dismissed EB-1C Case: Herbs And Spices

(b)(6)
DATE: 
INRE : 
PETITION: 
JUN 2 5 2015 
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 
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 : 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case . 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The petitioner filed a motion to reopen, which the director dismissed. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. We will dismiss the appeal. 
The petitioner filed Form I-140, Immigrant Petition for Alien Worker, on January 12, 2012, seeking 
to classify the beneficiary as an employment-based immigrant under section 203(b)(1)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(l)(C), as a multinational executive or 
manager. The petitioner is a manufacturer and seller of herbs and spices. It seeks to employ the 
beneficiary in the United States as its director of sales and marketing. 
The director denied the petition on April 9, 2013, concluding that the petitioner did not establish: (1) 
that the beneficiary will be employed in a qualifying managerial or executive capacity, and (2) that it 
has the ability to pay the beneficiary's proffered salary. The petitioner filed a motion to reopen, 
which the director dismissed on October 17, 2014. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to our office. On appeal, the petitioner submits a legal brief. 
I. 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 the alien 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 only to 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 I-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 
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in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
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 
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 10l(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. 
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In addition, the regulation at 8 C.F.R. § 204.5(j)(3)(i) instructs the petitioner comply with initial 
evidentiary requirements by providing evidence to establish that it meets the following criteria at the 
time the petition is filed: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of 
such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a 
nonimmigrant, the alien was employed by the entity abroad for at least one 
year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which 
the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 101(a)(44)(C) of the Act. 
II. Issues on Appeal 
A. Managerial or Executive Capacity 
The first issue addressed by the director is whether the petitioner established that it would employ 
the beneficiary in a qualifying managerial or executive capacity. 
L Facts 
The petitioner electronically filed the Form I-140 petition with no supporting evidence. 
In a request for evidence dated September 10, 2012, the director instructed the petitioner to submit 
the required evidence. In response, in a letter dated December 5, 2012, the petitioner stated that the 
beneficiary has been offered the position of Director, Sales and Marketing, and provided general 
information about the beneficiary's activities, stating, for instance, that she "has contacted all the 
major supermarkets [sic] chains in the United States including 1 ' and 
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"has also led sales efforts to make presentations to several grocers such as Farmers' markets, 
wholesalers, and retailers." 
On the Form I-140, the petitioner indicated that it has twelve current employees. The petitioner's 
initial submission included an organizational chart depicting eight employees in three tiers. The 
operations manager occupies the top level, and the beneficiary shares the second level with two 
individuals whose respective titles are "Office Administration" and "Warehouse Administration." 
Only "Warehouse Administration" shows subordinate employees, specifically a "Driver," two 
"Warehouse Packer[ s), 
11 
and an individual in charge of "Shipping/Receiving. 
11 
The petitioner submitted copies of its Internal Revenue Service (IRS) Form 941 Employer's 
Quarterly Federal Tax Returns for 2011 and the first two quarters of 2012. This evidence indicates 
that the petitioner had twelve employees in both the last quarter of 2011 and the first quarter of 2012. 
The petitioner also submitted an employee list showing 49 names, but this list was not accompanied 
by any explanation. 
The director issued a notice of intent to deny (NOID) on December 28, 2012. The director advised 
the petitioner that the initial evidence was insufficient to establish that the beneficiary would be 
employed in a qualifying managerial or executive capacity. The director stated that the petitioner 
had not provided sufficient details regarding the beneficiary's duties or the amount of time devoted 
to each of those duties. In addition, the director emphasized that the petitioner's organizational chart 
shows that the beneficiary does not have any subordinates. The director requested a statement 
providing the beneficiary's position title, her specific daily job duties, and the percentage of time she 
spends on each duty. The director also requested a detailed organizational chart and information 
regarding the job titles, job duties, salaries, and educational level of the beneficiary's subordinates, as 
well as evidence of the petitioner's use of contracted labor, if applicable. 
In response, the petitioner submitted an unsigned statement, indicating that the beneficiary spends 
approximately 50% of her time reviewing sales reports, inventory reports, expense reports, accounts 
payable/receivable reports and bank statements, and devotes the remaining time to meeting with four 
managers, including a "Sales Manager" not named on the previously submitted organizational chart. 
The petitioner indicated that this represented an "exhaustive list of [the beneficiary's) daily duties in 
the US. 
11 
The petitioner also provided short duty descriptions for the operations manager, warehouse 
manager, manager for office administration, and sales manager. 
The submission included copies of IRS Form W-2 Wage and Tax Statements for 2012. Those 
statements show the following yearly salaries for the four named managers: 
Operations Manager 
Manager for Office Administration 
Warehouse Manager 
Sales Manager 
$22,634 .54 
25,208.41 
4,166.84 
10,243.75 
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The petitioner issued a total of 16 Form W-2s in 2012, and also paid wages to the four individuals 
identified on the organizational chart as the petitioner's packers, driver and shipping/receiving 
employee. There were two employees who earned less than $100 in 2012, one who earned $300, 
and one who earned $625. All other staff who received W-2 forms earned wages commensurate 
with part-time or part-year employment. 
