dismissed EB-1C Case: Plumbing And Heating

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-M- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 20, 2016 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a plumbing and heating contractor, seeks to permanently employ the Beneficiary as 
its vice president and administrator under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director, Texas Service Center, denied the petition, concluding that the evidence of record did 
not establish that: (1) the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer; (2) the Beneficiary will be employed in the United States in a managerial or executive 
capacity; and (3) the Petitioner has the ability to pay the Beneficiary's proffered wage. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
disregarding or misinterpreting evidence in the record. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 the alien seeks to 
enter the United States in order to continue to render services to the same 
Matter ofC-M- Corp. 
employer or to a subsidiary or affiliate thereof in a capacity that is managerial 
or executive. 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classific~tion. 
The regulation at 8 C.F.R. § 204.50)(3) states: 
(3) Initial evidence-
(i) Required evidence. 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; 
(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. • 
II. QUALIFYING RELATIONSHIP 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has a qualifying relationship With the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a 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 
section 203(b )(1 )(C) of the Act; 8 C.P.R. § 204.5(j)(3)(i)(C). 
2 
(b)(6)
Matter ofC-M- Corp. 
The pertinent regulations at 8 CF.R. § 204.5(j)(2) define the relevant terms. Generally, the term 
"affiliate" means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent 
or individual; [or] 
(B) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximate I y the same share or proportion 
of each entity .... 
The Petitioner filed Form I-140 on March 23, 2015. The Petitioner identified the Beneficiary's last 
foreign employer as The Petitioner did not specify how it has a qualifying 
relationship with The Petitioner submitted translated information from a commercial register 
in Albania which identified the Beneficiary and as equal owners of as of October 
22, 2012. (The Beneficiary had initially owned 
51% of the foreign company, then 100%, before selling 
a half-interest to ) 
The Petitioner did not submit any evidence to establish the ownership of the petitioning company, so the 
Director issued a request for evidence (RFE), telling the Petitioner to "submit all stock certificates, stock 
ledger, proof of stock purchase ... , meeting minutes, Articles of Incorporation, or other documentation 
that establishes ownership and control." 
In response, the Petitioner submitted copies of share certificates, numbered 2 and 3 and dated August 
19, 2013, indicating that the Beneficiary and each hold 100 shares of the petitioning 
company out of a total issuance of 200 shares. The Petitioner did not show who holds, or held, 
certificate number 1, or how the Beneficiary came into possession of half of the company. The 
Petitioner submitted documentation relating to the purchase of the foreign entity, but not the purchase of 
the petitioning U.S. company. 
The Director denied the petition, stating that the Petitioner did not submit the necessary documentation 
regarding the Petitioner's acquisition and ownership. The Director also stated that the Petitioner did 
not 
identify the same owners for itself and for The Director concluded that the Petitioner had not 
submitted enough evidence to establish the shared ownership and control of the two companies. 
On appeal, the Petitioner states that the submitted documentation is sufficient to show that "there 
should 
be no doubt that the two companies share the same ownership. The controlling stock, i.e. 50% of the 
two entities are owned by [the Beneficiary] while the remaining shares are owned by two distinct 
members of the family." 
The Petitioner cites no statute, regulation, or case law to support the proposition that two different 
family members are, effectively, the same owner. Even then, the Petitioner has not established how 
closely and are related, if at all. Their shared surname is not sufficient proof 
3 
Matter ofC-M- Corp. 
of a family relationship, and it does not establish that they are, in effect, the same owner of the two 
companies. 
Also, the Director had asked for evidence to substantiate the transfer of ownership reflected on the share 
certificates. The Petitioner incorporated in 2008, and the share certificates are numbered 2 and 3 and 
dated August 19, 2013. As general evidence of a petitioner's claimed qualifying relationship, stock 
certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership 
and control of a corporate 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 Med. Sys., Inc., 19 I&N Dec. 1632. The Petitioner has not submitted the 
requested evidence to show how the Beneficiary obtained his share of the company. 
