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PUBLIC COpy 
DATE: DEC 1 2 20\1 
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 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(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 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 Form I-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, 
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 petitioner is a Puerto Rico corporation that seeks to employ the beneficiary as its president/CEO. 
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. § I I 53(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition based on three findings. The director determined that (I) the beneficiary 
would not be employed in a qualifYing managerial or executive capacity; (2) the petitioner submitted 
insufficient evidence to show that it is doing business; and (3) the petitioner failed to establish that it has the 
ability to pay the beneficiary's proffered wage. 
After reviewing the petitioner's submissions, the AAO finds that sufficient documentation has been provided 
to establish that the petitioner has been engaging and continues to engage in the provision of goods and/or 
services. Therefore, the director's second finding is hereby withdrawn and the findings at numbers one and 
two above will serve as the focus ofthis decision. 
On appeal, counsel disputes the director's decision, asking the AAO to review IRS Form W-2 statements 
showing the company's ability to pay and asserting that the regulations do not ask for a "minute by minute 
description" of the beneficiary's job duties. Counsel also indicates that additional evidence and/or an 
appellate brief will be submitted in support of the appeal. It is noted, however, that two years and five months 
have passed since the appeal was filed and there is no evidence that the record has been supplemented with 
any additional documentation. Therefore, the record will be considered complete as presently constituted and 
a decision will be made based on the documentation that is currently on record. 
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 I 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. 
Page 3 
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. 
The first issue to be addressed in this proceeding is whether the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity. 
Section 1 01 (a)(44)(A) of the Act, 8 u.s.c. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization In which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Page 4 
The record shows that the petitioner did not provide a statement in support of the Form 1-140 containing a 
description of the beneficiary's proposed job duties. 
Accordingly, on January 6, 2009, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide a description of the beneficiary's proposed employment. Specifically, the beneficiary 
was asked to provide the beneficiary's job title, a list of his proposed job duties and the percentage of time 
spent performing each duty, the number of subordinates the beneficiary would oversee, and a brief description 
of the subordinates' job duties, their job titles, and their respective educational levels. 
In response, the petitioner provided a copy of its organizational chart depicting its staffing structure and 
organizational hierarchy. The beneficiary's position is depicted at the top of the organization with an external 
marketing advisor, the director of the Ecuadoran affiliate, a director of production and media, external 
providers, equipment providers, and external accounting services depicted as the beneficiary's direct 
subordinates. A close review of the chart shows that, with the exception of the director of production and 
media and one coordinator, the remainder of the chart lists individuals who are either employed by the foreign 
entity or are contractors hired to provide various services, but are not directly employed by the U.S. entity. 
Additionally, the beneficiary, on the petitioner's behalf, provided a statement dated February 10, 2009 in 
which he provided the following percentage breakdown of his proposed position with the U.S. entity: 
15% - Manage, plan the growth of the [c ]orporation in Puerto Rico, USA, search for new 
business in a fast and solid manner seeking to increase the market presence of the company as 
an integrated service agency aiming to reach the highest standing within the industry. 
10% - [M]eet with future new potential clients interested in developing market campaigns 
and product's image changes, gather information regarding the client, its needs and their 
products, transfer the information and need of clients to our account division in Ecuador to, in 
conjunctions [sic] with the Creative Department and Art Department develop a market 
campaign and change of commercial image for the client, supervise all the development and 
planning of the Sintesis Group in Ecuador as they prepare the campaigns utilizing their 
resources to develop the campaigns and presentations to be made to the client. 
5% - Present to the client the project for his new commercial image campaign, marketing 
campaign and remodelation [sic]. Negotiate the terms and parameters with each commercial 
relation. 
10% - Base[ d] on the projects selected by the client, the promised dates for completion of the 
different stages of each project, the [b ]udget and the art developed for the project, materials 
are selected for the production and contractors are selected and hired to complete the project. 
55% - In the direction of the corporations [sic], supervision of the development of each 
project by supervising the contractors and subcontractors who are completing the different 
stages of each project, supervise the compliance of each stage according to the programmed 
scheduled [sic], supervision of compliance with the details of each contract by way of 
contractors and subcontractors and compliance with budget, retain and fire contractors and 
Page 5 
subcontractors, supervise the contractors and subcontractors in charge of obtaining the 
permits from the government for each projects, construction and remodelation [sic] permits, 
supervise that the works [sic] be performed in compliance with local, state and federal 
regulations in terms of security and environment. Supervise the external consultants in 
charge of the preparation of tax forms and fiscal documents to comply with state and federal 
laws. Supervise the development of projects, the art and accounts prepared by Sintesis 
Group, SA. 
5% - Supervises the quality control for the delivery of the project, checks contracts with 
clients for the final acceptance of the project and the payment. 
