dismissed EB-1C Case: Investment Management

identifying data deleted te 
prevent clearly unw •• ~ 
invasion of personal pnvac) 
PUBLICcoPV 
DATE: OFFICE: TEXAS SERVICE CENTER 
FEB 0 7 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department or Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative .\ppeaJs Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Servkes 
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. § 1 1 53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in y,mr 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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a moti(m to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be founa at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
/7 
~--~ , Perry Rhew .' / 
rGChief, Administrative .Appeals Offj"e 
I 
www.uscis.gov 
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 United States branch office of a The 
petitioner seeks to employ the beneficiary as its president. Accordingly, the petitioner endeavors to classify 
the beneficiary as an employment-based immigrant pursuant to section 203 (b)(1 )(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director determined that the petitioner failed to establish that it has the ability to pay the beneficiary's 
proffered wage and denied the petition on that basis. On appeal, counsel disputes the director's conclusions 
and submits a supporting statement along with supplemental documents in an effort to overcome the basis for 
denial. 
I. The Law 
Section 203(b) ofthe 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 eAecutives and managers who 
have previously worked for a firm, 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. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(1)(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 perfonned by the alien. 
II. Ability to Pay the Proffered Wage 
The primary issue in this proceeding is whether the petitioner has the ability to pay the beneficiary's proffered 
wage. 
Page 3 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part: 
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 in the form of copies of annual reports, 
federal tax returns, or audited financial statements. 
(Emphasis added.) 
The petitioner indicates on the Form 1-140, at Part 6, that it will pay the beneficiary $1,442.30 per week, or 
approximately $69,230 per year. In a letter accompanying the petition, counsel for the petitioner indicates 
that the foreign company "has sufficient profits to pay [the beneficiary] an annual salary of at least $75,000." 
in which he 
establish the 
In support of the Form 1-140, counsel for the petitioner submitted a statement 
indicated that the petitioner submitted the foreign enti~ents 
petitioner's ability to pay. Counsel to_._..statement from the •••••• 
finance manager, who stated that the has over 200 employees and netted a profit of $2 million 
_ such that enables it to pay the beneficiary'S proffered wage of $75,000 per year. Counsel also 
provided information 
to have acquired a controlling interest, thus making the subsidiary. See 8 
C.F.R. § 204.50)(2) (defining "subsidiary"). Finally, counsel stated that the U.S. subsidiary had been doing 
business for the requisite one-year minimum and provided supporting evidence in support of his assertions 
with regard thereto. 
As a preliminary matter, the AAO notes that is not the petitioning entity in this 
proceeding. The Part 1 to clearly indicate that the intended 
employer is the" Regardless of any ownership interest in 
USCIS must examme prospectIve United States employer, i.e., the U.S. branch office of the 
beneficiary's foreign employer, maintains the ability to pay the proffered wage. Accordingly, any supporting 
documentation that addresses the U.S. subsidiary'S ownership or business transactions will not be addressed 
in this those documents that penain specifically to the beneficiary's and 
the U.S. branch office will be addressed. As the petitioner's original supporting 
documentation pertained primarily to matters concerning the U.S. subsidiary rather than those concerning the 
U.S. branch office, the director determined that the petitioner did not submit sufficient evidence to warrant 
approval of the petition. 
The record shows that on the director issued a request for additional e~ 
instructing the petitioner to provide, in part, evidence of its ability to pay the beneficiary's_ 
Specifically, the director asked the petitioner to submit anyone of the following documents: a copy of its 
annual federal corporate tax return with all schedules attached, a copy of its annual report, a copy of an 
audited or reviewed financial statement, or, if the petitioning corporation employs 100 or more workers, a 
written statement from a financial officer of the organization which establishes the prospective employer's 
ability to pay the beneficiary'S proffered wage. The director acknowledged the petitioner's submission of 
financial documents regarding the foreign component of the petitioning entity. However, he explained that 
Page 4 
pursuant to regulatory provisions, evidence of th~ petitioner's ability to pay must pertain to the U.S. branch 
where the beneficiary would be employed. 
provided a that the petitioner is a branch of the 
therefore is not a separate entity whose finances have to be reviewed separately from 
Counsel submitted an excerpt from an unidentified and unpublished AAO 
decision to support on the foreign entity's finances as sufficient evidence of the ability to pay. 
Counsel has not provided sufficient information to allow the AAO to identify the unpublished decision. Nor 
has counsel established that the facts of the instant petition are analogous to those in the unpublished decision. 
The AAO will not give this unpublished decision any weight. While 8 C.P.R. § 103.3(c) provides that AAO 
precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
As additional supporting evidence of the ability to pay, the petitioner submitted a statement 
from the financial m~r, who again stated that has over 200 employees and further 
indicated that in the _fiscal year the company had gross earnings of $3.5 million. The . also 
provided an unaudited income statement and balance sheet for _ well as 
accompanied by uncertified translations of what the petitioner held out to be the beneficiary's pay 
Lastly, the petitioner 
the petitioner as 
which identified 
corporation involved in investment management. It is noted that the 
the total gross sales or amount of business transacted in 
After reviewing the submitted documentCltion, the director determined that the petitioner failed to establish 
that it had the ability to the's proffered wage at the time of fiiing and therefore denied the 
his determination on the lack of evidence 
establishing that the U.S. organization, component, had the ability to pay. Specifically, 
the director focused on the fact that the petitioner's primary evidence consisted of an income statement and 
balance sheet, both of which were prepared_ 
On appeal, counsel challenges the basis for the director's finding, pointing out that by virtue of being the U.S. 
branch of rather than a separately incorporated U.S. entity, the petitioner can introduce 
the finances of the entire foreign organization as evidence of its ability to pay. 
