dismissed EB-1C Case: Import And Export Of Printing Equipment

(b)(6)
DATE: SEP 1 7 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Office of Administrative Appeals 
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.F.R. § 1 03.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the nonimmigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is Florida limited liability company engaged in the import and export of printing equipment. 
The petitioner state s that it is a subsidiary of located in Panama. The petitioner seeks 
to employ the beneficiary as its president. Accordingly, the petitioner endeavors to classify the beneficiary 
as an employment-based immigr ant pursuant to section 203(b)(l)(C) of the Immigration and Nation ality Act 
(the Act) , 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on four independent grounds of ineligibility, finding that the petitioner 
failed to establish : (1) that it has a qualifying relationship with the beneficiary's foreign employer ; (2) that 
the foreign employ er has employed the beneficiary in a managerial or executive capacity for at least one 
year; (3) that the beneficiary would be employed in a qualifying managerial or executive capacity in the 
United States, and (4) that the petitioner has the ability to pay the beneficiary's proffered wage. The 
petitioner subsequently filed a motion to reopen and the director issued a new decision affirming the denial 
of the petition based on these grounds . 
On appeal, the petitioner states that it has submitted sufficient evidence to meet all eligibility requirements 
for the requested immigrant visa classification and contends that the director overlook ed material evidence. 
The petitioner submit s a brief in support of the appeal. 
I. The Law 
Section 203(b) of the Act state s in pettinent 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 
seek s 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. 
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The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same 
entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 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 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 m 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. § ll01(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization 111 which the 
employee primarily--
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(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. 
II. The Issues on Appeal 
A. Qualifying Relationship 
The first issue to be discussed in the present matter is whether the petitioner has established that it has a 
qualifying relationship with the beneficiary's former 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. § 204.5(j)(2) (providing definitions of the terms "affiliate" and 
"subsidiary"). 
The pertinent regulation at 8 C.P.R. § 205.5(j)(2) defines a "subsidiary" as follows: 
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. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (Comm'r 1988); 
see also Matter o.f Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm'r 1982). In the context of this visa petition, ownership refers to the direct or indirect 
legal right of possession of the assets of an entity with full power and authority to control; control means the 
direct or indirect legal right and authority to direct the establishment, management, and operations of an 
entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
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At the time the Form I-140, Immigrant Petition for Alien Worker, was filed, the petitioner identified 
. as its parent company. However, the petitioner failed to submit copies of its membership 
certificates, operating agreement or other relevant documentation to supp011 the claimed parent-subsidiary 
relationship. In fact, the petitioner's initial evidence contradicted the petitioner's claim that it is owned and 
control·led by the foreign entity. The petitioner submitted copies of its 2009 and 2010 IRS Forms 1120S, 
U.S. Iricome Tax Return for an S Corporation, with Schedule K-1, which identify the beneficiary as the sole 
owner of the petitioner. Additionally, the petitioner submitted an IRS Form 1040 U.S. Individual Income 
Tax Return for the beneficiary from 2010 stating that the beneficiary claimed full ownership of the petitioner 
as a closely held S corporation. The petitioner did not provide evidence of the foreign entity's ownership. 
The director issued a request for evidence (RFE) in which he instructed the petitioner to provide evidence 
that it has a qualifying relationship with the foreign entity, including the petitioner's articles of organization, 
operating agreement, meeting minutes, and/or other such documentation establishing the foreign employer's 
ownership and control in the petitioner. 
In response, the petitioner stated that it is an affiliate of The petitioner submitted its 
Florida Limited Liability Company articles of organization and its operating agreement. According to the 
operating agreement, the members of the LLC are (representing .); the 
beneficiary (representing himself and .); and (representing himself and 
a Florida limited liability company). The operating agreement states that the petitioner was formed 
through a $50,000 capital contribution from these three individuals; however, the agreement does not 
indicate the amount of contribution by each member and their resulting membership interests, and does not 
mention that the foreign employer has any direct ownership interest in the petitioner. 
