dismissed EB-1C Case: Retail Sales

identifying data deleted ta 
prevent clearly unwmd 
invasion of perwnd privacy 
PUBLlC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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. 3 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
L ;dZ& ZdZ- 
v~obert P. demann, Director 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
9 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Texas that is 
engaged in the sale of gifts, novelties, decorations, ornaments and glasswares. The petitioner seeks to employ 
the beneficiary as its business development manager. 
The director denied the petition concluding that the petitioner had not demonstrated that it had the ability to 
pay the beneficiary her proffered annual salary of $25,000 at the time the priority date was established. 
On appeal, counsel for the petitioner contends that the combination of the petitioner's approximately $20,000 
bank account balance, as well as its approximately $232,000 in gross sales generated during 2004 
demonstrates its ability to pay the beneficiary her proffered salary. Counsel submits a brief in support of the 
appeal. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. - An alien is 
described in this subparagraph if the alien, in the 3 years preceding the time 
of the alien's application for classification and admission into the United 
States under this subparagraph, has been employed for at least 1 year by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof 
and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The issue in this proceeding is whether at the time the priority date was established the petitioner had the 
ability to pay the beneficiary's proffered annual salary of $25,000. 
The regulation at 8 C.F.R. 3 204.5(g)(2) states: 
Any petition filed by or for any 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 either in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
The petitioner filed the instant immigrant petition on October 15, 2004, thereby also establishing the relevant 
priority date. The petitioner represented on Form 1-140 that the beneficiary would receive an annual salary of 
$25,000. 
It is evident from the record that the director subsequently issued to the petitioner a request for evidence 
addressing the present issue. A copy of the director's request, however, has not been incorporated into the 
record. Counsel responded in a letter dated July 21, 2005, contending that the petitioner's 2004 corporate tax 
return, which reflects gross receipts of approximately $232,000, establishes the petitioner's ability to pay. As 
additional evidence, counsel referenced two bank letters and the petitioner's monthly bank statements. 
Counsel noted that the petitioner's bank statements represent an average amount of $20,971 in monthly liquid 
assets, a balance, which counsel claimed, is sufficient to pay the beneficiary's annual salary. 
Counsel referenced a May 4, 2004 Citizenship and Immigration Services (CIS) memorandum addressing the 
proper analysis of a petitioner's ability to pay. Counsel stated that the memorandum, which provides three 
factors to be considered by CIS in its determination of a positive ability to pay, corroborates the use of a 
"totality" approach to determining an employer's ability to pay. Counsel stated that under the "totality" 
approach, an employer's entire resources should be reviewed and considered. 
Counsel further contended that the "ability to pay" requirement bears a greater importance in immigrant 
petitions requiring a labor certification than in the instant first preference employment-based petition. 
Counsel claimed that in the instant petition the petitioner need only prove that it is a bona fide company. 
Counsel submitted the petitioner's 2004 corporate tax return, as well as letters from two financial institutions 
confirming the balances held by the petitioner and an unidentified individual' in July 2005. Counsel also 
provided copies of the petitioner's bank statements fi-om October 2003 through June 30,2005. 
In a decision dated August 26, 2005 the director concluded that the petitioner had not demonstrated its ability 
to pay the beneficiary her proffered salary at the time the priority date was established. The director, relying 
on the petitioner's 2004 corporate tax return, noted a loss in taxable net income of $27,062. The director 
challenged counsel's reliance on the petitioner's monthly bank statements, stating that bank statements are not 
identified in the regulations as an acceptable form of evidence of a petitioner's ability to pay. The director 
stated that the petitioner had not explained why CIS should consider the bank statements in place of the 
evidence required by the regulation, specifically, the petitioner's annual reports, federal tax returns, or audited 
financial statements. The director also noted that even if CIS were to consider the petitioner's bank 
1 
 The foreign entity's organizational chart identifies this individual, 
 the company's 
marketing director. It is unclear what role he has in the petitioning entity. 
Page 4 
statements, there is no indication that the referenced funds "reflect additional available funds that were not 
reflected on [the petitioner's] tax return." Consequently, the director denied the petition. 