The director reviewed the petitioner's submissions and concluded that the beneficiary'S job description failed 
to convey sufficient details regarding the actual daily job duties the beneficiary would perform and thus did 
not establish that the beneficiary would be employed in a primarily managerial or executive capacity. 
On appeal, counsel asserts that the director's decision is erroneous and argues that the very size of the projects 
undertaken by the petitioning entity proves that the beneficiary is employed in a qualifying capacity. Counsel 
further asserts that the preponderance of the evidence standard "has been defined by 51 %" and contends that 
the beneficiary and the petitioner meet that standard. 
The AAO finds counsel's statements to be unpersuasive and concludes that the petitioner failed to establish 
that the beneficiary'S proposed position with the U.S. entity is within a managerial or executive capacity. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then consider this information in 
light of the petitioner's organizational hierarchy, the beneficiary'S position therein, and the petitioner's overall 
ability to relieve the beneficiary from having to primarily perform the daily operational tasks. In the present 
matter, the job description offered in response to the RFE indicates that a considerable portion of the 
beneficiary'S time would be allocated to non-qualifying job duties from soliciting clientele to meeting with 
clients and developing marketing campaigns. 
Additionally, while the petitioner claims that 55% of the beneficiary'S time would be allocated to various 
supervisory duties, including supervising contractors and subcontractors as they execute the stages of a 
project and obtain necessary government permits as well as overseeing the preparation of tax forms and other 
related documents, the petitioner did not specifically discuss what actual job duties the beneficiary would 
perform in fulfilling his supervisory role. Merely using the term "supervise" to establish how the beneficiary 
will spend 55% of his time is insufficient, as the term fails to convey a meaningful understanding of the 
specific tasks that are being or would be performed. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). Although the term "supervise" supports the organizational chart's depiction of the beneficiary in a 
supervisory role within the petitioner's staffing hierarchy, it is unclear what specific tasks the beneficiary 
would actually be performing. The beneficiary cannot be deemed a multinational manager or executive based 
only on the organizational chart. 
That being said, the AAO questions the information conveyed in the petitioner's organizational chart. While 
the chart undoubtedly illustrates a complex, multi-tier staffing hierarchy, closer review of the positions 
Page 6 
included in the chart indicates that the beneficiary and the director of production and media are the only two 
positions that are not either independent contractors or employees of the foreign entity. The AAO notes that 
the record does not contain evidence to establish that the petitioner actually employed a director of production 
and media at the time the petition was filed. Furthermore, with regard to the foreign entity's employees, 
while the AAO acknowledges that the petitioner has a qualifying relationship with the foreign entity in that 
they are both majority owned and controlled by the same individual, the fact remains that these are two 
separate entities and the employees of one entity cannot be commingled or assumed as commonly belonging 
to both entities merely by virtue of their qualifying relationship. If the petitioner relies on the services of the 
foreign entity's employees or the services of other outside contractors such claims must be documented in 
order to establish who will actually perform the services that the petitioner will sell to its clientele. 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) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner's 2008 fourth quarterly federal tax return indicates that the petitioner had only one employee 
subsequent to the filing of the petition. Although it is unclear if the same facts applied at the time the petition 
was filed, the record clearly indicates that the beneficiary was the petitioner's sole employee shortly after 
filing. This fact does not establish that the petitioner was adequately staffed and was able to relieve the 
beneficiary from having to focus the primary portion of his time on the performance of non-qualifying tasks. 
While the record contains what appear to be additional tax forms indicating that others were remunerated by 
the petitioner, all forms are in Spanish and are not accompanied by certified English language translations as 
required by 8 C.F.R. § 103.2(b)(3). Moreover, careful review of the additional tax forms reveals that the 
information contained therein apply to the 2006 and 2007 tax years. The fact that the petitioner filed the 
Form 1-140 in August 2008 makes the 2006 and 2007 tax forms irrelevant for the purpose of determining 
whether the petitioner was eligible at the time the petition was filed. See Matter of Katigbak, 14 I&N Dec. 
45,49 (Comm. 1971). 
In summary, the record does not contain a complete account of the job duties the beneficiary would perform 
in the proposed position. While counsel is correct in pointing out that the regulations do not require a minute­
by-minute account of the beneficiary's activity, the record clearly shows that the petitioner provided no 
information in the way of a job description when the petition was initially filed. The record further shows that 
the director subsequently issued an RFE in an attempt to elicit a detailed description of the beneficiary'S 
proposed job duties along with a percentage breakdown showing the proportion of time assigned to each task. 
The director has the discretionary authority to request whatever evidence or documentation he deems 
necessary in order to determine whether the petitioner is eligible for the immigration benefit sought. 8 C.F.R. 
§ 103 .2(b)( 8). Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. § 103 .2(b)( 14). 