The petitioner also submitted meeting minutes for the foreign employer, dated September 2007, and for the 
petitioner, dated January 2012, but neither document identified the exact ownership of the respective 
companies. The shareholders meeting for the foreign entity identifies the shareholders and directors of the 
company as and 
According to the meeting minutes, the company authorized the beneficiary to open and manage a Florida 
limited liability company and that the company will be "of membership of 
Further, the petitioner submitted a joint venture agreement between the petitioner and the foreign employer 
noting that the petitioner would act as a consulting company for the foreign employer in the United States. 
The joint venture agreement stated that the "companies would maintain in separate way their legal title of the 
business interest" and "the [petitioner] is for law effects under and total control of his 
performer." 
Finally, the petitioner provided a copy of its IRS Form 1120S for 2011 which indicates that the beneficiary 
wholly owns the petitioner, and a letter from the petitioner's accountant dated June 19, 2012 stating "[the 
beneficiary] is the member (shareholder), director, and officer of [the petitioner]." In sum, the petitioner's 
response to the RFE was contradictory and failed to provide a definitive statement in the form of articles of 
organization, operating agreement or company minutes to establish the company's ownership, as requested 
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by the director. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.P.R. § 103.2(b)(l4). 
The director denied the petition on August 1, 2012, determining that the petitioner failed to establish that it 
has a qualifying relationship with the foreign entity. In denying the petition, the director acknowledged the 
submitted evidence, but found that the petitioner had failed to provide documentation of the actual ownership 
in the U.S. and foreign companies. 
The petitioner subsequently filed a motion to reopen. On motion, counsel stated that the petitioner "is 
affiliated with in Panama by the parent entity controlling the U.S. entity and by the 
joint venture agreement." In support of the motion, the petitioner submitted: 
• Electronic Articles of Organization filed with the Florida Secretary of State on May 13, 2008, 
bearing a receipt stamp from that office. This document includes Articles I-VI. 
• Two nearly identical documents titled "Others Articles of Organization" both dated May 13, 
2008, which contain Articles VII - IX. According to Article VIII, the company is owned by 
the following "shareholders": (1) 50% by the foreign employer; (2) 40% by the beneficiary, 
and (3) 10% by . One version of the document has a line identifying the "total of 
capital contribution" as $50,000 and one does not. Neither document was stamped by the 
Florida Secretary of State . 
The director determined that the petitioner's evidence failed to establish a qualifying relationship between the 
petitioner and foreign entity. The director emphasized that the petitioner's corporate tax returns for 2009, 
2010 and 2011 state that the beneficiary owns 100% of the petitioning company, while the newly submitted 
Articles of Organization indicate that the foreign entity owns 50% of the company. The director observed 
that "the petitioner cannot claim one thing to USCIS and at the same time claim another to the Internal 
Revenue Service (IRS)." 
On appeal, the petitioner states that it submitted sufficient evidence to establish the qualifying relationship, 
including articles of organization, operating agreement, a joint venture agreement, meeting minutes and 
organizational chart s. The petitioner further states that "proof of the relationship also is the US Corporation 
sell the equipment to much of the Foreign Corporation Customers who provide installation and post-sale 
services locally in Panama, it is a mutual benefits (a profitable combination of both corporations), which 
could be verifiable directly with our customers." The petitioner provides a list of customers and associates in 
the United States and Panama, with names and telephone numbers for contacts. The petitioner further assetts 
that it submitted copies of its U.S. tax returns for 2010 and 2011 which "clarified the inconsistence USCIS 
was talking in the denial note in our first filling time I-140." 
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Upon review, the petitioner's assertions are not persuasive. The petitioner has made contradictory claims and 
has submitted contradictory evidence regarding its ownership, thereby precluding any determination that the 
petitioner is a subsidiary or affiliate of the foreign entity. 
The petitioner IRS Forms ll20S from 2009, 2010, and 2011 and the beneficiary's IRS Form 1040 all state 
that the beneficiary wholly owns the petitioner. AdditionaJiy, the petitioner has submitted a statement from 
an accounting firm from 2012 noting that the beneficiary is the sole owner of the petitioner and a joint 
venture agreement between the foreign employer and the petitioner stating that the beneficiary wholly owns 
and controls the petitioner. Indeed, the joint venture agreement suggests that the petitioner is a separate legal 
entity not owned and controlled by the foreign employer. If the foreign employer had a controlling 
ownership interest in the petitioner as asserted, such an agreement to exact control over the petitioner would 
not be required. 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&NDec. 582,591-92 (BIA 1988). 
