dismissed EB-1C Case: International Trade

U.S. Department of Homeland Security 
20 Mass. Ave., NW, Rm. 3000 
Washington, DC 20529 
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. 5 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. 
bert P. ~iemann; Chief 
rninistrative Appeals Office 
DISCUSSION: 
 The Director, California Service Center approved the employment-based visa petition. 
Upon subsequent review of the record, the director issued a Notice of Intent to Revoke and ultimately revoked 
approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner originally claimed to be engaged in import, export, and international trading. It seeks to 
employ the beneficiary as its vice-president of sales and marketing. Accordingly, it 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. 5 1 153(b)(l)(C), as a multinational executive or manager. According to 
counsel, the original petitioner no longer intends to employ the beneficiary, since the petitioner ceased 
operations and the beneficiary's division was merged into a new company.' Counsel asserts that the 
beneficiary is now be employed by a third, unrelated company. 
The petition was filed on May 21, 1998 and the director approved the petition on May 1 1, 1999. The 
beneficiary filed an 1-485, Application to Register Permanent Residence or Adjust Status in August 1999. 
The director requested further evidence to support approval of the 1-485 in February 2001 and in September 
2002. Upon review of the totality of the record, the director issued a Notice of Intent to Revoke on February 
27, 2003. The petitioner provided a rebuttal on April 21, 2003. After review, the director determined that the 
petitioner had not established its ability to pay the beneficiary the proffered wage and that the beneficiary's 
current position was not in a managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the foreign entity's payment of the beneficiary's wage while 
the beneficiary was in L-1 A intracompany transferee status is not relevant and does not constitute "good and 
sufficient cause" to revoke an approved 1-140 petition. Counsel also asserts that the petitioner's lack of 
payment to the beneficiary as a "permanent residence (EB1-3)" does not constitute "good and sufficient 
cause" to revoke an approved 1-140. Counsel finally asserts that the director erred in revoking the 1-140 
petition on the basis that the beneficiary's new job is not in the same or similar classification as the 
beneficiary's job with the petitioner. 
Section 203(b) of the Act states in pertinent part: 
(I) 
 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 
1 
Counsel's assertions raise additional issues that should have been addressed by the director. If the 
petitioner terminated its business operations in 1999, the approval of the petition would have been revoked 
automatically and retroactively back to the date of the petition's approval, without any need for a notice. 8 
C.F.R. 8 205.1 (a)(3)(iii)(D). 
classification and admission into the United States under ths 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 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 that 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. See 8 C.F.R. 5 
204.5(j)(5). 
Section 205 of the Act, 8 U.S.C. 1155, states: "The Attorney General may, at any time, for what he deems to 
be good and sufficient cause, revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . ths Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582,590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
Citizenship and Immigration Services (CIS) regulations affirmatively require an alien to establish eligibility 
for an immigrant visa at the time an application for adjustment of status is filed. See 8 C.F.R. 5 245.1(a). If 
the beneficiary of an approved visa petition is no longer eligible for the classification sought, the director may 
seek to revoke his approval of the petition pursuant to section 205 of the Act, 8 U.S.C. 5 1155, for "good and 
sufficient cause." Notwithstanding the CIS burden to show "good and sufficient cause" in proceedings to 
revoke the approval of a visa petition, the petitioner bears the ultimate burden of establishing eligibility for 
the benefit sought. The petitioner's burden is not discharged until the immigrant visa is issued. Tongatapu 
Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
The issue in this proceeding is the petitioner's ability to pay the beneficiary the proffered wage of $40,000 per 
year. 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 lawhl permanent residence. Evidence of th~s ability 
shall be either in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In analyzing a petitioner's ability to pay the proffered wage, the fundamental focus is whether the employer is 
malung a "realistic" or credible job offer and has the financial ability to satisfy the proffered wage. Matter of 
Great Wall, 16 I&N Dec. 142, 145 (Acting Reg. Comm. 1977). 
In the Notice of Intent to Revoke, the director observed that the record did not substantiate that the petitioner 
had ever employed the beneficiary. The director concluded that the beneficiary had been unemployed prior to 
attempting to utilize the benefits provided under the "portability provision" of section 2040') of the Act, 8 
U.S.C. § 11540), as added by section 106(c) of the American Competitiveness in the Twenty First Century 
Act of 2000 (~~21).* The director concluded that the beneficiary was not eligible for the classification 
sought and issued the Notice of Intent to Revoke on March 25,2003. 
In rebuttal, counsel for the petitioner asserted that the source of the beneficiary's remuneration was not 
important and that the beneficiary could continue to be paid by a foreign-based subsidiary, affiliate, or parent 
company even after being assigned to the United States. Counsel referenced, without providing, Immigration 
and Naturalization Service (now CIS) regulations and the Board of Immigration Appeals' precedent decisions. 
