dismissed EB-1C Case: Retail

MATTER OF K- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 20, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a convenience store/gas station/telecommunications company, seeks to classifY the 
Beneficiary as an immigrant multinational manager or executive. See Immigration and Nationality Act 
(the Act) § 203(b)(l)(C), 8 U.S.C. 1153(b)(l)(C). The Director, Texas Service Center, denied the 
petition. The matter is now before us on appeal. The appeal will be dismissed. 
The Petitioner states that it is an affiliate of the Beneficiary's prior employer located in Nigeria. It 
seeks to employ the Beneficiary as its Managing Director. 
The Director denied the petition, concluding that the Petitioner did not establish that it will employ 
the Beneficiary in a qualifying managerial or executive capacity. 
The Petitioner subsequently filed an appeal. On appeal, the Petitioner asserts that the Director did 
not properly consider the nature of the Beneficiary's duties and improperly interpreted the 
regulations regarding supervision of professional employees. 
I. THELAW 
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 
Matter of K- LLC 
to a subsidiary or affiliate thereof in a capacity that is managerial or 
executive. 
The language of the statute is specific in limiting this provision to only those executives or managers 
who have previously worked for the firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and are corning to the United States to work for the same entity, or its 
affiliate or subsidiary. 
Additionally, the regulations at 8 C.F.R. § 204.5(j)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
(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. 
Section 10l(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as 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 
2 
Matter of K- LLC 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function 
for which the employee has authority. A first line supervisor is not considered 
to be acting in a managerial capacity merely by virtue of the supervisor's 
supervisory duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as 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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101 (a)( 44 )(C) of the Act. 
II. U.S. EMPLOYMENT 
The issue to be addressed is whether the Petitioner established that the Beneficiary will be employed 
in the United States in a qualifying managerial or executive capacity. 
A. Facts 
The Petitioner filed the Form I-140 on December 30, 2013. It described its business as "convenience 
store, gas stations, telecommunications," 1 and stated that it has nine employees and gross annual 
income of$177,428. 
1 In a letter dated December 17, 2013, the Petitioner also states that it is engaged in the procurement of oil and gas, the 
transportation tools and equipment industries, and distributing automobiles and auto parts and accessories to its foreign 
affiliate in Nigeria. 
3 
Matter of K- LLC 
The Petitioner submitted a statement describing the Beneficiary's proposed duties as follows: 
• Responsible for the overall direction and development of the company (25%) 
o Continues direction of existing convenience store/gas station operations and 
international calling card business; 
o Continues direction of procurement and export of oil and gas, telecommunications, 
and transportation equipment; 
o Directs the performance of sales, market and industry research to review and 
determine other viable locations for expansion of convenience store/gas station 
operations; 
o Directs the performance of sales, market, and industry research to review and 
determine other viable entrepreneurial opportunities or ventures. 
• Responsible for direction of company operations (25%) 
o Establishes, reviews, and modifies company operational goals and objectives; 
o Formulates, reviews, and modifies company administrative and operational policies 
and procedures; 
o Reviews and analyzes operations to evaluate performance, ensure quality control and 
increase efficiency and economy; 
o Develops or evaluates and authorizes suggested sales and marketing strategies; 
o Conducts periodic review of sales and marketing strategies for all company ventures 
and modifies accordingly. 
• Responsible for direction of company finances (25%) 
o Establishes, reviews and modifies company financial goals and objectives; 
o Determines and ensures proper capitalization for current and future operations 
including recommendations for retention of earnings or reinvestment of profits and 
authorizations for short or long term loans on company assets or account receivables; 
o Allocates funding for operations and directs and monitors company's budget 
activities; 
o Reviews revenue and expense reports. 
• Responsible for negotiation and approval of contracts or agreements ( 1 0%) 
o Establishes contractual goal and objective and performance expectations; 
o Determines possible risks and potential expense or revenue; 
o Ensures legal and regulatory compliance with attorney; 
o Discusses and compromises on contractual terms and conditions; 
o Reviews and evaluates contract language and suggests further modification as 
necessary; 
o Signs and authorizes final draft upon mutual agreement of all terms and conditions. 