The petitioner's operating agreement indicates that three individuals own the petitioner, but it is incomplete 
and fails to identify the ownership percentages held by them. 
The only evidence that identifies the foreign entity as an owner of the petitioning company is the "Others 
Articles of Organization" which were submitted for the first time in support of the motion to reopen. This 
evidence is not persuasive for several reasons. First, although this document bears the same date as the 
petitioner's articles of organization filed with the Florida Secretary of State, it does not bear a receipt stamp 
from that office. In addition, although the petitioner is a limited liability company, it identified its owners as 
"shareholders" in this newly submitted document, while the company's operating agreement indicates that the 
company is owned by members. Further, the petitioner submitted two slightly different versions of this 
document on motion with no explanation. Overall, it appears that the petitioner has merely added a second 
page to its articles of organization in order to support its original claim that it is owned by the foreign entity. 
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). Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of So.ffici, 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)). 
In addition, the petitioner's assertion that the foreign employer has a 50% controlling interest in an S 
corporation is also a material discrepancy. As noted, the petitioner submitted copies of its U.S. Income Tax 
Return for an S Corporation (IRS Form 1120S) for the years 2009, 2010, and 2011. To qualify as a 
subchapter S corporation, a corporation's shareholders must be individuals, estates, certain trusts, or certain 
tax-exempt organizations, and the corporation may not have any foreign corporate shareholders. See Internal 
Revenue Code, § 1361(b)(l999). A corporation is not eligible to elect S corporation status if a foreign 
corporation owns it in any part. Accordingly, since the petitioner would not be eligible to elect S­
corporation status with a foreign parent corporation, it appears that the petitioner could not be 50% owned by 
the foreign employer. Again, this conflicting evidence has not been resolved by the petitioner. Again, it is 
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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 r&N Dec . at 591-92. 
Further, the record does not contain evidence of the foreign entity's ownership and does not support a finding 
that the two entities are owned and controlled by the same individual or group of individuals. 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 r&N Dec. at 165 (citing Matter of Treasure Craft of 
California, 14 r&N Dec. 190 (Reg. eomm'r 1972)). 
On appeal, the petitioner provides a list of customers and associates in the United States and Panama and 
asserts that these companies and individuals can verify the affiliation between the U.S. and foreign entities. 
While the AAO does not doubt that the companies may be involved in "joint market development" as 
contemplated by the joint venture agreement, the petitioner's eligibility for this classification is determined 
by evidence that the two companies are related through common ownership and control that must be verified 
through submission of credible company records. As discussed, the petitioner has not provided this type of 
evidence. 
Specifically, as general evidence of a petitioner's claimed qualifying relationship, a certificate of formation or 
organization of a limited liability company (LLC) alone is not sufficient to establish ownership or control of 
an LLC. LLes 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 LLe'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 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. 
Additionally, the petitioner also contends at various points in the record that the evidence submitted relevant 
to qualifying relationship was found adequate by USers to approve two previou s L-1A nonimmigrant 
intracompany transferee visas for the beneficiary in 2008 and 2009 thereby suggesting that to conclude 
otherwise now is a contradiction. First, the director's decision does not indicate whether he reviewed the 
prior approvals of the other nonimmigrant petitions. If the previous nonimmigrant petitions were approved 
based on the same unsupported and contradictory assertions that are contained in the cun-ent record, the 
approval would constitute material and gross error on the part of the director. The AAO is not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 r&N Dec. 
593, 597 (eomm'r 1988) . It would be absurd to suggest that users or any agency must treat acknowledged 
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errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Therefore, in conclusion, the petitioner has submitted insufficient and contradictory evidence regarding its 
ownership, and therefore has not established that it is an affiliate or subsidiary of the foreign entity. In fact, 
the preponderance of the evidence suggests that the petitioner is wholly owned by the beneficiary, and 
without a definitive statement or evidence as to ownership in the foreign employer, it cannot be determined 
whether there is a qualifying relationship between the petitioner and the foreign employer. For this reason, 
the appeal must be dismissed. 
