dismissed EB-1C Case: Import/Export

U.S. Department of Homeland Secrtrity 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY U. S. Citizenship 
and Immigration 
identifying data deleted to Services 
prevent clear1 y unwarranted 
invasion of personal privacy 
Office: VERMONT SERVICE CENTER 
 Date: SEP 0 6 2007 
EAC 06 030 52536 
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. 5 I 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice 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. 
Ro e ert iemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner filed the instant immigrant 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. 
9 1153(b)(l)(C). The petitioner, a New York corporation, describes itself as an import/export company. The 
petitioner seeks to employ the beneficiary as its general manager. 
The director denied the petition on August 16, 2006, concluding that the petitioner did not establish that the 
beneficiary would be employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal on September 14, 2006. The director declined to treat the appeal 
as a motion and forwarded the appeal to the AAO for review. On the Form 1-290B, Notice of Appeal, counsel 
for the petitioner states the following: 
The Center Director decision does not take into consideration the practicalities of organizing 
and operating a business. It also ignores the evidence pertinent to a favorable decision, and 
sets standards in isolation of the business model. Evidence already presented if viewed 
objectively will result into a favourable [sic] decision. Therefore, the decision is arbitrary and 
is not supported by facts and evidence presented in the matter. 
Counsel indicated that he would forward a brief andlor additional evidence to the AAO within 30 days. As no 
additional evidence has been incorporated into the record, the AAO contacted counsel by facsimile on July 
25, 2007 to request that he acknowledge whether the brief andlor evidence were timely submitted, and, if 
applicable, to afford the petitioner an opportunity to re-submit the documents within five business days. The 
AAO has not received a response to its request. Accordingly, the record will be considered complete. 
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. 
Page 3 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a finn, 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. 
Regulations at 8 C.F.R. 5 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of 
fact for the appeal. 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. Counsel's 
general objections to the denial of the petition, without specifically identifying any errors on the part of the 
director, are simply insufficient to overcome the conclusions the director reached based on the evidence 
submitted by the petitioner. Counsel's arguments that the director failed to consider the "practicalities of 
organizing and operating a business," overlooked pertinent evidence, and applied an inappropriate standard 
are not clearly explained and are unsupported by evidence. The unsupported statements of counsel on appeal 
or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 
U.S. 183, 188-89 n.6 (1984); Matter ofRamirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Although the director's decision will be affirmed, the AAO notes that the director appears to have 
misinterpreted the petitioner's evidence regarding the number of full-time employees employed by the 
company. Specifically, the director reviewed the petitioner's 2005 Forms W-2 and concluded that the 
beneficiary was the only employee employed by the petitioner on a full-time basis. The petitioner was 
incorporated in July 2005 and only paid wages to the beneficiary and his four claimed subordinates during the 
last four months of the 2005, thus accounting for the low wages earned by the beneficiary's subordinates. 
However, as noted by the director the photographs provided of the petitioner's ofice show no more than two 
workstations for a claimed staff of five employees. 
Upon review of the totality of the evidence, the petitioner has not established that the beneficiary would be 
employed in a primarily managerial or executive position. The petitioner has provided a vague, non-specific 
description of the beneficiary's position that conveys little understanding of what he does on a day-to-day 
basis. For example, the petitioner states that the beneficiary formulates long and short-term business goals, 
provides direction to the company, formulates policy decisions, and makes "independent decisions." These 
statements merely paraphrase the statutory definition of "executive capacity." See section 101(a)(44)(B) of the 
Act. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
 Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 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 1 108. 
Several of the beneficiary's stated responsibilities do not fall clearly under the statutory definitions of 
managerial or executive capacity. For example, the petitioner indicates that the beneficiary's duties include: 
"negotiations with customer, clients, suppliers and other entities," negotiating contracts with dealers and 
clients and conducting follow up with clients, "researching the international market," and determining 
customer requirements. Without further explanation, these duties suggest that the beneficiary is directly 
involved in non-qualifying duties such as market research, purchasing and sales tasks. Although the 
petitioner states that the beneficiary conducts some duties "through representatives," the petitioner does not 
claim to employ representatives and it is unclear to whom the petitioner is referring. 
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). While the beneficiary in the instant matter may exercise authority 
over the petitioning company, the record falls significantly short of establishing that his actual duties are 
primarily managerial or executive in nature. The petitioner has not submitted evidence on appeal to overcome 
the director's determination on this issue. 
