dismissed EB-1C Case: Real Estate

(b)(6)
DATE: 
NOV 0 7 2013 
1NRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
. U.S; Depa,rtnteilt of Home~nd Security 
U.S. Citizenship and Imiliigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529"2090 
U.S. Citizenship 
and Immigration 
Services 
Fit..E: 
PETITION: Immigrant Petition for Alien Wotket 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 BEI{ALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a l)on~pr~cedent decision. The AAO <ioes not aruiounce 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 For111 I-290B instructio!ls li.t 
http://www.uscis.gov/fonp.§ for tl:te late_st infQl'lllatio:n on fee, filing location, and other requirements. 
See also 8 c.F.R § 103.5. Do not file a motion directly With the AAO. 
W\VW.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
DISCUSSION: The Director, Texas Service Center, cleoied the nonimmigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Tennessee limited liability company engaged in the land development and real estate 
bu.si.nesses. The petitioner s~tes that it is ail affiliate of located in Russia. The petitioner seeks 
to employ ~he benefic!.~ a,s it.s genera,l 111afl.ager. Atcordjngly, the petitioner endeavors to classify the 
beneficiary as an · employment'-based immigrant pursuant to section 403(b )( 1 )(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
Th.~ director denied the petition, finding that the petitioner had failed to establish: (1) that it will employ the 
beneficiary in a qualifying managerial or executive Cl!-P:tcity; or (2) that it has the ability to pay the 
beneficiary's proffered wage. 
On appeal, counsel contends that the director misunderstood the structure of the company and the nature of 
the beQ~ficiacy's managerial and executive duties. In addition, the petitioner submits additional evidence that 
was previously unavailable in an attempt to establish its iibility to pay the beneficiary's proffered wage. 
I. The Law 
Sectio(l Z03.(l:>) of the Act sUJ.tes in pertinent part: 
(1) Priority Workers.-- Visas shall first be made available ... to ql!alified i(mnigran_ts Who 
, are aliens described in any of the following subparagraphs (A) ·through (C): 
* * 
(C) Certain Multinational Executives and Managers.-- An alien is de~cribed 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for cla.ssifica,tion aod .admission . into the United States 
under this subparagraph, has been employed for at least 1 year l:>y a fii'lil or 
corporation or other ;legai 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 a.ffilia.te thereof in a capacity that is 
--: managerial;or executive. 
The language of the stiitllte i~ specific in limiting this provision to only those executives and managers who 
haye previously worked for C1 fino, corporation ot other legal entity, ~ran affiliate or subsidiary ofthat entity, 
and who are comii]g to the Ul)itecl State,s to wotkfot the same entity, or its affiliate or subsidiary: 
(b)(6)
NON-PRECEDENT DECISION 
Page3 
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 mustclearly 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: "IIlapagerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, f\lnction, 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 
bjerarchy 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; 
(b)(6)
Page 4 · 
NON-PRECEDENT DECISION 
(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. 
II. The Issu~ oil Appeal 
A. Employment in a managerial or executive capacity 
The first issue to be addressed is whether the pe_titioner has established that it will employ the beneficiary tn a 
qualifying lllanagedal ot executive capacity. 
( 
( 
In denying the petition, the director state<;l that the petitioner's descriptions of the benefici~ry's proposed duties 
were overly vague. The director also acknowledged that the petitioner had submitted an organizational chart 
for an affiliated company called but emphasized that 
the staffing of this company 
was not relevant to establishing that the petitioner has sufficient employees to support the beneficiary in a 
managerial or executive capacity. The director also noted discrepancies in the petitioner's submitted 
organizational chllrt:s and wages paid to its, ch1imed employees. The director observed that the petitioner 
primarily employs part-time independent contractors, and concluded these employe~s coul<;loot be considered 
when assessing whether the beneficiary qualifies as acting in a managerial or executive capacity. The director 
also refere~nced a lease. agreement which suggested that the petitioner was primarily engaged in the retail 
electronics business and oot the teal estate business as asserted. Ultimately, given the aforementioned 
insufficiel).ci~s and discre.pC!:Dcies in the evidence, the (,tjrector concluded that the petitioner had failed to 
demonstrate that the beneficiary would be employed in a managerial or executive cl;!.pacity. 
On appeal, counsel asserts . that the petitioner wholly owns another limited liability company called 
with suffici~nt employees and income t() qualify the benefici,ary as a manager or executive. 
