dismissed EB-1C Case: Retail

PURl Ir rory 
DATE: JUN 20 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER FILE:_ 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § I I 53(b)(I)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of$630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 Texas company that is engaged in retail sales of luxury accessories and it seeks to 
employ the beneficiary as its CEO. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1 )(C) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(I)(C), as a multinational executive or manager. 
On June 30, 2010, the director denied the petition based on the determination that the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity, and the petitioner 
failed to establish that it has the ability to pay the beneficiary's proffered wage. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 
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)(1)(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 first issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
Page 3 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section I 01 (a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assigmnent 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. 
In a letter of support dated October II, 2008, the petitioner stated that it wishes to expand in the U.S. and 
the beneficiary's responsibilities as "chief executive, includes retail, wholesale and strategic planning of 
the company as well as appointing and managing the company's management team." The petitioner 
submitted a 5 year business expansion plan for the petitioner, which would include new stores in the U.S. 
and wholesale expansion. The 5 year business plan includes goals and strategies the petitioner has for the 
next five years and does not clearly depict the current activities and business strategies for the petitioner. 
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
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petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set offacts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 
The petitioner also submitted a list of employees which includes a store manager, an administration 
manager and three sales associates. The petitioner also lists independent contractors that include "PR and 
communications, PC, Independent Modeling assignments, Web Designer, and Contractor." 
In response to the director's request for additional evidence, the petitioner provided a list of "executive 
duties" performed by the beneficiary. The petitioner explained that the beneficiary "currently resides 
outside the state of Texas and does monthly visits to the store in Dallas," and "all purchasing and 
reordering inventory from new and existing vendors, paying vendors, and the general upkeep of the store 
is managed by [the beneficiary's] store manager whilst she concentrates on her executive duties." The 
petitioner also stated that the beneficiary "has autonomy over establishing all the goals and policies of the 
business," "exercises wide latitude in discretionary decision-making, which is evident in her being the 
sole decision maker," and the beneficiary "receives only general direction from higher the [sic] board of 
directors, or stockholders of the organization." 
On appeal, the petitioner explains that the financial crisis in 2007 was very difficult for retail businesses 
and the beneficiary "had to guide the company to change course and take measures to ensure the survival 
of the company." The petitioner also states that the beneficiary has "full autonomy with regards to 
decision-making, and the majority of her duties relate to operational and policy management," as well as 
actual activities and executive accomplishments such as "lease negotiations, strategic marketing and 
repositioning of the company's image, products and pricing to adapt to the financial crisis that occurred." 
On appeal, the petitioner states that it employs the beneficiary and a store manager, a senior sales 
associate, a sales associate, an events coordinator, and a merchandiser/custodian. The petitioner also 
provides a brief job description for each position. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a primarily 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. § 214.2(1)(3)(ii). 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. 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states 
vague duties such as the beneficiary has "autonomy over establishing all the goals and policies of the 
business," "responsible for setting all policies made with regards to customers, employees, and general 
rules of conduct," and is responsible for the "expansion into wholesaling the VIA Pelle private collections 
sold at the store." Conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burdenofproof. FedinBros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 
41 (2d. Cir. 1990); Aryr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The petitioner 
did not define the petitioner's goals and policies and the day-to-day activities performed by the 
Page 5 
beneficiary in reaching the business goals of the store. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of her daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The 
petitioner's descriptions of the beneficiary's position do not identify the actual duties to be performed, 
such that they could be classified as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as "visiting new sites for the next 
store," "the compilation of a yearly business plan, the financial goals and target setting of the business," 
"editing of designers and image creation of the store, and "directing media releases through the public 
relations company." It appears that the beneficiary will be developing and marketing the services of the 
business, and negotiating contracts, rather than directing such activities through subordinate employees. 
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 
10I(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 Intn 'I., 19 I&N Dec. at 604. 
An analysis of the nature of the petitioner's business undermines the petitioner's assertion that the 
beneficiary is employed in a managerial or executive capacity. On the 1-140, the petitioner stated that it 
employed five employees. The petitioner submitted a list of employees which included a store manager, 
an administration manager and three sales associates. The petitioner also lists the independent contractors 
as "PR and communications, PC, Independent Modeling assignments, Web Designer, and Contractor." 
On appeal, the petitioner states that it employs the beneficiary and a store manager, a senior sales 
associate, a sales associate, an events coordinator, and a merchandiser/custodian. The petitioner did not 
explain why the j ob titles changed on appeal. Moreover, the petitioner did not provide sufficient evidence 
to establish that these individuals are employed by the petitioner such as Form 941, Quarterly Wage 
Reports, paystubs, or Forms W-2 or 1099. In addition, the petitioner submitted Form ll20, U.S. 
Corporation Income Tax Return, for 2008 that indicated the petitioner paid $58,880.00 in salaries and 
wages. According to the beneficiary's Form 1040, U.S. Individual Income Tax Return, for 2008, the 
beneficiary received a salary of $43,653.00. Thus, the petitioner paid $15,227.00 in salaries and wages 
in 2008 for the additional 4 employees. That salary amount reflects only part-time employment for the 
other four employees, if they are even employed by the petitioner. In addition, the petitioner claims that it 
employs several independent contractors but it failed to provide any evidence such as payments made to 
these individuals or Forms 1099. 
In addition, the petitioner submitted a web page document for the store from www.yelp.com that states 
the store hours are Monday through Saturday from 10:00 a.m. until 7:00 p.m. and Sunday from 12:00 
p.m. until 6:00 p.m. Given the minimal salaries paid for 2008, it is unclear who is working at the store for 
60 hours a week. 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). 
