dismissed EB-1C Case: Retail

(b)(6)
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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Admin_istrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W.,MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 0 4 2013 OFFICE: TEXAS SERV!Cr CENTER FILE:· 
INRE: Petitioner: 
Beneficiary: 
. . 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive . or Manager Pursuant 
to Section 203(b)(l)(C}ofthe Immigration ahd Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision . of the Administrative Appeals Office in your case. All of the 
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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 conc~ming yourcase must be made to that office. 
If you believe the AAO inappropriately applied the law in Laching its deci~ion, or you have additional 
information that you wish to have considered, you may file~ motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice clf Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can 'be ·found ?t 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconJider or reopen. · . . · 
Thank you, 
J~istrative Mpeals Office 
www.uscis.gov 
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DISCUSSION: The pr,eference visa petition was deniejd 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 Maryland corporation that seeks to employ the beneficiary as president and 
general manager. Accordingly, the petitioner endeavors to classify the beneficiary as an 
em~loy~ent-based immigrant pursuant to section j203(b?(l)~C) of the _ Immigration and 
Nat10nahty Act (the Act), 8U.S.C. § 1153(b)(l)(C), as a multmat10nal executive or manager. ' 
The director denied the petitiOn determining that the pJitioner did not establish: (I) that it would 
employ the beneficiary in a primarily managerial or exJcutive capacity; (2) that it had the ability 
to pay the proffered wage; and (3) that it has a quali~ying relationship with beneficiary's last 
foreign employer. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a' motion 
and forwarded the appeal to the AAO. On appeal, coubsel for the petitioner submits a statement 
on the F01m I-290B, Notice of Appeal or Motion, as~erting that the director'S decision \vas in 
error, and a copy of an unpublished AAO decision. 
I. The Law 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first b9 made available ... to qualified 
immigrants who are aliens described in any oii 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 I preceding the time of the alien's 
application for classification and admission into the United States under this 
I 
subparagraph, has been employed for at least f 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 se+ices 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 tt provision to only those executives or 
managers who have previously worked for a firm, corJ,oration or other legal entity, or an affiliate 
or subsidiary of that entity, and are coming to the UnitJd States to work for the same entity, or its 
affiliate or subsidiary. I. 
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A United States employer may file a petition on Form ~-140 for classification of an alien under 
section 203(b )(1 )(C) of the .Act as a multinational executive or manager. No labor C<;!Ltification is 
required for this classification. The prospeCtive employbr in the United States must furnish a job 
· offer in the form of. a statement which indicates that tl~e alien is to be employed ill the United 
States in a managerial or exec1:1tive capacity. Such a statement mus(clearly describe the duties to 
be performed ·by the alien. 
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II. . . Employment in a Managerial or Executive Capacity 
The first issue addressed by the director is whether the petitioner established that the beneficiary 
would be employed in the United States in a managerial or executive capacity. 
Section.101(a)(44)(A) of the Act, 8 U.S.C. §.1101(a)(44)(A) , provides: 
The term "managerial capacity" means · an assignmet within an organization . . ( 
employee · primarily--
in which the 
(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 ah esseiltial function within the 
organization, or a department or subdivi~ion of the organization; 
(iii) if another employee or other employeJ 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, functrons at a senior level within the 
organizational hierarchy or with re~pect ~o the function managed; and 
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(iv) exercises discretion over the day-to-day operations of the activity or . . I 
function for which the employee has authority. 
Section 10 I (a)( 44 )(B) of the Act, 8 U.S. C. § II 0 I (a)( 1 )(B), provides: 
The term "executive capacity" means . an assignment · ~ithin an organization m which the 
employee primarily-- · 
(i) directs the management of the organuzation or a , maJor component or 
function ofthe organization ; 
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(ii) establishes the goals and policies of the organization, component , or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
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(iv~ receives only general supervision or direction from higher level 
· executives, the board of directors , or stookholders .of the organization. 
The petitioner filed the immigrant visa petition on MLch 2, 2011. The petitioner operates a 
boutique gift and jewelry store. The petitioner stated bn the petition (Form I-140) that it has a 
gross annual income of $117,000 and nine employe~s. The petitioner seeks to employ the 
beneficiary in the positiori.ofpresident and .general rnanhger. 
