dismissed EB-1C Case: Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
SEP Z 9 2011 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative 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)(1)(C) 
ON BEHALF OF PETITIONER: SELF -REPRESENTED 
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. 
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 motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Porm I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~ C{,,--
Perry Rhew 
Chief, Administrative Appeals Office 
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 petition 
will be denied. 
The petitioner is a New York corporation that 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)(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 based on the determination that the beneficiary self-filed the Form 1-140 and 
that the entity that seeks to employ the beneficiary did not file the Form 1-140 on the beneficiary'S behalf. 
The AAO finds that the beneficiary signed the Form 1-140 in his capacity as president of the petitioner, and it 
will therefore withdraw the director's basis for denial. 
Despite the withdrawal of the director's deficient basis for denial, however, the AAO finds that the petitioner's 
Form 1-140 must be denied due to numerous shortfalls with regard to other relevant eligibility criteria. 
First and foremost, the petition must be denied due to the petitioner's faIlure to establish its ability to pay the 
beneficiary's proffered annual salary of $36,400 per year. 
The regulation 8 C.F.R. § 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. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the completed, signed Form 1-140 petition was properly filed with u.S. Citizenship and 
Immigration Services (USCIS). See 8 C.F.R. § 204.5(d). Here, the Form 1-140 was accepted on July 26, 
2007. The proffered wage as stated on the Form 1-140 is $700 per week (annualized at $36,400 per year). 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted 
upon appeal. I 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the 
petition, the petitioner claimed to have been established in 2006, to have a gross annual income of 
102,586.00, and to currently employ 2 workers. 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(1). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a Form 1-
140 petition establishes a priority date for this immigrant petition, the petitioner must establish that the job offer 
was realistic as of the priority date and that the offer remained realistic for each year thereafter, until the 
beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential 
element in evaluating whether ajob offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether ajob offer is realistic, USCIS requires the 
petitioner to demonstrate fmancial resources sufficient to pay the beneficiary's proffered wages, although the 
totality of the circumstances affecting the petitioning business will be considered if the evidence warrants such 
consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will first 
examine whether the petitioner employed and paid the beneficiary during that period. If the petitioner 
establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than the 
proffered wage, the evidence will be considered prima facie proof of the petitioner's ability to pay the 
proffered wage. In the instant case, the petitioner has not established that it employed and paid the 
beneficiary the full proffered wage from the priority date. In fact, the 2007 Form 1120 submitted by the 
petitioner indicates that the beneficiary was only compensated $7,500 that year, far less than the proffered 
salary of $36,400.00. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, USCIS will next examine the net income figure reflected on the 
petitioner's federal income tax return, without consideration of depreciation or other expenses. River Street 
Donuts, LLC v. Napolitano, 558 F.3d III (1 st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 
(E.D. Mich. 2010). 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); 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), aff'd, 
703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross sales and profits and wage expense is 
misplaced. Showing that the petitioner's gross sales and profits exceeded the proffered wage is insufficient. 
Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient. 
In KCP. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now USCIS, had properly relied on the petitioner's net income figure, as stated on the petitioner's 
corporate income tax returns, rather than the petitioner's gross income. The court specifically rejected the 
argument that the Service should have considered income before expenses were paid rather than net income. 
See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 (gross profits overstate an employer's ability to pay 
because it ignores other necessary expenses). 
With respect to depreciation, the court in River Street Donuts noted: 
The AAO recognized that a depreciation deduction is a systematic allocation of the cost 
of a tangible long-term asset and does not represent a specific cash expenditure during the 
year claimed. Furthermore, the AAO indicated that the allocation of the depreciation of a 
long-term asset could be spread out over the years or concentrated into a few depending 
Page 4 
on the petitioner's choice of accounting and depreciation methods. Nonetheless, the AAO 
explained that depreciation represents an actual cost of doing business, which could 
represent either the diminution in value of buildings and equipment or the accumulation 
of funds necessary to replace perishable equipment and buildings. Accordingly, the AAO 
stressed that even though amounts deducted for depreciation do not represent current use 
of cash, neither does it represent amounts available to pay wages. 
We find that the AAO has a rational explanation for its policy of not adding depreciation 
back to net income. Namely, that the amount spent on a long term tangible asset is a 
"real" expense. 
River Street Donuts at 118. "[USCIS] and judicial precedent support the use of tax returns and the net income 
figures in determining petitioner's ability to pay. Plaintiffs' argument that these figures should be revised by 
the court by adding back depreciation is without support." Chi-Feng Chang at 537 (emphasis added). 
For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the Form 1120, U.S. 
Corporation Income Tax Return. The record before the director closed on December 16, 2008 with the 
receipt by the director of the petitioner's submissions in response to the director's request for evidence. As of 
that date, the petitioner's 2008 federal income tax return was not yet due. Therefore, the petitioner's income 
tax return for 2007 is the most recent return available. The petitioner's tax return demonstrates that its net 
income for 2007 was $1,118.00. Therefore, for the year 2007, the petitioner did not have sufficient net 
income to pay the proffered wage. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the· beneficiary during the period, if any, do not equal the amount of the proffered wage or more, 
USCIS will review the petitioner's net current assets. 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 and include cash-on-hand. 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 tax return demonstrates that its end-of-year net 
current assets for 2007 to have been $150.00. Therefore, for the year 2007, the petitioner did not have 
sufficient net current assets to pay the proffered wage. 
