dismissed EB-1C Case: Freight Forwarding

(b)(6)
DATE: OCT 2 8 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of 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)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent 
decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration , you may file a motion to reconsider or a motion 
to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 
days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See 
also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
~R~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner, a Florida limited liability company engaged in freight forwarding, states that it is 
affiliated with the beneficiary's former employer in Colombia. It seeks to 
employ the beneficiary as its president. Accordingly, the petitioner endeavors to classify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
On June 10, 2013, the director denied the petition based on the following grounds of ineligibility: (1) 
the petitioner failed to establish that it has a qualifying relationship with the beneficiary's foreign 
employer; (2) the petitioner failed to establish that the beneficiary's employment abroad was within a 
qualifying managerial or executive capacity; (3) the petitioner failed to establish that the beneficiary's 
proposed employment with the U.S. entity would be within a qualifying managerial or executive 
capacity; (4) the petitioner failed to establish that beneficiary's former foreign employer continues to 
do business; and, (5) the petitioner failed to establish the ability to pay the beneficiary's proffered 
wage. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. 
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 and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
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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. 
II. The Issues on Appeal 
A. Qualifying Relationship 
The first issue in this proceeding is whether the petitioner submitted sufficient evidence to establish 
that it has a qualifying relationship with the beneficiary's 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. § 204.5U)(2) (providing 
definitions of the terms "affiliate" and "subsidiary") . 
The regulation at 8 C.F.R. § 204.5U)(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. 
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In a letter submitted in support of the Form I-140, Immigrant Petition for Alien Worker, the petitioner 
stated that it is affiliated with located in Colombia. The petitioner's initial 
evidence did not include evidence of the ownership and control of either company. 
Accordingly, the director issued a request for evidence (RFE), instructing the petitioner to submit, in 
part, evidence of its ownership and control. The director requested corporate documentation 
evidencing the ownership and control of the petitioner and the foreign entity, along with copies of the 
petitioner's latest corporate tax returns with all supplementary schedules. 
In response, the petitioner submitted a translated corporate document issued by the 
which indicates that the foreign entity is owned in equal parts by 
(12,500 shares) an (12,500 shares). The petitioner did not submit 
evidence of its ownership. It provided a "Detail by Entity Name" from the website of the Florida 
Department of State Division of Corporations, which identifies the beneficiary as the president of the 
company and as "MGRM" or manager-member. The petitioner also submitted 
a copy of its IRS Form 1065, Return of Partnership Income, for 2011, with accompanying Forms 
Schedule K-1, Partner's Share of Current Year Income, Deductions, Credits and Other Items. 
According to the Schedules K-1, the beneficiary owns 50% of the petitioner and owns 
the remaining 50%. 
The director denied 
the petitiOn, concluding that the petitioner had not submitted relevant 
documentation needed to establish common ownership and control between the two companies. 
On appeal, counsel for the petitioner asserts that the beneficiary owns 50 percent of the petitioning 
company and 50 percent of the foreign entity, and as such, the companies are affiliates based on 
common ownership and control by the same individual. Counsel further states that the beneficiary's 
spouse owns the other 50 percent of the petitioner and this fact "makes her almost one hundred 
percent owner." 
Upon review of the documentation submitted, the petitioner did not submit sufficient evidence to 
establish that it has a qualifying relationship with the foreign entity. 
As general evidence of a petitioner's claimed qualifying relationship, a copy of a Schedule K-1 tax 
form is not sufficient to establish ownership of control of a limited liability company (LLC). LLCs 
are generally obligated by the jurisdiction of formation to maintain records identifying members by 
name, address, and percentage of ownership and written statements of the contributions made by each 
member, the times at which additional contributions are to be made, events requiring the dissolution 
of the limited liability company, and the dates on which each member became a member. These 
membership records, along with the LLC's operating agreement, certificates of membership interest, 
and minutes of membership and management meetings, must be examined to determine the total 
number of members, the percentage of each member's ownership interest, the appointment of 
managers, and the degree of control ceded to the managers by the members. Additionally, a 
petitioning company must disclose all agreements relating to the voting of interests, the distribution 
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of profit, the management and direction of the entity, and any other factor affecting actual control of 
the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986). Without full 
disclosure of all relevant documents, USCIS is unable to determine the elements of ownership and 
control. 