• Responsible for direction of human resource activities (15%) 
o Determines company personnel or temporary labor or independent contractor needs; 
o Formulates and modifies personnel policies and procedures; 
o Authorizes all personnel hires or dismissals and delegates duties and responsibilities; 
o Appoints and supervises department heads and managers; 
4 
Matter of K- LLC 
o Delegate additional responsibilities to department heads upon commencement of 
newly planned operations or other ventures; 
o Conducts periodic performance reviews; 
o Reviews personal performance reports; 
o Authorizes or approves independent contractors as may be needed for operations. 
The Petitioner stated that the Beneficiary spends 1 00% of his time on the above executive and upper 
managerial functions as the company's day-to-day operations are handled by subordinate managers. 
The Petitioner also submits a letter dated December 17, 2013, which includes a chart of the other 
positions and associated position descriptions and salaries within the company's hierarchy including: 
the Executive Administrator ($400 per week), Operations Manager ($600 per week), Chief 
Marketing Officer ($650 per week), Head, Special Projects ($2,000 per month), and four Sales 
Representatives ($320 per week each). The Petitioner also submits an organizational chart dated 
September 16, 2013. This chart lists four subordinate employees directly reporting to the 
Beneficiary: Head, Special Projects, Administrator, Operations Manager, and Chief Marketing 
Officer. The organizational chart also includes a tax accountant and an attorney (who is the attorney 
of record for this petition) reporting to the Administrator, and a logistics company reporting to the 
Operations Manager. Additionally, there are three sales representatives who report to the Chief 
Marketing Officer. 
The Director issued a request for evidence (RFE) on July 23, 2014, advising the Petitioner, in part, 
that the initial evidence did not establish that it would employ the Beneficiary in a qualifying 
managerial or executive capacity. The Director advised that the Petitioner did not sufficiently 
describe the Beneficiary's day-to-day duties, the amount oftime he will allocate to specific tasks, or 
the number and types of employees he will supervise. On February 11, 2015, the Director sent a 
second RFE noting that USCrS records indicate that the Petitioner submitted a response to the first 
RFE; however, USCrS could not locate the response. The Petitioner was asked to resubmit the 
documentation. On February 23, 2015, the Petitioner resubmitted documentation describing the 
Beneficiary's position as Managing Director. 
The record of proceedings includes a letter dated September 3, 2014 submitted in response to the 
RFE. This letter changed the percentage of time the Beneficiary will spend on each job duty as 
follows: 
o Responsible for the overall direction and development of the company (35%) 
o Responsible for direction of company operations (25%) 
o Responsible for direction of company finances (25%) 
o Responsible for negotiation and approval of contracts or agreements (5%) 
o Responsible for direction of human resources activities (1 0%) 
This letter further states that, in addition to the Beneficiary, the Petitioner employs an Executive 
Administrator ($400 per week), an Operations Manager ($600 per week), a Chief Marketing Officer 
($650 per week), three Sales Representatives ($320 per week each), and an outsourced logistics 
company. The employees, with the exception of the Sales Representatives, are designated 
5 
(b)(6)
Matter of K- LLC 
specifically as full-time employees. The letter does not refer to a Head, Special Projects. The 
Petitioner also resubmitted its organizational chart, which includes a Head, Special Projects, in 
addition to the Administrator, Operations Manager, and Chief Marketing Officer, reporting to the 
Beneficiary. 
Also in response to the RFE, the Petitioner submitted W-2 Wage and Tax Statements for 2013 for 
several employees. The Beneficiary's W-2 indicates that he earned $54,652 in 2013. For the year 
2013, the Chief Marketing Officer earned $18,141; the Head, Special Projects 1 
earned $18,000; the Operations Manager 1 earned $4560; the administrator , 
earned $6440; and a Sales Rep I, ) earned $1,974. Five other employees not listed on the 
organizational chart earned between $570 and $6,496. This indicates that most of the employees 
listed work on a part-time or intermittent basis, which is inconsistent with statements made by 
Petitioner that its employees are full-time. 
Furthermore, the Petitioner submitted an Oklahoma Employment Security Commission, Employer's 
Quarterly Contribution Report for the fourth quarter of 2013. This report indicates that in October 
2013, the Petitioner claimed eight employees; in November 2013, the Petitioner claimed seven' 
employees; and in December 2013 (the month of filing), the Petitioner claimed four employees. 