B. Foreign employment in a managerial or executive capacity 
The next issue to be addressed is whether the petitioner has established that the foreign entity employed the 
beneficiary in a qualifying managerial or executive capacity for at least one year in the three years preceding 
his admission to the United States as a nonimmigrant in October 2008. 
The director denied the petition based on the petitioner's failure to submit a description of the beneficiary's 
duties or information regarding the number of subordinates he supervised and their job duties. The director 
acknowledged that the petitioner submitted an organizational chart for the foreign entity, but found that there 
was insufficient evidence to support a finding that the beneficiary was employed in a qualifying managerial 
or executive capacity. The director affirmed this decision on motion. 
On appeal, the petitioner asse1ts that it has submitted sufficient evidence to establish that the beneficiary has 
more than one year of experience with the foreign employer as an executive. The petitioner points to a 
submitted employment agreement between the foreign employer and the petitioner, certain documentation 
purporting to suppott the beneficiary's performance of executive duties with the foreign employer , the 
beneficiary's resume, and evidence supporting that the beneficiary holds the United States equivalent of a 
Master's degree in Business Administration (MBA). The petitioner further resubmits the beneficiary's 
foreign job duties and states that the beneficiary established goals and policies and only received direction 
and supervision from other high level executives with the foreign employer, thereby establishing that he was 
employed in an executive capacity. 
Upon review of the petition and the evidence, and for the reasons discussed berein, the petitioner has not 
established that the beneficiary was employed abroad in a qualifying managerial or executive capacity . 
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In order to determine whether the beneficiary would be employed in a qualifying executive or managerial 
capacity, U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's description of 
the job duties . See 8 C.F .R. § 204 .5U)(5). 
In support of the Form I-140 Petition for an Immigrant Worker, the petitioner did not submit a 
comprehensive listing of duties for the beneficiary's position with the foreign employer. The petitioner did 
complete and submit a U.S. Depru.tment of Labor (DOL) Employment and Training Administration (ETA) 
Form 750, Application for Alien Employment Certification in support of the petition . The beneficiary 
indicated on the Form ETA 750, Part B, that he was employed by the foreign entity from November 1998 
until December 2006 as the "Manager of Finance and Investment," and stated that he "Managed Finance 
. Dept. Managed, supervised, trained financial analysts." On his Form G-325A, Geographic Information , 
submitted in support of his concurrently filed Form I-485, Application to Adjust Status, the beneficiary 
indicated that he was employed by the foreign entity as "Commercial Director" from February 2006 until 
October 2008. The beneficiary provided this same information in his resume, noting that as Commercial 
Director he was responsible for "development for new accounts." The beneficiary also indicates in his 
resume that he was employed as the general manager of 
1998 until December 2006. 
. from November 
The petitioner provided a brief letter from the foreign entity indicating that the beneficiary "had been part of 
our corporation and their commercial activities from more than 4 years ." Finally, the petitioner submitted an 
organizational chart for the foreign entity. The organizational chart is not dated, includes only job titles, and 
does not identify a "commercial director" or a "manager of finance and investment." 
The director requested in the RFE that the petitioner submit a definitive statement from the foreign employer 
describing the beneficiary's job duties, including: (1) position title, (2) all specific daily duties (rather than 
categories of duties), (3) percentage of time spent on each duty, and (4) a detailed foreign employer 
organizational chart showing the subordinate managers and supervisors reporting to the beneficiary , along 
with a brief description of their job titles , duties and education. In response, the petitioner submitted the 
following description of the beneficiary's "role and responsibilities" with the foreign employer in his 
capacity as Financial Commercial Director from February 2006 until his entry into the Unites States in 
October 2008: 
• Preparation of the annual budget and sales , with support and contribution of 
senior management 
• Direct commercial financial decisions that will ensure the best performance of 
the company's resources 
• Preparation and assessment of business goals . 
• Prepare budgeting of costs of the commercial Department. 
• Prepare, participate and establish policy and prices and qualities of product on 
the outcome of sales, [i]n support of senior management. 
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• Selection and direction of commercial staff 
• Management of large accounts sales and accompaniment with sellers or coaching 
visits 
• Maintenance of a continued relationship with customers to meet their needs or 
problems 
• Supervision of commercial negotiations. 
• Monitoring of business expenditures, in particular those of marketing and sales. 
