dismissed EB-1C Case: Restaurant Business

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 02 216 50701 FCB 0 1 2006 
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. 8 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. 
9 
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~o-iemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Georgia corporation operating as a holding company for a restaurant business. It seeks to 
employ the beneficiary as its vice president. 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. Q 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
on the following independent grounds of ineligibility: 1) the petitioner failed to establish its ability to pay the 
beneficiary's proffered wage; 2) the petitioner failed to submit evidence to show that it is doing business; and 
3) the petitioner failed to establish that the beneficiary has been employed in the United States in a qualifying 
managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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 fm, 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. 
The frrst issue in this proceeding is whether the petitioner established its ability to pay the beneficiary's 
proffered wage at the time of the filing of the 1-140 petition. 
The regulation at 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 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner indicated in Part 6 of the Form 1-140 that the beneficiary would be compensated $48,000 per 
year under an approved petition. However, the initial evidence submitted did not establish that the petitioner 
had the ability to pay the beneficiary's proffered wage. 
Accordingly, the director issued a request for evidence dated September 29, 2004 instructing the petitioner to 
submit copies of its tax returns for 2002 and 2003 as well as all of the corresponding W-2 statements and/or 
1099's issued during those two years. 
In response, the petitioner provided a letter from its general manager dated December 20, 2004 stating that 
based on the terms of the compensation agreement between the beneficiary and the foreign entity, the foreign 
entity will continue to pay the beneficiary's salary. 
In regard to the requested documentation, the petitioner provided its 2002 tax return, which indicated that no 
officers were compensated that year and that no salaries or wages were paid. The return also showed that the 
petitioner had no taxable income for that year, even though the petition was filed on July 30, 2002. The 
petitioner also submitted its 2003 tax return, which also indicated that no officers were compensated that year 
and that no salaries or wages were paid. This time, the petitioner showed an income of $1,363, far less than 
the beneficiary's proffered wage. 
Additionally, the petitioner submitted 2002 and 2003 tax returns for Deejay Enterprises, Inc., the petitioner's 
wholly owned subsidiary. While both returns showed that an officer was compensated and that salaries and 
wages were paid, there is no indication that the beneficiary was employed by either the petitioner or its 
subsidiary despite the claim that the beneficiary was admitted to the United States in 2001 under an L-1A visa 
classification to work as the petitioner's vice president. The record does not indicate that the petitioner issued 
a W-2 statement for the beneficiary in 2002 or 2003; nor is the beneficiary's name included in any of the 
submitted quarterly wage reports. 
After a review of the submitted documentation, the director concluded that the petitioner failed to establish its 
ability to pay the beneficiary's proffered wage and denied the petition on April 27, 2005. 
On appeal, counsel reiterates the general manager's explanation regarding the beneficiary's agreement with 
the foreign entity with regard to payment of her salary. However, regardless of the current source of the 
beneficiary's salary, the regulation at 8 C.F.R. 5 204.5(g)(2) specifically requires the prospective United 
States employer to establish its ability to pay the beneficiary's proffered wage. The petitioner is not relieved 
of this burden merely by stating that the foreign entity pays the beneficiary's wage. 
In determining the petitioner's ability to pay the proffered wage, Citizenship and Immigration Services (CIS) 
will first examine whether the petitioner employed the beneficiary at the time the priority date was 
established. If the petitioner establishes by documentary evidence that it employed the beneficiary at a salary 
equal to or greater than the proffered wage, this evidence will be considered prima facie proof of the 
petitioner's ability to pay the beneficiary's salary. In the instant matter, although the petitioner states that it 
currently employs the beneficiary under the L-1A visa classification, by its own admission, the petitioner does 
not pay the beneficiary's wage. 
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 Woodcrafr 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., Znc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. 111. 1982), affd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Znc. v. Sava, the court 
held the Immigration and Naturalization Service (now CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income. 
623 F. Supp. at 1084. 
As the petition's priority date falls on July 30, 2002, the AAO must examine the petitioner's 2002 tax return. 
