dismissed EB-1C Case: Import/Export

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington. DC 20529 
--tldaedmo prevent clearly unwm U.S. Citizenship 
hd~~ of pe~ and Immigration Services 
FILE: Office: TEXAS SERVICE CENTER Date: duk, 2 1 2005 
SRC 03 216 51390 
IN RE: 
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: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
A& hobert P. Wiernann, Director 
4 Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant petition seeking to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
jj 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Florida that is 
operating as an import and export company. The petitioner seeks to employ the beneficiary as its general 
manager. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel submits a brief claiming that as the general manager, the beneficiary manages the 
organization, supervises two employees, "has the authority to hire and fire," "exercises discretion over all day- 
to-day operations," and determines the company's short and long-term goals. Counsel contends that 
Citizenship and Immigration Services (CIS) erred in concluding that the beneficiary performed the daily 
operations of the business, and notes that the beneficiary's involvement in signing shipping documents and 
invoices does not preclude the beneficiary from functioning in a qualifying capacity. 
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 or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 8 C.F.R. 
Q 204.5(j)(5). 
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 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 conlponent 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) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) Directs the management of the organization or a major component or function of the 
organization; 
(ii) Establishes the goals and policies of the organization, component, or function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the instant petition on August 1, 2003 requesting the employment of the beneficiary as its 
general manager. In an appended letter, dated May 29, 2003, the petitioner explained that as the general 
manager of the business, the beneficiary has directed its import, export and distribution operations in the 
southern Florida region, "negotiated contracts and managed the personnel." The petitioner stated that in this 
capacity, and "with the responsibilities of the company's Chief Executive Officer," the beneficiary would 
perform the following job duties: 
Page 4 
1) She sets policy for all aspects of the administration of the company including: 
a) Hiring standards, position job duties, personnel compensation and benefits; 
b) Set marketing goals and strategies in consultation with the board of directors based 
upon projections of revenue and expenses under alternative marketing strategies and 
forecast general economic conditions; 
c) She determines the company's credit needs and negotiates the terms of lines of credit 
obtained in consultation with professional advisors such as accountants and attorneys, 
as well as with the advice of the board of directors; 
d) She determines policies for credit to be granted to purchasers of the company's 
products under various circumstances as well as policies for collections and shipment 
terms. 
2) [The beneficiary] is responsible for [the] company's operations, including: 
a) Assuring compliance with U.S. import and export trade restrictions and reporting 
requirements; 
b) Compliance with Environmental Protection Agency (EPA) regulations on aerosol 
propellants in the United States; 
C) Establishment of advertising based upon market survey information[.] 
In a request for evidence dated January 20, 2004, the director asked that the petitioner submit a "definitive 
statement" describing the beneficiary's position in the United States entity and specifically addressing the 
following: (I) the beneficiary's position title; (2) a list of job duties performed by the beneficiary and the 
percentage of time spent on each; (3) the subordinate employees supervised by the beneficiary; (4) a brief 
description of the employees' job titles, job duties, and educational levels; (5) a description of the 
qualifications necessary for the beneficiary's position; (6) the beneficiary's position and level of authority 
within the organization; and (7) an explanation of who provides the sales and services of the company and 
produces the products sold by the petitioner. Counsel also requested that the petitioner submit Form W-2, 
Wage and Tax Statement, for each worker employed by the petitioning entity during the last two years. 
Counsel responded in a letter dated April 9, 2004 and provided the following allocation of the job 
responsibilities held by the beneficiary as general manager: 
20% - Directs, plans and implements policies and objectives of [the] business; 
17% - Reviews financial statements and sales and activity reports to ensure attainment of 
corporate goals; 
23% - Directs and coordinates corporate financial and budget activities for expanding 
business activities as well as traveled for prospecting new clients; 
23% - Directs and coordinates activities of business involved with pricing, purchases, sales, 
rentals andlor distribution of products; and 
17% - Directs non-business activities such as advertising, banking and credit negotiations, 
public relations and accounting. 