The petitioner also submitted a documented titled "Job Descriptions dated 1-18-2013." These 
descriptions were generally consistent with the more formal list of duties submitted simultaneously 
with the NOID response; however , this list identified the individual elsewhere identified as 
"warehouse manager" as a "packer." This list includes a total of eight employees. 
The petitioner asserted that the beneficiary meets all the requirements of a manager, and all those of 
an executive. The petitioner essentially repeated the language of the regulatory and statutory 
definitions of the terms "managerial capacity" and "executive capacity," with occasional clarifying 
additions, such as the assertion that the beneficiary "[ m ]anages an essential function within the 
organization which includes strategic planning, budgeting, finance , human resources, [and] liaison 
with [the] Food and Drug Administration." The petitioner indicated that the beneficiary manages the 
entire organization. 
The director denied the petition on April 13, 2013, finding that the petitioner did not provide enough 
specific information about the beneficiary's duties. The director stated: "The petitioner's claim is 
primarily based on a set of broad job responsibilities, which suggest a general sense of the 
beneficiary's heightened degree of discretionary authority but which fail to convey an understanding 
of what the beneficiary would actually be doing on a daily basis." 
On motion, the petitioner submitted a more detailed list of duties, indicating that the beneficiary 
spends 50% of her time performing the following duties: 
1. Directs the management of the whole organization ... ; 
Responsibiliti es include : 
-Develop strategic sales and marketing approach for the company to grow sales, 
profits and market share. 
-Develop and execute winning strategies and inspire team to reach company 
goals. 
-Tackle difficult situations and make high-risk decisions with focus to improve 
profits. 
-Improve EDITDA, growth, and position the company for long-term growth. 
2. Establishes the goals and policies of the organization .. . ; 
Responsibilities include: 
-Develop and implement human resource goals for the company. 
-Set policies for how employees and other agents of the company relate to 
customers , vendors, and government agencies. 
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-Assemble, motivate and mentor high-performance team to attain compliance 
with company policies. 
3. Exercises wide latitude in discretionary decision-making for the organization ... ; 
Responsibilities include: 
-Make decisions that affect the whole company including organic growth strategy, 
expansion plans to start-up in other locations, and acquisition of existing 
competitors, and 
4. Receives only general supervision from the board of directors. 
Responsibilities include: 
-Reports monthly to the Board. 
The petitioner added that the beneficiary spends 25% of her time "visit[ing] key accounts to present 
the strengths of [the petitioning company] as a partner with customers and vendors that adds value," 
and the remaining 25% of her time "meet[ing] with 4 employees in charge of key areas who report 
on performance of all aspects of operating the company." 
The director dismissed the motion on October 17, 2014, stating that the motion contained no new 
facts and did not meet the requirements of a motion to reopen. In appealing that decision, the 
petitioner asserts that the motion was meritorious, and that the petitioner had established that "the 
Beneficiary would exercise plenary control over the business'[s] daily operations." The petitioner 
also asserts: "The record ... contains ample description of the executive and managerial tasks to be 
performed by the Beneficiary, as the Petitioner's president." 
2. Analysis 
Upon review, and for the reasons addressed herein, the petitiOner has not established that the 
beneficiary would be employed in the United States in a managerial or executive capacity. 
The petitioner, on appeal, contends that the director ought to have considered the revised job 
description that the petitioner had submitted on motion. The appropriate remedy is for us to review 
that description here. 
When examining the executive or managerial capacity of the beneficiary, we will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 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. !d. A detailed job description 
is crucial, as the duties themselves will reveal the true nature of the beneficiary's employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Reciting the beneficiary's general job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
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Managing or directing a business does not necessarily establish the beneficiary's eligibility for 
classification as a multinational manager or executive within the meaning of section 101(a)(44) of 
the Act. By statute, eligibility for this classification requires that the duties of a position be 
"primarily" of an executive or managerial nature. Sections 101(A)(44)(A) and (B) of the Act, 
8 U.S.C. § 1101(a)(44). While the beneficiary may exercise discretion over the petitioner's 
day-to-day operations and possesses the requisite level of authority with respect to discretionary 
decision-making, the petitioner has failed to submit a complete and detailed position description 
sufficient to establish that the beneficiary's actual duties, as of the date of filing , would be primarily 
managerial or executive in nature. 
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). 