Furthermore, the Petitioner's tax returns do not reflect any transfer of ownership. The record contains 
copies ofthe Petitioner's IRS Forms 1120S, U.S. Income Tax Returns for an S Corporation, for 2011, 
2012, and 2013. Each form asked the petitioner to specify "the number of shareholders who were 
shareholders during any part of the tax year." On each return, including the 2013 return, the Petitioner 
stated "1." This contradicts the share certificates, which indicate that there were two shareholders as of 
August 19, 2013. The Petitioner has not resolved this discrepancy with independent, objective evidence 
pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
Given the conflicting information regarding the company's ownership in 2013, it is significant that the 
Petitioner has not submitted any further evidence to corroborate the share certificates or clarify the 
company's ownership history. Even taking the share certificates at face value, they do not show that the 
Petitioner has the same owners as the foreign company. Without full disclosure of all relevant 
documents, we are unable to determine the elements of ownership and control. Therefore, the 
companies do not qualify as affiliates based on shared ownership as required at 8 C.F.R. § 
204.5(j)(2)(B). 
Also, the regulation and case law confirm that ownership and control are the factors that determine 
whether a qualifying relationship exists between United States and foreign entities for purposes of this 
visa classification. See Matter ofChurch Scientology Int'l, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Med. Syss., Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 J 
(C,omm'r. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right 
of possession of the assets of an entity with full power and authority to control; control means the direct 
or indirect legal right and authority to direct the establishment, management, and operations of an entity. 
Matter of Church Scientology Int'l, 19 I&N Dec. at 595. The Petitioner submitted no documentation, 
and made no assertions, relating to the Beneficiary's control of the companies based on his claimed 
50% ownership. 8 C.F.R. § 204.5G)(2)(A). We will not consider the hypothetical question of whether 
the Beneficiary's claimed half-ownership of both companies grants him control of those companies, 
4 
Matter ofC-M- Corp. 
because (1) the Petitioner has made no such claim, and (2) the Petitioner has not satisfactorily 
established the Beneficiary's half-ownership of the U.S. company. 
For the reasons discussed above, the Petitioner has not established a qualifying relationship between 
itself and the foreign company. 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
will employ the Beneficiary in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "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), defines the term "executive capacity" 
as "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 
5 
Matter ofC-M- Corp. 
(iv) receives only general supervision or direction from higher-level executives, · 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) of the Act. 
A. Duties 
When examining the executive or managerial capacity of a given beneficiary, we will look first to 
the petitioner's description of the job duties. The Petitioner's description of the job duties must 
clearly describe the duties to be performed by the Beneficiary and indicate whether such duties are in 
a managerial or executive capacity. See 8 C.F.R. § 204.5(j)(5). 
Marash Buja, president of the petitioning company, described the Beneficiary's prospective duties: 
As our Vice President, Administrator, [the Beneficiary] will supervise the 
administrative assistants. He will perform data entry on various software programs 
(Excel, Word, QuickBooks, AlA, etc.) Furthermore, [the Beneficiary] will supervise 
daily bookkeeping and collection of accounts receivable. He will also supervise and 
approve accounts payable. 
[The Beneficiary] will be given daily reports for the progress and activity on the job 
site for all different projects by the project manager. Additionally, the project 
manager will report to [the Beneficiary] about the team on the field and will give an 
estimate of the materials needed for the next day. The project manager will also give 
[the Beneficiary] a schedule of work for each team of workers. 
Finally, the project manager will give reports to [the Beneficiary] and communicate 
how much percentage of work has been done. 
The first paragraph of the above job description lists specific tasks, such as superv1smg non­
professional first-line staff and performing data entry, which are not managerial or executive duties. 
We note that the Petitioner's organizational chart, discussed further below, does not show 
administrative assistants or a bookkeeper. 
The second and third quoted paragraphs indicate that the Beneficiary receives reports from the 
project manager, but they do not say what the Beneficiary does with that information. The passive 
act of receiving reports is not an active managerial or executive task, and therefore it tells us nothing 
about the nature of the Beneficiary's work to say that he receives those reports. 
6 
(b)(6)
Matter ofC-M- Corp. 
In the RFE, the Director requested a more specific job description from the Petitioner, listing 
specific tasks that the Beneficiary would perform, and approximately how much time he would 
devote to each. 
In response, provided a new job description, stating that the Beneficiary "will not receive 
directions from any higher level executive but will coordinate his actions and decisions with the 
President," and that he,"will exercise the widest latitude in setting the company's goals by approving 
the jobs requested by clients." The job description is otherwise identical to the earlier version. 
