dismissed EB-1C Case: Publishing And Investment

(b)(6)
DATE: 
IN RE: 
DEC 3 0 2014 OFFICE: TEXAS SERVICE CENTER 
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)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non­
precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your 
case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to 
reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 
days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The Texas Service Center Director denied this preference visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a U.S. entity engaged in golf publications and property investments. It seeks to 
employ the beneficiary in the United States as president and chief executive officer (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. 
§ 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish: (1) that in the three 
years preceding the beneficiary's entry as a nonimmigrant, the beneficiary was employed for at least 
one year in a managerial or executive capacity with a qualifying organization; (2) that the 
beneficiary would be employed in the United States in a managerial or executive capacity; (3) that 
the petitioner had been doing business for at least one year prior to filing this petition; and ( 4) that 
the petitioner had the ability to page the proffered wage at the time the petition was filed. 
I. The Law 
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 I-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 
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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. 
Section 101(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 
(b)(6)
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(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, US CI S must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. Section 101(a)(44)(C) of 
the Act. 
II. Issues on Appeal 
A. Employment Abroad in a Managerial or Executive Capacity 
The first issue to be addressed is whether the petitioner established that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. 
1. Facts 
On May 31, 2013, the director issued a request for evidence (RFE) instructing the petitioner to 
provide additional evidence to establish that the beneficiary had been employed abroad in a 
managerial or executive capacity. The director requested evidence including all of the beneficiary's 
specific daily duties and the percentage of time spent on each duty. The director also requested 
additional information regarding subordinate managers/supervisors and employees who reported 
directly to the beneficiary including their job title, a description of their duties, educational level and 
whether they worked on a part or full time basis. 
In response to the RFE, the petitioner submitted a letter, dated March 20, 2012, prepared in support 
of a prior Ll A petition for the beneficiary's temporary employment as the petitioner's 
president/CEO. The petitioner identified the foreign entity as l 
but added that the foreign entity had two "sister" companies in Mauritius; one identified as 
and the other, identified as 
The petitioner stated that the beneficiary had been employed abroad as the foreign entity's CEO 
since 2008 and described his duties as follows: 
• Develop policies and direction of the business. 
• Oversee all business activity. 
• Manage, direct and maintain complete authority over day-to-day operations. 
• Determine company's future plans and establish goals and projections. 
• Prepare company's annual plan and financial budget. 
• Hold complete authority over hiring and firing decisions with supervision of 
approximately 14 employees. 
• Hold primary responsibility for the financial control of the company. 
(b)(6)
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• 
• 
• 
• 
• 
• 
• 
• 
Review financial accounts, status reports and sales figures to determine progress 
in achieving financial and sales goals. 
Make determinations regarding need for funding initiatives . 
Negotiate new contracts on behalf of company . 
Direct business development activities, including development of strategic 
initiatives and affiliations with related businesses. 
Serve as Publisher for magazine . 
Through supervision of subordinate staff, ensure that printing and 
distribution deadlines and advertising quotas are met. 
Liaise with clients and ensure client satisfaction . 
Ensure that overall corporate targets, standard milestones and deliverables are 
met. 
The petitioner stated that the beneficiary's staff included: a general manager, an executive assistant, 
an operations manager, sales/business development, a media manager, editors, a golf director, a 
design team, a media tech/cameraman, a driver, and other personnel including outsourced 
contractors to handle some magazine related tasks. The petitioner provided payroll documents for 
various months between 2010 and through 2012 and an organizational chart depicting the structure 
of one of the foreign entity's "sister" companies. 
The director denied the petition, concluding that the evidence did not establish that the beneficiary 
would be primarily engaged in qualifying duties. 
On appeal, the petitioner asserts that the beneficiary was employed as CEO of its parent company, 
, and was therefore, employed for at least one of the last three years 
abroad in a qualifying managerial or executive capacity. 
2. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of 
the record, starting first with the petitioner's description of the beneficiary's job duties. See 8 C.P.R. 