In a letter dated February II, 2011, the petitioner stall that it had employed the beneficiary in 
this position since May 2009 and that six personnel repbrted directly to the beneficiary including 
a supervisor, an accounting manager and four sales pbople. The petitioner explained that the 
beneficiary indirectly supervises 23 personnel workin~ at the foreign company "with regard to 
quality of products being exported to the U.S., their ~pecifications based on his review of the 
·market res·earch as well as demand." 
In addition, the petitioner explained that the beneficiary has ·overseen the "impmt of products 
from the parent company in tens of thousands of d6ILars," has "been engaged in high-level 
negotiations with buyers and wholesalers" in the UniJed States, and ·;,has liaised with customs 
and other government officials to compty with regulat~ry procedures and policies related to [the 
petitioner's] business operations." Furthermore, the petitioner stated: 
In this position, [the beneficiary.] executes coLracts on behalf of the company; 
I 
develops policies and procedures for the overall operations of the company; and 
· provides strategic direction . He ensures that tlle company is· fiscally responsible 
and institutes plans for sustainable develo~ment of the company. [The · 
beneficiary] reports to the Board of Directors bnd the parent company in Nepal. 
He conducts .high-level meetings with repreJentatives of other companies to 
assess the market for [the petitioner's] products! in the U.S. and abroad as well as 
conducts meetings with attorneys and accoun~ants to seek legal representation, 
assessment of tax liabilities, and tax repmtin~ on behalf of the company. He 
assesses feasibility of lnanufacturing [the petitibner's] products in the U.S. and/or 
import based on his review of additional markeJ research to be conducted . . 
[The beneficiary] is a high-level decision makj in th~ company . . He oversees the 
import of products from . the parent compady and is lengaged in high-level 
negotiations with buyers and wholesalers acrbss the U.S. to increase the sales 
territory for [the petitioner's] products . Ht liaises with customs and other 
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· government officials to comply with regulatory procedures and policies related to 
the business operations. He also advises ort manufacturing and production 
matters and on product specifications to achieve buality production .... 
. . . I . . 
With regard to managerial duties, during the in;itial years of the U.S. company's 
operations, [the beneficiary] has and will conti1iue to hire and oversee the initial 
staff in the U.S. and indirectly supervise thej4 professional staff in Nepal -
Manager, Production Manager, Accountant and Marketing Manager. The four 
managers in Nepal in tum supervise and will cobtinue to supervise approximately 
20 garment and silver workers. Please note that he has not and will not engage in 
day-to-day jewelry sales and store operations. 
The petitioner's letter included a detailed list of dutie~ for the cmTent positions of supervisor, 
accounting manager and sales staff. The petitioner fndicated that it intends to hire another 
supervisor and a sales, research and marketing coordinator. The· petitioner also provided a 
description for a product manager position, bui id~ntified the position as vacant on the 
organizational chart submitted at the time of filing. 
The petitioner offered the following to describe how the beneficiary would spend his time while 
employed in the U.S.: · 
Generally, sixty percent of [the beneficiary's] time will be spent on non~ 
managerial duties, i.e., executive duties and a srhall percentage of that time is also 
spent in performing technical duties such asj advising on manufacturing and 
production matters or on product specifications to achieve quality production. 
The remaining 40% of his time will be spent o~ managerial duties where he will 
receive repmts from his direct reports in the ~.S. as well as all 3 managers and 
accountant in Nepal on various aspects .of the company on a regular basis, advise 
on complex issues, conduct high-level mdetings, engage in performance 
I 
evaluations for those under his direction supervision, and review financial reports. 
[The beneficiary] will also continue to be a mebber of the executive team of the 
parent company in Nepal, of which he owns jfoO%. He will continue to have 
authori~y to sign documents on behalf of the company to commit the company 
including budget/expense documents, credit/~arketing information documents, 
and all types of contracts. He will continue tb be responsible for developing a 
budget, pertaining to new products and busineJs development, while establishing 
goals and policies relating to his responsibilitieJ. · 
On November 2, 20; I, the director sent ~ request for Lidence (RFE) to the petitioner, in which 
he instructed .the petitioner to submit statements redrding the beneficiary's . position, specific 
daily duties, percentage of time spent on each of thosb duties, and an organizational chart with 
names, job descriptions, and educational require1~ents for the beneficiary's subordinate 
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employees. In addition, the director requested- copies of IRS Forms W -2. Wage and Tax 
Statement, for each employee. · 
In the RFE response dated Janu~y 25, 2012; counsel asserted that the beneficiary will be 
primarily . engaged ·in executive duties while managind the petitioner's staff and continuing to 
oversee manufacturing and staff for the foreign entitY. In addition to those responsibilities, 
counsel · asserted that the beneficiary ·also manages an essential function within tl_le company. 