··, l.• 
Counsel contends that the operations of should be <;:onsid.ered in analyzing whether the 
beneficiary will act in a qualifying managerial or executive capacity. Counsel states that the beneficiary's 
duties ate "purely manageoal'' and asserts that the · beneficiary is not responsible for the day-to-day 
operational duties of the business. ·Counsel submits an updated organizational chart, taX documents, and other 
evidence on appeal. 
Upon review of the petitiQn apd the evidence, and for UJ.~ reasons discussed herein, the petitioner has not 
. I 
established that it will employ. the beneficiary in a qu_alifying mC!:Dagetial or execu_tive capaeity. · 
. In order to determine whether the beneficiary would be employed in a qualifyipg ex:ecl,ltjye ot managerial 
capacity, lf.S . Citizenship and Immigration Services (USCIS) will look first to th~ petitioner's d~scription of 
the job duties. See 8 C.P.R. § 204.5(j)(5). In a support letter .submitted with ~he petition, tbe peti~ioner 
provided the followmg explanation of the beneficiary's duties as its general manager: . - .. ' . 
(b)(6)
Page 5 
NON-PRECEDENT DECISION 
Direqt ~II operations, business policies, and decisions incident to the business expansion . 
and land development projects of [the petitioner]. Directs the development of the· 
business and establishes a solid business network in the region, with the strong support of 
local government officials. Prepares, implements, and oversees the company's strategic 
direction. Deteriilines ongoing objectives, supervises the implementation of those 
policies and coord,in~tes a,nd directs la,nd d¢velopment stra.~egies, re~l ¢state. negotiations, 
a.nd related m~r~eting and logistics strategies. Establ,ish financial and operationa,l 
strategies and goals and responsible for all investments decisions. Responsible for profit, 
loss and asset management and for the ultimate· financial viability of the company. 
Reviews development oppOrtunities and recommendations of the Director of Sales and 
Logistics anci tbe Property M~nager a,nd other contr~ct consulta,nts a,nd property advisors 
to determine progress and status in attaining objectives and revises objectives and plans 
based on the business climate. Evaluates potential business partnerships for expansion in 
order to maximize investment returns. 
The d,irector later issu.eci ~ notice of intent to deny (NO!D) the petition, in which he acknowledged the 
position des<::ription provided and advised the petitioner that the benefici<~,ry's duties were described in overly 
broad terms and failed to convey an understanding of the his day-to-day duties. In response to the director's 
NOID, the petitioner provided the following further explanation of the beneficiary's proposed duties in the 
United States. 
• Increases ma,nagement's effectiveness by recruiting, selecting, orienting, training, 
coaching, counseling, and disciplining managers; communicating values, 
strategies, and objectives; assigning accountabilities; plimning, monitoring, and 
appraising job results; developing incentives; developing a climate for offering 
inforrn~tion and opinions; providing edu.ca~ional opportunities. 
• Develops strategic plan by studying tec]lnological and financial opportUI).ities; 
presenting assumptions; recommending objectives. 
• Accomplishes sitbsidiaty objectives by establishing plans; budgets, 
and results 
measurements; a,llocating resources; reviewing progress; making mid~course 
corrections. 
• Coordinates efforts by establishing procurement, production, marketing, field, 
and technicaJ services policies a,nd ptaqtices; coordinating With Property 
Manager and other staff. 
• Builds company image by collaborating with customers, government, community 
organizationS, and employees; enforcing ethical business practices. 
• Maintains quality· serviCe by establishing and enforcing organization st,andards. 
• Maintains professional and techrtical knowledge by attending workshops; 
reviewing professional publications; establishing personal networks; 
benchm~rkjng State-of-the~art practices; participating in professional societies. 
(b)(6)
NON-PRECEDENT DECISION 
Page6 
• Contributes to team effort by accomplishing related results as needed. 
The definitions of executive and managerial capacity have two parts. First, ti:J.e petitione,r must show that ti:J.e 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majoritY of his or her time on day.,t<Hi~y functions. Champion World, Inc. v. iNS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
R~citillg the benefici~'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 duties offered by the 
petitioner, such as communicating values, strategies and objectives, developing strategic plans, establishing 
plans, bud8ets, and results measurements, establishing procurement, production, ltlarketing, field artd 
techi}ical ~rvices polit;ies and practices, and maintaining quality service, are overly vague and provide little 
probative vaiue as to the beneficiary;s actual day-to-day activities. The petitioner 
does not specifically 
describe the strategies and objectives communicated, strategic plans developed, policies or prac(i¢es 
established, or organizational standards enforced to ensure quality service. lt. is reasonable to expect the_ 
petitioner to provide some details regarding the beneficiary's specific duties, past actions and 
accomplishments as general manager, given the petitioner's claim that he has held this position since 2006. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in' nature. Overall, 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). 