Counsel also claimed that the beneficiary satisfied the requirements of general manager, as she "manages the 
organization," "supervises and controls the work of other supervisory, professional, or managerial 
employees," "has the authority to hire and fire or recommend personnel actions such as promotions, leave 
authorizations, etc.," and "exercises discretion over all day-to-day operations." 
Page 5 
With regard to the petitioner's employees at the time of filing the petition, counsel noted that in addition to the 
beneficiary, the petitioner employed one worker, a sales and distribution assistant. The AAO notes that 
according to the employment dates provided by counsel, the company's "former" warehouse shipping and 
dispatch employee left the company one day before the instant petition was filed, while its current warehouse 
shipping and dispatch employee did not begin employment until two months after the filing. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Cornm. 1971) (concluding a petitioner must establish eligibility at the time of 
filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of 
facts). Counsel outlined the job duties of the sales and distribution assistant as: telemarketing; "client follow- 
up"; preparation of quotes and sales material; and "report[ing] to [the] General Manager on accounts 
receivable, accounts payable, national sales and export sales." While counsel noted that an organizational 
chart would be attached, none was included in the record. 
Counsel provided the petitioner's years 2002 and 2003 Forms W-2 for each employee and Forms 941, 
Quarterly Federal Tax Return, for the fourth quarter of 2003 and the first quarter of 2004. 
In a decision dated May 11, 2004, the director concluded that the petitioner had not demonstrated that the 
beneficiary would be employed by the petitioning entity in a primarily managerial or executive capacity. The 
director stated that despite the beneficiary's supervision over two employees, there is "no evidence assert[ing] 
the exact duties, in such documents as a formally signed job contract, or authority over the hiring, firing and 
other personnel actions of the other two employees." The director also stated that only one employee is noted 
to have a college education, and explained that it was unknown from the record whether a college degree is 
required or merely preferred for the position performed by the employee. 
The director also referenced the job duties to be performed by the beneficiary and concluded that the 
beneficiary would perform such day-to-day operations of the business as "bank fund transfers[ ] [and] 
completing shipping receipts[,] and [would function] as [the] contact for [a] request for the delay of an 
incoming product." The director identified documentation in the record reflecting instances in which the 
beneficiary signed orders and shipping documents, requested funds transfers, and was identified as the 
representative of the petitioning organization. The director stated that while the beneficiary exercises 
discretion over some of the daily operations of the company, she also performs a portion of its day-to-day 
functions. The director concluded that the beneficiary's primary assignment in the United States has not been 
and would not be directing the policy or management of the organization, or supervising a subordinate staff of 
supervisory, professional, or managerial employees. The director also concluded that the petitioning entity 
"does not need a full[-]time executive to manage two employees and to make decisions regarding the 
company." 
The director further noted the existence of a letter from the foreign entity's accountant, in which the 
accountant identified additional compensation paid to the beneficiary from the foreign entity. The director 
stated that the material changes could not be made to a petition following its filing in an effort to conform to 
CIS requirements. The director also identified a discrepancy in the petitioner's purported business location, 
stating that counsel did not supply a lease signed by the beneficiary. Consequently, the director denied the 
employment-based petition. 
Counsel filed an appeal on June 14, 2004. In a subsequently submitted brief, counsel claims that CIS "abused 
its discretion" in determining that the beneficiary would not be employed in a primarily managerial or 
executive capacity, and "erred" in its conclusion that the beneficiary would perform day-to-day operations of 
the business. Counsel states that as the general manager, the beneficiary manages the petitioning 
organization, "has the authority to hire and fire," "exercises discretion over all day-to-day operations," and 
aids in achieving the short and long-term goals of the organization. Counsel notes that contrary to the 
director's claim, the beneficiary "has much more authority than a supervisor of two employees," claiming that 
the beneficiary also performs the following job duties: 
[Directs] and plan[s] business goals, review[s] financial statements and sales reports, directs 
and coordinates business activities such as pricing, purchases, sales, rentals andfor 
distribution of products and non-business activities, such as advertising, public relations, 
banking, credit negotiations and accounting. 