Upon review, the petitioner has not established that it has the ability to pay the proffered wage of either 
$69,230 or $75,000. 
In determining the petitioner's ability to pay the proffered wage, USClS 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. 
of the beneficiary's employment with the foreign branch office consists of 
which, according to the accompanying translations, represent the beneficiary's 
.R. § 103.2(b)(3), however, the submitted translations are not certified as 
complete and accurate, nor does the translator certifY that he or she is competent to translate the documents to 
the English language. Indeed, upon review, it appears that a significant amount of text is left untranslated, 
giving the appearance that the translations are incomplete. Accordingly, the evidence is not probative and 
will not be accorded any weight in this proceeding. 
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. 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 1.305 (9th Cir. 1984»; see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); KCP. 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). 
The petitioner in the present matter, however, has not provided any federal tax returns to allow the AAO to 
conduct an analysis of its n~t income. The record contains no annual or audited financial statements 
to show the petitioning branch office's earnings. The AAO notes 
Property Return, Form 1 indicates that the petitioner reported "zero" as the total gross sales or amount of 
business 
Lastly, the AAO acknowledges the numerous statt!ments from financial manager, who 
attested to the petitioner's ability to pay the beneficiary'S proff~red wage. However, the regulations at 8 
C.F.R. § 204.5(g)(2) clearly state that evidence in this form can only be considered for companies employing 
100 or more workers. Although the financial manager claims that the foreign entity employs in excess of 200 
workers, no evidence has been provided to corroborate this claim. As the record does not contain evidence 
establishing that the foreign entity has at least 100 employees, as claimed, the statement from _ 
entity's financial manager cannot be deemed as sufficient proof ofthe petitioner's ability to pay. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sogb, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972». 
Furthermore, the statements from the foreign entity's financial manager relate to 
and The AAO again emphasizes that it is the prospective United 
States employer that must establish its ability to pay the proffered wage. In analyzing a petitioner's ability to 
pay the proffered wage, the fundamental focus is whether the prospective 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. 142, 145 (Acting Reg. Comm'r 1977). 
In the present matter, the petitioner has submitted no evidence to establish that the prospective 
- the branch office - has the realistic financial ability to directly remunerate the beneficiary. Normally, as 
required by regulation, this evidence would be in the form of annual reports, federal tax returns, or audited 
financial statements. In the case of a branch office, the AAO would accept additional types of evidence such 
Page 6 
as bank statements; state business license establishing that the foreign corporation is authorized to engage in 
business activities in the United States; copies of Internal Revenue Service (IRS) Fonn I 120-F, U.S. Income 
Tax Return of a Foreign Corporation; copies of IRS Fonn 941, Employer's Q Tax Return, 
listing the branch office as the employer; copies of a lease for office space in and finally, 
any state tax fonns that demonstrate that the petitioner is a branch office of a _ entity. The petitioner 
submitted scant - if any - evidence of the branch office's ability to pay the proffered wage. Instead, the one 
state tax fonn indicates that the petitioner had "zero" sales 
Accordingly, in light of the lack of sufficient corroborating evidence submitted to establish that the petitioner 
meets the provisions of 8 C.F.R. § 204.5(g)(2), the AAO cannot approve the instant petition. 
III. Beyond the Decision of the Director 
Furthennore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, the record lacks substantive job descriptions establishing what job duties the beneficiary perfonned 
during his employment abroad and the job duties he would perfonn in his proposed position with the U.S. 
branch office. 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. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves will 
reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. at 1108. 
Second, the record lacks evidence to establish that the petitioner is actually doing business in the United 
States. The regulation at 8 C.F.R. § 204.5U)(2) states that doing business means "the regular, systematic, and 
continuous provision of goods and/or services by a finn, corporation, or other entity and does not include the 
mere presence of an agent or office." In the present matter, the petitioner submitted 
Personal Property Return, Fonn 1, indicating that the petitioner had "zero" 
did provide documents pertaining to its claimed U.S. subsidiary-Pacific 
doing business in the United States. However, as previously pointed out, is not the 
beneficiary's prospective U.S. employer. In order to qualify for the immigration benefit sought herein, the 
petitioner must establish that it is doing business in the United States. Here, the record contains no evidence 
to establish that the U.S. branch office of the beneficiary's foreign employer is providing goods and/or 
services on a regular, systematic, and continuous basis. At most, the petitioner's operation appears to be "the 
mere presence of an agent or office." Id. 
Third, even if the AAO were to consider the business activities of the petitioner has 
submitted insufficient and conflicting infonnation regarding its ownershIp As evidence of the 
ownership the petitioner submitted stock certificates numbered one, two, and three. Stock 
certificates numbered two without a date, representing that the share 
certificates were transferred to 
Page 7 
npt'iti{',"p~'S ownership, however, the petitioner submitted a letter from 
that: 
held and owned 65% of the outstanding shares of stock in _ 
all of its shares of stock in 
President certify to these facts. 
The petitioner submitted no evidence to support the claim that """.~<,f;", .... ,>ti all of its shares 
in going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
ofSoffici, 22 I&N Dec. at 165. 
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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
IV. Conclusion 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.