Beyond the required description of the job duties, USCIS reviews the totality of Ole record when examining 
the cla.iined managerial or executive capacity of a beneficiary, including the company's organizational 
structure, the du.(ies of the ben~ficiary' s subordinate· employees, the presence of other employees to relieve 
the beneficiary from performing operational duties, the nature of the business, aild aily other factors that will 
contribute to a complete understanding of a beneficiary's actual duties and role in a business. ·Here, a review 
of the totality of the evidence fails to support the petitioner's claim that it will employ the beneficiary in a 
qualifying managerial or executive capacity. 
The petitioner has submitted three conflicting organizational charts as well as inconsistent descriptions of it:s 
corporate structure and conflicting statements regarding the nature of its busines_s. Irt support of the petition, 
the petitioner submitted a three year lease dated July 11, 2011 for a retail electronics store located in 
Alabama. Elsewhere il) support of the petition, the petitioner stated that it was engaged in purchasing, 
selling; and leasing real estate and other business development activities. The petitioner further noted that it 
employed· two employees and eight independent contractors, including a director of sales and logistics, a 
property manager, a project manager, and "other contract consultants and property advisors to det~rmine 
progress and status in attaining objectives and revises [sic] objectives and plans based on the business 
climate:" 
(b)(6)
NON-PRECEDENT DECISION 
:Page 7 
In the subsequent NOID, the director asked th~t the petitioner submit an organizational chart depicting the 
company's staffing as of the date the petition was filed, including all employees and independei1t contractors 
and their job titles, duties and education levels. Further, the director requested that the petitioner clatify 
. Whether the comp<J,ny is involved in the real estate development business or the electronics retail business. In 
response, the petitioner stated that it had formed a new limited liability c~mpany wholly oWned by the 
beneficiary, called to handle its "real estate development and leasing business." The 
pet.tioner st,lbmitted an or~anizational chart for this entity which reflects that nad six 
employees subordinate to the beneficiary and five independent contractors. 
In support of the appeal, approximately six months subsequent to the NOID respons.~. the petitioner provides 
a completely different organizational chart. . The newly submitted organizational chart reflects two 
subordinates below the beneficiary, including a vice president of real estate investments and a vice president 
of finance and operations. Below the vice president level there are thre.e additional employees, including the 
manager for property management and maintenance, a manager for land development and acquisitions, and a 
manager for l;>_usiness development. Further, the operational employees below the aforementioned managerial 
tier include a maintenance employee, a grounds keeper, an assistant property manager, two maintenance 
technicians, a "contractor,'' and four constrUction employees. In sum, the 'new organizational chart shows 
fifteen total employees or contractors. 
The petitioner has submitted three conflicting organizational charts, and conflicting information regarding its 
business strUcture and focus. In light of these discrepancies, the petitioner has not met its burden to establish 
that its operations are sufficient to support the beneficiary primarily in a managerial of executive capacity. 
Fot instance, the petitioner originally stated that it employed a director of sales and logistics, a property 
manager, and a project manager. HoWever, When asked by the director to submit ali organizational chart 
relevant to the date of the filing of the petition, the newly provided organizational chart did not include a 
director of sales and logistics or a project manager and was in fact for a different company, 
Additionally, the submitted IRS Form 941 Employer's Quarterly Federal Tax Return relevant to 
for the third quarter of 2012, specific to the time when the petition was filed in August 2012, 
refleets that had only one employee and that it paid only $7,692 in wages. The IRS Form 
941 relevant to the third CJ.llalter of 2012 st<l,llds in contradiction to the petitioner's initial assertion that it had 
three employees and its subsequent assertion that it has six employees. Further, at the time of filing, the 
petitioner failed to mention the existence of It included. a list with five U.S. 
companies owned by the beneficiary, but did not include in this list, despite the fact that 
the company was established in June 2012. The petitioner also submits a 2012 IRS Form 1120S U.S. 
Income Tax Ret11m for an S Corporation for indicating that it paid $43,293 in Wages. 