Finally, the Petitioner submitted pay check receipts for the Beneficiary for months February and 
March 2013, December 2013, and April to August 2014 that reflect varying amounts between $1500 
and $5500 per month. 
The record indicates that the Petitioner is organized as a Limited 
Liability Company (LLC) under the 
laws of the state of Oklahoma and that the Beneficiary is the sole owner of the LLC. Therefore, the 
Director requested that the Petitioner submit 2013 Form 1040 with Schedules to establish the ability 
to pay the proffered wage. In response, the Petitioner submitted the Beneficiary's Form 1040 with 
Schedule C 
indicating a net loss of $40,250 at line 31. 
The Director denied the petition on June 2, 2015, concluding that the Petitioner did not establish that 
the Beneficiary would be employed in a qualifying managerial or executive capacity. 
In denying the 
petition, the Director observed that the Petitioner did not establish that it has a support staff to assist 
the Beneficiary with many of the day-to-day operations of the business, such as administrative, 
financial, customer service, sales and marketing, purchasing and other functions. The Director 
found that the Beneficiary would perform the non-managerial duties associated with these areas of 
the business. 
On appeal, the Petitioner emphasizes that the Director did not give proper evidentiary weight to the 
evidence submitted regarding subordinate employees, that the Director improperly interpreted the 
regulations defining managerial capacity and that the company's hierarchy relieves the Beneficiary 
of non-qualifying day-to-day tasks. 
Matter of K- LLC 
B. Analysis 
Upon review, and for the reasons discussed herein, the Petitioner has not established that the 
beneficiary will be employed in a qualifying managerial or executive capacity. 
When determining whether a beneficiary will be employed in a managerial or executive capacity, we 
look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5G)(5). The petitioner's 
description of the job duties must clearly describe the duties to be performed by the beneficiary and 
indicate whether such duties are either in an executive or managerial capacity. Id. A detailed job 
description is crucial, as the duties themselves will reveal the true nature of the beneficiary's 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 
F.2d 41 (2d. Cir. 1990). We will then consider this information in light of other relevant factors, 
including (but not limited to) job descriptions of the beneficiary's subordinate employees, the nature 
of the business conducted, and any other facts that may contribute to a comprehensive understanding 
of the beneficiary's actual duties and role in a petitioner's organizational hierarchy. 
Here, the Petitioner has established that the Beneficiary is the senior employee of the company and 
spends part of his time performing qualifying managerial or executive duties in his role as Managing 
Director with responsibility for the overall operation of the company. However, the definitions of 
executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the 
petitioner must establish that the beneficiary primarily performs these specified responsibilities and 
does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 
940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Therefore, the fact that a Beneficiary manages or directs a business does not necessarily establish 
eligibility for classification as a multinational manager or executive within the meaning of section 
101 (a)( 44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" of an executive or managerial nature. Sections 101(A)(44)(A) and (B) ofthe 
Act, 8 U.S.C. § 1101(a)(44). While the Beneficiary may exercise discretion over the petitioner's 
day-to-day operations and possesses the requisite level of authority with respect to discretionary 
decision-making, the duties listed in the description submitted are inconsistent other evidence 
contained in the record. 
The Beneficiary's duties, as stated in the record, include a combination of qualifying, non-qualifying 
and poorly defined tasks that, taken together, do not establish that he performs primarily managerial 
or executive duties. For example, the Petitioner states that the Beneficiary spends 25-35% of his 
time directing the overall direction and development of the company, and 25% of his time directing 
company operations, and 25% of time directing the company finances. These duties, comprising the 
majority of the Beneficiary's time, are simply too broad to categorize as managerial or executive in 
nature. The Petitioner claims to operate many different types of businesses, yet the Petitioner has 
not described how his duties relate to the management of these various businesses. The broad duties 
listed include duties such as "directing sales, market and industry research" and "reviewing 
Matter of K- LLC 
operations to evaluate performance, ensure quality control and increase efficiency and economy," 
and "reviewing revenue and expense reports." These duties do seem to indicate that the Beneficiary 
is managing aspects of a business; however, they require a subordinate staff in order to be effectively 
managerial. 
