dismissed EB-1C Case: Real Estate Development

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
identifying data deleted to 
O!ce of~dmmistratrve Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
1% 
Office: NEBRASKA SERVICE CENTER Date: MAR 3 O 2009 
LIN 07 209 52332 
IN RE: 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Appeals Office 
LIN 07 209 52332 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, allegedly a real estate developer, is a California corporation, which claims to be a subsidiary of 
the beneficiary's previous employer in China. 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. 5 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that it will employ the 
beneficiary in a primarily managerial or executive capacity. 
On appeal, counsel asserts that the director erred and that the beneficiary will be employed in a primarily 
managerial capacity in the United States. 
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 and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
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. 
Title 8 C.F.R. 5 204.5(,)(3) explains that a petition filed for a multinational executive or manager under 
section 203(b)(l)(C) must be accompanied by a statement from an authorized official of the "petitioning 
United States employer" which demonstrates that: 
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Page 3 
(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 
The primary issue in this proceeding is whether the petitioner provided sufficient evidence to establish that it 
will employ the beneficiary in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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. 
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Page 4 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The AAO reviews appeals on a de novo basis. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). The 
petitioner does not clearly state in the underlying petition whether the beneficiary will be employed in a 
managerial or executive capacity. Therefore, while counsel on appeal argues that the beneficiary will be 
employed in an managerial capacity, the AAO will assume that the petitioner is claiming that the beneficiary 
will be employed in either a managerial or executive capacity and will consider both classifications on appeal. 
The petitioner claims in the Form 1-129 to employ 10 workers and describes the beneficiary's proposed duties 
as "CEOIGeneral Manager" in a letter dated May 28,2007 as follows: 
Take the full responsibilities and overall management of [the petitioner]. 
Make company's important decisions on retaining outside professional services, 
purchase and sale of real estate, export and import of building materials and 
equipment, etc. 
Formulate objectives and policies of the company's operations and the budget plan. 
Decide the organizational structure, including hiring, promoting, and firing 
managerial and professional staff of the company. 
Direct and manage the work of the professional staff and other employees of the 
company. 
Coordinate international business operations between parent company and U.S. 
subsidiary company. 
Make monthly report to the parent company. 
The petitioner also submitted an organizational chart for the United States operation. The chart shows the 
beneficiary at the top of the organization supervising a "vice general manager," who, in turn, is portrayed as 
supervising a "sales manager," a "project manager," an "office manager," and a "financial manager." Each of 
these claimed subordinate managers is portrayed as supervising at least one subordinate worker. 
Page 5 
The petitioner also described the duties of the claimed subordinate managers. Each of these workers is 
described as having supervisory duties over at least one subordinate worker as well as performing various 
tasks necessary to the operation of the business, e.g., looking for investments, negotiating contracts, 
performing sales and marketing tasks, administering the office, and reviewing financial documents. Based on 
the petitioner's description of its staffing, six of its ten employees are purportedly performing managerial or 
supervisory duties. 
The petitioner describes its business as principally purchasing and developing real estate. 
 Based on its 
financial statements and tax returns, it appears most of its income is derived from rents and gains on 
conveyances. 
On April 11, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
On appeal, the petitioner asserts that the director erred and claims that the beneficiary will be employed in a 
managerial capacity. 
Upon review, the petitioner's assertions are not persuasive in establishing that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
In examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. €j 204.5(i)(5). 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will "take full responsibility and 
overall management of [the petitioner]," make "important decisions" regarding investments, materials, and 
hiring service providers, formulate objectives and policies, make personnel decisions, direct subordinate staff, 
coordinate operations with the foreign employer, and report to the "parent company." However, the petitioner 
fails to specifically describe the objectives, policies, reports, and coordinated operations or explain what, 
exactly, the beneficiary will do in "managing" the operation or making "important decisions" other than to act 
as a supervisor of approximately nine administrative, operational, and sales workers. The fact that the 
petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description 
which includes inflated job duties does not establish that the beneficiary will actually perform managerial or 
executive duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Id. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. .Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
LIN 07 209 52332 
Page 6 
qualifying duties in his operation of the enterprise. To the contrary, it appears more likely than not that the 
beneficiary will primarily perform first-line supervisory, administrative, and operational tasks. As the 
beneficiary's subordinate workers have not been established to be managerial, supervisory, or professional 
(see infra), it has not been established that first-line supervisory tasks associated with the beneficiary's 
supervision of these workers will be qualifying duties. Furthermore, absent evidence to the contrary, the 
record is not persuasive in establishing that the other duties ascribed to the beneficiary will be truly 
managerial or executive in nature. For example, the petitioner claims that the beneficiary will devote 