§ 204.56)(5). A detailed job description is crucial, as the duties themselves will reveal the true 
nature of the beneficiary's foreign and proposed 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). We will then consider this 
information in light of other relevant factors, including job descriptions of the beneficiary's 
subordinate employees, the nature of the business that is conducted, the subordinate staff, and any 
other facts contributing to a comprehensive understanding of the beneficiary's actual role within the 
foreign company. While an entity with a limited support staff will not be precluded from the 
immigration benefit sought herein, it is subject to the same burden of proof that applies to a larger 
entity with a moderate or large subordinate staff. In other words, regardless of an entity's size or 
support staff, the foreign entity must be able to provide sufficient evidence showing that it had the 
capability of maintaining its daily operations such that the beneficiary was relieved from having to 
primarily perform the operational tasks. 
:I 
(b)(6)
Page 6 
In this matter, upon review of the totality of the record, the evidence does not support a finding that 
the beneficiary allocated his time primarily to the performance of tasks that are within a qualifying 
managerial or executive capacity. 
The petitioner's description of the beneficiary's duties is vague and the petitioner failed to present 
sufficient evidence to demonstrate what the beneficiary did on a day-to-day basis. For example, the 
petitioner stated that the beneficiary's duties would include vague responsibilities such as "oversee 
all business activity;" "hold primary responsibility for the financial control of the company;" "direct 
business development activities, including development of strategic initiatives and affiliations with 
related businesses;" and "serve as publisher for magazine." 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 provide any 
detail or explanation of the beneficiary's activities in the course of his daily routine. The actual 
duties themselves will 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). 
The petitioner also failed to indicate the percentage of time that the beneficiary dedicated to any of 
his responsibilities. This failure is important since the beneficiary's duties included non-qualifying 
tasks such as preparing budgets and publishing, and it cannot be assumed that the beneficiary would 
dedicate his time primarily to the performance of tasks within a qualifying capacity without adequate 
supporting evidence. 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. at 165. 
While no beneficiary is required to allocate 100% of his or her time to managerial- or executive­
level tasks, the petitioner maintains the burden of establishing that the non-qualifying tasks the 
beneficiary would perform are only incidental to the 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 International, 19 I&N Dec. 593, 604 
(Comm. 1988). 
Regarding the foreign entity's evidence relating to its employees, the petitioner's list of staff 
positions, several payroll rosters for various months in 2010 through 2012, and an organizational 
chart for a different company do not provide sufficient information for us to determine that the 
beneficiary has an adequate staff to relieve the beneficiary from performing primarily non -qualifying 
duties. 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'r 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Furthermore, despite the director's request for specific employee evidence the petitioner did not 
provide it. 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). 
(b)(6)
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Therefore, the petitioner has not established that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. 
B. U. S. Employment in a Managerial or Executive Capacity 
The second issue to be addressed is whether the petitioner established that the beneficiary would be 
emplor ed in a qualifying managerial or executive capacity in the United States. 
1. Facts 
The petitioner flied its Form I-140 on January 25, 2013 and indicated that it was established on October 
17, 2011, and is engaged in golf publications and property investments. The petitioner claims to have 
nine employees and a gross annual income of $2.16 million. The petitioner will employ the beneficiary 
as president/chief executive officer (CEO) with a proffered wage of $120,000.00. 
On May 31, 2013 the director issued a request for evidence (RFE), informing the petitioner that the 
record lacks sufficient evidence to establish that the beneficiary would be employed in the United 
States in a managerial or executive capacity. The director requested, among other things, the 
beneficiary's detailed duty description including the percentage of time spent on each duty and a list 
of employees, to include contractors, along with their duties, educational level, salary, and status as 
part or full time. 
In a letter, dated March 30, 2012, which was prepared in support of a prior L1A petition, in which 
the petitioner explained that the foreign entity was engaged in business development and growth that 
involved the launch of a golf magazine and the investment and property development of golf resorts. 