In the denial notice, the Director stated that the Petitioner had submitted a broad and general job 
description, establishing that the Beneficiary has discretionary authority, but does not show his specific 
duties with the petitioning company. We note that, in the denial notice, the Director quoted the 
Beneficiary's foreign job description instead of his U.S. job description. This does not discredit the 
Director's ultimate finding, because the U.S. job description has even less detail than the foreign 
description that the Director mistakenly quoted. 
On appeal, the Petitioner notes that the Director listed several job duties in the denial notice. The 
Petitioner states that "the decision incredibly arrives [at] the conclusion that all the above tasks can be 
performed by a first line supervisor." As noted above, the tasks listed in the denial notice were actually 
the Beneficiary's claimed tasks at the foreign company, not the petitioning U.S. company. The 
Petitioner offers no explanation as to how the U.S. job description qualifies as managerial or executive. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or 
functions of the 
organization, and that person's authority to direct the organization. Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B). 
The Petitioner has not established a complex organizational hierarchy that would require executive 
authority to direct lower levels of management. Approving individual contracting· jobs is a day-to­
day function rather than "setting the company's goals" as the Petitioner asserted in response to the 
RFE. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" of an executive or managerial nature. Sections 1 Ol(A)( 44 )(A) 
7 
Matter ofC-M- Corp. 
and (B) of the Act. While the Beneficiary may exercise some degree of authority over the 
Petitioner's day-to-day operations, the position description alone is insufficient to establish that his 
actual duties, as of the date of filing, would be primarily managerial or executive in nature. 
For the reasons discussed above, the job description that the Petitioner has provided does not establish 
that the Beneficiary's duties will be primarily those of a manager or executive. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) 
and (ii). Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. The statute plainly states that 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)(A)(iv) of the Act; 8 C.P.R. § 204.5(j)(4)(i). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.P.R. § 204.5(j)(2). 
We also consider the proposed position in light of the nature of the Petitioner's business, its 
organizational structure, and the availability of staff to carry out the Petitioner's daily operational 
tasks. Federal courts have generally agreed that, in reviewing the relevance of the number of 
employees a Petitioner has, USCIS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager." 1 Furthermore, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that 
does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
1 
Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
8 
(b)(6)
Matter of C-M- Corp. 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require at least a baccalaureate degree for entry into the field of endeavor.2 
The Petitioner did not claim or establish that any of the listed positions below qualify as 
professional. 
On Form I-140, the Petitioner claimed 12 employees. The Petitioner's organizational chart shows 
the following structure: 
President 
I 
Vice President ~the Beneficiary] 
I I 
Executive Assistant Field Superintendent Project Manager/Engineer 
I 
2 Assistant Superintendents 
I 
Plumbers/W orkers/Empl~yers [sic; number unspecified] 
The Petitioner submitted copies of what it called "condensed" payroll journals for 2014, showing six 
employees {but not the Beneficiary), and the first two months of 2015, showing eight employees 
(including the Beneficiary). These figures are not consistent with the organizational chart or the staff 
size that the Petitioner claimed on the petition form. 
In the RFE, the Director requested copies of the Petitioner's IRS Form 941, Employer's Quarterly 
Federal Tax· Return, for the first quarter of 2015. This return would establish the level of the 
Petitioner's staffing at the time it filed the petition. The Petitioner's response did not include the 
requested quarterly return. 
Instead, the Petitioner submitted copies of IRS Forms W-2, Wage and Tax Statements, that the 
Petitioner had issued to its employees for 2014 and 2015. There are 6 forms for 2014, and 11 for 
2015. The president of the petitioning company earned $72,800 in 2015 and the project 
manager/engineer earned $31,200. All other employees earned between $600 and $13,380, too low 
to be consistent with full-time, year-round employment, and therefore the 11 IRS Forms W -2 do not 
show that the Petitioner employed sufficient staff to relieve the Beneficiary from performing non­
managerial or non-executive duties. 
We note that the 2015 payroll journal shows that the Beneficiary and a second employee, 
received salaries from which federal taxes were withheld, but the Petitioner did not submit 2015 IRS 
Forms W-2 for either of them. 
2 
Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section l0l(a)(32) of the 
Act, 8 U.S.C. § 110l(a)(32), states that "[t]he term profession shall include but not be limited to architects, engineers, 
lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
9 
Matter ofC-M- Corp. 