substantial periods of time to making "important decisions" regarding investments, materials exporting and 
importing, and hiring service providers and to coordinating operations with the foreign employer. However, 
these duties do not appear to be managerial or executive in nature. Accordingly, it appears that the 
beneficiary will more likely than not "primarily" perform non-qualifying administrative, operational, or first- 
line supervisory tasks. 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 10 l(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). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly or indirectly supervise approximately nine subordinate 
workers vertically organized in four tiers. The petitioner claims that the beneficiary will supervise a "vice 
general manager," who will supervise four subordinate supervisors, who will each supervise at least one 
subordinate worker. Consequently, six out of petitioner's ten employees are allegedly managerial or 
supervisory workers. However, the record is not persuasive in establishing that any of the petitioner's 
employees is a bona fide supervisor or manager. The record is not persuasive in establishing that the 
petitioner's operation, a small real estate development and rental business, could reasonably require or sustain 
such a complex, multi-tiered organizational structure. An employee will not be considered to be a supervisor 
simply because of a job title or because he or she supervises daily work activities and assignments. Rather, 
the employee must be shown to possess some significant degree of control or authority over the employment 
of subordinates. Artificial tiers of subordinate employees and inflated job titles are not probative and will not 
establish that an organization is sufficiently complex to support an executive or manager position. In this 
matter, the petitioner has not established that the reasonable needs of the United States operation compel the 
employment of a managerial or executive employee to oversee one or more subordinate supervisors. It 
appears that all of these workers are primarily performing the operational or administrative tasks necessary to 
the business and not truly supervising subordinate employees. See generally Family, Inc. v. US. Citizenship 
and Immigration Services, 469 F.3d 13 13 (9' Cir. 2006). Accordingly, it appears that the beneficiary will be, 
at most, the first-line supervisor of the subordinate employees. A managerial employee must have authority 
over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised 
employees are professionals. Section 10 1 (a)(44)(A)(iv) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. Finally, as the petitioner failed to establish the skills necessary to perform 
the duties of the subordinate positions, the petitioner has not established that the beneficiary will supervise 
LIN 07 209 52332 
Page 7 
professional employees.' 
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity.' 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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. Section 101(a)(44)(B) of the Act. 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 employees for the beneficiary to 
direct, and the 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 the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
'In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10l(a)(32) of the Act, 8 U.S.C. 5 1 10l(a)(32), states that "[tlhe 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." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
'while the petitioner has not argued that the beneficiary will primarily manage an essential function of the 
organization, the record nevertheless would not support this position even if taken. The term "function 
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff 
but instead is primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary will manage an essential function, the petitioner must furnish a written 
job offer that clearly describes 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 attributed to managing the essential function. See 8 C.F.R. $5 204.5(j)(2) and (5). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the tasks related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record indicates that the beneficiary will more likely than not primarily perform non-qualifying 
tasks and be a first-line supervisor of non-professional workers. Absent a clear and credible breakdown of the 
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties 
will be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function 
manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
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Page 8 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The beneficiary's job description is 
so vague that it cannot be discerned what, exactly, the beneficiary will do on a day-to-day basis. Also, as 
explained above, it appears more likely than not that the beneficiary will primarily perform administrative or 
operational tasks and work as a first-line supervisor of non-professional workers. Therefore, the petitioner 
has not established that the beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration 
Services, 469 F.3d at 1316 (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 
199 1)); Fedin Bros. Co. v. Sava, 905 F.2d 4 1, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d 25, 29 (D.D.C. 2003)). 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). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed 
abroad in a primarily managerial or executive capacity. 
The foreign employer describes the beneficiary's duties abroad in a document titled "Employment Letter" 
attached to the petition as follows: 
Be responsible for overall management and decision making of Business Management 
Department, Budget Department, Purchasing Department, Project Development Department 
and Construction Engineering Company in our company. Participate to establish and 
formulate company policies, procedures, long range goals and objectives. Supervise the 
business management, budget, purchasing and project Development issues. Have the 
authority to hire, terminate, evaluate and promote the managerial personnel of the four 
departments and one subsidiary company under his supervision based on their job 
performance, qualification and contribution. Confer with other executives to review 
achievement and discuss required changes in goals resulting from current status and 
conditions. Receives the supervision and direction from the general manager and the Board 
of Directors. 
The petitioner also submitted an organizational chart, which indicates that the beneficiary supervised, directly 
and indirectly, over 200 workers, including subordinate supervisors. 
