dismissed EB-1C Case: Import/Export

'.. 
 ide~ifying data deleted 
prevent des1y unwanantd 
, invasion of persona' privacy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
brl 
FILE: Office: VERMONT SERVICE CENTER Date: FEB 2 2 2007 
EAC 03 05 1 53 189 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Vermont Service Center, denied the employment-based petition. 
 The 
petitioner filed an appeal with Administrative Appeals Office (AAO), which the AAO dismissed in a decision 
dated June 1, 2005. The petitioner subsequently filed a motion to reopen or reconsider the AAO's decision. 
The Vermont Service Center incorrectly considered the motion and approved the petition on October 19, 
2005. In a decision dated July 6, 2006, the director revoked the petition's approval, citing the regulation at 8 
C.F.R. $ 205.1(a)(3)(iii)(C), which allows for the automatic revocation of the approval of an employment- 
based,petition on the basis of withdrawal by the petitioner. The director forwarded the instant matter to the 
AAO for review. In a letter dated November 1,2006, the petitioner challenged the revocation, claiming that it 
had not filed a written notice of withdrawal of the petition. 
The regulation at 8 C.F.R. $ 103.5(a)(l)(ii) states that the official having jurisdiction over a motion to reopen 
or reconsider is "the official who made the latest decision in the proceeding unless the affected party moves to 
a new jurisdiction." In this instance, jurisdiction over the petitioner's June 30, 2005 motion to reopen or 
reconsider remained with the AAO following its review of the petitioner's appeal. The Vermont Service 
Center did not have jurisdiction to consider the petitioner's motion. Accordingly, the director's October 19, 
2005 decision approving the immigrant visa petition is withdrawn. The AAO will grant the petitioner's 
motion. The prior decision of the AAO is affirmed. 
The petitioner filed the instant petition 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. 8 1153(b)(l)(C). 
The petitioner is a corporation organized under the laws of the State of New Jersey that is engaged in 
importing, exporting, and distributing scanners and computer parts. The petitioner seeks to employ the 
beneficiary as its president. 
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, 
the petitioner's former counsel challenged the director's decision that the beneficiary's proposed employment 
would not be primarily managerial or executive in nature. 
In a June 1, 2005 decision, the AAO dismissed the appeal concluding that the limited and inconsistent 
documentary evidence offered by the petitioner with respect to the beneficiary's proposed employment and its 
staffing levels precluded the finding that the beneficiary would be primarily employed as a manager or 
executive. The AAO specifically noted a lack of evidence detailing the beneficiary's managerial or executive 
job duties, as well as discrepancies in the workers purportedly employed subordinate to the beneficiary. The 
AAO further observed that the petitioner had not established its ability to pay the beneficiary's proffered 
annual wages at the time of filing. 
The petitioner files the instant motion to reopen and reconsider the AAO's decision, claiming the beneficiary's 
assignment in the United States organization is comprised of primarily executive duties. The petitioner 
submits a brief and its amended year 2002 income tax returns in support of the motion. 
The regulation at 8 C.F.R. $ 103.5(a)(2) states: 
A motion to reopen must state the new facts to be provided in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 
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Page 3 
The regulation at 8 C.F.R. fj 103.5(a)(3) states: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or [Citizenship and Immigration Services (CIS)] policy. A motion to 
reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 
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. 
The issue in the instant 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. fj 11Ol(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; 
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(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) 
 ~xercises 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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 l (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. 
 . 
On motion, the petitioner provides the following accdunt of the beneficiary's proposed employment and its 
staffing levels: 
[The beneficiary] performs the executive duties in the company setting policy dealing with 
budgets and dealing with product advances. One employee is working as our import export 
manager as well as sales manager. His work includes the direction of outside salespeople 
who work on a commission basis. One employee is responsible for maintaining the 
corporate book and records. Our consultant assists with the administration in the company 
and performs some sales functions. 
All of the above people are professionals who are directed by [the beneficiary]. 
The petitioner also explains inaccuracies in its 2002 income tax return that were raised by the AAO in its 
initial review. Specifically, the AAO noted in its June 1, 2005 decision that the sole income tax return 
submitted by the petitioner "is replete with errors and discrepancies regarding the petitioner's ownership and 
the salaries the petitioner paid to its employees." The AAO noted that the petitioner had not'corroborated its 
claim of employing four workers with independent concrete evidence of compensation paid to its purported 
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personnel. 
 The petitioner explains in its brief on motion that its administrative director is paid by the 
petitioner as an outside consultant, while a second employee "is compensated through the provision of a car 
and all of the expense relating thereto." According to the petitioner, neither employee receives a salary from 
the petitioner. The petitioner also noted that its 2002 income tax return reflects its financials for the fiscal 
year from July 1, 2002 through June 30, 2003, and therefore, may not coincide with the salaries reported on 
its Internal Revenue Service (IRS) Forms W-2, Wage and Tax Statement. The petitioner submits an amended 
fiscal year 2002 income tax return reflecting an increase in the beneficiary's salary to $78,500. 
Upon review, the petitioner has not established 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). 
