dismissed EB-1C Case: Freight Forwarding

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-F-F- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY30,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a freight forwarding company, seeks to permanently employ the Beneficiary as its 
general director under the first preference immigrant classification for multinational executives or 
managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§I 153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that: (I) the Petitioner has the ability to pay the Beneficiary's proffered wage; 
(2) the Beneficiary has been employed abroad in a managerial or executive capacity; (3) the 
Petitioner will employ the Beneficiary in the United States in a managerial or executive capacity; and 
(4) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by 
disregarding evidence of eligibility. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States tor at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(I )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has 
been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
Malter of B-F-F- LLC 
II. ABILITY TO PAY 
The Director found that the Petitioner did not establish its ability to pay the Beneficiary's proffered 
wage at the time of filing the petition. 
Any petition filed 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. 8 C.F.R. 
§ 204.5(g)(2). To establish its ability to pay, a petitioner must submit copies of its annual reports, 
federal tax returns, or audited financial statements. !d. 
The record of proceeding includes copies of IRS Forms I 065, U.S. Returns of Partnership Income, 
for 2012 to 2015, and tax and payroll records including IRS Forms W-2, Wage and Tax Statements. 
On the petition form, the Petitioner stated that it would pay the Beneticiary $50,000 per year. The 
Petitioner tiled the petition in October 2013, and therefore must establish that it has consistently 
been able to pay the Beneticiary $50,000 per year since that time. The Petitioner provided the 
following information about its finances and the Beneficiary's compensation: 
Year 2012 2013 2014 2015 
Net income $108,550 -$8671 $31,466 $10,952 
Net current assets 7515 -12,684 -13,025 -6577 
The Beneticiary' s salary 7422 35,641 38,770 4 7,410 
The Director determined that the Petitioner had neither the mcome nor the assets to pay the 
Beneticiary's proffered wage in 2013-2015. 
On appeal, the Petitioner states that its income in 2014 and 2015 was enough to cover the shortfall in 
the Beneficiary's salary. for those years, and that since 2016 it has paid the Beneficiary at least the 
proffered wage. The Petitioner also acknowledges, however, that it "did suffer a difficult time in 
20 13," the year the Petitioner filed the petition, because "(t]he economy was slow. The country was 
in a recession. In 2012, (the Beneticiary] had come to the US precisely to restructure the company, 
due to the difficulties." 
The Petitioner also asserts that its net income of $108,850 was more than sufficient to pay the 
Beneficiary's full salary in 2012, even if it did not actually pay the Beneficiary the full amount. 
(The Beneticiary entered the United States in July 2012, and therefore should have received about 
three times the $7422 that the Petitioner actually paid him that year.) The evidence from 2012 
contradicts the assertion that the company's "difficulties" brought the Beneficiary to the United 
States. The company was able to pay the Beneficiary's salary in 2012, before the petition was filed, 
but its net income has never come close to 2012 levels since then. The Petitioner has not shown that 
the 2013 shortfall was the result of one-time circumstances that temporarily interrupted the 
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Maller of B-F-F- LLC 
company's established and otherwise cons istent success. See Maller (?l Sonegawa, 12 l&N Dec. 
612 , 615 (Reg '! Comm 'r 1967) (in which an otherwise successfu l fashion designer temporar ily 
incurred a net loss due to expenses arising from relocation) . 
The Petitioner must demonstrate ability to pay a t the time the priority date is esta blished (in this 
case, the filing date) and continuing until the Beneficiar y obtains lawful permanent 
residence. 8 C.F.R. § 204.5(g)(2). The Petitioner's acknowledged inability to pay the Beneficiary ' s 
proffered wage at the time of filing is a disqualifying circumstance. This, by itself, requires denial of 
the petition and dismissal of the appeal. 
III. QUALIFYING RELATIO NSHIP 
The Director denied the petition based on a finding that the Petitioner did not estab lish that it has a 
qualifying relationship with the Beneficiary 's foreign employer. To estab lish a "qualifying 
relationship" under the Act and the regulatio ns, a petitioner must show that the beneficiar y's foreign 
employer and the propo sed U.S. emplo yer are the same emp loyer (i.e., a U.S. entit y w ith a foreign 
office) or related as a "parent and subsidiary" or as "affiliates." See generally section 203(b)( l)(C) 
oft he Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
Ownership and control are the factors that determine whether a qualifying relationship exists 
between United States and foreign entities tor purposes of this visa class ification.1 In the context of 
this visa petition , ownership refers to the direct or indirect lega l right of posse ssion of the assets of 
an entity with full power and authorit y to control; control means the direct or indirect legal right and 
authority to direct the establishment , manageme nt, and ope rations of an entity. Maller of Church 
Scien tology lnt 'I, 19 l&N Dec. at 595. 