Page 9 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. Similar to the United States position, the petitioner failed to 
specifically describe the beneficiary's job duties abroad. Instead, the petitioner has submitted a vague and 
non-specific job description which fails to sufficiently describe what the beneficiary did on a day-to-day 
basis. The submitted job description describes the beneficiary's duties in broad, managerial-sounding terms 
without explaining what, exactly, the beneficiary did to be "responsible for overall management and decision 
making" or to "[plarticipate to establish and formulate company policies, procedures, long range goals and 
objectives." Once again, specifics are clearly an important indication of whether a beneficiary's duties were 
primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, afd, 905 F.2d 41. Similarly, 
the petitioner failed to specifically describe the duties of the beneficiary's purported subordinates abroad. 
Absent detailed descriptions of the duties of both the beneficiary and his purported subordinates, it is 
impossible for USCIS to discern whether the beneficiary was "primarily" engaged in performing managerial 
or executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
Accordingly, as the petitioner failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner failed to establish that the petitioner is entitled to the 
benefit sought because it failed to establish that the petitioning organization is "doing business" abroad. 8 
C.F.R. 5 204.5(j)(2). "Doing business" is defined in pertinent part as "the regular, systematic, and continuous 
provision of goods and/or services." Id. "Multinational" means that "the qualifying entity, or its affiliate, or 
subsidiary, conducts business in two or more countries, one of which is the United States." Id 
In this matter, the record is devoid of evidence of the foreign employer "doing business." Once again, 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 (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190). USCIS may in its discretion deny a petition if all required initial evidence is 
not submitted or if the evidence fails to establish eligibility. 8 C.F.R. 3 103.2(b)(8)(ii). 
Accordingly, as the petitioner failed to establish that the foreign employer is "doing business," the petition 
may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that it has the ability to pay the 
proffered wage to the beneficiary. 8 C.F.R. 5 204.5(g)(2). 
Title 8 C.F.R. 5 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
Page 10 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine whether the 
petitioner employed the beneficiary at the time the priority date was established. If the petitioner establishes 
by documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered 
wage, this evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's 
salary. 
In this matter, the petitioner offered the beneficiary, who was employed at the time the petition was filed on 
June 20, 2007, a salary of $48,000.00, plus "benefits of housing, transportation and insurance," in a letter 
dated May 28, 2007. However, the beneficiary's 2006 Form W-2 indicates that he received only $36,000.00 
in compensation during the prior year. Furthermore, the beneficiary's 2007 Form W-2, which was submitted 
in response to the director's Request for Evidence, indicates that he received exactly $48,000.00 in 
compensation during that year. The record does not address whether the beneficiary was provided housing, 
transportation, and insurance as offered or, if he was, the value of this compensation. Therefore, the 
beneficiary's salary at the time the Form 1-140 was filed cannot be considered prima facie proof of the 
petitioner's ability to pay the beneficiary's proffered annual salary of $48,000.00 plus housing, transportation 
and insurance. 
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), afd, 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 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 June 20, 2007, the AAO must examine the petitioner's tax return for 
2006. The petitioner's IRS Form 1120 for calendar year 2006 presents a net taxable income of -$399,563.00. 
Accordingly, the petitioner's tax returns do not establish that it has the ability to pay the beneficiary's 
proffered wage. 
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 
LIN 07 209 52332 
Page 11 
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. Net current assets are 
the difference between the petitioner's current assets and current liabilities. A corporation's year-end current 
assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 
through 18. If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary 
(if any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage using those net current assets. The petitioner's net current assets during the year in question, 
however, were -$411,726.00. Accordingly, the tax returns do not establish that the petitioner has the ability to 
pay the proffered wage to the beneficiary. 
Accordingly, the petitioner has failed to establish that it has the ability to pay the beneficiary's proffered 
wage, and the petition may not be approved 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), aj'd 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (noting that the AAO reviews appeals on a de novo 
basis). Therefore, based on the additional ground of ineligibility as discussed above, this petition cannot be 
approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, a-d, 345 F.3d 
683. 
As a final note, USCIS records indicate that the beneficiary has previously been approved for L-1 
employment with the same petitioner. 
 However, with regard to the beneficiary's L-1 nonimmigrant 
classification, it should be noted that, in general, given the permanent nature of the benefit sought, immigrant 
petitions are given far greater scrutiny by USCIS than nonimmigrant petitions. The AAO acknowledges that 
both the immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and 
executive capacity. See $8 10 1 (a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44). Although the statutory 
definitions for managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
There are significant differences between the nonimmigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. CJ: $5 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also 5 316 of the 
Act, 8 U.S.C. fj 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and USCIS normally accords the petitions a less 
substantial review. See 8 C.F.R. 5 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to 
Page 12 
extend an L-1A petition's validity). Because USCIS spends less time reviewing Form 1-129 nonimmigrant 
petitions than Form 1-140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. 
Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30 (recognizing that USCIS approves some petitions in 
error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude USCIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way 
guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS 
denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; 
Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petition were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that 
USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
In addition, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
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. tj 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.