dismissed EB-1C Case: Investment Advisory

(b)(6)
'\..-
DATE: APR 0 1 201~ . OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homehind Security 
U. S. Citize11ship and Immigration Services 
Administrat ,ive Appeals Office (AAO) · 
20 Massachusetts Ave., N
.W., MS 2090 
Washington, DC 20529 -2090 
U.S. Citizenship 
and Immigration 
Services· 
· FILE: 
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: 
Enclosed please find the. decision of the Administrative Appeals Office in your case. All of the 
. documents related to this matter have been returned to the 
office that originally decided your case. Please 
be advised that any further inquiry that you 'might have concerning your case must be made to that. office . 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a inotion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630.The 
" ' ) . 
specific requirements for filing such a motion can be·found at 8 C.F.E.. § 103.5 . . Do not file any motion 
directly with the AAO. ·Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
. within 30 days of the decision that the motion seeks. to reconsider or reopen. · 
· Thank you, 
;[ . · 
J_Ron/1:!:-
Acting Chief, Administrative Appeals Office 
· ww,w.uscis.gov 
(b)(6)
. Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a .that seeks to employ the 
beneficiary as its director of business development. Acc'ordingly, the petitioner endeavors to 
classify the beneficiary as an employ-ment-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 denied the petition copcluding that the petitioner did not establish it had the ability 
to pay the proffered wage ~ 
·. The petitioner subs~quently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to . the AAO. On appeal, 'counsel submits additional documentation 
asserting that the petitioner has now demonstrated an ability to pay the proffered wage. Counsel 
provides a legal brief and additional evidence in support of t~e appeal. 
I. TheLaw · 
Section 203(b) of the Act states, in pertinent part: 
. ( 1) Priority Workers. -- Visas shall first be ina de available to qualified 
· immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
* * * 
(C) Ce1tain Multinational Executives and Managers; . -- Ail alien is described in 
l_ 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 I year by a firm or corporation or 
other legal entity or an affiliate 0r subsidiary th·e~eof and who seeks to enter the 
United States in order to continue to render services to the same employer or to a 
subsidia~y or affiliate thereof ina cap~city 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 a firm, corporation or other legal entity, or an affiliate 
or subsidiary ofthat entity, and are coming to the United States to work for the same entity. or its . 
affiliate or subsidiary. · -
A United States employer mayfile" a petition on Form 1-140 for classification of an alien under, 
section 203(b)(l)(C) ofthe Act as a multinational executive or manager. · No labor cettification 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 
. ! 
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S'tates in a managerial or executive capacity. Such a statement must clearly describe the duties to 
be petformed by the alien. 
]I. Ability to Pay Proffered Wage 
The sole issue addressed by the director is whether the petitioner established its ability to pay to 
the beneficiary a proffered wage of $60,000 per year. · 
The regulation 8 C.F.R. § 204.5(g)(2) states iq pertinent part: . I · 
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. 
The petitioner filed the immigrant visa petition on June 17, 2011. The petitioner, an independent 
investment advisory firm established in 2002, stated that the beneficiary has been offered a full 
time position serving as the director Of business development. The petitioner indicated on the 
Form 1~140, Immigrant Petition for Alien Worker, that it has a gross annual income of $~20,324 
and a net annual income of $7,995. · 
. . 
The petitioner submitted the following documents relevant to its ability to pay the proffered 
wage in support of the petition: (1) IRS Form 1065 U.S. Return of Partnership Income for 2010 
showing the company's net income of $7,995; (2) a copy of the petitioner's 2010 IRS Form W-3, 
Transmittal of Tax and Wage Statements indicating that the company ·issued five Forms W-2 and 
paid total wages of $105,487.75; (3) a second copy of the petjti9ner's 2010 IRS Form W-3, 
Transmittal of Tax and Wage Statements, indicating that the company issued one Form W-2 and 
paid total wages of $30,000; (4) a copy of the beneficiary's IRS Form W~2 for 2010 indicating 
that he received $30,000 in wages; (5) a letter from a foreign accountant indicating that the . . 
beneficiary received a salary of Bs.F. 90,000,00 and bonuses of $19,069.98 in 2010 and a salary 
of Bs.F. 30,000 and bonuses of $4,767.25 during the first four months of 2011; (6)a letter from . . . 
the petitioner's accountant dated May 12, .2011 stating that prior to 2011, the beneficiary was 
compensated as a 1099 independentcontractor but began working full time for the petitioner in 
2011 with a current salary of $30,000; (7) an unaudited balance sheet for the period January 
through March 2011; (8) a compiled financial statement for the period ended on December 31, 
20 I 0; (9) a self-prepared and unsigned document entitled Summary of Significant Accounting 
Policies, dated December 31, 2010; (10) IRS Form 941, Employer's Quarterly Federal Tax 
Return, for the first quarter of 2011; ( 11) Florida Form UCT-6, Employer's Quarter! y Report, for 
the first quarter of 2011, which indicates that the beneficiary received total wages of $9,082 .61; 
and (12) tax returns, financial statements and other documents for the beneficiary's former 
foreign employer. 