• Identification of indicators of the Department, measuring with a given frequency 
and establishment of corrective measures. Among them: visit ratios; incidents; 
merchandise returns; sales in excess risk; debt recovery and debt collection 
delays; customers of low profitability; relationship and continuous 
communication with suppliers; frequency of retums; maintenance and 
improvement of the quality of the procedures and financial protocols in the 
company . 
The petitioner re-submitted the same organizational chart provided at the time of filing, which does not 
include the position of "commercial director" or "financial commercial director." The chart depicts a 
"Finance, Project and Consulting Manager" position with no subordinates which reports to the company's 
general manager. 
The director concluded that the petitioner failed to establish that the foreign entity employed the beneficiary 
in a qualifying managerial or executive capacity . In denying the petition, the director observed that the 
petitioner's response to the RFE did not include the requested information regarding the number of 
employees the beneficiary supervised, their job titles and duties or their educational credentials. As such, the 
director determined that the petitioner failed to establish that he supervised a subordinate staff of managers, 
supervisors or professionals or that he was relieved from performing non-qualifying duties. 
On motion, the petitioner identified the beneficiary's job title with the foreign entity as "Director of Board of 
Directors, Executive Project Manager and Commercial and Financial. Manager." The petitioner indicated 
that he supervised: (1) a project assistant and sales director possessing an engineering degree; and (2) a 
director of accounting department with a C.P.A. degree. The petitioner provided job duty descriptions for 
both employees. The petitioner maintained that it had submitted "almost 90%" of the information requested 
in the RFE and that any "omitted or incomplete information were without any particular purpose." The 
director dismissed the motion, finding that the petitioner did not submit evidence to overcome the initial 
adverse determination. 
On appeal, the petitioner asserts that the evidence of record, including the evidence submitted on motion, 
shows that the beneficiary was employed as Commercial and Finance Director for over two years and that he 
was responsible for "managing other high level Executives of the Foreign corporation ." 
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Upon review, the petitioner has not established that the foreign entity employed the beneficiary in a primarily 
managerial or executive capacity. 
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). 
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 duties offered by the 
petitioner, such as preparing annual budgets and sales, directing commercial financial decisions, preparing 
and assessing financial business goals, establishing policies of pricing and commercial conditions, managing 
large accounts, and maintaining customer relationships are overly vague and provide little probative value as 
to the beneficiary's actual day-to-day activities. The duties, and the record generally, include no specific 
examples or documentation to support the beneficiary's vaguely described foreign duties. Further, the 
petitioner does not specifically describe the purported financial decisions made, business goals set, pricing 
policies established, or large customer accounts maintained by the beneficiary. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in nature. 
Overall, 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. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Further, the petitioner did not submit, as specifically requested by the director, the percentage of time the 
beneficiary spent on each task to lend more probative value to the duty description. Again, failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.P.R.§ 103.2(b)(l4). 
Further, the petitioner submitted conflicting information regarding the beneficiary's job title and dates of 
employment with the foreign entity. Notably, none of the submitted job titles appears on the foreign entity's 
organizational chart, nor is the beneficiary identified by name on the chart, thus preventing the AAO from 
determining where the beneficiary's position was located within the company's management structure. 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 (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
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 company's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to rei ieve 
the beneficiary from performing operational duties, the nature of the business, and any other factors that will 
contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
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The petitioner asserts it has established that the foreign entity employed the beneficiary 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 policie s" 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 individu al 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. 
Here , the petitioner has failed to corroborate its claims regarding the foreign entity's staffing and 
organizational structure as necessary to establish that the foreign entity employed the beneficiary in an 
executive capacity. The director specifically asked that the petitioner submit a full and complete 
organizational chart relevant to the beneficiary's qualifying foreign employment , including position titles, 
job duty descriptions and the education levels of the beneficiary's subordinates. However, the petitioner did 
not fully respond to the director's request and submitted a foreign organizational chart including only 
position titles. The submitted foreign organizational chart did not include material information such as the 
names , duties and education levels of those within the organizational chart , as was specifically requested by 
the director. Once again , the failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. § l03 .2(b)(14). 