However, a previously submitted IRS Form W-3 Transmittal of Wage and Tax Statement reflects that 
paid $77,271.30 in total wages in 2012. It is incumbent upon the petitioner to resolve lillY 
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. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a·reevaluation of the 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 
I&N Dec. 582,591-92 (BIA 1988). 
Furthermore, the petitioner fails to submit any evidence to support that it continued to have any employees or 
pay any wages after the formation of nor ha,s it provided sufficient supporting 
doc0111en~tion to establish that it continues to operate the real estate investment business, or any type of 
business. AlthoUgh the petitioner initially submitted a three-year lease for a retail electronics store as 
evidence of Its ongoing business operations, the petitioner subsequently stated in response to the NOID that it 
"left the business." The petitioner has also indicated the was formed in ord.~r to take over 
its real estate business. Further, the petitioner has also otherwise failed to demonstrate and document a 
location from which the claimed real estate and business development business operates, including sufficient 
space for its now asserted fifteen employees and/or contractors. If the petitioner it.self is no lopger engaged 
i.n either the retail or the real estate business, it Is unclear how it continues to exist as ail employer of a 
Iiililtinational manager or executive. While appears to be the petitioner's affiliate, the 
petitioner in this matter is and the petjtioner must establish th.at this company is doing 
business and will continue to do business. 
Regardless, even if the AAO were to consider operations in determining whether the 
petitioner can support the beneficiary in a qualifying managerial or executive capacity, tbe petitioller Q.as not 
st(biQitted sufficient evidence to establish that would be capable of supporting the 
beneficiary in this ca.pacity. For instance, the petitioner provided spreadsheets,- dated October 2011, 
indicating rental income received by from . 
and a printout advertising the rental of apartments at theSe .. locations, HoWever, the petitioner has 
not provided sufficieJ}t supporting documentation to establish that owns and leases 
properties as asserted, such as· title to the propert:ies, agreement of sale and/or purchase, lease agreements 
with tenants, . or documentation indicating the compartys receipt of rent payment$. Illdeed, tbe ditec:;tor 
inquired as to this relevant information when he requested In the NOID "cop[ies] of the petitioner's contracts 
or agreements with real estate development/investment finils" and "receipts, invoices; and detailed reports to 
how the petitioner traded or exchanged goods or services." 
. As such, the petitioner has not submitted sufficient evidence of . its operations, beyond the contradictory 
ev!~ellCt! .previously discussed herein; to establish that the petitioner has sufficient operations to support the 
. employees and contra:ctors assert:ed in the petitioner's submitted organizational charts, and thereby the 
beneficiary in his stated managerial or executive capacity. I.n his decision, the director stated that 
independent contractors may not be considered in assessing whether a beneficiary qualifies a,s acti11g iQ :,t 
managerial or executive capacity. The AAO is not in agreement with this conclusion, as independent 
contractors may be considered in reviewing the totality of the evidence related to the beneficiary's claimed 
managerial ot executive role, as long a,s their engagement is sufficiently documented in the record. However, 
in the present matter, IRS Form W-2 Wage anq Tax Statements and IRS Form 1099s from 2012 demonstrate 
that only one of the beneficiary's subordinates earned more than the federal minimum wage for a full-time 
~mployee of $15,080, casting doubt, in light of the other discrepancies and insufficiencies in the evidence; as 
to whether the beneficiary has sufficient managerial or supervisory subordinates to elevate him beyond that 
of a first"line supervisor. A managerial or executive employee must have authority over day-to-day 
(b)(6)
/ 
NON-PRECEDENT DECISION 
Page9 
operations beyond the level nortnally vested in a first-line supervisor, unless the supervised employees are 
professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988). 
In conclusion, tbe petitioner has submitted overly vague dutie·s for the beneficiary, accompanied by 
insufficient and iilconsist~nt evidence relevant to its organization and operations. Accordingly, the petitioner 
has failed to establish that the beneficiary will be employed in a managerial or executive capacity. For tl1is 
rea.son, t,lle appeal will be dismissed. 
B. Ability to Pay 
The remaining issue to be addressed is whether the petitioner has established that it has the ability to pay the 
beneficiary his proffered wage. 
The director found that the petitioner had not demonstrated with sufficient evidence that the petitioner has 
the ability to pay .the beneficiary's proffered wage. The director noted that the petitioner had insufficient net 
income or assets, as reflected in Schedule C of the beneficiary's most recent IRS Form 1040 U .$.. ~ndi vidu(\l 
Income Tax Return from 2010, to pay the beneficiary's proffered wage of $52,000. 