As previously stated, the petitioner's IRS Form 1120 for calendar year 2002 indicates that the petitioner had 
no taxable income the year the 1-140 petition was filed. Therefore, the petitioner's tax return does not help 
establish the petitioner's ability to pay a proffered wage of $48,000 per year. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Net current assets identify the amount of "liquidity" that the petitioner has as of the 
date of filing and is the amount of cash or cash equivalents that would be available to pay the proffered wage 
during the year covered by the tax return. As long as the AAO is satisfied that the petitioner's current assets 
are sufficiently "liquid" or convertible to cash or cash equivalents, then the petitioner's net current assets may 
be considered in assessing the prospective employer's ability to pay the proffered wage. In the present matter, 
Schedule L of the petitioner's 2002 tax return indicates that the petitioner's assets equal the dollar amount of 
its liabilities, which strongly suggests that the petitioner did not have the liquid assets to pay the beneficiary's 
proffered wage at the time the petition was filed. 
Based on the submitted documentation, the petitioner has failed to establish by a preponderance of the 
evidence its ability to pay the beneficiary's proffered wage as required by 8 C.F.R. 5 204.5(g)(2). 
The second issue in this proceeding is whether the petitioner is doing business. The regulation at 8 C.F.R. 
3 204.5(j)(2) states that doing business means "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 the instant matter, the petitioner claims to be a holding company that does business via its subsidiary, 
Deejay Enterprises, Inc. While the petitioner submitted incorporation documents for itself and its subsidiary, 
the only evidence submitted to suggest that the petitioner has been doing business consists of several purchase 
invoices that account for transactions that took place in February and April of 2002. 
In the Request for Evidence, the director noted that additional evidence was required to establish that the 
petitioner is doing business. 
In response, the petitioner provided numerous invoices from October, November, and December of 2004 
showing the purchase by its subsidiary of wine and food products to be used for food preparation and/or sale 
within the petitioner's subsidiary. The petitioner also provided a number of utility bills in response to the 
director's indication that such documents are an appropriate indicator of whether a company is doing 
business. 
Upon review, the director concluded in the denial that the petitioner did not submit sufficient evidence to 
establish that it is doing business as defined by 8 C.F.R. fj 204.5(j)(2). 
On appeal, counsel disputes the director's conclusion and provides additional utility bills to establish that the 
petitioner is doing business as claimed. Notwithstanding the director's suggestion to the contrary, the AAO notes 
that utility bills are not an appropriate indicator of whether a petitioner is engaged in the regular course of 
business. In the instant matter, the petitioner also claims to be engaged in the restaurant business via its wholly 
owned subsidiary. However, whether a petitioner's subsidiary is doing business is not probative of whether a 
petitioner itself is doing business and is not merely a shell or paper company. Thus, the petitioner's prior 
submission of its subsidiary's invoices showing the purchase of wine to be sold in its subsidiary and proof of 
purchase of food products used to prepare food that would be sold by the subsidiary are not sufficient 
indicators that the petitioner is currently doing business. Accordingly, the petitioner has not overcome this 
ground of the director's denial. 
The third issue in this proceeding is whether the beneficiary has been employed as an L-1A intracompany 
transferee in a capacity that is managerial or executive. 
The director concluded that the petitioner's failure to establish that the beneficiary has been compensated by 
any company directly leads to the finding that the beneficiary has not been employed by the petitioner in a 
managerial or executive capacity. 
Regardless of whether the director's conclusion is correct, the matter of the beneficiary's prior employment in 
the United States is irrelevant in the instant matter. While the regulations at 8 C.F.R. fj 204.5(j)(3)(i) clearly 
instruct the petitioner to submit evidence establishing that the beneficiary was employed abroad by a 
qualifying entity in a managerial or executive capacity, and while 8 C.F.R. fj 204.5(j)(5) further instructs the 
petitioner to provide a specific job description to establish that the beneficiary's prospective employment will 
be in a managerial or executive capacity, there is no requirement that the petitioner submit any information 
with regard to current employment under an L-1A visa classification. The matter of the beneficiary's L-1A 
employment is part of an entirely separate proceeding and need not be considered when determining the 
petitioner's eligibility to classify the beneficiary as a multinational manager or executive. 