In fact, as noted, the foreign organizational chart did not include the beneficiary's position of Financial 
Commercial Director. However, the foreign organizational chart did include a similar position titled 
"finance, project and consulting manager." But, the aforementioned position was shown to have no 
subordinate employees in the submitted organizational chart. As such, the petitioner has not established that 
the beneficiary was primarily engaged in directing other managers or establishing goals and policies . An 
individual will not be deemed an executive under the statute simply because they have an executive title; it is 
the petitioner's burden to submit a specific duty description, supporting evidence , and requested evidence 
regarding the foreign company's organizational structure. However, the petitioner has submitted little other 
than a vague duty description and organizational chart related to the beneficiary's foreign employment. 
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 l&N Dec. at 165. 
The AAO acknowledges that the petitioner submitted information regarding the beneficiary's two claimed 
subordinates on motion. 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. 
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Page 14 
Even if the petitioner had submitted information regarding the subordinate employee s in respon se to the 
RFE, the evidence would have been insufficient to establish eligibility. The job titles of the newly claimed 
subordinates do not appear on the foreign entity's organizational chart . Further, the brief position description 
provided for the beneficiary does not include any hiring, firing or supervi sory duties. 
Therefore, the petitioner has not established with sufficient evidence that the foreign entity employed the 
beneficiary in a qualifying managerial or executive capacity . For this additional reason, the appeal must be 
dismi ssed. 
C. Employment with the petitioner in a managerial or executive capacity 
The next issue to be addressed is whether the petitioner has established that it will employ the beneficiar y in 
a qualifying managerial or executive capacity in the United States. 
On appeal, the petitioner points to the growth of the petitioner's business during the company's five years of 
operations under the management of the beneficiary and notes that without the beneficiary, the petitioner 
would be forced to close its operations. The petitioner state s that the beneficiary is the only employe e capable 
of managing its business operations in the United States. 
The AAO does not find the petition er's assertions persuasive. Upon review of the petition and the evidence, 
and for the reason s discussed herein, the petitioner has not established with a preponderance of the evidence 
that the benefici ary acts in a qualifying managerial or executive capacity with the petitioner. 
Again , in order to determine whether the beneficiary would be employed in a qualifying executive or 
managerial capacity , U.S. Citizenship and Immigration 
Services (USCIS) will look first to the petitioner's 
description of the job duties. See 8 C.F.R. § 204.5(j)(5). In the RFE, the director stated that the petitioner 
had failed to submit sufficient documentation to establish that the beneficiary would act in a qualifying 
managerial or executive capacity in the United States. As such, the director requested that the petitioner 
submit a more definitive statement from the petitioner describing the beneficiary's proposed job duties , 
including: (1) position title, (2) all specific daily duties (rather than categories of duties), and (3) the 
percentage of time spent on each duty. In response, the petitioner explained the benefi ciary's duties in the 
United States as the Executive Director as follows : 
• Organize and execute the business and activities . 
• Manage the necessary documentation and form for the efficient, cost effective 
and lawful execution of all activities. 
• Prepare the annual [sic] and manage it in the way was designed. 
• Pay all bills, rent , contracts, taxes, licenses fees, or any company compromise on 
time . 
• Plan and implement sells strategy and activities consistent with overall aims and 
requirements of the organization. 
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NON-PRECEDENT DECISION 
• Report to [the foreign employer] about projects, budget, regular activities, and 
projects and sell forecast at least each three months; and financial status at least 
two times a year. 
• Maintain financial and currency processes and transactions in accordance with 
policy and local law, and to optimize cost effectiveness of activitie s. 
• Communicate with customers and suppliers, in all relevant territories and 
countries as necessary to ensure efficient, positive and lawful relations, support 
and activities. 
• Use personal judgment and initiative to develop effective and constructive 
solutions to challenges and obstacles in export activity and procedures 
• Monitor, record, analyze and report on activities, trends, results, and 
recommendations relating to the activities. 
• Prepare and submit relevant administration in a timely and accurate manner and 
be involved in a logistic way to give the best service to customers in their 
shipping schedules, inspections such as asking, packing, routing, transpmt and 
safety documentation. 
• Investigate, plan and implement strategically effective and relevant transport 
methods, which meet the optimal needs of suppliers and customers. 
• Plan and manage overseas sa[l]es through distributors and other relevant sales. 