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On August 6, 2011, the director requested additional evidence (RFE) to establish the petitioner's 
ability to pay the beneficiary's 
proffered wage of $60,000 per year as of June 17, 2011 and 
continued ability to pay. The director suggested the inclusion of audited profit/loss statements, 
bank account records, and/or personnel records. 
In response tp .the RFE counsel submitted the following documents: (1) a letter from the 
petitioner's accountant explaining that the company's IRS Form 1065, U.S. Retum of Partnership 
Income, for 2010 was prepared using the cash basis of accow1ting method while the financial 
statements were prepared using the accrual basis of accounting method; (2) IRS Forms 941 
Employer's Quarterly Federal Tax Return, and Florida Forms UCT-6 fonhe first two quarters of 
2011; (3) unaudited financial statements for the periods ended August 31, 2011 and June 30, 
2011; (4) an employment letter from 
the petitioner, dated September 13, 2011, confirrning the 
beneficiary's position title and salary of $60,000 to be paid 50% by the petitioner and 50% by the 
alleged foreign parent company; (5) a letter from the foreign company, dated September 14, 
2011, asserting that the beneficiary currently works for the petitimier with a gross salary of 
$60,000 but the foreign company was paying 50% of his salary; (5) pay stubs from the petitioner 
and documents reflecting a bonus payment paid to the beneficiary in September 2011; (6) bank 
records; (7) letter of reference; and (8) a copy of the beneficiary's 2010 foreign income tax 
return. 
As part of the RFE response, petitioner assetted the financial statement for the period that ended 
June 30, 2011 reflecting a net ordinary income of $37,568.15, and the financial statement for the 
period that ended August 31, 2011 reflecting a net ordinary income of $42,360.50, establish the 
petitioner's ability to pay the proffered wage. 
On January 9, 2012, the director denied the petition finding that the petitioner failed to establish 
it could pay the proffered wage to the beneficiary. The director found that the petitioner did not 
pay the beneficiary the proffered wage and that neither the company's net income nor the 
company's net current assets as reflected on Form 1065 U.S. Retum of Partnership Income for 
2010 were sufficient to cover the difference between the wages paid and the proffered wage. 
On appeal, counsel for the petitioner explains that the claimed foreign parent company agreed to 
pay· 50% of the beneficiary's salary despite the beneficiarY:s full time ~mployment for the 
petitioner in 20.1 1. Counsel states that "during 2011 [the beneficiary's] compensation was almost 
entirely covered by the PetitioneL" Therefore , petitioner asserts that the beneficiary's 2011 IRS 
Fom1 W-2, which reflects payments in the amount of $54,709, establishes the petitioner's ability 
to pay as of June 17, 2011 and beyond. . . 
The petitioner (urther explains that errors made on Schedule L of the company's IRS Form 1065 
filed for tax year 2010 resulted in an inaccurate reflection of petitioner's current net assets. 
Allegedly, the petitioner's . accountant erroneously recorded long terrn mortgage debt as .sh01t 
term· debt, thus · inaccurately creating a net liability for the year. Additionally, the petitioner 
requests consideration of financial statements for periods ending August 2011 and October 2011, 
and assets not previously calculated in dete1:mining the company's ne( income. On behalf of the . 
(b)(6)
PageS 
petitioner, counsel also urges consideration of the future petformance of the company and the. 
petitioner's anticipated grow~ in business development and profitability. 
Upon review, the petitioner's assertions are not persuasive. In determining the petitioner's ability 
to pay the proffered wage, USC IS will first examine whether the petitioner . employed the 
beneficiary at the time of filing. 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 th~ petitioner's ability to pay th~ beneficiary's salary. 