The Director found that the Petition er had submitted inconsiste nt evidence of the ownership of the 
two companie s. For the petitioning U.S. company, the Februar y 2007 minut es of the Petitioner's 
organizational meeting described a 51 -49 split betwe en the Beneficiary and his s pouse , 'Yhile the 
Petitioner 's tax returns showed 50-50 owner ship . . 
With regard to the forei gn entity, formation documents indicated that the Benefici ary initially owned 
a 90% membership inter est in the company , with his spou se holding the remaining 10%. The 
Petitioner claimed that members hip interests in the company changed hands on various occas ions : 
Owner Feb.2007 Aug. 2009 .July 20 11 Feb.2012 
The Beneficiary 90% 51% 36% 51% 
The Beneficiary 's Spouse 10% 34% 34% 19% 
- 15% 15% 15% 
- - 15% 15% 
1 See Mauer of Church Sciemology !nt '1, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Med. Sys .. Inc., 19 
I&N Dec . 362 (B IA 1986); Matter of Hughes, 18 I&N Dec. 289 (Co mm 'r 1982). 
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Maller of B-F-F- LLC 
A translated document indicated that each of the above tran sactions were "prope rly recorded [and] 
registered in the . of the 
in Mexico. The record does n ot include cop ies of the registry documents themselves. 
The Directo r concluded that the Petitioner had not established a qual ifying relat ionship between the 
two entitie s, because of insufficient document ation regarding the ownershi p of the foreign entity, 
and inconsistent claims regarding the ownership of the U.S. entity. 
The Directo r also noted two "Voting Block Agreement s" and related meeting minutes , all dated July 
22, 20 II , in which the Petitioner and his spo use agreed to "vote in agreeme nt" with respect to 
governing the foreign and U.S. companies. The voting block agreemen ts indicated that the 
Benefici ary owned 51% of the foreign entity , while his spouse owned 19%. In the den ial notice, the 
Director observed that these asser tions are in conflict with other materials in the record. As shown 
above, in .July 2011, the purported date of the agreeme nts, the Beneticiary supposedly owned 36%, 
not 51%, of the to reign entity ; and his spo use owned 34%, not 19%. 
· This discrepancy, and the abse nce of first-hand supporting documentation, supports the Director ' s. 
conclusion that the Petition er has not sufficiently or credibly established a qualifying relationship 
between the two companies. 
On appeal, the Petitioner asserts: "Why the issue of owne rship and cont rol is still being questioned 
is completely unclear." The Petitioner maintains that the Beneficiary owns 5 1% of the U.S . 
company. The Petitioner does not acknowled ge, much less explain, severa l years of tax form s that 
show 50% instead of 51%. 
Also, the Petitioner does not address or resolve the conflicting claims regarding the compa ny's 
ownership as of .I uly 2011. An immigrant petition cannot be approved unless it is determi ned that 
"the facts stated in the petition are true." Section 204(b) of 
the Act, 8 U .S.C. § 1154(b ). The 
submis sion of contradictory evidence precludes such a determin ation. 
The Petitioner must resolve these inconsisten cies with independent , objec tive evidence pointing to 
where the truth lies. Maller of Ho, 19 I&N Dec. 582, 591- 92 (B IA 1988). Unreso lved material 
inconsistenci es may lead us to reevaluate the reliability and sufficiency of other evidence submi tted 
in support of the reque sted immigration benefit. Jd. Because the Petitioner has provided 
inconsistent and contradictory ownership claims , without adequate prit:nary evidence to estab lish 
where the truth actuall y lies, the Petitioner has not met its burden of proof to establi sh a qualifying 
relation ship between the Petitioner and the Benefi ciary's forei gn employer. 