• Generate new business by maximizing existing client relationship and actively 
seeking new opportunities with new customers . 
• Telemarketing and web marketing activities to obtain new prospects. Traveling 
to get direct sales and future opportunities . 
• Consi stently add-nn [sic] and up sell, convert prospects into customers and 
consistently obtain referrals. 
• Preparing, presenting and following up on quotations. 
• Close business negotiation and monitor all new client business. 
• Follow with results to rank the satisfaction of customers. 
Again , 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 primaril y 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). 
Here, the petitioner fails to document what proportion of the beneficiary's dutie s would be managerial 
functions and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as 
including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on them stating "there is not a specific time in each duty described above, as they are 
performed on daily basics." This failure of documentation is important because severa l of the beneficiary' s 
daily tasks, such as managing shipping schedules or requirements, garnering new sales opportunitie s, 
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Page 16 
conducting telemarketing, and preparing and presenting quotations, do not fall directly under traditional 
managerial or executive duties as defined in the statute . For this reason, the AAO cannot determine whether 
the beneficiary is primarily performing the duties of a manager or executive . See IKEA US, Inc. v. U.S. Dept . 
of Justice, 48 F. Supp . 2d 22, 24 (D.D.C. 1999). 
Beyond the required description of the job dutie s, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the company ' 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 business, and any other factors that will 
contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
The petitioner's supporting documentation, and a review of the totality of the evidence , supports a conclusion 
that the beneficiary is primarily performing non-qualifying day-to-day operational duties rather than 
qualifying managerial or executive duties . The petitioner submitted supporting invoices , shipping and 
packing information, and emails relevant to the petitioner's operations that confirm the beneficiary is 
involved in all operational aspects of the business. For instance, the evidence reflect s that the beneficiary is 
performing various operational tasks such as receiving customer orders, purchasing items, paying vendor 
invoices, arranging for shipping and sending wire transfers. In fact, although the petitioner states in support 
of the original petition that it had three employees, the petitioner later concedes that the beneficiary is its sole 
employee and that he has no subordinates in the United States. Indeed, an IRS Form 941 Employer' s 
Quarterly Federal Tax Return submitted from 2011 confirms that the petitioner has no employee s. 
Therefore, the record indicates that the petitioner employs no oper<!J:ional employee s who would relieve the 
beneficiary from primarily performing day-to-day non-qualifying operational dutie s. Since the beneficiary 
has no subordinate s, he cannot be a manager of other managers , supervisors or professionals or an executive 
primarily dictating goals and policies to managerial subordinates. 
In sum, and through the petitioner's own admission, the beneficiary is perfo rming all operational function s 
for the petitioner. While he undoubtedly exercises a great deal of discretion as the company's sole employee , 
the record does not support a finding that his actual duties are primarily manageri al or executive in nature. 
The actual duties themselves reveal the true nature of the employment. Fedin Bro s. Co., Ltd. v. Sava, 724 F. 
Supp . 1103, 1108 (E.D.N . Y. 1989), affd , 905 F.2d 41 (2d. Cir. 1990). 
In conclusion, the petitioner has not established that it will employ the beneficiary m a managerial or 
executive 
capacity . For this additional reason, the appeal will be dismissed. 
D. Ability to pay 
The last issue to be addres sed is whether the petitioner has established that the petitioner has the ability to 
pay the beneficiary's proffered wage. 
As noted, the director found that the petitioner had not demonstrated with sufficient evidence that the 
petitioner has the ability to pay the beneficiary's proffered wage . The director noted that the petitioner had 
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Page 17 
insufficient net income or assets, as reflected in its most recent IRS Form 1120S from 2010, to comp ensate 
the beneficiary the proffered $50,000 salary reflected in the submitted Form I-140. 
On appeal, the petitioner referenc es documentation submitted on the record, including the company' s IRS 
Form s 1120S, the beneficiary' s personal income tax returns, and evidence of checks written to the 
beneficiary. The petitioner states that this evidence is sufficient to establi sh that the petitioner has the ability 
to pay the beneficiary. Further , the petitioner submits a statement from the beneficiary attesting to the fact 
that he received all wages due him since beginning work with the petitioner in October 2008 . 
