dismissed EB-1C Case: Product Distribution

Identiffing data deleted to 
prevent clearly unwarranted 
invasion of wmonsal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
92 
FILE: office: TEXAS SERVICE CENTER Date: J*l 1 4 2008 
SRC 04 034 50406 
PETITION: ' Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
obert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
8 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Georgia that is 
operating as a distributor of motors and products. The petitioner seeks to employ the beneficiary as its 
president. 
The director denied the petition concluding that the petitioner had not demonstrated that at the time the 
priority date was established it had the ability to pay the beneficiary's proffered annual salary of $100,000. 
On appeal, the petitioner states that its net income was equal to or greater than the beneficiary's proposed 
annual salary, thereby demonstrating its ability to pay. The petitioner submits its 2004 corporate income tax 
return as evidence of its ability to pay the beneficiary his annual salary of $100,000. 
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 or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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)(l)(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 issue in the instant proceeding is whether at the time the priority date was established the petitioner had 
the ability to pay the beneficiary his proffered salary. 
The regulation at 8 C.F.R. 8 204.5(g)(2) states: 
Page 3 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer 
has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the 
time the priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
The petitioner filed the immigrant petition on November 17,2003, thereby establishing the same priority date. 
See 8 C.F.R. tj 204.5(d). On the petition and in its November 3, 2003 letter, the petitioner indicated that the 
beneficiary would receive an annual salary of $100,000. As evidence of its financial status, the petitioner 
submitted its Internal Revenue Service (IRS) Form 1120S, U.S. Income Tax Return for an S Corporation, for 
the year 2002. 
On February 4, 2005, the director issued a request for evidence aslung that the petitioner submit its 2003 
federal income tax return and the beneficiary's IRS Form W-2, Wage and Tax Statement, for the years 2003 
and 2004. 
The petitioner responded in a letter dated June 10, 2005 and submitted its federal tax return and the 
beneficiary's Form W-2 for the year 2003. The petitioner's tax return reflected compensation paid to officers 
in the amount of $18,846. An accompanying Schedule K-1, Shareholder's Share of Income, Credits, 
Deductions, etc., identified the beneficiary as the sole shareholder of the corporation who received income in 
the amount of approximately $70,000. The "Wages, Salaries, & Tips Worksheet" accompanying the 
beneficiary's IRS Form 1040, U.S. Individual Income Tax Return, also identified $18,846 in wages received 
by the beneficiary during the year 2003 and $70,119 received in income fi-om an S corporation. 
In a decision dated June 21,2005, the director concluded that the petitioner had not demonstrated its ability to 
pay the beneficiary his proffered salary of $100,000. The director stated that "no evidence [had been] 
provided to show the beneficiary has been paid a salary equal to or greater than the proffered wage; and net 
income and net current assets are below the $100klyear proffered wage to make the difference lacking of the 
beneficiary's current wage and the proffered wage." Consequently, the director denied the petition. 
The petitioner filed an appeal on July 22,2005, claiming that its "net income was equal to or greater than the 
proffered wage in all years under consideration." In an attached letter dated July 21, 2005, the petitioner 
references the amount of ordinary business income reflected on its 2004 income tax return, stating that the 
approximately $1 18,000 is paid to the beneficiary as a shareholder. The petitioner states that "[this] 
information clearly demonstrates that the petitioner had the ability to pay the beneficiary a salary greater than 
the proffered wage of $1 00,000 in all years since the priority date of November 2003." 
Upon review, the petitioner has not demonstrated its ability to pay the beneficiary's proffered annual salary at 
the time the priority date was established. 
In determining the petitioner's ability to pay the proffered wage, Citizenship and Immigration Services (CIS) 
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. In the present matter, the petitioner did not establish that it 
had previously employed the beneficiary for an annual salary of $100,000. The petitioner's 2002 corporate 
tax return indicates that the beneficiary was compensated $67,308 for his position as an officer. The 
beneficiary received an additional $9,585 in income as the corporation's shareholder. Based on the 
petitioner's claim on appeal, the petitioner considers the amount of ordinary income paid to the beneficiary as 
a shareholder to be a portion of his salary. According to the financial documentation provided, the 
beneficiary received compensation in the amount of $76,893 from the petitioner in 2002, or approximately 
$23,000 less than the salary proffered on the petitioner's priority date. 