The director determined that the petitioner had not paid the beneficiary's proffered salary as either an "El 3 or 
as an L- 1 " beneficiary. 
On appeal, counsel for the petitioner asserts that the foreign entity's payment of the beneficiary's wage while 
the beneficiary was in L-1A intracompany transferee status is not relevant and does not constitute "good and 
sufficient cause" to revoke an approved 1-140 petition. Counsel also asserts that the petitioner's lack of 
2 
 The "portability provision" at section 204Q) of the Act provides that an applicant whose application for 
adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more 
shall remain valid with respect to a new job, if the individual changes jobs or employers, and the new job is in 
the same or a similar occupational classification as the job for which the petition was filed. The beneficiary 
filed the 1-485 application August 6, 1999 and obtained an offer of employment, once his legal status was 
verified, from a new employer on August 12, 2002. Counsel also provided the beneficiary's pay stub, issued 
by the new employer, for the period beginning September 16, 2002 and ending September 30, 2002 showing 
the beneficiary's gross pay of $1,667. 
Page 5 
payment to the beneficiary as a "permanent residence (EB1-3)" does not constitute "good and sufficient 
cause" to revoke an approved 1-1 40. 
Counsel correctly observes that the foreign entity's payment of the beneficiary's salary in L-1 A intracompany 
transferee status, even if it had been established, is not relevant to the revocation of an approved 1-140 
petition. However, counsel's assertion that the petitioner's lack of payment to the beneficiary does not 
constitute good and sufficient cause to revoke the petition, does not directly address the issue in this matter. 
As stated previously, the regulations require that the petitioner establish its ability to pay the beneficiary the 
proffered wage at the time the priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. See 8 C.F.R 5 204.5(g)(2). When 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. The priority date is May 21, 1998. If the petitioner establishes by documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, thls evidence 
will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. 
In this matter, the petitioner has not supplied documentary evidence that it has employed the beneficiary at a 
salary equal to or greater than the proffered wage. Generally, the director's decision to revoke the approval of 
a petition will be affirmed, notwithstanding the submission of evidence on appeal, where a petitioner fails to 
offer a timely explanation or rebuttal to a properly issued notice of intention to revoke. See Matter of Arias, 
19 I&N Dec. 568,569 (BIA 1988). 
Counsel for the petitioner asserts that the petitioner's parent company, the foreign entity in this matter, paid 
the beneficiary the proffered wage while the beneficiary was in L-1A intracompany status. The record 
contains evidence that the beneficiary was approved to work for the petitioner in L-1A valid intracompany 
transferee status from October 16, 1998 to May 1,2001. The record also contains a May 1, 1998 letter signed 
on behalf of the foreign entity that indicates the beneficiary worked for the foreign entity from March 1, 1996 
to May 1, 1998. Other than these assertions and the evidence of the beneficiary's L-1A intracompany status, 
the record is devoid of documentary evidence that the beneficiary has been paid the proffered wage by either 
the foreign entity or the petitioner. 
The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffi, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 1 90 (Reg. Comm. 1972)). 
Moreover, the pertinent regulation states the type of evidence that will establish the petitioner's ability to pay. 
The regulation states "[elvidence of this ability shall be either in the form of copies of annual reports, federal 
tax returns, or audited financial statements." 8 C.F.R. 5 204.5(g)(2). As such, CIS will initially 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. 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, 71 9 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. 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 record contains the petitioner's Internal Revenue Service (IRS) Form 11 20, U.S. Corporation Income Tax 
Return for its fiscal year beginning July 1, 1996 and ending June 30, 1997 and the petitioner's IRS Form 1 120 
for its fiscal year beginning July 1, 1 999 and ending June 30, 2000. The petitioner's 1 996 IRS Form 1 120 
shows $23,500 paid in salaries and a negative income of $1 2,66 1. The petitioner's 1999 IRS Form 1 120 
shows $14,000 paid in salaries and a net income of $12,498. However, the record does not contain any 
evidence of the petitioner's ability to pay the beneficiary when the petition was filed in May 1998 and 
continuing until the Notice of Intent to Revoke was issued on February 27,2003.' 
The complete lack of documentary evidence substantiating that the petitioner had paid or has the ability to 
pay the beneficiary the proffered wage constitutes good and sufficient cause to revoke this petition. The 
petitioner has not provided evidence to overcome the director's decision on this issue. For this reason, the 
appeal must be dismissed. 