Counsel for the petitioner filed an appeal on September 22,2005. In a subsequently submitted appellate brief, 
counsel stresses the $232,323 in gross sales generated by the petitioner in 2004 as evidence of its ability to 
pay. Counsel notes the "high-end shopping centers" in which the petitioner's stores are located, which 
counsel claims allows the petitioner to implement a mark-up in the price of goods sold, and consequently 
recognize "hundreds of thousands in sales.'' 
Counsel challenges the "mechanical tests" implemented by CIS in its analysis of the petitioner's ability to pay, 
stating that CIS should consider the petitioner's gross receipts and monthly account balances. Counsel further 
contends that "common sense" would dictate the petitioner's ability to pay the beneficiary's salary. 
Counsel again stresses that a relaxed "ability to pay'' standard should be applied to those immigrant petitions 
not requiring a labor certification, and claims that the petitioner need only demonstrate its status as a bona 
fide company. 
Upon review, the petitioner has not demonstrated its ability to pay the beneficiary's proffered annual salary of 
$25,000 at the time the priority date was established. 
In determining the petitioner's ability to pay, CIS will first examine whether the petitioner employed the 
beneficiary at the time the priority date was established. If the petitioner establishes by documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this evidence 
will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In the present 
matter, the petitioner did not establish that it had previously employed the beneficiary at the proposed salary. 
In fact, while the petitioner's federal employer quarterly tax return for the quarter ending December 3 1, 2004 
reflects compensation paid to an unidentified employee during this time, there is no indication in the 
petitioner's canceled checks and bank statements that the beneficiary had been receiving compensation from 
the petitioner during 2004. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court 
held the Immigration and Naturalization Service (now CIS) had properly relied on the petitioner's net income 
figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income. 
623 F. Supp. at 1084. The court specifically rejected the argument that the Service should have considered 
income before expenses were paid rather than net income. Accordingly, despite counsel's argument 
otherwise, CIS is not required to consider the petitioner's gross receipts. Finally, there is no precedent that 
would allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng 
Chang v. Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
As the petition's priority date falls on October 15, 2004, the AAO must examine the petitioner's tax return for 
2004. The petitioner's IRS Form 1120 for calendar year 2004 presents a negative balance of $27,062 in net 
taxable income. The petitioner could not pay a proffered wage of $25,000 per year. 
Finally, if the petitioner does not have sufficient net income to pay the proffered salary, the AAO will review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Net current assets identify the amount of "liquidity" that the petitioner has as of the 
date of filing and is the amount of cash or cash equivalents that would be available to pay the proffered wage 
during the year covered by the tax return. As long as the AAO is satisfied that the petitioner's current assets 
are sufficiently "liquid" or convertible to cash or cash equivalents, then the petitioner's net current assets may 
be considered in assessing the prospective employer's ability to pay the proffered wage. Schedule L of the 
petitioner's corporate tax return reflects a zero balance for net current assets. As a result, the petitioner has 
not demonstrated its financial ability to pay the beneficiary's proffered salary. 
The AAO addresses counsel's reference to a "totality" approach in which the petitioner's "entire financial 
resources" are analyzed for evidence of its ability to pay. Counsel's reliance on O'Connor v. Attorney 
General, 1987 WL 18243 (D.Mass) in support of this proposition is misplaced. In O'Connor v. Attorney 
General, the court noted that as an "unincorporated sole proprietorship," the personal assets of the employer 
should be considered in the analysis of its ability to pay. A sole proprietorship is a business in which one 
person operates the business in his or her personal capacity. Black's Law Dictionary 1398 (7th Ed. 1999). 
Neither a sole proprietorship nor a partnership is a legal entity apart from its owner or owners. Matter of 
United Investment Group, 19 I&N Dec. 248 (Comm. 1984). The instant case is distinguishable, as the 
petitioner is an incorporated organization. As a corporation, the petitioner is a separate and distinct legal 
entity from its owners or stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of 
Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 
(Act. Assoc. Comm. 1980). Accordingly, CIS properly applied a narrow analysis of the petitioner's financial 
status. 