The petitioner is correct that the list of duties submitted on motion contained somewhat more detail 
than the previous version. However, even the more detailed list consists largely of generalities such 
as "[d]evelop and implement human resource goals for the company" and "[m]ake decisions that 
affect the whole company," which provide little information about the beneficiary's actual 
day-to-day duties. 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. 
Furthermore, the latest iteration of the beneficiary's duties does not add further specificity to the 
description submitted in response to the NOID, but rather significantly differs from the earlier 
description. The petitioner previously indicated that the beneficiary spends 50% of her time 
reviewing sales, inventory, expense and other reports and bank statements, whereas the expanded job 
description does not mention these activities at all. In addition, the amount of time that the 
beneficiary spends meeting with four key employees has been halved from 50% to 25% of her time, 
and the latest position description includes numerous activities not previously mentioned. 
There are other discrepancies as well. The petitioner, on appeal, states that the beneficiary will serve 
"as the Petitioner's president." Although this designation appears in the petitioner's Certificate of 
Incorporation, it has not consistently referred to the beneficiary as the company's president. The 
petitioner did not specify a title on Form I-140; however its introductory letter dated December 5, 
2012 stated the beneficiary 's intended title as "Director, Sales and Marketing," a title that also 
appeared on the petitioner's organizational chart. Moreover, while the petitioner now indicates that 
the beneficiary is the senior employee in the organization responsible for overseeing all lower-level 
staff, the petitioner's organizational chart submitted with the petitioner's initial evidence showed her 
as Director, Sales and Marketing, reporting to the operations manager, with no subordinates of her 
own. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
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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). 
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a 
position's title, its level of authority within the organizational hierarchy, or the associated job 
responsibilities. The petitioner must establish that the position offered to the beneficiary when the 
petition was filed merits classification as a managerial or executive position. Matter of Katigbak, 14 
I&N Dec. 45, 49 (Comm 'r 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
On appeal, the petitioner claims that the beneficiary will be employed in an executive capacity . The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. 
§ 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" 
and "establish the goals and policies" of that organization. Inherent to the definition, the 
organization must have a subordinate level of managerial employees for the beneficiary to direct and 
the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as the 
owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." !d. 
However, the record lacks a sufficiently detailed description of the beneficiary's day-to-day duties 
and there are ambiguities in the record regarding the beneficiary's job title and placement in the 
petitioner's organizational hierarchy. Based on the current record, we are unable to determine 
whether the claimed executive duties constitute the majority of the beneficiary's duties , or whether 
the beneficiary primarily performs non-executive administrative or operational duties. Although 
specifically requested by the director, the petitioner's description of the beneficiary's job duties does 
not establish what proportion of the beneficiary's duties is executive or managerial in nature, and 
what proportion is actually non-executive and non-managerial. See Republic ofTranskei v. INS, 923 
F.2d 175, 177 (D.C. Cir. 1991). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to understanding a beneficiary's actual duties and 
role in a business. 
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The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 
§§ 1101(a)(44)(A)(i) and (ii). Personnel managers are required to primarily supervise and control 
the work of other supervisory, professional, or managerial employees . Contrary to the common 
understanding of the word "manager," the statute plainly states that 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 101(a)(44)(A)(iv) of the Act; 8 
C.F.R. § 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other employees, the benefici ary 
must also have the authority to hire and fire those employees, or recommend those actions, and take 
other personnel actions. 8 C.F.R. § 214.2(1)(1)(ii)(B)(3). 
In evaluating whether the beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers 
in elementary or secondary schools, colleges, academies, or seminaries." The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by 
a prolonged course of specialized instruction and study of at least baccalaureate level, which is a 
realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 
(Comm'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 
(D.D. 1966). 
As noted, the petitioner initially submitted an organizational chart reflecting that the beneficiary 
reports to the operations manager and has no subordinates of her own. The petitioner subsequently 
claimed that the benefici ary oversees all employees in the organization. Even if the petitioner had 
resolved this discrepancy in the record, the petitioner has not established that any of the beneficiary's 
subordinates work in a professional capacity or possess baccalaureate degrees. The petitioner's 
organizational chart indicates that the warehouse manager supervises four lower-level staff. 
However, the petitioner also introduced evidence in which the "warehouse manager" is identified as 
a third "packer" who performs the same duties as the other packing employees. 
The petitioner asserted that the operations manager "is the overall supervisor for production" and "is 
also responsible for the quality [of the product] that goes out." The manager for office 
administration "is looking after all our bookkeeping, payroll, Payroll taxes, payments and 
receivables." The sales manager "is responsible for sales of new customer [sic] and new product that 
we started to introduce. He will also do some driving like pickups from the Airlines and also for air 
shipments to other customers." The petitioner identified three "packers that follow instruction from 
[the beneficiary] or [the operations manager] to packherbs." Based on the information regarding the 
beneficiary's duties and those of her subordinate employees, the petitioner has not established that 
the beneficiary is prim arily engaged in the supervision of subordinate professionals, managers or 
supervisors. 