IV. EMPLOYMENT IN AN EXECUTIVE CAPAC ITY 
The Director found that the Petitione r did not establish that: (1) the Beneficiary has been employe d 
abroad in a managerial or exec utive capacity; and (2) the Petitioner will emp loy the Beneficiary in 
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Mauer of B-F-F- LLC 
the Unite.d States in a managerial or executive capacity. The Petitioner has claimed that the 
Beneficiary's past and intended duties "are solely executive in nature." Therefore, we restrict our 
discussion to whether the Beneficiary has been, and will be, employed in an executive capacity. 
The Petitioner provided two conflicting organizational charts for the foreign entity (the second version 
added positions not shown on the original chart). Also, the Director found that the Beneficiary's job 
description lacked the necessary detail to show what tasks the Beneficiary performed in his employment 
abroad. 
On appeal, the Petitioner repeats the job description, and asserts: "we were specific in depicting a 
schedule of what the Beneficiary would be doing on a daily basis." That schedule consisted mostly of 
meetings and reviewing reports. 
The Petitioner has established that the Beneficiary has a controlling degree of authority over the 
company, but discretionary authority over the company is no't sufficient, by itself, to establish eligibility. 
Given the lack of detail about the specific nature of the Beneficiary's duties, the Petitioner has not 
shown that the Beneficiary primarily performed executive duties as required by section 10l(a)(44)(B) 
of the Act, 8 U.S.C. § II 01 (a)(44)(B). See, e.g., Family Inc. v. USCJS, 469 F.3d 1313, 1316 (9th Cir. 
2006); Champion World. Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 
1991) 
The subordinates' job descriptions included a somewhat greater level of detail, but the submission of 
two different organizational charts raises questions about the company's actual structure. The Petitioner 
did not submit payroll records or comparable documentation to establish which chart was more 
accurate. 
Following a review of the evidence, we concur.with the Director's decision that the Petitioner has not 
met its burden of proof to establish that the foreign entity employed the Beneficiary in an executive 
. 2 capactty. 
• 
Regarding the Beneficiary's intended U.S. employment, the Petitioner relied on a job description and 
daily schedule that are largely similar to those submitted for the foreign position. As with the 
foreign position, the Director found the U.S. job description to be lacking in specifics, and the 
Petitioner responds on appeal by repeating the description. 
2 The Director had further questioned the Beneficiary's foreign employment owing to discrepancies in an earlier petition that 
another employer had tiled on the Beneficiary's behalt: The Director concluded that the Petitioner had not satisfactorily 
established that the Beneficiary's foreign employment took place at all. We withdraw this finding, based on persuasive third­
party documentation. Furthennore, the Director acknowledged that any misrepresentation in the earlier petition is not 
material to this proceeding because the conflicting employment claims took place outside the three-year period preceding the 
Beneficiary's July 2012 entry to work for the Petitioner. 
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Matter of B-F-F- LLC 
With respect to staffing, quarterly tax records showed significant fluctuation in staffing size in 2012 
and 2013. The Director requested copies of IRS Forms W-2, Wage and Tax Statements, to show the 
extent of the Petitioner's stafling after 2012. The Petitioner did not submit the requested documents 
or explain their absence. 
On appeal, the Petitioner states that the company was fully staffed at the time of filing, but a return 
submitted on appeal shows only seven employees during the fourth quarter of20l3 (which includes 
the October 2013 filing date). Without further documentation, which the Petitioner has not 
provided, we cannot tell which positions, if any, were vacant at the time of filing. 
In light of questions about the Petitioner's staffing, and a lack of detail in the Beneficiary's job 
description, the Petitioner has not met its burden of proof to show that it intends to employ the 
Beneficiary in a primarily executive capacity. 
Because the previously discussed grounds for dismissal are dispositive of the Petitioner's appeal, we 
will not address this issue further. Nevertheless, we note that if the Petitioner seeks to employ the 
Beneficiary in this classification in the future, it will need to submit sufficient evidence to establish 
that it would employ the Beneficiary in the United States in a managerial or executive capacity as 
detined at section 101(a)(44) of the Act. 
V. CONCLUSION 
The Petitioner has not established that it had the ability to pay the Beneficiary's wage at the time of 
filing the petition. Conflicting evidence of ownership and control prevent a finding that the 
Petitioner has established a qualifying relationship with the Beneficiary's foreign employer. And the 
Petitioner has not sufficiently shown that the Beneficiary was, and will be, employed in an executive 
capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-F-F- LLC, ID# 996932 (AAO May 30, 2018) 
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