The petitioner explains that it "is structured around internal editorial, sales and administrative 
functions while the production, printing and distribution functions are outsourced." The petitioner 
explained that its dual purpose is "to provide a marketing platform to manufacturers of goods and 
services and to provide an informative and entertaining magazine to golf minded people." The 
petitioner stated that the foreign entity's magazine activity would shift to the United States. 
The petitioner asserts that the beneficiary's duties in the U. S. will "mirror" those performed for the 
foreign entity, as discussed in the previous section of this decision. The petitioner provided notes 
for several of its staff meetings held in 2012 and 2013. The petitioner's staff meeting notes dated 
January 2, 2013, identify the attendance of the beneficiary; as director of IT; · 
as operations executive; in executive sales; and _ as executive 
assistant. The petitioner provided the meeting minutes for January 21, 2013, that indicated that the 
petitioning company would be bankrupt if not for the beneficiary's financial support. Further, the 
minutes indicated that "going forward" the beneficiary would be "concentrating on making sales for 
this company." Another employee, executive of events, was present for this meeting 
The petitioner provided the list of its management team and provided a brief description of each 
position as reflected in its business plan, as follows: (1) senior operations manager, 
(b)(6)
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works to ensure the success of the magazme and staff and oversees the business when the 
beneficiary is absent; (2) executive assistant, _ oversees budget, payroll, taxes, 
insurance, and manages staff meetings; and (3) sales manager, manages a team 
of sales and marketing staff and is responsible for marketing and sales of advertising space. The 
petitioner also claimed to have hired as the company's exclusive agent. 
The petitioner provided two undated organizational charts both listing the beneficiary as CEO. In 
the first chart, senior project and administrative manager, _ _ and company ambassador 
for Louisiana and Texas, l report directly to the beneficiary. Ms. _ has no 
subordinate employees. Mr. directly supervises an executive sales manager position that is 
vacant and a media manager position that is vacant. Sales and marketing employee, 
is subordinate to exclusive agent who, in turn, is directly subordinate to the 
vacant executive sales manager position. The vacant media manager position has several 
subordinate positions that simply identify the foreign entity. The petitioner's second undated 
organizational chart identifies senior operations manager, as a direct report to the 
beneficiary. Executive assistant, . , executive sales manager, _ and a 
vacant media manager all report directly to Exclusive agent, 
reports to and a vacant sales/marketing position reports directly to 
All positions under the vacant media manager position are vacant and three outsourced 
positions are vacant. 
The petitioner's payroll roster for the month ending December 2012 identifies six employees: (1) the 
beneficiary; (2) ; (3) (4) (5) ; and 
(6) Another payroll roster created on May 10, 2013 listed the same six employees 
though four were listed as terminated and a fifth as inactive. The petitioner submitted additional 
payroll rosters but most employees were listed as inactive or terminated and the rosters were not 
dated. Finally, the petitioner's leased space of two suites totaling 365 square feet allows for a 
maximum occupancy of six individuals. 
In his decision, the director denied the petition observing that the petitioner relied upon the foreign 
entity's duty description and the petitioner's assertion that the position would be temporary. 
On appeal, the petitioner asserts that the beneficiary would be performing primarily qualifying duties 
and refers to a letter dated July 19, 2013 1 and prepared by that asserts that the 
beneficiary will have the following duties: "manage the accounts of the Blue Chip corporate clients 
both locally and nationally in the USA, further manage the negotiations with prospective investors, 
further manage and negotiate golf travel package contracts for corporate client and negotiate 
corporate sponsors." The petitioner further states that the beneficiary "would also direct sales and 
marketing, organize and direct senior projects and administration management and be directly in 
charge of all marketing and promotions." 
1 The letter that the petitioner refers to is not included in this record though it may have been included in a separately 
filed LlA extension request. 
(b)(6)
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2. Analysis 
First, the petitioner's letter offering a temporary position as its CEO is not sufficient to establish 
eligibility under this petition that requires a job offer for a permanent position. 