That function involves overseeing brand development, recognition, marketing and establishing 
the business in the U.S. market. 
Also as part of the response, the pet1t10ner provided additional information regarding the 
beneficiary's duties in the .areas of financial oversighrl, marketing and sales oversight. h~tman 
resources oversight, legal and regulatory oversight, an~ ~etworking and business development. 
However, the petitioner did not offer any insight into the amount of time the beneficiary would 
spend performing duties in any of those areas, and instead reiterated that the beneficiary would 
spend 60 percent of his . time performing primarily exdcutive duties and 40 percent of his time 
performing managerial duti~s. In addition, the petitioher asserts that the evidence provided in 
response tQ the RFE "reflects the kinds of managerial dnd executive decisions and/or duties that 
[the beneficiary] performs," including: 
1. Establish and supervise the con~pany ·management team in Nepal and staff in 
the U.S. · . · I 
2.. Authorize and coordinate the implementation of strategic . and ·operational 
planning. . .· I 
· 3. Negotiate and finalize high-level transactions. . . . I 
4. Oversee market research through brand development, recognition and 
. market.ing. · j ·. . 
5. Consult with the team regarding addition of services and products as well as 
~n operational or any strategic plans . J . 
6. Allocate 'responsibilities, duties, and authority for each member of the 
management team. . .. · I . . 
7. Work closely with Accountant to make any financial decisions. 
8. Conduct confe~·ence calls with staffs in Ndpal and re~eive updates arid give 
out orders · to the workers and the staff with fegard to' exports to the U.S. 
9. Advise on manufacturing arid production rrlatters or on product specifications 
to achieve quality production. I . · 
10. Assign. market researchers in different areas/ and receive information regarding 
the new market products . . : · 
11. Manage the bu<:lget for the new products and services. 
12. Work closely with the website maker to giV.,1e the best web shopping service in ·. 
the upcoming business webpage. . . , .. 
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. 13. Ensure effective .selection, trmm~g. development and compel}sation of 
management personnel and other employees. 
14. Develop an effective organizational structure to sustain U.S. operations. 
15. Deal oii the company's behalf with various commercial arid trade 
organizations. 
The petitioner provided copies of its IRS Forms W-2, jiWage and Tax Statement, for the years 
2009 through 2011. · The wages paid to the employees identified at the time of filing were as 
follows: 
Job Title · 2010 W-2 Wages 
Supervisor $435.00 
Accounting Manager '$1 ,350.00 
Sales staff #1 $435 .00 
· Sales sniff #2 
Sales staff #3 
$587.25 
$329.85 
201 i W-2 Wages 
I 
$1,f52.50 
$1,365.00 
$61,5.00 
$1,334.00 
I 
$108.75 
I 
Sales staff #4 not employed $2,936.25 · . . 
One other individual identified in the record as the pr~duct manager received $10,950 in wages 
m 2010, and $2,212.50 m 2011. The petitiOner mdtcated at the tlme.of fllmg that th1s pos1t1on 
was vacant. 
The director denied the petition on Febmary 29, 2012, concluding that the petitioner failed to 
establish that the beneficiary would be employed in a ptimarily managerial or executive capacity. 
On appeal, counsel for the petitioner assertS that thl director fOiled to properly review and 
consider evidence which the petitioner contends is sdfficient to establish eligibility under this 
classification. Specifically, counsel asserts that the dirdctor denied the petition, in part, based on 
the. small . siz~ of ~he _petitio~ing company , but failed tojtak~ into account the reaso_nable needs. of 
the orgamzat1on 111 light of Its overall purpose and stage of development, as required by section 
l0l(a)(44)(C) of the Act. The petitioner submits a brief and a copy of an unpublished AAO 
decision. 