Furthermore, the 2004 CIS memorandum referenced by counsel supports a more limited review of the 
petitioner's net income and net current assets. Memorandum from William R. Yates, Associate Director for 
Operations, Determination ofAbility to Pay under 8 C.F.R. JC 204.5(g)(2), HQOPRD 90116.45 (May 4, 2004). 
CIS' Associate Director of Operations further clarifies the regulation at 8 C.F.R. 9 204.5(g)(2), stating that 
CIS has discretionary authority to accept and consider financial statements or evidence other than the 
petitioner's annual reports, federal tax returns, or audited financial statements in its analysis of the "ability to 
pay" requirement. In other words, CIS is not required to consider the average monthly balance of the 
petitioner's checking account. 
The AAO further notes that the regulations clearly impose the "ability to pay" standard on all petitioners filing 
an employment-based immigrant petition. See 8 C.F.R. § 20435(g)(2). Despite counsel's claims otherwise, 
the regulations, which are considered CIS policy, should not be construed as applying a lesser standard of 
scrutiny on those petitions involving classification as a multinational manager or executive. The regulations 
do not provide for the application of varying "ability to pay" analyses according to the immigrant 
classification sought. 
Based on the foregoing discussion, the petitioner has failed to demonstrate its ability to pay the beneficiary's 
proffered salary at the time the priority date was established. Accordingly, the appeal will be dismissed. 
Page 6 
Beyond the decision of the director, two additional issues not addressed is whether the beneficiary was 
employed abroad and would be employed in the United States 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. tj 204.56)(5). The petitioner offered a limited 
description of the job duties performed by the beneficiary overseas. It is unclear what managerial or 
executive tasks were associated with the beneficiary's responsibilities of "[setting] strategic planning goals," 
"direct[ing] sales activities," and "direct[ing] expansion of business in Pakistan." 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 answer a critical question 
in this case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
afd, 905 F.2d 41 (2d. Cir. 1990). Additionally, several of the beneficiary's responsibilities demonstrate that 
the beneficiary was likely personally performing non-managerial or non-executive functions of the foreign 
entity's business. Specifically, the beneficiary was responsible for the company's advertising and promotions, 
and for setting the sales quotas and determining expenses. Moreover, while the beneficiary purportedly 
oversaw marketing personnel, the petitioner has not identified on its organizational chart the employment of 
any subordinate marketing employees. An employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The AAO also notes that in 
response to the director's request for evidence, counsel provided the same outline of the beneficiary's job 
duties as that provided at the initial filing. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 
tj 103.2(b)(8). The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). Furthermore, the petitioner has not clarified the 
date on which the beneficiary began working in the foreign company. The petitioner's failure to specify the 
beneficiary's start date, which appears to be sometime in 1999, makes it impossible to determine whether she 
was employed with the foreign entity for a continuous year prior to her entry into the United States in July 
2000. 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). 
The beneficiary's job description for her proposed position as business development manager of the United 
States company is equally vague. The petitioner's claims that the beneficiary would be responsible for 
expanding the petitioner's business, developing investments in the United States, and "[setting] strategic 
planning goals" do not identify the specific managerial or executive job duties associated with each of these 
responsibilities. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1108. Additionally, based on the beneficiary's responsibilities of paying 
company debts, salaries, and taxes, maintaining proper business licenses, and devising sales and marketing 
policies, the beneficiary would be personally performing administrative and operational functions of the 
petitioner's business. Moreover, the petitioner has not identified the employment of any workers at the time 
of filing that would work in the company's three mall shops selling its products. Absent additional evidence, 
it is reasonable to assume that as the sole employee, the beneficiary would be entirely responsible for the 
petitioner's sales. Again, an employee who primarily performs the tasks necessary to produce a product or to 
Page 7 
provide services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. at 604. Counsel again failed to provide additional detail of the 
beneficiary's proposed position when requested by the director. The petitioner has failed to demonstrate that 
the beneficiary had been employed by the foreign entity and would be employed by the petitioner in a 
primarily managerial or executive capacity. For these additional reasons, the petition will be denied. 
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. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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. 3 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.