Second, the petitioner's reliance upon the beneficiary's duty description abroad is insufficient since 
we have found that the beneficiary's responsibilities were vague and broad and the petitioner failed 
to allocate the beneficiary's time to any of them as requested. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.P.R. § 
103.2(b)(14). 
Third, the petitioner's evidence did not establish the number of employees or their duties at the time 
the petition was filed as requested. !d. The petitioner's submission of conflicting organizational 
charts and other vague employee information failed to establish who was employed when the 
petition was filed and who the beneficiary could rely upon to primarily perform qualifying duties. 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). Furthermore, 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'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Finally, a review of the evidence submitted indicates that the petitioning company has been 
struggling and that, as of January 2013, the beneficiary would focus on making sales for the 
company. Thus, the beneficiary's primary focus will be on making sales, a non-qualifying duty. 
Therefore, the petitioner has not established that the beneficiary will be employed in the United 
States in a qualifying managerial or executive capacity. 
C. Doing Business 
The third issue addressed by the director is whether the petitioner has satisfied 8 C.P.R. § 
204.5G)(3)(i)(D), which requires the petitioner to provide evidence establishing that it has been 
doing business for at least one year prior to filing the Form I-140. 
The regulation at 8 C.P.R. § 204.5G)(2) defines doing business as "the regular, systematic, and 
continuous provision of goods and/or services by a firm, corporation, or other entity and does not 
include the mere presence of an agent or office." 
In this matter, neither the evidence submitted by the petitionerinitially in support of the Form I-140 
nor the evidence submitted in response to the director's request for additional evidence is sufficient 
(b)(6)
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to establish that the petitioner had been doing business since January 25, 2012, or one year prior to 
the date the Form I-140 was filed. Therefore, the director denied the petition, concluding that the 
petitioner failed to establish that it satisfied the filing requirement specified at 8 C.P.R. § 
204.5(j)(3)(i)(D). 
After reviewing the evidence, we find that the evidence is insufficient to establish that the petitioner 
had been doing business for at least one year prior to filing the instant petition. 
Neither bank statements nor tax returns are sufficient to establish that an entity is or has been 
engaged in business activity on a "regular, systematic, and continuous" basis as defined at 8 C.P.R. § 
204.5(j)(2). Rather, where an entity's business involves sales, purchases, and/or importing and 
exporting of goods, the submitted evidence should demonstrate that the petitioner has been engaged 
in these specific business activities on a regular, systematic, and continuous manner. Evidence of 
this nature would include copies of purchase and sales invoices, shipping documents, customs forms, 
or other similar documents that would be generated in the daily course of business. 
The petitioner provided staff notes, bank statements, unaudited financial statements, a tax return, a 
lease commencing March 2012, and photographs of the leased property. Therefore, we are unable to 
conclude that the petitioner had been doing business beginning January 25, 2012 and continuously 
until filing this petition in January 2013. As the petitioner has failed to satisfy this requirement that 
is specified at 8 C.P.R. § 204.5(j)(3)(i)(D), this petition cannot be approved. 
D. Ability to Pay 
In determining the petitioner's ability to pay the proffered wage, we 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 submitted the beneficiary's IRS 
Form 1040 U.S. Individual Income Tax Return for 2012 indicating that the beneficiary reported 
wages and salary income of $15,000.00 and business income of $55,762.00. The beneficiary listed 
the petitioning company on his Schedule C, Profit or Loss from business in 2012. Based on this 
evidence, the petitioner did not establish that it had paid the beneficiary the $120,000.00 annual 
proffered wage. 
As an alternate means of determining the petitioner's ability to pay, we 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 (91h 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. Sup r- 1080 (S.D.N.Y. 
1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (i Cir. 1983). 
(b)(6)
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In K.C.P. Food Co., Inc. v. Sava, the court held 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 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 January 25, 2013, we must examine the petitioner's tax return 
for 2012. As noted, the petitioner submitted the beneficiary's IRS Form 1040 for calendar year 2012 
with Schedule C that presents the petitioner's net taxable income $33,462.00. The petitioner could 
not pay a proffered wage of $120,000 per year out of this income or pay the remaining $64,238.00 
owed after deducting the amount the beneficiary claimed as business income. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, we 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 we are 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. 