The petitioner's appeal consists of assertions from counsel that the petitioner and foreign entity are 
affiliates. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
As the petitioner only provided a copy of Schedule K -1 , it did not provide sufficient evidence of the 
qualifying relationship between the petitioner and the foreign company. 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)). Accordingly, the appeal will 
be dismissed. 
B. Employment in the United States in a Managerial or Executive Capacity 
The second issue addressed by the director is whether the petitioner established that the beneficiary 
will be employed in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, 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 
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is not considered to be acting in a managerial capacity merely by virtue 
of the supervisor's supervisory duties unless the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, 
US CIS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the petitioner's business, the employment and remuneration 
of employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
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). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a managerial or executive capacity. 
On the Form I-140, the petitioner stated that the beneficiary will "manage and supervise that all 
departments of the company are running correctly. Supervise that the financial system is done in the 
right way." 
(b)(6)
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In the RFE, the director instructed the petitioner to provide a definitive statement describing the 
beneficiary's job duties and specified that this statement should include her position title, all specific 
daily duties , and the percentage of time spent on each duty. The petitioner responded to the RFE, but 
did not include the requested statement describing the beneficiary's position. The petitioner provided 
a brief letter dated March 28, 2013 in which it stated that the beneficiary, as president/director "has 
developed business to make the company expand since now [sic]." 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion , may deem necessary. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established, as of the time 
the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The petitioner's failure to submit an 
adequate job description for the beneficiary cannot be excused. The 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). 
On appeal, counsel for the petitioner provides additional information regarding the beneficiary's 
proposed duties. Where, as here, a petitioner has been put on notice of a deficiency in the evidence 
and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence 
offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also 
Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted 
evidence to be considered, it should have submitted the documents in response to the director's 
request for evidence. !d. Under the circumstances, the AAO need not and does not consider the 
sufficiency of the evidence submitted on appeal. Consequently, the appeal will be dismissed. 
Furthermore, as noted in the director's decision, the petitioner provided inconsistent evidence 
regarding its staffing levels and organizational structure . The petitioner indicated on the Form I-140 
that it had three employees at the time the petition was filed. However, the petitioner's initial 
evidence included an organizational chart that lists 10 employees, including the beneficiary. The 
petitioner did not submit any recent evidence of wages paid to employees that would resolve this 
discrepancy. 
In the RFE, the director requested an organizational chart showing all company employees, as well as 
their job titles, brief description of duties, educational levels and whether they work full or part-time. 
The director also requested copies of the relevant IRS Forms W-2, Wage and Tax Statement, for all 
employees, and, if applicable , evidence of the petitioner's use of contract labor. Finally, the director 
requested a copy of the petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, for the 
fourth quarter of 2012. 
In response to the RFE, the petitioner submitted a Form W-2 for one employee, who is listed as the 
"assistant" on the U.S. organizational chart, and received $11,447.00 in wages in 2012. The 
petitioner also submitted its IRS Forms 941 for the fourth quarter of 2012 which indicated one 
employee. The petitioner provided an organizational chart that identified ten employees by name and 
position title, as well as one sales position. The petitioner offered no explanation for the discrepancy 
(b)(6)
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and did not provide evidence that the employees name on the organizational chart are contractors. 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 did submit IRS Forms W-2 for seven additional individuals who appear on the 
organizational chart. However, the employer listed on those forms is and not 
the petitioning company. According to the petitioner's lease, is the petitioner's 
landlord and the petitioner has rented an 80 square foot space on _ premises. The record 
also includes a number of invoices issued by for freight and handling services 
provided to the petitioner. The petitioner provided no explanation of the relationship between the 
companies or for its inclusion of employees on its own organizational chart. As noted 
by the director in the denial decision, the petitioner cannot simply claim the employees of another 
company as the beneficiary's subordinates. For example, the individual identified as the "Director" 
subordinate to the beneficiary on the petitioner's organizational chart provided a reference letter in his 
capacity as director of in which he identifies the petitioning company as a "client 
and associate." The employees of the petitioner as listed on Form 1-140 are the only employees that 
will be considered for the instant petition. Based on the limited evidence provided, the petitioner has 
established that it employed only the beneficiary and an assistant in 2012 when the petition was filed. 