Page 6 
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 IOI(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 the 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." Id. 
The beneficiary's job duties, as described by the petitioner, are not indicative of an employee who is 
primarily focused on the broad goals and policies of the organization. The fact that the beneficiary is a 
shareholder of the organization is insufficient to establish the beneficiary's employment in an executive 
capacity. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (ED.N.Y. 1989), afJ'd, 905 F.2d 41 (2d. Cir. 1990). The petitioner has not 
established that the beneficiary is primarily engaged in directing and controlling a subordinate staff 
comprised of professional, managerial or supervisory employees, nor has it indicated that she is charged 
with managing an essential function of the petitioning organization. See section 101(a)(44)(A) of the Act. 
Therefore, the AAO is not persuaded that the beneficiary would be employed in a primarily managerial 
capacity. 
The second issue in this proceeding is whether the petitioner has the ability to pay the beneficiary's 
proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part: 
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. 
(Emphasis added.) 
The petitioner did not indicate a salary on the Form 1-140. Instead, the petitioner provided a letter from 
the parent company that stated that the beneficiary'S "remuneration is in excess of$IOO,OOO. A portion of 
her salary is transferred by means of bank transfer, and the rest is deposited in her Nedbank bank account 
in South Africa." 
In the director's denial decision, he noted several discrepancies between the financial statement and the 
tax documents that were submitted by the petitioner. On appeal, the petitioner noted that the beneficiary 
Page 7 
moved and broke her patella when the petitioner received the RFE and "there are therefore a number of 
corrections that need to be made in an audit." The petitioner requested additional time to submit 
corrected audited financial statements, but never submitted these documents. The petitioner also states on 
appeal that "[the beneficiary] may have chosen not to always take the full income, preferring to reinvested 
[sic] it into the store to purchase inventory and working capital in difficult times." The petitioner also 
states that the beneficiary is "paid and will be continued to be paid from the parent company in South 
Africa." However, the petitioner did not provide any documentation to establish these claims. 
In determining the petitioner's ability to pay the proffered wage, USC IS 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 case, the pelltlOner did not submit any documentation evidencing that it paid the 
beneficiary's proffered salary of $100,000 per year. The petitioner did not provide paystubs or a Form 
W -2. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Craft (jfCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
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 Woodcrqfi 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.CF. 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./J'd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner provided Form 1120, U.S. Corporation Income Tax Return, for 2008 that indicated gross 
receipts of $311,950.00, payment of salaries and wages of $58,880.00, and a net income of $14,755.00. 
According to the 1-140, the petitioner employs five individuals. It is not clear how the petitioner can pay 
the beneficiary's salary of $1 00,000 per year while also paying the salaries of four other employees when 
it had a net income of $14,755.00 in 2008, after only paying $58,880.00 in salaries and wages. Thus, the 
evidence is not sufficient to establish that the petitioner can pay the beneficiary's salary of $100,000 per 
year and pay the salaries of all the listed employees. The petitioner did not provide any evidence on 
appeal to overcome the director's concerns. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter (jfSoffici, 22 I&N 
Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
On appeal, the petitioner contends that the beneficiary is paid and will be continue to be paid from the 
parent company in South Africa. However, the petitioner did not submit any evidence that the foreign 
company has committed that money to the petitioner to pay the beneficiary's salary. Furthermore, the 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
Page 8 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set 
of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 
Beyond the decision of the director, the record lacks substantive job descriptions establishing what job 
duties the beneficiary performed during her employment abroad. Conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 
1103,1108 (E.D.N.Y. 1989), afJ'd, 905 F. 2d 41 (2d. Cir. 1990); Aryr Associates, Inc. v. Meissner, 1997 
WL 188942 at *5 (S.D.N.Y.). The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Beyond the decision of the director, the record lacks evidence to establish that the petitioner is actually 
doing business in the United States. The regulation at 8 C.F.R. § 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." According to an internet search, 
the petitioner's retail store has closed. The petitioning corporation is "Not in Good Standing" according to 
the website of the Texas Comptroller of Public Accounts. The petitioner did not provide documents to 
show that it is currently doing business in the United States. 
Beyond the decision of the director, the petitioner has submitted insufficient evidence regarding the 
ownership of the corporation. The petitioner submitted a document that states "Share Distribution: Minutes 
of Shareholders meeting held in Dallas," that states "1000 distributable shares were divided equally between 
[the foreign company] and [the beneficiary]." The document is not notarized and it is not clear who signed 
the document. As general evidence of a petitioner's claimed qualifying relationship, a copy of minutes of 
a shareholders meeting is not sufficient evidence to determine whether a stockholder maintains ownership 
and control of a corporate entity. The stock certificates, the corporate stock certificate ledger, stock 
certificate registry, and corporate bylaws must also be examined to determine the total number of shares 
issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its 
effect on corporate control. Additionally, a petitioning company must disclose all agreements relating to 
the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any 
other factor affecting actual control of the entity. See Matter of Siemens Medical Systems. Inc .. supra. 
Without full disclosure of all relevant documents, USCIS is unable to determine the elements of 
ownership and control. In the absence of that information, the petitioner cannot show that it has a 
qualifying relationship with the beneficiary's former employer in South Africa. 
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), 
aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that 
the AAO reviews appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility 
discussed above, this petition cannot be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in making 
the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. Us. Dept. of 
Page 9 
Tramp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Solfane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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. § 1361. The petitioner has 
not sustained that burden. 
ORDER: The appeal is dismissed.