Upon review, the petitioner's assertions are not persuasive. When examining the executive or . I 
managerial capacity of the benefiCiary, the AAO will look first to the petitioner's description of 
the job duties. See 8 C.F.R. § 204.5(j)(5). The petiJioner's description of the job duties must 
clearly describe the duties performed by the beneficiab and indicate whether such duties were 
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either in an executive or managerial capacity. /d.l 
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In this matter, the petitioner . stated that 60% . of the · beneficiary's time would be spent on 
"primarily executive duties" but "a small percentage" bfthat time would be devoted to technical 
I . 
duties involving manufacturing and production. ' 1i'he remaining 40% would be spent on 
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managerial duties. However, the petitioner failed to pFovide any details regarding the specific 
tasks that the beneficiary would actually perform. Th~ petitioner provided vague and general 
responsibilities for the beneficiary such as establishink and supervising a management team, 
authorizing and coordinating implementation of plbns, overseeing market research, and 
consulting on services, products, and plans. · Given ~hese very broad responsibilities, it is 
impossible to determine how the beneficiary would speJd his time on a daily basis. Reciting the . I . 
beneficiary's vague job responsibilities or broadly-cast jbusiness 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 benefidiary's activities in the course of his daily 
routine. The actual duties themselves will reveal the tnle nature of the employment. Fedin Bros. 
I . 
Co., Ltd. v. Sava, 724 F. Supp~ 1103, ~108 (E.D.N.Y. 1~89), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
In response to a request for evidence (RFE) from the director, the petitioner included additional 
information describing · the beneficiary's duties und~r the headings of financial oversight, 
marketing and sales oversight, human resources oversight, legal and regulatory oversight, and 
networking and business development. Despite offeridg more detailed descriptions under those 
headings, the duties listed included a combination of rhanagerial, executive and non~qualifying 
duties. The petitioner's failure to allocate a percentage: of time dedicated to each of those tasks 
makes it impossible to determine whether the beneficiary would be performing in a primarily . I 
managerial or executive capacity. Furthermore, by failing to allocate a percentage of time 
allocated to the beneficiary's individual duties, the pet~tioner did not corriply with the director's 
specific request for additional information. Failure to s~bmit requested evidence that precludes a 
material line of inquiry shall be grounds for denying th~ petition. 8 C.P.R. § 103.2(b)(l4). 
The petitioner also asserted that the beneficiary will Lanage an essential function within the 
I 
company. The term "function manager" applies generally when a beneficiary does not supervise 
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or control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. See sectioh 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 
1101(a)(44)(A)(ii). The term "essential function" is riot defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing J essential function, the petitioner must 
furnish a written job offer that clearly describes the ~uties 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 beneficiar~'s daily duties attributed to managing the 
essential function. See 8 C.F.R. § 204.5(j)(5). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beJeficiary manages the function rather than 
performs the duties related to the function. 
In this matter, the petitioner provides very little explanation to support its claim that the 
beneficiary manages an ess~ntial function, stating tha~ the beneficiary is "routinely engaged in 
sales analysis to. ascertain what measures must be t~en and strategies must be deployed to 
establish company products as one of the highest qu:ality hand-crafted products from Nepal." 
The petitioner also stated that the beneficiary woul1 be responsible for brand development, 
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marketing and product recognition but this description failed to adequately articulate the function 
or describe the beneficiary's daily duties as required fot a function manager. Furthermore, the 
petitioner bears the burden of documenting what potkion of the beneficiary's duties will be 
managerial or executive and what proportion will be nob-managerial or non-executive. Republic 
ofTranskei v. INS, 923 F.2d 175, 177. (D.C. Cir. 1991)., Given the lack of these percentages, the 
record does not demonstrate that the beneficiary will prin'u~rily perform the duties of a function 
manager. 
On appeal, counsel submits a co.py of an unpublished AAO decision in which an appeal was 
sustained for a petition involving a furiction manager. CCounsel provides a copy this decision and 
underlined presumably relevant sente.nces but failed to Jaffer any discussion or explanation as to 
how the facts and circumstances of.that matter are in ariy way analogous to the instant matter. 
Yet, even if the matter were similar, 8 C.F.R. § 103.3(~)provides that AAO precedent decisions 
are. binding on all USCIS employees. in the administration of the Act, unpublished decisions are 
not similarly binding. . · · I · · 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive ca~acity of a beneficiary, including the 
petitioner's organizational structure, the duties of the b~neficlary's subordinate employees, the 
presence of other employees to relieve the beneficiar~ from performing operational duties, the 
nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding ofa beneficiary's actual duties and rol~ in a business. Overall, while the AAO 
does not doubt that the beneficiary performs some quklifying duties and holds the appropriate 
level of decision~ making authority within the petitionibg company as its president and ultimate 
owner, the record as a whole does ~ot support the petitibner's claim that the beneficiary perforil1s 
primarily ·qualifying executive or managerial duties, or its claim that he is relieved from day-to­
day involvement in the petitioner's retail store. 