Beyond the decision of the director, the petitioner never established that the beneficiary's position was a 
managerial or executive position. The initial description of the beneficiary's duties for the petitioner 
paraphrased the statutory requirements of both managerial and executive capacity. See section 
1 0 1 (a)(44)(A)(iii) and 1 0 1 (a)(44)(B)(ii)(iv) of the Act. 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 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Moreover, the petitioner indicated that the beneficiary 
would be developing business relations, developing new markets, and exploring and identifying local 
3 
 The record includes the petitioner's June 22, 1999 letter that states it still intended to employ the beneficiary 
as its vice-president of sales and marketing. The record also includes the beneficiary's 1-485 application filed 
August 6, 1999. The record further includes counsel's explanation that the petitioner's "LAN" department was 
spun off and merged with a California corporation that had been established August 30, 1999. It is noted that 
the California Secretary of State website, the "California Business Portal," indicates that the petitioner is no 
longer an active corporation. See http://kepl er.ss.ca .mv/list .html (accessed May 1 8, 2007). Given the timing 
of these events, the facts raise the serious question as to whether the petitioner actually intended to employ the 
beneficiary at the time the 1-485 was filed. 
While counsel ultimately explained and provided evidence that the petitioner's parent company had purchased 
a controlling interest in the new company that would now employ the beneficiary, these facts are not material 
to this petition. Instead, the facts represent a substantial and material change in the approved petition that 
would require the filing of a new petition by the new employer. 
markets. Theses duties more specifically describe an individual performing market research and obtaining 
sales rather than managing these tasks through the work of others. The actual duties themselves reveal the 
true nature of the employment. Id. 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). For this additional reason, the 
petition should not have been approved. 
In addition to the vague description of the beneficiary's duties, the petitioner did not independently document 
its staffing levels or the beneficiary's actual role in the petitioner's hierarchy. The petitioner's organizational 
chart, without independent evidence of the employment of individuals in various roles, is not sufficient. 
Further, the petitioner's organizational chart shows that the beneficiary's purported duties would have 
included only a small role in the petitioner's successor after the spin off and merger. 
Finally, citing section 2046) of the Act, 8 U.S.C. tj 11546), titled "Job Flexibility For Long Delayed 
Applicants For Adjustment Of Status To Permanent Residence," counsel asserts that CIS may not deny the 
beneficiary's adjustment of status application because it had been pending for more than 180 days at the time 
of adjudication. Contrary to counsel 's assertions, the director's decision does not clearly indicate whether he 
considered the description of the beneficiary's duties for the September 2002 employer as a basis for revoking 
the 1-140 petition. However, the AAO finds that the beneficiary's new job and the portability considerations 
of AC21 are separate issues that should be addressed in the adjudication of the beneficiary's 1-485 application, 
not in the 1-1 40 revocation decision. 
Although no appeal lies from the denial of an application for adjustment of status under section 245 of the 
Act, 8 C.F.R. 5 245.2(a)(5)(ii), the AAO will comment on the issue. 
The operative language in section 2046) of the Act is the following phrase: "A petition . . . shall remain valid 
with respect to a new job if the individual changes jobs or employers . . . ." The term "valid" is not defined by 
the statute, nor does the congressional record provide any guidance as to its meaning. See S. REP. 106-260; 
see also H.R. REP. 106-1048. Critical to establishing eligibility under section 204(j), the petition must be 
"valid" to begin with if it is to "remain valid with respect to a new job." Section 2040) of the Act, 8 U.S.C. 5 
1 154(j) (emphasis added). 
To be considered "valid" in harmony with the thrust of the related provisions and with the statute as a whole, 
the petition must have been filed for an alien that is "entitled" to the requested classification and that petition 
must have been "approved" by a CIS officer pursuant to hls or her authority under the Act. See generally, 5 
204 of the Act, 8 U.S.C. tj 1154. 
As previously discussed, the present petition's approval was revoked because the petition was not valid at the 
outset. Again, in analyzing a petitioner's ability to pay the proffered wage, the fundamental focus is whether 
the employer is making a "realistic" or credible job offer and has the financial ability to satisfy the proffered 
wage. Matter of Great Wall, 16 I&N Dec. at 145. In the present case, the petitioner failed to submit evidence 
to establish that it had the financial ability to pay the wage or otherwise make a valid offer of employment. 
In the present matter, the petition was filed on behalf of an alien who was not "entitled" to the classification 
and the petition was ultimately revoked. Section 106(c) of AC21 does not repeal or modify section 204(b) or 
section 205 of the Act, which require CIS to approve a petition prior to granting immigrant status or 
adjustment of status and further provides the authority to revoke that approval. Accordingly, this petition 
cannot be deemed to have been "valid" for purposes of section 204(j) of the Act. 
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.