Counsel challenges the director's requirement that the petitioner provide employment contracts for its 
workers, stating that the workers are employed "at-will" without a written contract. Counsel submits a 
revised list of workers employed by the petitioner, which showed that a new employee had replaced the 
petitioner's former sales and distribution assistant. 
Counsel also disputes the director's finding that the beneficiary would be involved in the daily operations of 
the business. Counsel states "[tlhe mere fact of receiving and signing for a UPS shipping document or 
international airway bill is not probative that the Beneficiary as General Manager was involved in day-to-day 
operations." Counsel states: 
As General Manager, if a task or duty cannot be performed by the employee because of an 
oversight or the absenteeism of the employee, the General Manager needs to step in and do it 
herself. Failing to perform an employee's duty or task could have adverse repercussions on 
the business entity. This by itself does not mean that the General Manager will be performing 
her employees' day-to-day tasks and duties. 
In addition, counsel questions the director's finding that the petitioning organization would not need a 
manager or executive to manage its two workers and make decisions for the company. Counsel references a 
United States District Court case, and contends that CIS cannot "second [guess] the business judgment of a 
successful company" by determining whether an employee's qualifications are appropriate for a particular 
position. Unico American v. Watson, C.D.Ca1. 1991 (1991 WL 11002594 (C.D.Ca1.B. Counsel states "[CIS'] 
decision denying the Petitioner's specific business needs is tantamount to hampering the exercise to free 
enterprise and second guessing business judgment." 
With regard to the petitioner's office lease, counsel states that the submitted evidence, including a letter from 
the lessor, a zoning verification from the Miami-Dade County Department of Planning and Zoning, zoning 
map, and photographs of the warehouse and office premises are sufficient to establish and confirm the 
petitioner's business location. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.56)(5). The record does not support counsel's 
claim on appeal that the beneficiary would not be involved in the daily operation of the business. The 
- 
Page 7 
beneficiary's job duties include the performance of non-qualifying operational tasks associated with the 
petitioner's finances, advertising, regulatory compliance, and import and export functions. Specifically, the 
beneficiary would be responsible for personally determining the petitioner's credit needs, negotiating 
financing, reviewing "market survey information," creating advertisements, and "assuring compliance with 
U.S. import and export trade restrictions and reporting requirements" and with EPA regulations. The record 
contains a personal solicitation from the beneficiary to a "prospective customer" explaining the petitioning 
organization and its products. The beneficiary has been and would clearly be involved in performing 
non-managerial and non-executive tasks promoting and maintaining the petitioner's business, and is not 
merely performing those tasks resulting from the "oversight or absenteeism of [an] employee." An employee 
who primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 
593,604 (Comm. 1988). 
Additionally, even though counsel claims in his April 9, 2004 letter that the beneficiary "directs" the business' 
policies, objectives, finances, and "business" and "non-business" activities, including pricing, purchases, 
sales, advertising, banking, credit negotiations, public relations and accounting, it does not appear that the 
petitioner employs a staff sufficient to perform the operations of the company. As required by section 
lOl(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, CIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. 
At the time of filing, the petitioner employed the beneficiary and a sales and distribution assistant.' Based on 
the employment structure alone, the beneficiary would not qualify as a manager as the beneficiary is not 
supervising or controlling the work of other supervisory, professional, or managerial employees. See 8 C.F.R. 