Notably, the director found that the small number of employees working for the petitioner, 
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together with very low wages paid over the course o£ a year, indicated that not all employees 
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were employed full time. Based on the unavailability of lower level staff to relieve the 
beneficiary from the day-to-day operations of the combany, the director questioned whether the 
beneficiary would work in a primarily managerial or exbcutive capacity. 
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The initial Form 1-140 listed nine current employees but the letter accompanying the petition 
noted seven employees with another two to be hired in the future. The director found. based on 
review of the evidence that the petitioner employed a tbtal of six workers at the time the petition 
was filed. In response to the RFE, the petitioner assertJd that two additional employees had been 
I 
hired. However, regardless of the number of employees found or claimed, the petitioner 
submitted IRS Forms W-2 reflecting payment of Jages to eight employees' including the 
beneficiary and the product manager in 2011. . .j · · . 
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On appeal, counsel correctly observes that a company's size alone, without taking into account 
the reasonable needs of the organization, may not be the I determining factor in denying a visa to a 
multinational manager or executive. See § 101(a)(44)(CC) of the Act, 8 U.S.C. § 1101(a)(44)(C). . I 
However, it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a compJny's small personnel size, the absence of 
employees who would perform the non-managerial or·nbn-executive operations of the company, 
or a "shell company" that does not conduct business ib a regular and continuous manner. See, 
I 
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). The size of a company may ~e especially relevant when USCIS notes 
discrepancies in the record and fails to believe that the fkcts asserted are true~ See Systronics, 153 
F. Supp. 2d at 15. 
In this matter, the petitioner fails to reconcile the discfjepancy between the reasonable needs of 
the company with the size and availability of the current staff. Notably, the petitioner leased 
retail space in a majo~ shopping mall which requires thd company to remain open during all mall 
hours. ~t is not unreasonable to expect this store to bd open for up to 70 hours per week yet a 
review of the record reveals that the petitioner claimed :only four sales staff during calendar year 
2011. The cumulative total of wages paid to all four sales staff for in 2011 was approximately 
I 
$5000.00. A single full-time employee working a 40 hour week at the federal minimum wage I . 
rate applicable to Maryland would earn $15,080 annuaJ!Iy. Nevertheless, the petitioner paid well 
below that amount to its entire sales staff in 2011. Thejremaining staff, inducting 
the supervisor, 
accounting manager, and product manager, all earned lless than $2,500 in annual wages during 
the same year. 
The petitioner's evidence must substantiate that the duties of the beneficiary and his or her 
subordinates correspond to their placement in an orgbization's structural hierarchy; artificial 
tiers of subordinate employees and inflated job titles arb not probative and will not establish that 
an organization is sufficiently complex to support a~ executive or manager position . In the 
present matter, the totality of the record does not subport a conclusion that the beneficiary's 
subordinates include supervisors or managers, or bven 'that they sufficiently relieve the 
beneficiary from performing the day-to-day tasks assobated with the operation of a retail store. 
Yet, notwithstanding the fact that the petitioner's embloyees clearly work minimal hours, the 
petitioner maintains that the beneficiary "has not a_nd ~ill not engage in .day-to-day jewelry sales 
and store operations." The petitioner claimed that the ·beneficiary directs and manages sales 
activities, yet it does not appear that there are sufficienrl personnel on staff to actually perform the 
sales function. 
The petitioner's claims in this regard are not credible. Without a single full time employee, it is 
unreasonable to expect this business to remain open without the beneficiary's involvement in the 
day-to-day-operations. Doubt cast on any aspect cif thb petitioner's·proof may, of course, lead to 
a reevaluation of the reliability and suffici_ency of thejremaining evidence offered in support of 
the visa petition. Maue·r of Ho, 19 I&N Dec. 5821 591 (BIA 1988)._ If the beneficiary is 
(b)(6)
Page II 
performing the sales function, the AAO notes that an employee who "primarily" performs the 
tasks necessary to produce a product or to provide se~ices is not considered to be "primarily" 
employed in a managerial or executive capacity. See sJctions 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 Intn 'I., 19 l&N Df:c. 593~ r04 (Comm'r 1988). . 
The.AAO has long interpreted the statutory language at section 10l(a)(44)(C) of the Act to 
prohibit discrimination against small or medium-size ~usinesses. However, the AAO has also 
consistently required the petitioner to· establish that! the beneficiary's position consists of 
"primarily" managerial and executive duties and that the petitioner has sufficient personnel to 
relieve the beneficiary from performing operational and administrative tasks. 
