its Form W-3, Transmittal of Wage and Tax Statements, and a copy of the 
beneficiary's Form W-2 for 2007. The evidence shows that the beneficiary was the only employee paid by the 
petitioner in 2007, and that he earned $15,600. The petitioner re-submitted its state and federal quarterly tax 
reports for 2006, and a copy of its Form 944, Employer's Annual Federal Tax Return, for 2007 reflecting the 
$15,600 payment to the beneficiary. The petitioner did not submit copies of Forms 1099 or other evidence of 
wages paid to any independent contractors. 
Finally, in response to the director's request that the petitioner clarify the nature of its business, the petitioner 
stated: 
The company . . . is a supplier of coffee machines. The machines are installed in offices and 
some places. Our main labor is to supply (Coffee) with the machines, as well as the services 
and maintenance. Therefore we are not using direct vendors of coffee; only a distributor 
employee (driver). The managerial structure of the business includes one Sales manager and 
one Marketing manager. We do the installment of such coffee machine and provides [sic] the 
technical services. The duties and responsibilities for both managers has been explained in 
detail in other evidence. . . . 
The director denied the petition on May 22, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. In denying 
the petition, the director observed that the position descriptions submitted for the beneficiary are vague and 
non-specific, and therefore insufficient to establish that the beneficiary would perform primarily managerial 
or executive duties. 
On appeal, the petitioner asserts that the petitioner has submitted extensive documentation demonstrating that 
the beneficiary has been and will continue to be employed in a primarily managerial or executive capacity. 
The petitioner states that it submitted detailed descriptions of the beneficiary's duties and responsibilities, 
evidence that the beneficiary exercises control over three managers, and quarterly tax returns "listing all 7 
employees." The petitioner asserts that the denial was "solely based on suppositions, unsupported, and 
questionable allegations, contrary to the documentation on record." 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
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. 5 204.5(j)(5). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. In addition, the definitions of executive and managerial 
capacity each 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 show 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). While the AAO does not doubt that the beneficiary exercises discretion over the petitioner's business 
as its general manager, the totality of the evidence submitted does not demonstrate that the beneficiary's 
actual duties will be primarily managerial or executive in nature. It is not sufficient for the petitioner to 
establish that the beneficiary performs some managerial or executive duties. 
The petitioner has submitted multiple lengthy descriptions of the beneficiary's proposed duties, including two 
completely different lists of duties which both purportedly require 100 percent ofthe beneficiary's time. All of 
the descriptions submitted are similarly vague and nonspecific. For example, the petitioner's initial 
description indicated that the beneficiary would dedicate 30 percent of his time "to generate growing 
planning" and an additional 15 percent of his time to "create and generate new strategies and plans." Such 
duties provide little insight into what tasks the beneficiary actually performs on a day-to-day basis. Specifics 
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, as mentioned above, the petitioner initially submitted two different position descriptions, and 
assigned percentages to only one list of duties. The other list of duties submitted at the time of filing included 
duties that did not clearly fall within the definitions of managerial or executive capacity, such as investigating 
food quality and service complaints, and negotiating with supplies to arrange purchase and delivery of 
supplies. The petitioner did not indicate how much of the beneficiary's time would be allocated to purchasing 
and customer service tasks. In addition, the position description included multiple duties related to the 
supervision of "clerical departments" and their work, while the petitioner never claimed to have a clerical 
department, or even a clerical employee. 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). 
Rather than clarifying the beneficiary's job description in response to the request for evidence, the petitioner 
simply submitted different lists of vague job duties, such as "responsible for complete operation, 
administration and management of the business," "laying out the different plans the USA company will 
pursue," and "plans and develops organizational policies and goals." 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. 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 themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Accordingly, the AAO concurs with the director's conclusion that the position descriptions submitted are too 
general and nonspecific to establish that the beneficiary will perform primarily managerial or executive 
duties. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the 
petitioner's business, the employment and remuneration of employees, and any other facts contributing to a 
complete understanding of a beneficiary's actual role in a business. 
Here, the petitioner indicated at the time of filing that it employed six employees. The petitioner's 
organizational chart identifies five employees including the beneficiary, and the petitioner has consistently 
claimed to employ the beneficiary, a sales manager, a marketing manager, a salesperson, and a driver. While 
it appears that the petitioner employed the claimed workers in 2006, the instant petition was filed in July 
2007, and the petitioner must establish eligibility as of that date. Based on the evidence of record, specifically 
the petitioner's latest Forms W-2 and W-3, the beneficiary was the sole employee of the company throughout 
2007. The petitioner has not offered any explanation regarding its dramatic reduction in staffing and instead 
persists in claiming that the beneficiary supervises three managers. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 5 82, 59 1 (BIA 1988). Therefore, 
in light of the evidence indicating that the beneficiary is the petitioner's sole employee, the position 
descriptions indicating that the beneficiary carries out many of his duties through subordinate personnel must 
be considered at least partially inaccurate. 