In denying the petition, the Director concluded that the Petitioner's staff appears to be too small to 
relieve the Beneficiary from primarily performing operational and/or administrative tasks. The 
Director also observed that the first-line supervision of non-professional employees is not 
managerial or executive, and found that the Petitioner had not established that any of the 
Beneficiary's subordinates are professionals. See 8 C.F.R. § 204.5(j)(4)(i). 
I 
On appeal, the Petitioner states that the Director's "conclusion is clearly erroneous and disqualifies the 
role of all executives and managers of mid-size construction companies that have a limited number of 
employees but employ a large number of subcontractor[s]." The Petitioner never mentioned 
subcontractors in the initial submission or the RFE response. On appeal, the Petitioner submits no 
details about the newly claimed subcontractors and no evidence that it uses them. 
A petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof, particularly when supporting documentary evidence would reasonably be 
available. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter ofChawathe, 25 I&N Dec. 
369, 376 (AAO 2010). The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. The unsupported assertions of 
counsel do not constitute evidence. See, e.g., Matter ofObaigbena, 19 I&N Dec. 533,534 n.2 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). 
As previously noted, the Petitioner disputes the conclusion that the Beneficiary's "tasks can be 
performed by a first line supervisor." The Petitioner has provided inconsistent information about those 
tasks. The job description says that the Beneficiary "will supervise the administrative assistants ... 
[and] daily bookkeeping." The supervision of administrative assistants and a bookkeeper is consistent 
with the responsibilities of a first-line supervisor. But the Petitioner's organizational chart does not list 
any administrative assistants or bookkeeper. The chart does, however, show a hierarchy of 
"superintendents" under the Beneficiary's authority, but the Petitioner has not shown that the 
Beneficiary primarily oversees those superintendents (i.e., that he spends most of his time on related 
responsibilities). The Beneficiary's job description, quoted in full above, does not mention any of the 
superintendents or explain the nature or extent of the Beneficiary's authority over them. 
The Petitioner has not established, in the alternative, that the Beneficiary will be employed primarily 
as a "function manager." The term "function manager" applies generally when a beneficiary's 
managerial role arises not from supervising or controlling the work of a subordinate staff but instead 
from responsibility for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The statute and regulations do not define the term "essential function." 
If a petitioner claims that a beneficiary will manage an essential function, that petitioner must clearly 
describe the duties to be performed in managing the essential function, i.e., identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties dedicated to managing the essential function. See 8 C.F.R. § 204.5(j)(5). 
10 
Matter of C-M- Corp. 
In addition, a petitioner's description of a beneficiary's daily duties must demonstrate that the 
beneficiary will manage the function rather than perform the duties related to the function. 
The Petitioner identified no essential function that the Beneficiary would manage, and his only 
specified duties involved data entry and first-line supervision of administrative employees (whose 
titles are not on the organizational chart). 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneficiary in a managerial or executive capacity in the United States. 
IV. ABILITY TO PAY 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish its 
ability to pay the Beneficiary's proffered wage. The regulation at 8 C.P.R. § 204.5(g)(2) reads: 
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 .... In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by the Service. 
On Form I-140, the Petitioner indicated that it would pay the Beneficiary $70,000 per year. The 
Petitioner claimed gross annual income of $841,994, and $96,000 in net annual income. 
The Petitioner filed the petition on March 23, 2015, before the filing deadline for the 2014 tax return. 
The most recent tax return in the Petitioner's initial filing was the 2013 IRS Form 1120S return, which 
showed ordinary business income totaling $58,660, insufficient to pay the Beneficiary's $70,000 salary. 
The Petitioner's 2013 expenses did not already include that salary; the Beneficiary was not yet in the 
United States, and the return shows only $18,000 for compensation of officers and $60,705 for salaries. 
If a petitioner does not have sufficient net income to pay the proffered salary, we will review that 
petitioner's net current assets. Net current assets are the difference between the petitioner's current 
assets and current liabilities. In this instance, the 2013 tax return shows $422,006 in current assets, and 
$4258 in current liabilities, leaving $417,748 in net current assets as of December 31, 2013, nearly 15 
months before the petition's filing date. 