Reading section 101(a)(44) of the Act in its entirety, the "reasonable needs" of the petitioner may 
justify a beneficiary who allocates 51 percent of his dhties to managerial or executive tasks as 
opposed to 90 percent, but those needs . will not excuse Ia beneficiary who spends the majority of 
his or her time on non-qualifying duties. The reasonable needs of the petitioner will not 
supersede the requirement that the beneficiary be "Jrimarily" employed in a managerial or 
executive capacity as required by the statute. See Brdzil Quality Stones v. Chertoff, 531 F.3d 
1063, 1070 n.IO (9th Cir., 2008). Here, the petitionJr failed to establish that the beneficiary 
I 
would be relieved from primarily performing non-qualifying duties. 
Accordingly, the appeal will be dismissed, as the petitioner had not established that the 
beneficiary would be employed in the United States in a primarily managerial or executive 
capacity, as required by section 203(b)(l)(C) of the Acl 
. . III. Ability to lay 
The regulation at 8 C.F.R. § 204.5(g)(2) states the folloring, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an 
I 
offer of employment must be accompanied by evidence that the prospective 
United States employer has the ability to pay ~he proffered wage. The petitioner 
must demonstrate this ability at the time thJ priority date is established and 
continuing until the beneficiary obtains lawful !permanent residence. Evidence of 
this ability shall be either in the form of cogies of annual repmts. federal tax 
retmns, 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 eviderlce will be considered prima facie proof of 
the petitioner's ability to pay the beneficiary's salarly. In the present matter, the petitioner 
provided Form W-2 Wage and Tax Statements for taxlyear 2009, 2010 and 2011. The petitioner 
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Page 12 
paid the beneficiary $9,600.00 in 2009, $17,280.00 in 2010, and $17,280.00 in 2011 .. The 
proffered wage for this position is $38,000.00 therefo1re, the petitioner has not employed the 
beneficiary at a salary equal to or greater than the proffe~ed wage. . 
As an alternate means of detennining the petitioner's Jility to pay, the AAO will next examine . . I ' 
the petitioner's · net . income figure as · reflected on the federal i'ncome tax return, without 
consideration of depreciation or other expenses. Reli~nce on · federal income tax returns as . a 
b~sis for determining a petitioner's ability to pay th~ proffered wage is weil established by . . I . 
judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodc~aft Hawaii, Ltd. v. Feldman, 1736 F.2d 1305 (9th Cir. 1984)); see also 
Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.f . Texas 1989); K.C.P. Food Co:, Inc. v. 
Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubedav. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), 
aff'd, 703 F.2d 571 (7th Cir. 1983). 
In K.C.P. Food Co., Inc. v. Sava, the court held the Immigration and Naturalization Service (now 
USCIS) had properly relied on the petitioner's net inclome figure, as stated on the petitioner's 
corporate income tax returns, rather than on the petitioher's gross income. 623 F. Supp. at 1084. 
The court specifically rejected the argument that the jservice should have considered income 
before expenses were paid rather than net income. ~inally, ·there. is no precedent that would 
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-
1 
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 March 2, 2011, and the 2011 tax return was not available, 
I 
the director examined the petitioner's tax return for 2010. The petitioner's IRS Form 1120 for 
. I 
calendar year 2_0 10 presents a net taxable· income of $210.00. The petitioner could not pay a 
proffered wage of $38,000 per year out of this income. 
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 curlent assets are the difference between the 
·petitioner's current assets and current liabiliti~s . NJt current assets identify the amount of 
. . -1 
"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 petitiorler's current assets are sufficiently "liquid" 
or convertible to cash or cash equivalents, 
then th~ petitioner's net current assets may be 
considered in assessing the prospect~ve employer's ability to pay the proffered wage. 
In order to determine current assets imd current liabiliLs. USClS looks to the IRS Fonn ll20, 
Schedule L Balance Sheets . . The petitioner submitted
1 
an unsigned IRS Form 1120 for tax year . . I 
2010 and left ·the Schedule L blank. Therefore, basea on this document the current assets are 
insufficient to pay the proffered wage. 