Furthermore, even if the AAO were to apply the director's conclusion to the beneficiary's proposed position, 
the petitioner's failure to establish its ability to pay the beneficiary's proffered wage is not an accurate 
indicator of whether the beneficiary has been or would be employed in a qualifying managerial or executive 
capacity. When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. fj 204.5(j)(5). In the instant matter, there is no 
indication that the director properly considered any job descriptions prior to reaching his conclusion. While 
the job description in the instant matter may, in fact, be deficient, the director cannot rely on the petitioner's 
ability to pay in order to reach that conclusion; nor should the director base a denial, even in part, on 
assumptions made regarding facts that are part of an entirely separate proceeding. As the director's final 
ground for denying the petition was invalid, it is hereby withdrawn. 
Notwithstanding the withdrawal of the director's third ground for denial, the fact remains that the petitioner 
failed to establish its ability to pay the beneficiary's proffered wage. Based on this determination, the petition 
cannot be approved. 
Additionally, though not directly addressed in the denial, the regulation at 8 C.F.R. Q 204.5(j)(3)(i)(D) states 
that the petitioner is required to submit evidence that the prospective United States employer has been doing 
business for at least one year. While the director addressed the issue of whether the petitioner is currently doing 
business, there is no indication that the director considered whether the petitioner was doing business as of July 
30,2001, one year prior to the date the 1-140 petition was filed. 
In the instant matter, the only indication that the petitioner may have been doing business prior to filing the 
petition consists of a handful of purchase invoices from its subsidiary reflecting transactions that took place in 
February and April of 2002. Even if both sets of invoices establish that the petitioner and not just its subsidiary 
were doing business prior to filing the petition, there is no indication that the petitioner was doing business 
between July of 2001 and February of 2002 and from May 2002 to July of 2002. The invoices submitted only 
account for two months out of a total 12-month period. As such, the petitioner has not submitted sufficient 
evidence to establish that the petitioner was doing business for a full year prior to filing the petition. 
Though also beyond the director's decision, the petitioner is required to establish that the beneficiary's 
employment abroad prior to her entry to the United States as a nonimmigrant as well as her prospective 
employment under an approved 1-140 petition have been and would be within a managerial or executive capacity 
pursuant to 8 C.F.R. Q 204.5(j)(3)(i)(B) and (S), respectively. 
In the instant matter, the petitioner provided no information regarding the beneficiary's employment with the 
foreign entity. With regard to the beneficiary's proposed employment, the description is entirely too vague to 
convey an understanding of what the beneficiary would actually be doing on a day-today basis. As previously 
stated, when examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. Q 204.5(j)(5). 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. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The petitioner's failure to provide specific 
job descriptions of the beneficiary's foreign employment and proposed position in the United States prevents 
the AAO from affmtively concluding that the beneficiary has been and would be employed in a qualifying 
managerial or executive capacity. 
As a final note, with regard to the beneficiary's L-1 nonimrnigrant classification, which resulted from 
previously approved Form 1-129 nonimmigrant petitions, it should be noted that, in general, given the 
permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny by CIS than 
nonirnrnigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $5 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 5 1101(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 pennits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
Cf $5204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also 5 316 of the Act, 8 U.S.C. 5 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 CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. $ 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-1A petition's validity). Because CIS spends less time reviewing Form 1-129 nonimmigrant petitions than 
Form 1-140 immigrant petitions, some nonirnrnigrant L-1 petitions are simply approved in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30 (recognizing that CIS 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 CIS 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 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
immigrant petitions after approving prior nonirnmigrant 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. Suva, 724 F. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petitions 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. 593,597 (Cornrn. 1988). It would be absurd to 
suggest that CIS 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). 
Finally, 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
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, Znc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds discussed above, this petition cannot 
be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.