If a petitioner establishes by documentary evidence that it employed the beneficiary at the time of filing, 
at a salary equal to or greater than the proffered wage, this evidence will tend to establish the 
petitioner's ability to pay the beneficiary's salary. In this case, the evidence is inconclusive because the 
Petitioner provided conflicting information as to whether or not the Beneficiary was already in the 
11 
Matter ofC-M- Corp. 
United States. The Petitioner submitted copies of paychecks issued to the Beneficiary in January and 
February of 2015. The paychecks show gross pay of $1360 per week, which extrapolates to $70,720 
per year. But the Petitioner's bank statements from those months do not show withdrawals, checks, or 
other transactions matching the claimed salary payments. Further below, we will discuss additional 
discrepancies and issues of concern. 
The Director, in the RFE, acknowledged the submission of the Petitioner's 2013 tax return, and 
requested the Petitioner's 2014 return to show the Petitioner's finances closer to the filing date. The 
Director also requested copies of any IRS Forms W-2 that the Petitioner had issued to the Beneficiary. 
The Petitioner's response to the RFE did not include any of the requested evidence relating to the 
Petitioner's ability to pay the Beneficiary's salary. As a result, the Director denied the petition. The 
non-submission of requested evidence is grounds for denial under 8 C.F.R. § 103.2(b)(14). The 
Director acknowledged that the net current assets were sufficient to cover the Beneficiary's salary, but 
the Director considered the 2013 tax return to be too far in the past to accurately reflect the Petitioner's 
finances as of the March 2015 filing date. 
On appeal, the Petitioner states that the Beneficiary "never worked in the United States and therefore 
there is no Form W2 that can be submitted." As noted above, the Petitioner has submitted conflicting 
information about the Beneficiary's work, and even presence, in the United States. The initial 
submission included information from the Beneficiary's Form I-94, Arrival/Departure Record, showing 
an arrival date of November 16, 2014, but on Form I-140, the Petitioner provided no information about 
the Beneficiary's arrival or address inthe United States, calling it "N/A" (not applicable). 
The Petitioner's assertion that the Beneficiary "never worked in the United States" contradicts the 
Petitioner's prior submission of pay receipts dated January and February of 2015, and a payroll journal 
from the same period showing the same information. The pay receipts and journal showed withholding 
of federal taxes, which would have been reportable on IRS Form W-2. The Petitioner's new claim that 
there is no Form W-2 casts doubt on those pay receipts and journal. We further note that the Petitioner 
initially submitted photographs of the work site. One of those photographs appears to show the 
Beneficiary. 
Because the Petitioner initially submitted what purport to be payroll documents indicating that the 
Petitioner paid the Beneficiary his full weekly salary in January and February of 2015, the new claim 
that the Beneficiary "never worked in the United States" is not a minor inconsistency. It is, instead, a 
major and irreconcilable discrepancy that raises very serious questions regarding the credibility, 
reliability, and authenticity of the Petitioner's previously submitted documentation. See Matter of Ho, 
19 I&N Dec. 591. If the Beneficiary never worked in the United States, then the pay receipts and 
payroll journal are false. If, on the other hand, those initial documents are authentic, then the Petitioner 
has made a false statement on appeal in order to account for the absence of requested documentation. 
Either way, we cannot reasonably conclude that the Petitioner has consistently provided accurate and 
correct information throughout this proceeding. 
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Matter ofC-M- Corp. 
Section 204(b) of the Act, 8 U.S.C. § 1154(b), permits USCIS to approve an immigrant petition only 
upon a finding that the facts claimed in that petition are true. We may reject claims of fact when we 
have reason to doubt the truth of those claims. See Systronics Corp. v. INS, 153 F. Supp. 2d 15. 
We must take these major credibility issues into account when the Petitioner asserts, on appeal, that it 
submitted copies of its 2014 and 2015 income tax returns in response to the RFE. The cover letter 
submitted with that response stated that the returns were included at "Tab G," but the response now in 
the record stops at Tab F. It is conceivable that the tax returns were submitted but misplaced, but the 
Petitiqner has not submitted new copies of the returns on appeal. The tax returns are not, now, in the 
record of proceeding, and therefore we have no way to consider them as evidence of the Petitioner's 
ability to pay the Beneficiary's salary at the time of filing. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it has the ability to pay the Beneficiary's proffered wage. 
V. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-M- Corp., ID# 116802 (AAO Dec. 20, 2016) 
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