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 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K. C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), afyd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court 
held the Immigration and Naturalization Service (now CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income. 
623 F. Supp. at 1084. The court specifically rejected the argument that the Service should have considered 
income before expenses were paid rather than net income. Finally, there is no precedent that would allow the 
petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
As the petition's priority date falls on November 17, 2003, the AAO must examine the petitioner's tax return 
for 2003. The petitioner's IRS Form 1120 for calendar year 2003 presents ordinary income in the amount of 
$70,119. The beneficiary's Form 1040 indicates that the beneficiary received this amount as income. 
However, even if considered in addition to his salary of $1 8,846, the beneficiary's compensation in year 2003 
is approximately $1 1,035 less than the proposed salary. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Net current assets identify the amount of "liquidity" that the petitioner has as of the 
date of filing and is the amount of cash or cash equivalents that would be available to pay the proffered wage 
during the year covered by the tax return. As long as the AAO is satisfied that the petitioner's current assets 
are sufficiently "liquid" or convertible to cash or cash equivalents, then the petitioner's net current assets may 
be considered in assessing the prospective employer's ability to pay the proffered wage. Here, the petitioner's 
net current assets are deficient by approximately $24,000. The petitioner has not demonstrated its ability to 
pay the beneficiary his proffered salary at the time the priority date was established. Accordingly, the appeal 
will be dismissed. 
The AAO notes that the petitioner's 2004 income tax return submitted on appeal will not be considered herein. 
A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 
49 (Comm. 1971). 
Beyond the decision of the director, an additional issue is whether the beneficiary was employed by the 
foreign entity or would be employed by the United States entity in a primarily managerial or executive 
capacity. The vague job duties offered for the beneficiary's role as president of the foreign company are not 
sufficient to demonstrate the beneficiary's prior employment in a primarily managerial or executive capacity. 
For instance, the beneficiary's responsibilities of planning the company's policies and objectives, 
"coordinat[ing] functions and operations," and "attaining objectives," merely restate the statutory criteria for 
"managerial capacity" and "executive capacity" and do not identify the specific managerial or executive tasks 
associated with his job responsibilities. 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), afyd, 
905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). In 
addition, it would seem from the beneficiary's responsibilities of developing marketing strategies and public 
relations policies that the beneficiary is responsible for performing the non-managerial and non-executive 
tasks associated with each. While the petitioner identified a vice-president of sales and marketing and an 
office manager-controller as employees of the foreign entity, the workers named are the same as those 
identified on the petitioner's organizational chart. The petitioner has not offered a description of the tasks 
performed by either employee or explained how the beneficiary was relieved from the non-qualifying tasks of 
marketing and public relations. An employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner has failed to 
demonstrate that the beneficiary was employed by the foreign entity in a primarily managerial or executive 
capacity as specifically required in the regulation at second 204.50)(3)(i)(B). Accordingly, the petition will 
be denied for this additional reason. 
With regard to the beneficiary's proposed employment, the petitioner's limited statement that the beneficiary, 
as president, "plans and directs the acquisition of the new manufacturing plant," develops new business 
objectives and procedures, reviews activity reports and financial statements, and "manages the company's 
relationships with our representative" does not sufficiently identify the specific managerial or executive job 
duties to be performed by the beneficiary on a daily basis. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question in this 
case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108. Additionally, according 
to the petitioner's organizational chart, which identifies the beneficiary, as well as a vice-president of sales 
and marketing and an office manager-controller, the company does not employ any lower-level workers who 
would perform the day-to-day functions of the company. As noted previously, the petitioner has failed to 
clarify the inconsistency in the workers named as employees of both the petitioning entity and foreign entity. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591- 
92 (BIA 1988). Moreover, while the petitioner has identified the areas of "sales, marketing & technical," 
"accounting & legal services," and "outside distributors," it has not accounted for the employment of any 
additional workers, nor does the petitioner's 2003 income tax return reflect compensation paid for labor. The 
petitioner's income tax return presents a deduction for "outside services," however the record does not identify 
who received the compensation. An employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. at 604. Absent additional documentation describing the 
beneficiary's daily job duties and the employees supervised by the beneficiary, the AAO cannot conclude that 
the beneficiary would be employed by the United States entity in a primarily managerial or executive 
capacity. Therefore, the petition will denied for this additional reason. 
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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.