On appeal, counsel references additional documentatiOQ submitJed on the record, specifically, an IRS Form 
1120S, U.S. Income Tax Return for an S Corporation, for the petitioner's affiliate 
reflecting that this company earned net income of $235,300 in 2012, thereby demonstrating sufficient income 
to pay the beneficiary his proffered wage of $52,000. 
" 8 C.P.R. § 204.5(g)(2) states: 
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 t]le proff¢red wage. The petitioner must demonstrate this ability at the time the 
priority d~te is es~blished and continuing until. the beneficiMy obtains lawful permanent 
residence. Evidence of this ability shall be either in the form of copies of ~nual reports, 
federal tax retlims, or audited financial statements. In a cas~ where the prospective 
United States employer employs 100 or more workers, the director may accept a 
statement from a financial officer of the organization which establishes the prospective 
employer's ability to pay the proffered wage . . In appropriate cases, additional evidence, 
such as profit/loss statements, bank accooot records, or personnel records, may be 
submitted by 
the petitioner or requested by the Service. 
In detertnining the petitioner's ability to pay the proffered wage, USCIS will first exa.rnine whether the 
petitioner employed the beneficiary at the time the priority date was established. If the petitioner establishes 
by documenW')' evidence that it employed the beneficiary at a salary equal to or greater than the proffere<.l 
wage, this evidence will be considered prima facie proof of the petitioner's abiiity to pay the beneficiary's 
salary. In the present matter, the petitioner did not submit sufficient documentation that wages have been 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
paid to the beneficiary during his time of asserted employment with the petitioner as an L-1A nonimmigrant 
intracompany transferee since October 2006. The petitioner sublllitted no evidence that the beneficiary 
previously received wages from the petitioner during the almost six years that the beneficiary was employed 
by the petitioner in the United States. 
The petitioner did submit a letter dated January 25, 2013 from a bookkeeper, who stated that since it is a 
"sole member LLC" owned wholly by the beneficiary, and not a "Cor S corporation," that the petitioner's 
income and expenses are reflected on the beneficiary's IRS Form 1040, U.S.Individual Income Tax Returns. 
The accountant further stated: 
As a sole member LLC [the beneficiary] does not receive a I?aycheck. He receives his 
personal money as an owner draw. Owner draw is determined by subtracting expenses 
from income. At the end of the year any taxes he owes is determined on his 1040 tax 
return. 
The rental busine~s that belongs to [the beneficiary] ba,s shown a positive ca,sh flow for 
the last three years as shown in the enclosed cash flow statement. . : 
As ~ alternate means of determining the petitioner's ability to pay, the AAO will next exa,1Iline t}l.e 
petitioner's net income figure a,.s 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 Tongqtapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cit. 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), aff'd, 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 USCIS) 
had properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income ta,~ 
retQrns, rat}Jer than on the petitioner'~ 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, t_hete is no precedent that would allow the petitioner to "add back to net ca~h 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. 
In the current matter, based on counsel's assertions, the AAO will look to Schedule E of the beneficiary's 
IRS Fotrn 1040 U.S. Individual Income Tax Return to determine the petitioner's net income, since the 
petition's priority date falls on August 29, 2012. The aforementioned 2011 individual tax return for the 
beneficiary reflects that the beneficiary incurred a loss of $110,649, ot a:n insufficient amount to compensate 
the beneficiary's proffered wage of $52,000. 
Fina,lly, ifthe 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 
(b)(6)
NON-PRECEDENTDECISION 
Page 11 
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 eq11ivalents, then the petitioner's net current assets may 
be considered in assessing the prospective employer's ability to pay the proffered wage. 
In the present matter, the'petitioner has not submitted sufficient evidence to establish that the petitioner has 
sufficient assets to compensate the beneficiary his proffered wage. Counsel submits on appeal a 2012 IRS 
Form 1120S for the petition~r' s affiliate, demonstrating that this company earned 
$235,350 in net income. However, the net income of an affiliate wholly owned by the beneficiary is not 
relevant to establishing whether the petitioner has the a}Jility to pay the beneficiary's proffered wage. 
Therefore, the petitioner has not established with sufficient evidence that the petitioner has the ability to pay 
the beneficiary's proffered wage of $52,000. For this additional reason, the appeal must be dismissed. 
III. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis fot the decision. In visa petition prpceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, ~6 
l&N Dec. 127, 128 (BIA 2013). Here, that burcien has not been met. 
ORDER: The appeal is dismissed.