Generally, when an LLC has only one member, the IRS will disregard or ignore the fact that it is an 
LLC for the purpose of filing a federal tax return. Note though that this is only a mechanism for tax 
purposes, and does not change the fact that the LLC is legally a separate entity from the member. 
Similarly, even though most multiple member LLCs file a Form 1065 partnership tax return, the 
LLC is still, legally, a separate entity. 
In this matter, the beneficiary disregarded the entity and reported all of the petitioning LLC's income 
and losses on his personal tax return. The petitioner did not provide sufficient evidence to allow us 
to determine net assets. We note that the petitioner did provide unaudited financial documents but 
they will not be considered. 
In analyzing a petitioner's ability to pay the proffered wage, the fundamental focus is whether the 
employer is making a "realistic" or credible job offer and has the financial ability to satisfy the 
proffered wage. Matter of Great Wall, 16 I&N Dec. 142, 145 (Acting Reg. Comm'r 1977). We may 
consider the overall magnitude of the petitioner's business activities in its determination of the 
petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612. 
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Here, the record establishes that the beneficiary funded the petitioning company in 20 12 to "keep the 
business open." The petitioner also presented evidence relating to other companies owned by the 
beneficiary and their ability to pay the proffered wage. The petitioning LLC infers that since the 
beneficiary is its sole shareholder, the beneficiary's personal assets and personal liabilities may be 
considered in determining the petitioner's ability to pay the proffered wage. It is an elementary rule 
that an LLC or a corporation is a separate and distinct legal entity from its owners and shareholders .. 
See Matter of M, 8 I&N Dec 24, Matter of Aphrodite Investments, Ltd., 17 I&N Dec 530, and Matter 
ofTessel, 17 I&N Dec 631. Furthermore, a petitioner may not make a material change to a petition 
or evidence in an effort to make a deficient petition conform to our requirements. See Matter of 
Izummi, 22 I&N Dec 169, 176 (Assoc. comrn'r 1988) Consequently, the personal assets or other 
enterprises or corporations cannot be considered in determining the petitioning LLC's ability to pay 
the proffered wage. The court stated, "nothing in the governing regulation, 8 C.F.R. § 204.5, permits 
(U SCIS] to consider the financial resources of individuals or entities who have no legal obligation to 
pay the wage." See Sitar v. Ashcroft, 2003 WL 22203713. Therefore, we may not look to the assets, 
including real estate, of the LLC's owners or of other entities to satisfy the LLC's ability to pay the 
proffered wage. 
The petitioner infers that its cash balances should be considered in assessing its ability to pay the 
proffered wage, and submits a copy of its bank statements. Contrary to the petitioner's claim, 
reliance on the balances in the petitioner's owner's bank account is misplaced. First, the bank 
statements are not among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required 
to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional 
material "in appropriate cases," the petitioner in this case has not demonstrated why the 
documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise paints an inaccurate 
financial picture of the petitioner. Second, bank statements show the amount in an account on a 
given date, and cannot show the sustainable ability to pay a proffered wage. 
On appeal, the petitioner submitted a notarized but unsigned statement from tax professional, 
, stating that the beneficiary received at least $120,000.00 in wages from the petitioner in 
2012. This evidence was provided for the first time on appeal and presented as a notarized affidavit 
despite the lack of the affiant's signature. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
In assessing the totality of the circumstances in this individual case, it is concluded that the petitioner 
has not established that it had the continuing ability to pay the proffered wage. Accordingly, the 
evidence submitted does not establish that the petitioner had the continuing ability to pay the 
proffered wage beginning on the priority date. 
For this additional reason the appeal will be denied and the petition dismissed. 
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III. Conclusion 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001 ), affd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
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 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.