Although the record shows that the petitioner responded to the director's RFE, the response indicated that a 
considerable portion of the beneficiary's time would be spent performing non-qualifying job duties. 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 would 
perform are only incidental to hislher 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 101 (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 
-Page 7 
International, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner's lack of specificity in describing the 
duties that would occupy a majority of the beneficiary's time precludes the AAO from being able to establish 
what specific supervisory tasks the beneficiary would perform in overseeing the contract labor that the 
petitioner purportedly hires. Without the necessary information about the beneficiary's job duties and in light 
of the non-qualifying tasks that the petitioner has already described to account for approximately 45% of the 
beneficiary's time, the AAO cannot conclude that the beneficiary would allocate the primary portion of his 
time to the performance of tasks within a qualifying managerial or executive capacity. On the basis of this 
initial conclusion, the instant petition cannot be approved. 
The next issue to be addressed in this proceeding is the ability to pay the wage offered and whether the 
petitioner had that ability at the time the petition was filed. 
The regulation at 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 in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
As the director duly noted, Part 6, Item 9 of the petitioner's Form 1-140 indicates that the beneficiary would 
be paid a monthly rate of $3,500, which is equivalent to $42,000 annually. To establish that it has the ability 
to pay the beneficiary's proffered wage, the petitioner provided several copies of its bank statements as well 
as its unaudited financial statement for the one-year period ending on September 30, 2007. 
The director determined that this documentation was not sufficient to establish the petitioner's ability to pay 
and thus included instructions for additional evidence in the January 6, 2009 RFE. Specifically, the director 
asked the petitioner to provide additional documentation in the form of federal tax returns, annual reports, or 
audited financial statements. Although the director stated that the petitioner may also provide profit/loss 
statements, bank account records, and/or personnel records as supplemental evidence of its ability to pay, it 
was clear that federal tax returns, annual reports, or audited financial statements were the accepted means of 
meeting the evidentiary burden. 
In response, the petitioner provided the beneficiary's IRS Form W-2 for 2007 showing that the beneficiary 
was remunerated $40,500. The petitioner also provided copies of its bank account statements for several 
months in 2008. The director determined that the petitioner failed to provide sufficient evidence establishing 
its ability to pay. On appeal, counsel asserts that the petitioner has established its ability to pay through the 
submission ofW-2 forms and income tax returns. 
A review of the record indicates that counsel's assertions are not accurate and fail to overcome the director's 
findings. 
Page 8 
The petitioner must establish its ability to pay as of the date the petition is filed. The petition was filed in 
August of 2008. Contrary to counsel's claims, neither the beneficiary's 2007 Form W-2 nor the petitioner's 
bank statements establish that the petitioner had the ability to pay at the time the Form 1-140 was filed. 
In determining the petitioner's ability to pay the proffered wage, USCIS 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. The 
petitioner has employed the beneficiary since prior to the filing of the Form 1-140. The petitioner has not, 
however, provided evidence showing the salary the beneficiary received at the time the Form 1-140 was filed. It 
is noted that showing the beneficiary's salary at a time period prior to the filing of the petition, even if that salary 
is equal to or greater than the proffered wage (which is not the case in the present matter), does not establish the 
petitioner's ability to pay. Therefore, the petitioner has failed to provide prima facie proof of its ability to pay. 
As an alternate means of determining the petitioner's ability to pay, the AAO examines 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, 719 F. Supp. 532 (N.D. Texas 1989); KC.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). The petitioner has not provided a tax return addressing the relevant time period during which 
the petition was filed. The AAO further notes that, while the petitioner provided a financial statement for the 
time period ending September 30,2007, this document is deficient in two ways. First, the financial statement 
does not address the relevant time period. Second, there is no indication that the statement was audited. 
Accordingly, in light of the deficiencies discussed above, the AAO finds that the petitioner has failed to 
establish that it had the ability to pay the beneficiary the proffered wage at the time of filing and on the basis 
of this adverse determination the instant petition cannot be approved. 
Furthermore, while not addressed in the director's decision denying the petition, the AAO finds that the 
record lacks sufficient evidence to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity pursuant to 8 C.F.R. § 204.5(j)(3)(i)(B). Similar to the job description 
addressing the beneficiary's proposed employment with the U.S. entity, the beneficiary's foreign job 
description, which is contained within a statement dated February 10, 2009, fails to adequately describe the 
beneficiary's specific daily job duties. Lack of this crucial and relevant information, which was expressly 
requested in the RFE, precludes the AAO from being able to conclude that the beneficiary was employed 
abroad within a qualifying capacity as required. 
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 FJd 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 FJd 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
Page 9 
As a final note, service records show the petitioner's previously approved L-1 employment of the beneficiary. 
With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, each nonimmigrant 
and immigrant petition is a separate record of proceeding with a separate burden of proof; each petition must 
stand on its own individual merits. USCIS is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. The prior nonimmigrant approvals do not preclude USCIS from 
denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that USCIS will 
approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 FJd 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Accordingly, 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.