Beyond the decision of the director, the record does not clearly establish that the prospective United States 
employer has been doing business for at least one year, as required by 8 C.F.R. 5 204,5(i)(3)(i)(D). The 
immigrant petition was filed on October 3 1, 2005. The petitioner, was incorporated in 
New York on July 12, 2005. In a letter dated October 25, 2005, the petitioner stated: "The US 
was incorporated in 2003 ." 
 m 
In a request for evidence dated December 19, 2005, the director noted that the petitioner was incorporated 
only months prior to the filing of the petition and requested evidence that the company has engaged in the 
regular, systematic and continuous provision of goods or services for at least one year as of the date of filing. 
In response, the petitioner indicated: "The USA company was incorporated in 10/22/2003 in State of Texas 
... and New York company was incorporated in July 2005. . . . We filed merger of both USA companies." 
The documentation provided showed that ted in Texas on October 22, 
2003. The petitioner provided an undated ' with the Secretary of State" 
showing thatntends t The petitioner also included a 
document entitled "Articles of Merger Combination of Multiple Entities." According to the merger 
document, - and not ' would be the surviving corporation. The 
document was signed on November 16,2005, and, according to the articles, would become effective upon the 
issuance of the certificate of merger by the Texas Secretary of State. No certificate of merger was submitted. 
The petitioner submitted a copy of 
 2005 IRS Form 1120-A, U.S. Corporation Short 
Form Income Tax Return, which identifies the company's employer identification number as - 
The petitioner also submitted a copy of 
 2005 IRS Form 1120-A and 2004, IRS Form 
1 120, U.S. Corporation Income Tax Ret 
 company's employer identification number as 
20-109428 1, which is the same number utilized on the Form 1-129 and on I state and 
federal quarterly wage reports. 
Based on the evidence submitted, the petitioning company, 
 was clearly not doing 
business for a full-year prior to the filing of the petition as it was incorporated in July 2005. Although the 
petitioner has attempted to establish that should be regarded as a predecessor company 
Page 5 
and its business activities in 2004 taken into account, the evidence submitted is confusing, incomplete, and 
fails to support the petitioner's claims. To the contrary, the articles of merger, assuming that they were 
actually filed with the Texas Secretary of State, would suggest that the U.S. company that filed this petition 
ceased to exist shortly afier the petition was filed, since they identify the Texas corporation, - 
Inc., as the surviving company. According to publicly available records held by the New York and Texas 
Secretaries of State, the New York corporation is currently active, whil- 
Inc., the Texas corporation, also continues to exist but is "not in good standing." This information raises 
doubts as to whether the merger ever took place. Regardless, because the articles of merger were executed 
subsequent to the filing of the petition, the document is of limited probative value in establishing a connection 
between the two companies. 
Further, the record contains minimal supporting evidence of business transactions undertaken by either 
company, no evidence dating back a full year prior to the filing of the petition, and no evidence that any 
employees were hired by either company prior to September 2005, one month before the instant petition was 
filed. While the 2004 income tax return fordoes indicate gross receipts in the amount of 
$171,239, the AAO cannot accept this document alone as evidence that has been doing 
business for more than one year. For this additional reason, the petition cannot be approved. 
Finally, although not addressed by the director, the evidence submitted does not establish the petitioner's 
ability to pay the beneficiary's proffered wage of $52,000 per year, as required in the regulation at section 
204.5(g)(2). The regulation at 8 C.F.R 5 204.5(g)(2) states in pertinent part: 
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 either 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. In the present matter, the petitioner employed the beneficiary at a weekly wage of $576.92 at the time 
of filing and there is no evidence that he ever received the proffered wage of $1,000 per week either from the 
petitioner or from Duben Motors, Inc. 
As an alternate means of determining the petitioner's ability to pay, the h0 will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Suva, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcra$ Hawaii, Ltd v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Page 6 
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. 111. 1982), afd, 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 October 3 1, 2005, the AAO must examine the petitioner's tax return for 
2005. The petitioner's IRS Form 1120-A for calendar year 2005 presents a net taxable income of $3,976. 
The petitioner could not pay a proffered wage of $52,000 from this income, nor would this amount be 
sufficient to make up the difference between the beneficiary's wage at the time of filing and the proffered 
wage. 
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. 
In this case, the petitioner's net current assets are valued at $4,335, which is also insufficient to pay the 
beneficiary's proffered salary. The petitioner has not established its ability to pay the proffered wage of 
$52,000. For this additional reason, the petition cannot be approved. 
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), afd. 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). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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. 8 1361. Inasmuch as the petitioner has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in support of the appeal, the petitioner has 
not sustained that burden. 
ORDER: 
 The appeal is summarily dismissed.