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 $ 10 1 (a)(44)(C) of the Act, 
8 U.S.C. fj 1 101(a)(44)(C). 
 Instead, an executive's duties must be the critical factor. However, if USCIS 
fails to believe the facts stated in the petition are true, then that assertion may be rejected. Section 204(b) of 
the Act, 8 U.S.C. $ 1154(b); see also Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Furthermore, in reviewing the relevance of the number of employees a petitioner has, federal courts have 
generally agreed that USCIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and 
Immigration Services 469 F. 3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 
923 F 2d. 175, 178 (D.C. Cir. 199 1); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). In addition 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. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
At the time of filing, the petitioner was a three-year-old company engaged in installing and servicing coffee 
machines and supplying coffee to its customers. It claims to employ five to six workers but has failed to 
establish that it employed anyone other than the beneficiary at the time the petition was filed. If the company 
is in fact continuing to do business with one employee instead of five, it is reasonable to conclude that the 
petitioner requires the beneficiary to not only manage the company, but to perform all operational and 
administrative tasks inherent to running the business, including purchasing, sales, marketing, delivery and 
installation of machines, customer service, invoicing, bookkeeping and clerical tasks. It is evident that such 
non-managerial duties would require the majority of the beneficiary's time. 
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 sections 101(a)(44)(A) and (B) 
of the Act, 8 U.S.C. 3 1101(a)(44). 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-qualifying duties. A review of 
the totality of the record fails to establish that the petitioner has a reasonable need for the beneficiary to 
perform primarily managerial or executive duties at its current stage of development. 
The fact that the beneficiary manages a business does not necessarily establish eligibility for classification as 
an intracompany transferee in a managerial or executive capacity within the meaning of sections 
101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Pursuant to the strict statutory 
definitions, section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive," such as staff officers or specialists, self-employed persons who perform the management 
activities involved in practicing a profession or trade, or a first-line supervisor of non-professional employees. 
See section 101(a)(44)(A)(iv) of the Act; see also 52 Fed. Reg. 5738, 5740 (February 26, 1987)(available at 
1987 WL 127799). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner established its ability to pay the 
beneficiary's annual proffered wage of $39,433.16 as of the date the petition was filed on July 3, 2007. 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 either in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
Federal regulations affirmatively require an alien to establish eligibility for an immigrant visa at the time an 
application for adjustment of status is filed or when the visa is issued by a United States consulate. 8 C.F.R. 4 
245. I(a), 22 C.F.R. 4 42.41. The petitioner bears the ultimate burden of establishing eligibility for the benefit 
sought, and that burden is not discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, 
Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
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. The petitioner paid the beneficiary only $1 5,600 in 2007, according to the Form W-2, Wage and Tax 
Statement submitted. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K. C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). 
In K.C.P. Food Co., Inc. v. Sava, the court held the Immigration and Naturalization Service (now USCIS) had 
properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, 
rather than on the petitioner's gross income. 623 F. Supp. at 1084. The court specifically rejected the 
argument that the Service should have considered income before expenses were paid rather than net income. 
Finally, there is no precedent that would allow the petitioner to "add back to net cash the depreciation expense 
charged for the year." Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. at 537; see also Elatos Restaurant Corp. 
v. Sava, 632 F. Supp. at 1054. 
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. 
Page 11 
The record of proceeding does not contain the petitioner's federal tax returns or audited financial reports for 
2007, and therefore, it cannot be concluded that the petitioner has sufficient net income or net current assets to 
pay the proffered wage. The AAO notes that the petitioner has not addressed this issue on appeal. 
Accordingly, the appeal will be dismissed. 
Another issue not addressed by the director is whether the petitioner submitted evidence that the U.S. 
company was doing business during the year preceding the filing of the petition, as required by 8 C.F.R. 5 
204.5G)(3)(i)(D). "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. 8 
C.F.R. 5 204.5(j)(2). 
The record contains ample evidence that the petitioner was doing business in 2006. However, in the request 
for evidence, the director requested evidence of current business conducted by the U.S. entity, and evidence 
of business conducted during the previous year. In response, the petitioner submitted a number of invoices, 
but they were all dated during the first quarter of 2008. Any failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
The petitioner must establish that it was doing business as defined in the regulations between July 2006 and 
July 2007. Upon review, the record contains a single invoice from January 2007 and no other evidence of 
business activities in 2007. Given that the petitioner's staffing levels decreased from five employees at the end 
of 2006 to one employee throughout 2007, the AAO finds the evidence insufficient to establish that the 
petitioner was doing business for the year proceeding the filing of the petition. For this additional reason, the 
petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 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). 
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. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or she shows 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. 
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. fj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.