9 204.5(i)(2). Notwithstanding this deficiency, according to counsel's description, the sales and distribution 
assistant would be mainly responsible for telemarketing, contacting clients and preparing sales material. As 
the petitioner does not employ any additional lower-level workers, it does not seem plausible that the 
reasonable needs of the organization are met by the employment of the beneficiary and a sales and 
distribution assistant. It is unclear how the that the beneficiary would actually be "directing" the business' 
policies, objectives, finances, and activities through the employment of a sales and distribution assistant who, 
according to counsel, is not responsible for such non-qualifying operations as determining the petitioner's 
pricing, nor handling its banking, credit negotiations, public relations and accounting. Based on the 
petitioner's allocation of the amount of time devoted to each responsibility, the beneficiary would spend 
approximately 63% of her time personally performing these business functions. As a result, the beneficiary 
would not be primarily performing the managerial or executive job duties outlined in the Act at sections 
101(a)(44)(A) and (B). See Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. 
July 30, 199l)(concluding that the petitioner must prove that the beneficiary primarily performs the high- 
level responsibilities specified in the statutory definitions and does not spend a majority of his or her time on 
day-to-day functions). 
1 The petitioner noted on the petition that it employed three workers at the time of filing. The petitioner's 
appeal, however, incorporates a revised employee list, wherein the petitioner indicates that on August 1, 2003, 
it employed the beneficiary and a sales and distribution assistant. 
The record indicates that the beneficiary is functioning as the chief operating officer, agent and legal 
representative of a second United States company, Souvenir Coffee Company. The petitioner submitted a 
partnership agreement for a separate United States entity, wherein the petitioning organization is named as a 
50% partner and the beneficiary is identified as holding the above-noted positions. The petitioner does not 
explain the job duties to be performed by the beneficiary in association with her appointment as the chief 
operating officer, agent and legal representative. Regardless, the AAO is left to question how the beneficiary 
would be employed by the petitioning organization in a primarily managerial or executive capacity when the 
beneficiary is concurrently working for an additional organization. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
On appeal, counsel cites a United States District Court case and contends that CIS cannot "second [guess] the 
business judgment of a successful company." Counsel has furnished no evidence to establish that the facts of 
the instant petition are analogous to those in Unico American v. Watson. 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 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornrn. 1972)). 
Although the appeal will be dismissed, the AAO notes that the director partially based her decision on two 
questionable factors. Specifically, the director points out a letter from the foreign entity identifying additional 
compensation paid to the beneficiary and the petitioner's failure to provide a lease signed by the beneficiary. 
It is unclear how these two factors have a direct bearing on the beneficiary's employment as a manager or 
executive. The director should either provide a more detailed explanation why this evidence is relevant to the 
immediate issue or focus on applying the statute and regulations to the facts presented by the record of 
proceeding. 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established its ability to pay the beneficiary's 
proffered wage of $24,000 per year as required in the regulation at 8 C.F.R. 5 204.5(g)(2). In determining the 
petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner employed the 
beneficiary at the time the priority date was established. If the petitioner establishes by documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this evidence 
will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In the present 
matter, counsel submitted two letters from the foreign entity confirming that it supplemented the beneficiary's 
annual salary in the years 2002 and 2003. As a result, the petitioner has not demonstrated that it employed the 
beneficiary at an annual salary of $24,000. 
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 basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Suva, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). In K.C. P. Food Co., Inc. v. Sava, the court 
held the Immigration and Naturalization Service (now CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income. 
623 F. Supp. at 1084. The court specifically rejected the argument that the Service should have considered 
income before expenses were paid rather than net income. Finally, there is no precedent that would allow the 
petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
As the petition's priority date falls on August 1, 2003, the AAO must examine the petitioner's tax return for 
) 2003.~ The petitioner's IRS Form 1120 for the tax year ending August 31.2003 presents a zero balance for its 
net taxable income. The petitioner could not pay a proffered wage of $24,000 per year. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. 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 
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. According to 
Schedule L of the petitioner's tax return, its net current assets are less than the beneficiary's annual salary of 
$24,000. The petitioner has not established its ability to pay the beneficiary's proffered wage. Consequently, 
the petition will be denied for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied 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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
' The petitioner submitted a 2002 tax return based on the tax year September 1, 2002 through August 31, 
2003.