Further, without a clear understanding of the nature of the Petitioner's business, we are unable to 
make a determination regarding the Beneficiary's claimed managerial or executive duties within that 
business. The Petitioner, which employed four employees (including the Beneficiary) at the time of 
filing, claims to operate a convenience store and gas station, a telecommunications company, as well 
as engage in the procurement of oil and gas, the transportation tools and equipment industries, and 
distributing automobiles and auto parts and accessories to Nigeria. The Petitioner's subordinate 
employees, daily duties, sales structure, and business model are factors used to determine whether 
the Beneficiary will be relieved of non-qualifying duties or whether the company is of sufficient size 
to support a managerial or executive level position. The actual duties themselves reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d 41 (2d Cir. 1990). 
The Petitioner has not demonstrated how the Beneficiary's claimed job duties fit within each aspect 
of the Petitioner's businesses. We therefore look to the other evidence in the record in order to 
determine whether a beneficiary is acting in a managerial or executive capacity. We must review 
factors such as the petitioner's organizational structure, the duties of a beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational 
duties, the nature of the petitioner's business, and any other factors that will contribute to 
understanding the beneficiary's role and actual responsibilities. 
Here, the Petitioner stated that the Beneficiary spends 100% of time on the above executive and 
upper managerial functions as the company's day to day operations are handled by subordinate 
managers. The Petitioner claims to employ nine individuals and submits an organizational chart 
reflecting eight employees and three outsourced companies. However, based on the Petitioner's 
2013 Oklahoma Employers Quarterly Contribution Report, the Petitioner employed four individuals 
at the time of filing, not nine as stated in the petition. 
While the regulations do not specifically require full-time subordinates in order to classify a 
beneficiary as a manager or executive, the Petitioner has repeatedly stated that the Beneficiary is 
relieved of the day-to-day duties of the business by his team of nine subordinates. Furthermore, his 
specific duties listed include activities such as "reviewing reports" and "reviewing operations." 
Without a full-time staff to prepare the reports or conduct company operations, it is unclear whether 
the Beneficiary will be acting in a managerial or executive capacity. It is reasonable to conclude that 
the Petitioner would require more than three employees, in addition to the Beneficiary, to perform 
the functions of clerks, maintenance, administrative, and operational staff. The Petitioner has not 
stated who will perform these functions. A petitioner must establish eligibility at the time of filing; a 
petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971 ). 
Matter of K- LLC 
Therefore, it is unclear exactly who was employed by the Petitioner at the time of filing, and who is 
performing the day-to-day functions of the Petitioner. It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Here, the Petitioner does not provide independent objective evidence to resolve the considerable 
inconsistency described herein. Therefore, the Petitioner has submitted evidence containing multiple 
contradictions in the company's staffing levels without explanation or evidence to point to where the 
truth lies. 
Based on the statements provided in the record, we are unable to determine whether the claimed 
managerial and executive duties constitute the Beneficiary's primary duties, or whether the 
Beneficiary primarily performs non-managerial administrative or operational duties as described 
above. Although specifically requested by the director, the Petitioner's descriptions of the 
Beneficiary's job duties does not sufficiently establish what proportion of the beneficiary's duties is 
managerial or executive in nature, and what proportion is actually non-managerial. See Republic of 
Transkeiv.INS, 923 F.2d 175,177 (D.C. Cir. 1991). 
On appeal, the Petitioner states that the Beneficiary also qualifies as a manager of an essential 
function of the organization. 
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, 8 U.S.C. § 1101(a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing 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. § 
204.50)(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 duties related to the 
function. 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 capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 
1988). 
In this matter, the Petitioner has not provided evidence that the Beneficiary will manage an essential 
function. The Petitioner generally asserts the Beneficiary will manage the essential functions of the 
company and operate at a senior level in the organization's hierarchy, but it has not defined a 
specific function to be managed or established that the Beneficiary primarily performs managerial 
duties in general, or with respect to a specific, defined function. The Petitioner has also not 
9 
Matter of K- LLC 
established that the subordinate staff of the company perform the day-to-day tasks of the function 
managed, thereby allowing the Beneficiary to manage the function and not perform the function. 
Accordingly, we find that the Petitioner has not provided reliable, probative evidence sufficient to 
establish that the Beneficiary will be employed in the United States in a qualifying managerial 
capacity. 
Finally, the Petitioner indicates that the Beneficiary will function as an executive. 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, 8 U.S.C. § 
1101(a)(44)(B). 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 managerial 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" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." !d. 