In the present matter, the petitioner provided an IRS FormW-2 for 2010 reflecting its payment of 
$30,000 in wages to the beneficiary. As this petition was filed in June 2011, the petitioner 
supplemented the petition · on appeal with . a 2011 Form W ~2 for the beneficiary from the 
petitioner reflecting income paid in the. amount of $54,709.49. Based on the petitioner's 
quarterly wage reports for the second quarter of 2011, the petitioner was paying the beneficiary 
$2,500 per month at the time Of filing. The petitioner has not provided evidence that it was 
·paying the beneficiary a wage equal to or greater than the proffered annual wage of$60,000 at 
the time of filing. · · 
Nevertheless, the petitioner asserted that the claimed foreign parent company agreed to pay 50% 
of the beneficiary's salary as a full-time employee for the petitioner. In .support of the assertion 
the petitioner provided financial documents including. salary paid to the beneficiary by the 
foreign company. Notwithstanding this assertion, the ability to pay a proffered wage must be 
shoWn by the petitioner itself. The petitioner is aFlorida limited liability company, a separate 
legal entity from the foreign corporation. The debts and obligations of a corporation or LLC are 
·not the debts and obligations of'the owners, the members, the stockholders, other companies, or 
anyone else. A corporation is a separate and distinct legal entity from its owners or stockholders. 
Consequently, any assets of its stockholders or of other enterprises or · corporations cannot be 
considered in determining the petitioning company's ability to pay the proffered wage. See 
Matter of M; 8 I&N Dec. 24 (BIA 1958; AG 1958); Matter of Aphrodite Investments Limited, 17 
I&N Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 
1980). Thus, the fordign company's financial assistance will not be considered. . . 
The AAO notes tlu! inconsistency of petitioner's documentation asserting the beneficiary's status 
as an independent contractor while simultaneously representing him as· a regular einployee in 
2010. In addition, the petitioner submitted two different IRS Forn1s W~3 for 2010 and failed to 
provide any explanation for the existence .of two versions of the same tax do'cument 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. 
MatterofHo, 19 I&NDec. 582, 591~92 (BIA 1988). 
. . ' 
As an alternate means of determining the petitioner's abiiity to pay, the AAO will next examine 
the petitioner's net income figure as ,reflected on the federal incoine 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 
(b)(6)
Page6 
. .judiCial precedent. Elatos Restaurant Corp. v. · Sava, 632 F. Supp. 1.049, 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 
USCIS) ~ad 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 C~ang 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 June 17, 2011 andthe petitioner's.tax return for 2011 has 
not been made available, the AAO must examine the petitioner's tax return for 2010. The 
petitioner's IRS Form 1065 U.S. Return of Partnership Income for calendar year 2010 presents a 
net taxable income of $7995.00. Therefore, for tax year 2010, the petitioner did not have 
sufficient net income to pay the 
difference between wages actually paid to the beneficiary and 
the proffered wage. The petitioner's net income for tax year 2011 cannot be determined because 
the petitioner did not provide a tax year 2011 ·return or provide reliable audited financial 
statements or balance sheets. 
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 c.urrent 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 ~e 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 petitioner's Form 1065 U.S. Retum of Partnership Income for 2010, Schedule L, 
the cornpany has a net current liability in the. amount of -$495;675. Therefore , the petitioner 
cannot establish the ability to pay the proffered salary . However, petitioner requests additional 
scrutiny of the company ·assets and liabilities because as noted above, petitioner asserts that the 
portion of the Form ·1065 U.S. Retum of Pattnership Income for 2010 ~eflecting assets and 
liabilities is inaccurate. According to sched·~.Ile L, the petitioner has $15,986 in short te1;m assets 
and $511,661 in short term liabilities. Notably, petitioner failed to provide an amended Form 
1065. U.S. Return of Partnership Income, Schedule L, or any documents to supp01t its claim on 
appeal. Nevertheless, even if .the short term m01tgage- ~ Iiability was removed and the fonn 
recalculated , the petitioner would still have only $1.5,986.00 in current assets . Adding together 
current assets, net income and the beneficiary's salary for·tax year 2010 would still. not meet the 
proffered wage, , . 
(b)(6)
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l>,age 7 
While the petitioner submitted financial statements and banking documents for 2011; a 2011 IRS 
Form 1065 U.S. Return of Partnership Income was apparently not yet available for submission. 
The financial statements submitted by the petitioner were unaudited. ln accordance with the 
regulation at 8 C:F.R. § 204.5(g)(2) when a petitioner relies on financial statements to 
demonstrate its ability to pay the proffered wage, the financial statements must be audited. An · 
audit is conducted ill accordance .,with generally accepted auditing standards to obtain a 
reasonable assurance that . the financial statements of the business are free from material 
misstatements. According to the acco~ntant's cover letter dated February 6, 2012: 
A compilation is limited to presenting in the form of financial information that -is 
the representation of management.. We have not audited ·or reviewed the 
accompanying financial statements and, accordingly, do not express an opinion or 
any other form of assurance of them. 