As previously addressed by the AAO in its June 1, 2005 decision, the limited job descriptions offered for the 
beneficiary's proposed employment are insufficient to establish that he would occupy a primarily managerial 
or executive position. The brief statement submitted by the petitioner in response to the director's request for 
evidence indicated that the beneficiary would negotiate sales contracts for the petitioner, set company 
policies, "[make] all executive determinations," and notify the foreign entity of product developments. On 
motion, despite the AAO's observation of an inadequate job description, the petitioner states only that the 
beneficiary would make all executive decisions with respect to the company's policies, budget and product 
modifications. 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 answer a critical question in this case: What does the beneficiary primarily do on a daily basis? 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The AAO notes that going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 
Additionally, the petitioner has failed to resolve the noted inconsistencies in its staffing levels at the time the 
petition was filed. The petitioner attempts to reconcile the discrepancies in its personnel levels through an 
amended 2002 income tax return, which indicates that compensation in the amount of $4,195 was paid to its 
administrative director as a "consulting fee" and $4,800 was paid for auto expenses incurred by its corporate 
secretary. According to the petitioner's statements on motion, the corporate secretary's entire earnings for 
fiscal year 2002 amounted to $4,800. The petitioner's representation that its administrative director and 
corporate secretary rendered full-time services to the petitioner in exchange for the extremely minimal 
amount in compensation is highly questionable, and casts doubt on the staffing levels purportedly maintained 
by the petitioner on the filing date. If CIS fails to believe that a fact stated in the petition is true, CIS may 
reject that fact. Section 204(b)of the Act, 8 U.S.C. 5 1154(b); see also Anetekhai v. INS., 876 F.2d 1218, 
1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. 
v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The federal income tax return also reflects salaries in the amount of $32,400. Based on the information 
contained on the 2002 IRS Forms W-2 issued by the petitioner, at least a portion of this amount was likely 
paid to its import-export manager. Regardless, in light of the various unexplained inconsistencies, the 
Page 6 
petitioner has failed to corroborate its claim of employing workers in positions related to the company's 
administration, sales, marketing, import and export, and customer service functions. The petitioner is 
obligated to clarify the inconsistent and conflicting testimony by independent and objective evidence. Matter 
of Ho, 19 I&N Dec. 582,591 -92 (BIA 1988). 
The petitioner's limited discussion on motion is not adequate to overcome the AAO's well-founded conclusion 
of insufficient evidence with respect to the beneficiary's specific managerial or executive job duties or the 
personnel that would purportedly support the beneficiary in a primarily managerial or executive capacity. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The record, as presently constituted, 
does not demonstrate that the beneficiary would be employed by the petitioning entity in a primarily 
managerial or executive capacity. Accordingly, the prior decision of the AAO is affirmed. 
The AAO will also consider the issue of whether the petitioner demonstrated its ability to pay the 
beneficiary's proffered annual wages at the time of filing. 
The regulation at 8 C.F.R. $ 204.5(g)(2) states: 
Any petition filed by or for any employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer 
has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the 
time the priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
The AAO noted in its June 1, 2005 decision the petitioner's failure to demonstrate its ability to pay the 
beneficiary's annual salary of $60,000 as a result of conflicting evidence in the wages paid to the beneficiary 
in 2001 and insufficient documentation of the petitioner's ability to pay $60,000 at the time of filing in 
December 2002. The AAO found that despite the beneficiary's receipt of $48,000 in 2001, the year before the 
instant petition was filed, the petitioner had not offered quarterly wage reports filed in 2002 or the 
beneficiary's 2002 IRS Form W-2 suggesting that it had the ability to pay the beneficiary's additional 
proffered wages. 
On motion, the petitioner submits a revised income tax return for fiscal year July 1, 2002 through June 30, 
2003, on which the beneficiary is identified as receiving $78,500 in compensation as an officer of the 
corporation. The petitioner provides a June 22,2005 letter, in which its accountant states that a portion of the 
beneficiary's compensation as an officer was "misclassified" on the previous income tax return as purchase 
payments of the petitioning entity. The amended tax return reflects the beneficiary's receipt of $78,500.- The 
AAO notes that the petitioner's original income tax return for the fiscal year ending June 30, 2003 was not 
provided for the record however, the beneficiary's 2002 IRS Form W-2 reflects compensation in the amount 
of $35,000. 
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, 
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this evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In 
the present matter, the petitioner'did not establish that it had previously employed the beneficiary for the 
proffered wages. 
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. 
In this case, the AAO notes uncertainty as to the veracity of the petitioner's amended income tax return for the 
fiscal year ending June 30,200!3. Of notable importance is the fact that the amended tax return relied upon by 
the petitioner on motion is'not certified as being filed with the United States Internal Revenue Service. This 
omission is relevant, as the petitioner made changes to the beneficiary's salary after the inadequacy was raised 
by the AAO, thus creating suspicion as to the reliability of the petitioner's claims. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Also, the petitioner did not provide its 
original 2002 income tax return reflecting the purported "misclassification" of the beneficiary's salary as 
purchase payments of the petitioner. The accuracy of the amount in compensation paid to the beneficiary in 
2002 is further questioned as a result of an earlier 2001 tax filing by the petitioner that also reported incorrect 
information with respect to the beneficiary's salary. 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. at 591. 
The record does not contain independent and objective evidence sufficient to demonstrate that the petitioner 
had the ability to pay the beneficiary's proffered wages at the time of filing. Accordingly, the petitioner has 
not established the beneficiary's eligibility for the requested immigrant visa classification. The AAO's prior 
decision is therefore affirmed. 
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. 3 1361. Here, that burden has 
not been met. 
ORDER: The decision of the AAO dated June 1,2005 is affirmed.