Here, the Petitioner emphasizes that Beneficiary's role as Managing Director as evidence of his 
performance of qualifying executive duties. As discussed, the Petitioner's description of the 
Beneficiary's duties, considered within the totality of the evidence, does not support a finding that 
the Beneficiary primarily focuses on the broad goals and policies of the organization rather than on 
its day-to-day operations. 
A company's size alone, without taking into account the reasonable needs of the organization, may 
not be the determining factor in denying a visa to a multinational manager or executive. See § 
101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, 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. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Here, given the overly broad breakdown of the Beneficiary's duties, the prevalence of non­
qualifying duties in his position description, and the lack of subordinate staff to perform many 
essential day-to-day functions ofthe company, the Petitioner has not established by a preponderance 
of the evidence that the Beneficiary would be employed in a qualifying managerial or executive 
capacity. Accordingly, the appeal will be dismissed. 
10 
Matter of K- LLC 
III. BEYOND THE DECISION OF THE DIRECTOR 
Beyond the decision of the Director, the Petitioner has not established that it has the ability to pay 
the proffered wage pursuant to at 8 C.F.R. § 204.5(g)(2). 
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 the present matter, the Petitioner employed the 
Beneficiary, but has not established that it paid the Beneficiary the full proffered wage from the 
December 30, 2013 filing date. 
The Beneficiary's Form W-2 for 2013 indicates that the Beneficiary was paid $54,652, less than the 
proffered wage of $60,000. 
If the Petitioner did not pay the Beneficiary an amount at least equal to the proffered wage, we will 
then next examine the Petitioner's net income figure as reflected on its federal income tax return. 
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), a.ff'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 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. 
For an LLC that is owned by one sole member, USCIS considers net income to be the figure shown 
on Line 31 of IRS Form 1040, Schedule C.2 At the time of filing, the Petitioner's most recent 
federal income tax return corresponded to 2013. The Form 1040, Line 31, Schedule C indicates a 
loss of $40,250. Therefore, for the year 2013, the Petitioner did not have sufficient net income to 
pay the proffered wage. 
Because the Petitioner's net income does not make up the difference between the Beneficiary's 
actual compensation and the proffered wage, we will review the Petitioner's net current assets. Net 
2 Since the Petitioner is organized as a Limited Liability Company under the state of Oklahoma, and it is 100% owned by 
the Beneficiary, the Beneficiary's Form 1040 is the proper tax document to establish the Petitioner's ability to pay. 
11 
Matter of K- LLC 
current assets are the difference between the Petitioner's current assets and current liabilities. 3 In 
this case, however, the Petitioner has not submitted financial documents such as audited financial 
statements, to indicate net current assets. 
According to Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967), USCIS may, at its 
discretion, consider evidence relevant to a petitioner's financial ability that falls outside of a 
petitioner's net income and net current assets. users may consider such factors as the number of 
years the petitioner has been doing business, the established historical growth of the petitioner's 
business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the Beneficiary is 
replacing a former employee or an outsourced service, or any other evidence that users deems 
relevant to the petitioner's ability to pay the proffered wage. 
In the case now before us, the Petitioner has not established any of the mitigating circumstances that 
characterize Sonegawa. The Petitioner's income tax returns for 2013 show more than a $40,000 
loss. The Petitioner has not established a history of viability and profitability, offset by 
extraordinary, identifiable, one-time expenses as in Sonegawa. 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us 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), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d at 145. 
Accordingly, we find that the Petitioner has not demonstrated that the petitioning U.S. employer was 
able to pay the Beneficiary's proffered salary of$60,000 per year as ofthe petition's filing date. For 
this additional reason, users cannot approve this petition. 
IV. CONCLUSION 
The pet1t10n will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
3 Current assets consist of items having (in most cases) a life of one year or less, such as cash, marketable securities, 
inventory and prepaid expenses. Current liabilities are obligations payable (in most cases) within one year, such as 
accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Joel G. Siegel & Jae K. 
Shim, Dictionary of Accounting Terms 118 (3d ed., Barron's Educ. Series 2000). 
12 
Matter of K- LLC 
ORDER: The appeal is dismissed. 
Cite as Matter ofK- LLC, ID# 15182 (AAO Jan. 20, 2016) 
13