Therefore, as stated in the report, the financial statements produced in the compilation are · 
representations of management and are not reliable to demonstrate the ability to pay' the 
proffered wage. 
Finally; on appeal, counsel for petitioner asserts that USCIS may consider evidence relevant to a 
petitioner's financial ability that falls outside of a petitioner's net income and net current assets 
citing Matter of Sonegawa, 12 I&N Dec. at 612 (Reg'l Comm'r. 1967). Therefore, petitioner 
submits documents .reflecting current business levels and anticipated profitability for 2012. The 
petitioner indicates that it expects to increase profits, hire new personnel, 
and increase salaries of 
th<)se currently employed. However, the petitioner is a small company offering documentation 
covering a very short period of time. A visa petition may riot be approved based on speculation 
of future eligibility ·or after the petitioner or beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp.; 17 I&N Dec. 248 (Reg. Comm'r 1978); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm'r 1971). Further, the totality of the circumstances affecting 
the petitioning busi_ness will be considered if the evidence warrants such consideration. See Matter 
of Sonegawa, 12 I&N Dec. 612 (Reg. Comm'r 1967). In this matter, the evidence does not warrant 
such consideration. 
The petitioner failed to demonstrate that it had the ability to pay the proffered wage during 20 I 0 
and 2011 therefore the petitioner has not established that it had the continuing ability to pay the 
proffered wage beginning on the priority date/filing date. Accordingly, the appeal will be 
dismissed. 
III. Qualifying Relationship 
Beyond the decision of the director, the petitioner has not established that a qualifying 
relationship exists between the foreign employer and U.S. company. To establish a "qualifying 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's 
foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with 
a foreign office) or related as ,a "parent .and subsidiary" or as "affiliates." See generally 
(b)(6)
I ' ' ·• 
Page 8 
. § 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l.)(C); see also 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). · 
The petitioner claims to be a subsidiary of a yenezuelan company, 
which previously employed the beneficiary as its Finance Director. At the time of filing, counsel 
stated that the petitioner "has always been majority owned (51%) by the Foreign Parent 
Company The petitioner indicated that the foreign company "belongs 
to the same group of comp.any's [sic] as _ wll.ich was incorporated in 
1999. The petitioner indicated that, since its incorporation in 2006, . has 
offered the sam~ services and products originally offered by _ The 
petitioner indicated that is. owned by (67%) and 
(33%). 
The U.S. company's articles of organization do not list the membership, however a comparison 
of the. membership interest certificates and tax return documents submitted by the petitioner 
reveals unresolved inconsistencies. 
As evidence of the claimed parent-subsidiary relationship, the petitioner submitted the following 
membership certificates: (1) No .. 1 issuing 51 membership units to on 
January 3, 2002; (2) No. 2.issuing 49 membership units to on January 3, 2001; 
. (3) No.3 issuing 27.500 membership units to oh)anuary 2, 2008; (4) No. 
4 issui11g 20.000 membership units to on January 2, 2008; and (5) No. 5 issuing 
2.500 membership units to on January 2, 2008. 
According to the petitioner's 2010 Form 1065 at Schedule B-1, owns 
64.548 percent of the company, which is not the percentage ownership reflected by the 
petitioner's membership certificates. Further, the membership· cert~ficates do not support 
counsel's assertion that "has always" owned 51% of the petitioning 
. company. 
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). Furthermore, . without full disclosure of all 
relevant documents, USCIS is unable to determine the. elements of ownership and control. For 
this additional reason, the appeal will be dismissed. 
An application or petition that fails tocomply 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), a.ffd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F. 3d 143, 145 · 
· (3d Cir. 2004)(noting that the AAO reviews appeals on a de novo basis). 
(b)(6)
Page 9 . 
IV. Conclusion 
The petition will be denied for the above.stated reasons, with each considered as an independet1t 
and I alternative basis for denial. . In visa petition proceedings, the burden of proving eligibility 
for the benefit sought remains entirely with the petitioner. Section 291 ofthe Act, 8 U,S.C. § 
1361. Here; that burden -has.not been met. Accordingly, the director's decision will be affirmed . 
and the petition will be denied. 
ORDER: The appeal is dismissed.