Therefore, from the date the Form 1-140 was properly filed with USCIS, the petitioner had not established 
that it had the continuing ability to pay the beneficiary the proffered wage as of the priority date through an 
examination of wages paid to the beneficiary, or its net income or net current assets. The petition must 
therefore be denied for this reason, negating any need to remand this matter to the director for further action. 
In addition to the petitioner's failure to establish its ability to pay the proffered wage, the petition must also be 
denied due to the its failure to provide sufficient evidence to demonstrate that (1) the beneficiary was 
2 According to Barron's Dictionary of Accounting Terms 117 (3Td ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
-Page 5 
employed abroad and would be employed in the United States in a qualifying managerial or executive 
capacity; (2) the requisite qualifying relationship existed and continues to exist between the petitioner and the 
beneficiary's alleged foreign employer; (3) the petitioner had been doing business for one full year prior to the 
filing of the petition on July 26, 2007; and (4) the petitioner continues to do business abroad through its 
claimed affiliate or subsidiary. 
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. 
The language of the statute is specific in limiting this provision to only those executives 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 performed by the alien. See 8 C.F.R. 
§ 204.5(j)(5). 
Additionally, the regulation at 8 C.F.R. § 204.5G)(3)(i) states that a petition for a multinational executive or 
manager must be accompanied by a statement from an authorized official of the petitioning United States 
employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least one 
year in a managerial or executive capacity by a firm or corporation, or other legal entity, or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a subsidiary 
or affiliate of the firm or corporation, or other legal entity by which the alien was employed 
overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the 
entity abroad for at least one year in a managerial or executive capacity; 
Page 6 
(C) The prospective employer in the United States is the same employer or a subsidiary or 
affiliate of the firm or corporation or other legal entity by which the alien was employed 
overseas; and 
(D) The prospective United States employer has been doing business for at least one year. 
In the present matter, the record lacks sufficient evidence to establish that the petitioner has met any of the 
statutory or regulatory criteria listed above. 
First, with regard to the beneficiary's employment with the foreign entity and his proposed employment with 
the U.S. petitioner, the job descriptions that the petitioner has submitted are grossly inadequate, lacking any 
information about the beneficiary's specific daily job duties or any discussion of how the employees within 
either entity were and would be instrumental in relieving the beneficiary from having to primarily perform 
either entity's operational or non-qualifying tasks. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary performed 
abroad and would perform in his proposed job assignment are only incidental to his proposed position. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 10 1 (a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Despite the 
petitioner's submission of the U.S. and foreign entities' organizational charts showing the beneficiary's 
placement at the top of the respective hierarchies, this information without additional supporting 
documentation, including an adequate job description for each position, is not sufficient to establish that the 
beneficiary was employed abroad and would be employed in the United States in a qualifying managerial or 
executive capacity. For this additional reason, the petition must be denied. 
Second, the record lacks sufficient evidence to establish that the petitioner has a qualifying relationship with 
the beneficiary's foreign employer. 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 § 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"). 
In the present matter, while the petitioner claims that the beneficiary owns a majority of both his foreign 
employer and the u.S. petitioning entity, the record does not corroborate this assertion. With regard to the 
foreign entity, a 2006 annual tax return at No. 11, Part A shows that the foreign entity issued 15,000 of a total 
20,000 authorized shares. The same tax return at No. 20, Part B lists a total of five shareholders. Although 
the beneficiary is listed as one of the five shareholders, he is shown as owning only 4,800 shares, which is 
less than 50% of the total issued shares. 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 
ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
· ' . . 
Page 7 
With regard to the ownership of the U.S. entity, while the record contains stock certificate nos. 1 and 25, both 
of which name the beneficiary as shareholder, neither stock certificate indicates how many of the 200 
authorized shares were issued to the beneficiary. Moreover, the petitioner failed to provide any 
documentation explaining what happened with stock certificate nos. 2-24. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (~iting Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The AAO notes that the petitioner's 2007 tax return, which names the beneficiary as 80% stock owner, is not 
sufficient to establish ownership and control of the U.S. entity. The corporate stock certificate ledger, stock 
certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also be 
examined to determine the total number of shares issued, the exact number issued to the shareholder, and the 
subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning company 
must disclose all agreements relating to the voting of shares, the distribution of profit, the management and 
direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens 
Medical Systems, Inc., 19 I&N Dec. 362. Without full disclosure of all relevant documents, USCIS is unable 
to determine the elements of ownership and control. The petition must be denied for this additional reason. 
Third, the AAO finds that the record lacks sufficient evidence to establish that the petitioner had been doing 
business for one full year prior to filing the petition on July 26, 2007. While the record contains evidence 
showing that some business activity was likely to have taken place in 2006, the evidence is insufficient to 
establish that the petitioner was engaged in the regular, systematic and continuous provision of goods or 
services since July 26, 2006, and the petition must therefore be denied for this additional reason. See 8 C.F.R. 
§ 204.5(j)(2) (providing the definition of the term "doing business"). 
Lastly, the record lacks evidence to establish that the petitioner continues to do business abroad through its 
affiliate or subsidiary. As such, the record as presently constituted does not establish that the petitioner meets 
the definition of multinational entity and must be denied for this reason. Id. 
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 identity 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 
(9
th 
Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
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. Here, that burden has not been met. The appeal will be 
dismissed and the petition denied. 
ORDER: The appeal is dismissed. The petition is denied.