Although the petitioner was put on 
notice of the discrepancies in the record regarding the company's 
staffing levels, counsel for the petitioner did not discuss this issue on appeal and the issue remains 
unresolved. 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)). 
As discussed above, the petitioner has not identified employees within the petitioner's organization, 
subordinate to the beneficiary, who would relieve the beneficiary from performing routine duties 
inherent to operating the business. According to the documentation submitted, it appears that the 
beneficiary supervises one assistant although the petitioner stated that the beneficiary supervises nine 
employees. A managerial or executive employee must have authority over day-to-day operations 
beyond the level normally vested in a first-line supervisor, unless the supervised employees are 
professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 
1988). 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'r 1988). 
(b)(6)
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In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity . For this 
additional reason, the appeal will be dismissed. 
C. Foreign Employment in a Managerial or Executive Capacity 
The third issue is whether the petitioner provided sufficient evidence to establish that the beneficiary 
had been employed abroad in a managerial or executive capacity. In the decision dated June 10, 
2013, the director denied the petition, in part, based on a finding that the petitioner failed to establish 
that the beneficiary 
had been employed abroad in a managerial or executive capacity. In denying the 
petition, the director emphasized that the petitioner failed to submit a detailed description of the 
beneficiary's duties despite the director's request for such evidence. 
On appeal, neither counsel nor the petitioner has addressed the issue of the beneficiary's employment 
capacity with the foreign entity. 
Upon review of the beneficiary's duties for the foreign entity, the petitioner provided a very brief job 
description with overly general duties such as: "established sales department goals"; "supervises sales 
and supported personnel"; "generated reports"; and, "interface in marketing department." The 
petitioner also provided a very brief job description for the employees supervised by the beneficiary, 
and did not provide evidence that the subordinate employees were professionals. 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)). 
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 duties the beneficiary performed in the 
course of her daily routine. 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), aff'd , 905 F.2d 
41 (2d. Cir. 1990). 
Upon review of the limited information submitted, the director properly found that the record 
contains insufficient evidence to establish that the foreign entity employed the beneficiary in a 
qualifying managerial or executive capacity. For this additional reason, the appeal will be dismissed. 
D. Doing Business Abroad 
The fourth issue is whether the petitioner provided sufficient evidence to establish that the foreign 
entity is doing business abroad. The regulation at 8 C.F.R. § 204.5(j)(2) defines "doing business" as 
the regular, systematic and continuous provision of goods and/or services by a firm, corporation or 
other entity and does not include the mere presence of an agent of office. In addition, the term 
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"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. 8 C.F.R. § 204.5U)(2). 
As noted by the director in his decision, the documents submitted by the petitioner as evidence that 
the foreign company is doing business were not properly translated. In addition, on appeal, the 
petitioner provides tax returns and bank statements for the foreign companies that are not translated at 
all. Because the petitioner failed to submit certified translations of the documents, the AAO cannot 
determine whether the evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3). 
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. 
The petitioner failed to provide sufficient evidence that the foreign entity is engaged in the regular, 
systematic, and continuous provision of goods and services. For this additional reason, the appeal 
will be dismissed. 