Finally, the petitioner has not established that the beneficiary is employed as a function manager. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
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work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 110l(a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that 
clearly describes the duties to be performed in managing the essential function, i.e. identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion 
of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 
§ 204.5(j)(5). In addition , the petitioner's description of the beneficiary's daily dutie s must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the 
function. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 
I&N Dec. 593, 604 (Comm'r 1988). 
The petitioner initially submitted an organizational chart indicating that the beneficiary holds the 
position of director , sales and marketing , with no subordinate staff. Moreover , the petitioner did not 
claim to employ any subordinate sales or marketing employees other than the beneficiary , and it is 
evident that the sales manager was hired at a later date. Therefore, while the sales and marketing 
function of the petitioning company may be considered an essential function, the petitioner did not 
articulate a claim that the beneficiary manages this function or establish how the beneficiary would 
be relieved from primarily performing the company's day-to-day sales and marketing tasks as the 
sole employee assigned to this function. For these reasons, the petitioner did not establish that the 
beneficiary qualifies as a function manager. 
Based on the foregoing discussion , the petitioner has not established that it will employ the 
beneficiary in a qualifying managerial or executive capacity. For this reason , the appeal will be 
dismissed. 
B. Ability to Pay 
The second issue addressed by the director 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: 
Ability of prospectiv e 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. In a case where 
the prospective United States employer employs 100 or more workers, the director 
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may accept a statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. In appropriate cases, 
additional evidence, such as profit/loss statements, bank account records, or personnel 
records, may be submitted by the petitioner or requested by the Service. 
1. Facts 
The petitioner has specified that it intends to pay the beneficiary $962 per week, or $50,024 per year. 
The petitioner's first evidentiary submission included an unaudited Profit and Loss statement for the 
petitioning U.S. entity, indicating net income of $42,230.26 for the fiscal year ending July 2012. 
The petitioner also submitted copies of IRS Form W-2, Wage and Tax Statement, showing that the 
petitioner had paid the beneficiary $49,999.92 in 2010 and $47,916.59 in 2011. 
In the December 2012 NOID, the director stated: "The petitioner did not submit primary forms of 
initial evidence," and instructed the petitioner to "submit a complete copy of one of these three 
required types of initial evidence," specifically the petitioner's federal income tax returns, annual 
reports, or audited financial statements. 
The petitioner's response to the NOID included copies of IRS Forms W-2 issued to the beneficiary 
and 15 other employees for 2012; a new Profit and Loss statement for August 1, 2012 through 
January 8, 2013; copies of bank statements from 2012; and a copy of the lease for the property that 
the petitioner occupies. The beneficiary's 2012 Form W-2 reflects that 
she received $49,999.92. 
The director, in denying the petition, listed the materials that the petitioner submitted in response to 
the NOID, none of which meet the regulatory requirements for primary evidence of ability to pay. 
On motion from that decision, the petitioner submitted a copy of IRS Form 1120, U.S. Corporation 
Income Tax Return, showing taxable income of $40,779, all of which the petitioner offset by 
claiming a net operating loss deduction, leaving a net taxable income of $0. 
In the October 17, 2014 decision dismissing the motion, the director discussed specifics of the newly 
submitted tax return. Specifically, the director stated that the taxable income before net operating 
loss on the IRS Form 1120, and the net income shown on the 2012 Profit and Loss statement, show 
amounts "lower than the proffered wage." On appeal, the petitioner asserts that the beneficiary has 
consistently received the proffered amount. 
2. Analysis 
Upon consideration , the petitioner's assertions are persuasive. The director was correct in observing 
that the petitioner's net annual income is less than the beneficiary's proffered salary of $50,024 per 
year, but the record shows that the petitioner paid the beneficiary during the years in question, and 
therefore the beneficiary's salary would not come out of the remaining net income. IRS Forms W-2 
show that the petitioner paid the beneficiary $49,999.92 in the year the petition was filed and in 
preceding years. This amount is less than the proffered wage, but only by a trivial amount. The 
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petitioner's net income for 2011 was more than sufficient to cover the remaining $24.08.1 The 
director cited no other basis for the finding that the petitioner lacks the ability to pay the 
beneficiary's full salary. 
Accordingly, the petitioner has established its ability to pay and the director's decision with respect 
to this single ground for denial will be withdrawn. 
III. Conclusion 
Although we withdraw one ground for denial, concerning the petitioner's ability to pay the proffered 
salary, the petitioner has not overcome the director's finding that it did not establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity. We will 
therefore dismiss the appeal. · 
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, the petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
1 The petitioner's 2011 IRS Form 1120 indicates that it is for the fiscal year beginning on August 1, 2011 and 
ending on July 31, 2012.