dismissed EB-1C Case: Import/Distribution

(b)(6)
DATE: SEP 2'5 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: ,TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
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:ljwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See (llso 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Texas Service Center Director denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner filed this Form I-140, Immigrant Petition for Alien Worker, to classify the beneficiary 
as an employment-based immigrant pursuant to section 203(b )(1)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. The 
petitioner, a Texas corporation, is engaged in the import and distribution of hunting and fitness 
products, and claims to be a subsidiary of the beneficiary's 
former employer in China. The petitioner seeks to employ the beneficiary in the position of General 
Manager and Director. 
The director denied the petition on January 31, 2014, based on five independent and alternative 
grounds, concluding that the petitioner failed to establish: (1) that it has a qualifying relationship 
with the beneficiary's foreign employer; (2) that the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity; (3) that the foreign entity is doing business 
abroad; (4) that the petitioner is actually doing business in the United States; and, (5) that it had the 
ability to pay the beneficiary's proffered wage at the time the Form I-140 was filed . 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to us for review. On appeal, counsel submits a brief disputing the director 's 
adverse findings. 
I. THE LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
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subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
Pursuant to 8 C.P.R. § 204.5(j)(3)(i)(D), the petitioner must establish that it has been doing business 
for at least one year. In turn, 8 C.P.R. § 204.5(j)(2) provides that "[d]oing business means the 
regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or 
other entity and does not include the mere presence of an agent or office." 
Additionally, the regulations at 8 C.P.R. § 204.5(j)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
(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. 
II. THE ISSUES ON APPEAL 
A. Qualifying Relationship 
The first issue to be addressed in this proceeding is whether the petitioner established a qualifying 
relationship with the entity where the beneficiary was employed abroad. 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 )(1 )(C) 
of the Act, 8 U.S.C. § 1153(b)(l)(C). 
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The regulation at 8 C.P.R. § 204.5G)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, direct! y or indirect! y, less than half of the entity, but in fact 
controls the entity. 
In the present matter, the petitioner claims to be a subsidiary of 
where the beneficiary was employed prior to coming to the United States to work for the petitioner. 
This claim is based on the assertion that the foreign company owns 98% of shares of the U.S. 
petitioner. The petitioner submitted two stock certificates for the U.S. company. The first stock 
certificate is numbered 00001 and it certifies that the foreign company owns 98 percent of the 
petitioner's shares. The second certificate is numbered 00002 and it certifies that 
owns 2 percent of the petitioner's shares. 
Moreover, the director determined that the petitioner provided information on Schedule K of its 
2012 IRS Form 1120, U.S. Corporation Income Tax Return, which is inconsistent with the 
petitioner's claimed ownership. In Schedule G, under Part II where it requests inform ation of 
individuals owning the corporation's voting stocks , [the beneficiary] is listed as the owner of 100 
percent of the voting stock. Moreover, Form 5472 of the Form 1120 states that [the beneficiary] is 
listed as the 25% foreign shareholder. 
On appeal, counsel for the petitioner asserts that the Certificate of Formation states that the petitioner 
is authorized to issue a total of 100 shares and thus, this establishes the claim that the foreign entity 
is a majority owner of the petitioner. Also on appeal, counsel submits a copy of the petitioner's 
amended 2012 tax returns listing the foreign entity as the owner of 98 percent of the petitioner's 
stock , and as the owner of 2 percent of the petitioner's stock. The petitioner did not 
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provide any explanation as to why the first tax documents contained incorrect information of the 
petitioner's ownership. In addition, the petitioner did not provide any evidence to show that the 
amended tax return was properly filed with the Internal Revenue Services. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Given that ownership of the petitioning entity is germane to 
establishing the existence of an affiliate relationship between the petitioner and the beneficiary's 
employer abroad, the petitioner's failure to provide consistent and reliable evidence to identify its 
owner(s) precludes us from concluding that the petitioning U.S. employer and the beneficiary's 
employer abroad are commonly owned and controlled. See Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 
I&N Dec. 362 (Assoc. Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
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 of 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 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. 
In the current case, the petitioner submitted two stock certificates and the petitioner's certificate of 
formation. As general evidence of a petitioner's claimed qualifying relationship, stock certificates 
alone are not sufficient evidence to determine whether a stockholder maintains ownership and 
control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, 
corporate bylaws, and the minutes of relevant annual shareholder meetings must also be examined to 
determine the total number of shares issued, the exact number issued to the shareholder, and the 
subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning 
company must disclose all agreements relating to the voting of shares, the distribution of profit, the 
management and direction of the subsidiary, and any other factor affecting actual control of the 
entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all relevant 
documents, USCIS is unable to determine the elements of ownership and control. 