(b)(6)
u 
Page 13 
The petitioner asserts that consideration should be given to other documentation provided, such 
as unaudited profit and loss statements and bank statemJnts. However, the petitioner's unaudited 
financial report will not be considered in lieu of its tax ~eturn pursuant to 8 C.F.R. § 204.5(g)(2). 
It is unclear why the petitioner failed to provide a completed tax return or why a supplemented 
. tetum for 2010 or the company's 2011 IRS Fo~· 1120 was not provided on appeal. 
Nevertheless, based on the documentation provided, thJ petitioner has not established its ability 
to pay the proffered wage .. For this additional reason, thr appeal will be dismissed. 
. IV. Qualifying Relationship . 
The remaining issue addressed by the director is wheJer the petitioner established that it has a 
qualifying relationship with the beneficiary's foreign em'ployer. · · · 
To establish a qualifying relationship under the Act and the regulations, the petitioner must show 
that the beneficiary's foreign employer and the proposed United States employer are the same 
employer (i.e. a Unit~d States entity with a foreign offi1e) or related as a "parent and subsidiary" 
or as "affiliates." See generally§ 203(b)(l)(C) of the tct, 8 U.S.C. § 1153(b)(l)(C); see also 8 
C.F.R. § 204.5G)(2) (providing definitions of the terms !'affiliate" and "subsidiary"). . . 
The director concluded that the petitioner failed to provide sufficient evidence of its qualifying 
relationship with Specifically, th~ director found insufficient evidence to 
establish the ownership of the foreign entity. 
Upon review, the petitioner has submitted sufficient evidence to establish a qualifying 
relationship and the director's determination will be 1ithdrawn with respect to this issue. The 
petitioner has consistently claimed that is the owner of the petitioning 
company and that is owned by tbe beneficiary, and has submitted sufficient 
relevant and credible documentary evidence in support of these claims, including the petitionet's 
articles of incorporation and stock certificates and evidence that the foreign entity is registered as 
a sofe proprietorship owned by the beneficiary. I . . · 
Notwithstanding the AAO's favorable determination with regard to the last ground for denial, the 
I 
petitioner remains ineligible for the immigration benef~t sought based on the remaining grounds 
for ineligibility fully discussed above. 
V. Prior Nonimmigrant Approvals 
It is acknowledged that the petitione~ places a great deal of significance upon USCIS' prior 
action in granting the beneficiary L-1 A nonimmigrant classification for his current position. 
However, it must be noted that many 1-140 immigrant ~etitions are denied after USCIS approves 
prior nonimmigrant L-1A Classification petitions. See! e.g., Q Data Consulting, Inc. v. INS, 293 
I 
F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. ojjJustice, 48 F. Supp. 2d 22 (D.D.C. 1999); 
(b)(6)
Page 14 
Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the 
· consequences .of an approved petition, there is a significant difference between a nonimmigrant 
L-1A visa classification, which allows an alien to entJr the United States temporarily, and an 
immigrant E-13 visa petition, which permits an alien lo apply for permanent residence in the 
United States and, if ·granted, ultimately apply for natutalization as a United States citiz~n. Cf 
§§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 and 118~; see also§ 316 of the Act, 8 U.S.C. § 
1427. Because USCIS spends less time reviewing 1{129 nonimmigrant petitions than 1~140 
immigrant petitions, some nonimmigrant L-1A·petitions are simply approved in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see al~o 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). 
Each petition filing is a separate. proceeding with a slparate record and a separate burden of 
I 
proof. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS is 
limited . to the information contained in that individuJ1 record of proceeding. See 8 C.F.R. § 
103.2(b)(16)(ii). If the previous nonimmigrant petiti~ms were ·approved based on the same 
unsupported assertions that are contained in the curreht record, the approval would constitute 
material and gross error on the part of the director.j The AAO is not required to approve 
applications or petitions where eligibility has not bee? 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 (Comm'r 1988). · Further, t~e direct9r denied the instant immigrant 
petition, in part, based on the petitioner's failure to e~tablish that it has the ability to pay the 
beneficiary's proffered wage, a requirement that does nJt apply in the L-1 nonimmigrant context. 
. . I . . 
VI. Conclusion · 
The appeal will be dismissed and the petition will be ~enied for the above stated reasons, with 
each considered as an independent and alternative basiJ for denial. In vis~ petition proceedings, 
the burden of proving eligibility for the benefit soukht remains entirely with · the petitioner. 
Section 291 of the Act, 8 U.S.C. § 1361. Here, that bu~·den has not been met. 
ORDER: The appeal is dismissed.