E. Ability to Pay 
The final issue in this proceeding is whether the petitioner established that it has the ability to pay the 
beneficiary's proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, 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 in the 
form of copies of annual reports, federal tax returns, or audited financial statements. 
(Emphasis added.) 
The petitioner indicates on the Form I-140, at Part 6, that it will pay the beneficiary $60.000.00 per 
year. The petitioner must establish its ability to pay this wage as of December 3, 2012, the filing date 
of the petition. 
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, although the petitioner claims the beneficiary as 
a current employee, the petitioner did not submit evidence that it has been paying her wages. 
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 
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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 Irnrnigration 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 petition's priority date falls on December 3, 2012, the director initially reviewed the 
petitioner's IRS Form 1065, U.S. Return of Partnership Income , for the 2011 tax year, a partial copy 
of which was provided at the time of filing. The Form 1065 identified as 
the preparer and is dated March 10, 2012. The petitioner reported ordinary business income of 
$3,472. 
In the RFE, the director advised the petitioner that the submitted Form 1065 did not establish the 
petitioner's ability to pay the proffered wage. The petitioner requested a complete copy of the 
petitioner's Form 1065 with all accompanying schedules, annual reports or audited financial 
statements. 
In res onse, the petitioner submitted a copy of a Form 1065 for 2011 prepared by of 
and dated April 10, 2012. On this Form 1065, the petitioner reported net income of 
$65,676. A comparison of the two Forms 1065 reflects that the petitioner submitted the same figure 
for gross receipts or sales. On the March 2012 version of the form, the petitioner reported $651,544 
in cost of goods sold, $20,058 in salaries and wages, $1,809 in taxes and licenses, and $85,328 in 
other expenses. On the April 2012 version, the petitioner reported $661,723 in cost of goods sold, no 
salary and wage expenses, no taxes and licenses expenses, and only $34,810 in other deductions. 
In denying the petition, the director noted these discrepancies and emphasized that the petitioner 
failed to establish that the latter version was an amended filing, or to provide any other explanation 
for its submission of two different tax returns for the same tax year. Because of these inconsistencies, 
the director advised the petitioner that USCIS could rely on neither Form 1065 to establish the 
petitioner's ability to pay. 
On appeal, counsel for the petitioner does offer any explanation as to why the petitioner submitted 
two different Forms 1065 for 2011. It is incumbent upon the petitioner to resolve any inconsistencies 
in the record by independent objective evidence. Any attempt to explain or reconcile such 
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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). If USCIS fails to believe 
that a fact stated in the petition is true, USC IS may reject that fact. Section 204(b) of the Act, 8 
U.S.C. § 1154(b); see also Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery 
Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). Accordingly, neither of the submitted Forms 1065 provides credible evidence of the 
petitioner's ability to pay the proffered wage. 
Instead, the petitioner submits an IRS Form 1040, U.S. Individual Tax 
Return, for the beneficiary and 
her husband for 2011. Counsel states that "[t]hey make well over $94,000 per year." The individual 
tax return is not sufficient documentation to establish the petitioner's ability to pay the proffered 
wage. The petitioner must submit documentation from the petitioner evidencing that it can pay the 
offered salary to the beneficiary. 
In addition, the petitioner submits a profit and loss statement for _ The 
profit and loss statement is in Spanish and since the petitioner failed to submit certified translations of 
the documents, the AAO cannot determine whether the evidence supports the petitioner's claims. See 
8 C.F.R. § 103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any 
weight in this proceeding. In addition, it appears that the profit and loss statements are for the foreign 
entity and not the petitioner. It is the prospective United States employer that must establish its 
ability to pay the proffered wage and not the foreign company. Thus, this evidence does not 
overcome the director's concerns. 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. 
Accordingly, in light of the lack of sufficient corroborating evidence submitted to establish that the 
petitioner meets the provisions of 8 C.P.R. § 204.5(g)(2), the petitioner has not established its ability 
to pay the proffered wage. The appeal will be dismissed for this additional reason. 
III. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.