The petitioner has not established that it maintains the requisite qualifying relationship with the 
beneficiary's foreign employer and thus, the appeal will be dismissed. 
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B. U.S. Employment in a Managerial or Executive Capacity 
The next issue to be addressed ·is whether the petitioner established that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 110l(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 
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(iv) receives only general supervtston or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must take into account the reasonable needs of the organiz ation, in 
light of the overall purpose and stage of development of the organization. Section 101(a)(44)(C) of 
the Act. 
1. Facts 
The petitioner has offered the beneficiary the position of General Manager and Director. In a letter 
dated June 4, 2013, the petitioner described the beneficiary's duties as follows: 
• Managing the operations of the company; 
• Presiding over and providing management for the company and operations; 
• Leading company strategic development in the U.S. based on the partnership 
agreements with 
• Recruiting and training staff; 
• Deciding the marketing niche and leading sales development; 
• Meeting and negotiating contracts with existing and potential customers; and 
• In charge of overall administrative management including daily supervision of 
company operation , developing and modifying as needed a budget that is 
consistent with operational and strategic planning, and monitoring employee 
performance and designing methods of incentives, etc. 
The petitioner also explained that "during the first six months of operation in 2012, we hired three 
full-time employees (one Sales Manager, one Finance/ Sales Coordinator, and one Clerical and 
Administrative Assistant) and one part-time order 
entry person in the U.S." 
The petitioner submitted an organizational chart which listed the beneficiary as General Manager 
and Director who supervises one sales coordinator, one order entry employee, one executive 
assistant and one board member. The chart also indicated that the petitioner own 55% of 
and 33% of The petitioner submitted Forms W-2 for three 
individuals: the sales coordinator, the board member and the executive assistant. 
The petitioner submitted Form 941, Employer's Quarterly Federal Tax Return , for the second and 
third quarters of 2013 that indicated the petitioner employed three individuals. The Form 1-140 was 
filed on June 5, 2013, thus according to the Form 941 submitted by the petitioner, the petitioner 
employed three individuals at the time of filing. 
In response to the director's request for evidence, the petitioner provided a percentage break down 
for each duty the beneficiary will perform in the proffered position as follows: 
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• Managing the operations of the company; (15% ); 
• Presiding over and providing management for the company and operations (15% ); 
• Leading companv strategic development in the U.S. based on the partnership 
agreements with (10% ); 
• Recruiting and training staff (5% ); 
• Deciding the marketing niche and leading sales development (5% ); 
• Meeting and negotiating contracts with existing and potential customers (5% ); 
• In charge of overall administrative management including daily supervision of 
company operation, developing and modifying as needed a budget that is consistent 
with operational and strategic planning, and monitoring employee performance and 
designing methods of incentives, etc. (15% ); and 
• Managing the operations of 30% ). 
The petitioner also explained that the petitioner "was established in an effort to expand sales and 
business opportunity in the U.S. from base manufacturing operation located in 
Taishan, China." The parent company "primarily produces items made of aluminum and steel such 
as hunting tree stands and small exercise fitness and specialty items ." The petitioner also explained 
that the beneficiary investe,d in two companies that are now a joint venture with the petitioner. The 
petitioner stated that the petitioner's employees in 2012 included a sales coordinator, a director, an 
executive assistant and an internet sales employee. The petitioner also explained that in 2013 it 
hired additional employees, including two sales employees and a new product development 
manager. The petitioner provided a one sentence explanation of the duties performed by each 
employee. 
On appeal, counsel contends that the "Service failed to notice that the petitioner had hired 3 
additional employees in 2013 and that the beneficiary would spend 30% of his time managing the 
operation of with a staff of approximately 100 employees." On appeal, counsel for 
the petitioner submits Forms W-2 for six employees. 
The director denied the petition, in part, concluding the pet1t10ner failed to establish that the 
beneficiary would be employed by the petitioner in a qualifying managerial or executive capacity. 
In denying the petition, the director determined that the petitioner provided an overly broad job 
description that failed to convey an understanding of what the beneficiary will primarily do on a day­
to-day basis. 
2. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of 
the record, starting first with the petitioner's description ofthe beneficiary's proposed job duties. See 
8 C.F.R. § 204.5G)(5). A detailed job description is crucial, as the duties themselves will reveal the 
true nature of the beneficiary ' s foreign and proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The AAO will then 
consider this information in light of other relevant factors, including job descriptions of the 
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beneficiary's subordinate employees, the nature of the business that is conducted, the petitioner's 
subordinate staff , and any other facts contributing to a comprehensive understanding of the 
beneficiary's actual role within the petitioning entity. While an entity with a limited support staff 
will not be precluded from the immigration benefit sought herein , it is subject to the same burden of 
proof that applies to a larger entity with a moderate or large subordinate staff. In other words, 
regardless of an entity's size or support staff, the petitioning entity must be able to provide sufficient 
evidence showing that it has the capability of maintaining its daily operations such that the 
beneficiary would be relieved from having to primarily perform the operational tasks. 
In the present matter, upon review of the totality of the record, the evidence does not support a 
finding that the beneficiary would allocate his time primarily to the performance of tasks that are 
within a qualifying managerial or executive capacity. 
Looking to the job description the petitioner provided in response to the RFE, we observe that the 
petitioner assigned a percentage breakdown to groups of actions rather than to individual tasks. For 
instance, the beneficiary is responsible for "managing the operations of the company, "presiding over 
and providing management for the company and operations ," and "managing the operations of 
_ _ ' The petitioner did not, however , define the petitioner's goals and policies, or 
clarify the financial responsibilities and goals of the organization. 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. The petitioner's descriptions of the beneficiary's position do not identify the 
actual duties to be performed, such that they could be classified as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary is responsible 
for "leading company strategic development in the U.S. based on the partnership agreements with 
' "deciding the marketing niche and leading sales 
development," and, "meeting and negotiating contracts with existing and potential customers." It 
appears that the beneficiary will be in charge of market research, marketing, and negotiation rather 
than directing such activities through subordinate employees. 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 Jntn 'I. , 19 I&N Dec. at 604. 
Furthermore, only in response to the director's request for evidence does the petitioner state that the 
beneficiary wil1 spend 30 percent of his time managing the operations of the foreign entity. In 
addition, on appeal, counsel for the petitioner contends that the beneficiary will manage 100 
employees that are located at the foreign entity. In the initial filing, the petitioner never mentioned 
that the beneficiary will spend 30 percent of his time managing the operations of the foreign entity 
and its employees. In addition, the petitioner did not provide any explanation of what is entailed in 
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managing the operations of the foreign entity. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of Soffici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg . Comm'r 1972)). 
The purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b )(8). When responding to a 
request for evidence, 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 its 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 Mich elin Tire 
Corp., 17 I&N Dec . 248, 249 (Reg. Comm'r 1978). If significant changes are made to the initial 
request for approval, the petitioner must file a new petition rather than seek approval of a petition 
that is not supported by ithe facts in the record. The information provided by the petitioner in its 
response to the director's request for further evidence did not clarify or provide more specificity to 
the original duties of the position, but rather added new generic duties to the job description. 
In the instant matter, the job description submitted by the petitioner provides little insight into the 
true nature of the tasks the beneficiary will perform. While the petitioner has provided a breakdown 
of the percentage of time the beneficiary will spend on various duties, the petitioner has not 
articulated whether each duty is manageri al or executive. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary will perform are only incidental to the position in question. 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). 
In addition, at the time of filing the Form 1-140, the petitioner employed a director, an executive 
assistant and a sales coordinator. As required by section 101(a)(44)(C) of the Act, if staffing levels 
are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity, USCIS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. To establish that the reasonable needs 
of the organization justify the beneficiary's job duties, the petitioner must specifically articulate why 
those needs are reasonable in light of its overall purpose and stage of development. In the present 
matter, the petitioner has not explained how the reasonable needs of the petitioning enterprise justify 
the beneficiary's performance of non-managerial or non-executive duties. Again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, at 165. 
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Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. 
See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the 
petitioner may justify a beneficiary who allocates 51 percent of his duties to managerial or executive 
tasks as opposed to· 90 percent, but those needs will not excuse a beneficiary who spends the 
majority of his or her time on non-qualifying duties. 
In the current case, the petitioner did not explain which employee would handle customer service, 
shipping and ordering, marketing, budgeting, accounting, inventory and customs operations. It is not 
clear how a board member, sales coordinator and executive assistant would provide all of these 
functions. 
In light of the foregoing discussion, the petitioner has not established that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity and on the basis of 
this second adverse conclusion , this petition cannot be approved. 
C. Foreign Entity Doing Business 
Third, the director denied the petitioner concluding that the record lacks evidence to establish that 
the foreign entity is doing business abroad. The regulation at 8 C.F.R. § 204.5(1)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods and/or services by a firm, 
corporation , or other entity and does not include the mere presence of an agent or office." 
