dismissed EB-1C Case: Import, Export, And Land Development

I'ImBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
MAIL STOP 2090 
U. S. Citizenship 
and Immigration 
Services 
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. $ 1 153(b)(l)(C) 
IN 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. 
4.. 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
u. SRC 02 106 50814 
Page 2 
DISCUSSION: On August 16, 2002, the Director, Texas Service Center, initially approved the petition 
under section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1153(b)(l)(C), as a 
multinational executive or manager. Upon hrther review, the director determined that the beneficiary was 
not eligible for the benefit sought. Accordingly, on October 24, 2007, the director ordered that the approval 
be revoked. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be rejected pursuant to 8 C.F.R. $5 103.3(a)(2)(v)(B)(I) and 205.2(d). 
The petitioner, a Florida corporation, claimed to be in the import, export, and land development business and 
to have a qualifying relationship with the beneficiary's foreign employer located in Kazakhstan. Accordingly, 
the petitioner endeavored to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(C), as a multinational 
executive or manager. The director revoked the approval of the petition concluding that the petitioner failed 
to establish that it had the ability to pay the proffered wage in 2005 or 2006. 
The regulation at 8 C.F.R. 4 205.2(d) requires an affected party to file the complete appeal within 15 days after 
service of the notice of revocation, or, in accordance with 8 C.F.R. 5 103.5a(b), within 18 days if the notice was 
served by mail. The record indicates that the notice of revocation was sent to the petitioner on October 24,2007. 
Counsel to the petitioner filed an appeal with the Texas Service Center on November 23,2007, 30 days after the 
decision was served. Thus, the appeal was not timely filed and must be rejected on these grounds pursuant to 8 
C.F.R. 5 103.3(a)(2)(v)(~)(l).' 
The regulation at 8 C.F.R. 5 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a 
motion to reopen as described in 8 C.F.R. 5 103.5(a)(2) or a motion to reconsider as described in 8 C.F.R. 
5 103.5(a)(3), the appeal must be treated as a motion, and a decision must be made on the merits of the case. 
The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in 
this case the service center director. See 8 C.F.R. 5 103.5(a)(l)(ii). 
In this matter, it is noted that the appeal meets the applicable requirements of a motion to reopen. 8 C.F.R. 5 
103.5(a). This regulation states in pertinent part that "[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." Id. In 
this matter, the petitioner offers a copy of its 2005 and 2006 tax returns and the beneficiary's corresponding 
Forms W-2 and 1099 for consideration. The director specifically noted his willingness to consider this 
evidence if submitted on motion, and it appears that the 2006 documents were not available at the time the 
Notice of Revocation was issued. 
1 
It is noted that the director, in his cover sheet to the Notice of Revocation dated October 24, 2007, indicates 
that the petitioner had 30 days to appeal the revocation of the petition to the AAO. However, this timeframe 
does not apply to an appeal of a notice of revocation, which is limited to 15 days in 8 C.F.R. 5 205.2(d). While 
it is unfortunate that the director noted the incorrect appeal period in the Notice of Revocation, the instant appeal 
is nevertheless untimely and the AAO must reject it under the regulations. 8 C.F.R. 5 103.3(a)(2)(v)(B)(l). The 
AAO does not have the authority to waive set appeal periods nor does it have jurisdiction to consider untimely 
appeals. 
Page 3 
However, the AAO notes that, upon review, it does not appear that this additional evidence will be sufficient 
to overcome the director's determination of ineligibility. Although the petitioner claims that the beneficiary 
was paid the proffered wage of at least $50,000.00 in both 2005 and 2006, the evidence submitted contains 
serious inconsistencies which undermine the credibility of this claim. The petitioner submits 2005 Forms W- 
2 and 1099 which indicate that the beneficiary was paid W-2 wages of $44,000.00 and received a 1099 "gross 
distribution" of $8,341.00. However, the corresponding Form 1120 indicates that the beneficiary was paid 
$48,000.00 in "officer compensation" in 2005, and the $8,341.00 distribution has not been accounted for 
anywhere on the Form 1120 as salary, cost of labor, non-employee compensation, or other form of wages. 
Similarly, the beneficiary's 2006 Forms W-2 and 1099 indicate that the beneficiary was paid W-2 wages of 
$44,000.00 and received a 1099 "gross distribution" of $8,540.00. However, the petitioner's Form 1120 also 
fails to account for the $8,341 .OO "distribution" to the beneficiary under any of the categories which could 
apply to officer compensation. 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). 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. 
Id. at 591. 
Furthermore, as an alternate means of determining the petitioner's ability to pay, U.S. Citizenship and 
Immigration Services (USCIS) should next examine the petitioner's net income figure as reflected on the 
federal income tax return, without consideration of depreciation or other expenses. As correctly noted by the 
director, 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), afd, 703 F.2d 571 
(7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court held the legacy Immigration and Naturalization 
Service (INS) 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. 
The petitioner's IRS Form 1120 for calendar year 2005 presents a net taxable income of -$199,692.00. 
Furthermore, the petitioner's Form 1120 for 2006 presents a net taxable income of -$182,276.00. 
Accordingly, even if the credibility issues were resolved with regard to the submitted tax documents, the 
petitioner's 2005 and 2006 tax returns would not establish that it had the ability to pay the beneficiary's 
proffered wage. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, USCIS should review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
SRC 02 106 508 14 
Page 4 
and current liabilities. Net current assets identify the amount of "liquidity" that the petitioner has 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 USCIS 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. Net current assets are the difference between the 
petitioner's current assets and current liabilities. A corporation'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 
a corporation'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 net current assets during 2005 were $5,766.00. The petitioner's net current 
assets as shown on the petitioner's 2006 Form 1120 were $19,292.00. 
Accordingly, while the sum of the petitioner's 2006 assets and the $44,000.00 in W-2 income paid to the 
beneficiary exceeds the $50,000.00 proffered wage, this is not the case for calendar year 2005. As noted 
above, the beneficiary's 2005 Form W-2 shows $44,000.00 in wages paid to the beneficiary, but the 
petitioner's Form 1120 only shows $5,766.00 in assets, for a sum of $49,766.00. As the petitioner fails to 
credibly account for the purported "distribution" represented by the 2006 Form 1099 or the discrepancy on 
Schedule E to the petitioner's 2005 Form 1120, the evidence to be considered by the director on motion 
appears insufficient to establish eligibility for the benefit sought. 
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. 9 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is rejected, and the matter is returned to the director for treatment as a motion and 
the issuance of a new decision.