8 C.F.R. § 204.5(g)(2) states: 
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 
accompani ed 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 
residenc e. Evidence of this ability shall be either in the form of copie s 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 may accept a 
statement from a financial officer of the organization which establishes the prospective 
employer' s a bility to pay the proffered wage. In appropriate cases, additional evidence , 
such as profit/loss statements, bank account records, or personnel record s, may be 
submitted by the petitioner or requested by the Service. 
First, an analysis of whether the petitioner can pay the petitioner's proffered wage is frustrated in this case by 
the petitioner offering varying salaries for the beneficiary in his proposed capacity as president of the 
petitioner. As noted, the Form I-140 states that the beneficiary will have a salary of $50,000 per year. 
However, other portions of the record indicate that the beneficiary salary will be anywhere from $24,000 to 
$36,000 per year . As such, without clarification , the AAO will analyze the petitioner ' s ability to pay based 
upon the $50,000 salary as stated in the Form I-140 . 
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 establi shed. If the petitioner establishes 
by documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered 
wage, this evidenc e will be considered prima fa cie proof of the petitioner' s ability to pay the beneficiary's 
salary . In the present matter, the petitioner did not submit sufficient documentation that wages have been 
paid to the beneficiary during his time of asserted employm ent with the petitioner as an L-1 A nonimmigrant 
intracompany transferee since October 2008. The petitioner submitted evidence of checks written to the 
beneficiary on the following dates and the following amounts : (1) $500 on November 7, 2011, (2) $900 on 
November 30, 2011, (3) $400 on December 14, 2011, (4) $1,200 on February 4, 2013, (5) $600 on February 
12, 2012, (6) $1,002 .71 on March l, 2012, (7) $480 on March 23, 2012, (8) $1,002 on AprilS, 2012 , and (9) 
$500 on June 15, 2012. However , the submitted payments fail to establish that the petitioner paid a 
regular 
salary to the beneficiary that would equate to an annual salary of $50,000. The payments submitted reflect 
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Page 18 
varying amounts and unexplain ed gaps in payment, making it unclear whether the beneficiary has received 
salary payments from the petitioner in the past. Indeed, none of the petitioner's submitt ed IRS Forms 1120S 
note 
any salarie s o r wages paid or compen sation paid to officers casting further doubt to wheth er the 
beneficiary has been paid his $50 ,000 salary in the past. It is incumbent upon the petitioner to resolve any 
incon sistencies in the record by independent objective evidence. Any attempt to expl ain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matt er of Ho, 19 I&N Dec. at 591-92. 
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 basi s for determining a 
petitioner's ability to pay the proffered wage is well established by judici al 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-Fen g Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texa s 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 expense s were paid rather than net income. 
Finally, there is no precedent that would allow the petitioner to "add back to net cash the depr eciation 
expen se 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 September 22, 2011, the AAO must examine the petitioner' s tax return 
for 201 L The director initially reviewed the petitioner's IRS Form 1120S for 2010 as the 2011 return was 
not available. However, the director's analysis of the IRS Form 1120S for 2010 was hindered by the 
petitioner's submi ssion of conflicting tax documentation. As noted by the director, the petitioner submitted 
two conflicting IRS Forms l 1 20S for 2010 , one reflecting $32 ,073 in net taxable income and another 
showing $72,794 in taxable net income . Again, it is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
incon sistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matt er of Ho, 19 I&N Dec . 582 , 591-92 (BIA 1988) . The petitioner has also submitted an 
IRS Form 1120S for 2011. The 2011 tax return reflects a net taxable income of $31,859, which is 
insufficient to pay the benefici ary's proffered salary of $50,000. 
Finally , if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current asset s. Net current assets are the difference between the petitioner's current assets 
and current liabiliti es. 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 
(b)(6)
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Page 19 
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 . 
To find the difference between cunent assets and current liabilities, USCIS looks to the IRS Form l120, 
Schedule L Balanc e Sheets. The petitioner's IRS Form 1120S submitted for 2011 indicates only $4,953 in 
net current assets. 
Therefore , the petitioner has not established with sufficient evidence that the petitioner has the ability to pay 
the beneficiary's proffered wage of $50,000 . For this additional reason, the appeal must be dismiss ed. 
V. 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.