In regards to the foreign entity, the petitioner provided a business license, dated January 6, 2011, and 
a tax return for the foreign entity, dated January 11, 2011. In response to the director's request for 
evidence , the petitioner submitted the payroll for the foreign entity, dated September 30, 2013, an 
electricity bill dated October 2013, and, a water bill dated October 2013. On appeal, the petitioner 
submitted the payroll for the foreign entity, dated January 31, 2014. 
The record provided .sufficient evidence to establish that the foreign entity is still doing business, and 
we will withdraw this portion of the director's decision. 
D. The Petitioner Doing Business 
Fourth, the director denied the petitioner concluding that the record lacks evidence to establish that 
the petitioner is doing business in the U.S. The regulation at 8 C.F.R. § 204.5(j)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods and/or services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." The director 
noted that "business transactions involving its affiliate companies are not indicative of business 
transactions between the petitioner and a third party." 
The director's finding that the petitioner did not submit evidence of doing business with 
"independent corporations or entities" implies a requirement that a petitioner must transact directly 
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with an unaffiliated third party. However, the definition of "doing business" at 8 C.F.R. § 
204.5G)(2) contains no requirement that a petitioner for a multinational manager or executive must 
provide goods and/or services to an unaffiliated third party. Neither the plain language nor the 
regulatory history of the "doing business" provision supports such a requirement. 
Here, the petitioner has provided sufficient evidence to establish that it is doing business. For example, 
the petitioner provided several invoices; bank statements; Form 1120, U.S. Corporation Income Tax 
Return for 2012; Form W-2 for 2012 and 2013; and, Form 941, Quarterly Employer's Quarterly Federal 
Tax Returns for the second and third quarters of 2013. The petitioner provided sufficient evidence to 
establish that it is still doing business, and we will withdraw this portion of the director's decision. 
E. Ability to Pay 
The final topic to be addressed in this discussion is the petitioner ' s ability to pay the beneficiary 's 
proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2), which states, in pertinent part, the following: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine whether 
the petitioner employed the beneficiary at the time the priority date was established. If the petitioner 
establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater 
than the proffered wage, this evidence will be considered prima facie proof of the petitioner's ability 
to pay the beneficiary's salary. 
The petitioner has offered the beneficiary a wage of $120 ,000 per year. As the petition was filed on 
June 5, 2013, the petitioner must establish its ability to pay the beneficiary the proffered wages as of 
this date. The petitioner did not submit any evidence to establish that the beneficiary received an 
annual salary of $120,000 at the time of filing or after, such as paystubs or Form W-2 to indicate the 
salary received by the beneficiary. 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. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the proffered wage during that period, USCIS will next examine the net income figure reflected 
on the petitioner 's federal income tax return, without consideration of depreciation or other 
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expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Taco Especial v. 
Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 
2011). Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay 
the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. 
Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 
1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), aff'd , 703 F.2d 571 (7th Cir. 1983). 
The current petition was filed on June 5, 2013. As of that date, the petitioner ' s 2012 federal income 
tax return is the most recent return available. The petitioner's IRS Form 1120S stated its net income 
as $-6,372. Therefore, for the year 2012, the petitioner did not establish that it had sufficient net 
income to pay the proffered wage of $120,000. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the 
wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered 
wage or more, USCIS will review the petitioner's net current assets. Net current assets are the 
difference between the petitioner ' s current assets and current liabilities.
1 
The petitioner's year-end 
current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities are shown 
on lines 16 through 18. If the total of the petitioner's end-of-year net current assets and the wages 
paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage using those net current assets. The petitioner's tax 
returns stated its net current assets as $35,695 and its liabilities as $18,067. Thus, the net current 
assets were $17,628. Therefore, the petitioner has not established that it had sufficient net current 
assets to pay the beneficiary's salary of $120,000. 
On appeal, the petitioner provided a statement of asset, liabilities and net worth of the petitioner as 
of December 31, 2013. According to that statement, the petitioner's new worth as of December 2013 
was $75,319.02, thus, the petitioner did not establish that it has the ability to pay the beneficiary's 
salary of $120,000. 
The evidence submitted does . not establish that the petitioner had the continuing ability to pay the 
proffered wage beginning on the priority date. 
1 
According to Barron 's Dictionary of Accounting Terms 117 (3"1 ed. 2000) , "current assets" consist of items having (in 
most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities
" are obligations payable (in most cases) within one year , such account s payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). Id. at 118. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
F. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for denial. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner 
has not sustained that burden. 
ORDER: The appeal is dismissed.