dismissed EB-1C Case: Skylight Installation

identifying data deleted to 
pr0verJcl~ly unwd 
hvaimof Persopa ps)uecy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
SRC 06 184 50909 
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. $ 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. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was first denied by the Director, Texas Service Center on 
September 28,2006 on the basis of abandonment. Pursuant to a motion filed by the petitioner, the matter was 
reopened and the petition was fully considered on its merits. The director subsequently entered a new 
decision, denying the petition on two grounds of ineligbility. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Maryland corporation planning to engage in the business of selling and installing skylights. It 
seeks to employ the beneficiary as its chief executive officer, president, and general manager. Accordingly, the 
petitioner endeavors to classifL the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1153(b)(l)(C), as a multinational 
executive or manager. In his second decision, the director found the petitioner ineligble for the immigration 
benefit sought. The director based the denial on two independent grounds: 1) the petitioner failed to establish that 
it had been doing business in the United States for one year prior to filing ths petition as required by 8 C.F.R. 5 
204.5(j)(3)(i)(D); and 2) the petitioner failed to establish its ability to pay the beneficiary's proffered wage. 
On appeal, counsel submits a brief disputing the director's finding with regard to the second ground for denial. 
Although counsel provides a written opinion from a thrd party, who touches on the issue of the petitioner's doing 
business, this issue is not specifically addressed, nor are the director's findings with regard to ths issue disputed 
on appeal. Nevertheless, both issues will be hlly addressed and the decision will reflect all documentation that is 
currently part of the petitioner's record of proceeding. 
Section 203(b) of the Act states, in pertinent part: 
(1) hority 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 ths 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)(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 first issue in this proceeding is whether the petitioner has provided sufficient evidence to establish that it had 
been doing business for at least one year prior to May 25,2006, the date the instant Form 1-140 was filed. 
The regulation at 8 C.F.R. 5 204.50)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods andlor services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." 
In the present matter, the petitioner's initially submitted evidence included state documented evidence of the 
petitioner's incorporation, a signed lease agreement, a business plan, and various tax documents. However, none 
of thls documentation properly establishes that the petitioner had been doing business since May 25,2005, or one 
year prior to the filing of the Form I- 140. See 8 C.F.R. 5 204.50)(3)(i)(D). 
Accordingly, the director issued a request for additional evidence (RFE) dated July 6, 2006, notifying the 
petitioner that the record lacked sufficient documentation to establish that it has met the requirements specified in 
8 C.F.R. fj 204.50)(3)(i)(D). 
The petitioner's response included another copy of its business plan, a copy of its Maryland Sales & Use Tax 
License issued on May 2, 2006, a copy of its state and federal tax returns for 2005, and evidence of the 
petitioner's advertising and promotion of its product in 2006. Although the petitioner provided documentation 
indicating that some business was conducted in 2006 after the Form 1-140 was filed, there is no evidence that the 
petitioner sold or installed any of its products between May 2005 and May 2006. This finding is further 
corroborated by an undated document in which the petitioner provided an account of its activities from March 
through December of 2005. This document states that in April and May 2005, the petitioner was in the process of 
setting up its office, purchasing necessary office equipment and stationary products, and preparing to adverhse its 
products and services in local area publications. In June 2005, the petitioner focused on starting advertising, 
meeting with an accountant, and sending out letters to noti@ builders of the petitioner's products and services. 
The petitioner's July 2005 activity indicates that its promotions led to sales that were ultimately made in April and 
August of 2006. Although the petitioner continued to advertise and promote its products and services throughout 
the rest of 2005, there is no indication or evidence that the petitioner sold any of its products until April 2006. 
On appeal, counsel fails to specifically address the issue of the petitioner doing business. Rather, counsel 
provides a letter dated September 24,2007 fi-om, an accountant who asserts that the petitioner 
"has actively launched into business by building a strong presence in the business community through 
participation in trade shows, demonstration projects, engaging in fi-equent and re lar advertising in various 
media with results slowly but surely increasing into the year 2007." While s statement suggests that 
the petitioner may currently be doing business, it does not serve as evidence that the petitioner was engaged in 
business during the relevant one-year time period and that such business was conducted on a regular, systematic, 
and continuous basis. As the petitioner has failed to establish that it met the regulatory requirements specified in 
8 C.F.R. 8 204.5(j)(3)(i)(D) at the time it filed its Form 1-140, this petition cannot be approved. 
The second issue in tlus proceeding is whether the petitioner had and continues to have the ability to pay the 
beneficiary's proffered wage since the immigrant petition was filed. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
Among the initial submissions, the petitioner provided its 2004 tax return, which shows no revenue generated and 
no salaries paid during that year. That being said, the petitioner is only required to establish its ability to pay the 
beneficiary's wage as of the date the Form 1-140 is filed. Accordingly, the RFE instructed the petitioner to 
provide further documentation of its finances. The petitioner's response included its federal tax return for 2005, 
which also showed no revenue generated and no salaries paid. The AAO acknowledges that the petitioner's lack 
of financial stability in 2005 does not establish its inability to pay the beneficiary's proffered wage as of May 
2006. However, Citizenship and Immigration Services (CIS) does not have the burden to prove that the petitioner 
is unable to pay the beneficiary's proffered wage. Rather, the burden rests solely on the petitioner to establish its 
ability to pay. In ths case, the documentation submitted in the present matter does not establish that the petitioner 
has met the regulatory requirements specified above. In fact, counsel's statements on appeal suggest a lack of 
understanding of the relevant regulatory provisions. More specifically, counsel asserts that the foreign parent 
corporation is an established entity and has the ability to pay the beneficiary's proffered wage of $40,000 
annually. However, 8 C.F.R. 9 204.5(g)(2) expressly states that "the prospective United States employer" 
must establish the ability to pay the proffered wage. Therefore, to dispel counsel's apparent confusion, neither 
the ability of the foreign entity nor the ability of the petitioner's shareholders to pay the beneficiary's proffered 
wage is relevant in establishing the petitioner's ability to pay. Although counsel claims that the petitioner's 
assets outnumber its liabilities, the documentation on record does not corroborate this assertion. The AAO 
further notes that the unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533,534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
In evaluating the petitioner's ability to pay in terms of its assets, the petitioner must establish that its net 
current assets are greater than its current liabilities. A corporation's year-end current assets are shown on 
Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. If the total of 
a corporation's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal to or 
greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage using those net 
current assets. In the present matter, the Form 1-140 was filed in 2006. However, the petitioner has not 
provided its 2006 tax return to enable an accurate calculation of the relevant year's assets and liabilities. It is 
therefore unclear why counsel makes any representation at all about the petitioner's assets. As previously 
stated, the assertions of counsel will not satisfy the petitioner's burden of proof. See id. 
Further, counsel points out that the petitioner's burden with regard to its ability to pay is adequately satisfied if 
the petitioner has ample evidence that it is actually paying the proffered wage. While counsel's statement is 
accurate, the petitioner has not provided evidence to establish that it, rather than the foreign entity, was paying 
the beneficiary's proffered wage at the time the Form 1-140 was filed. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). This lack of evidence coupled with the fact that the petitioner did not 
Page 5 
start generating revenue until after its petition was filed serve as compelling indicators of the petitioner's lack 
of an ability to pay the beneficiary's proffered wage at the time the Form 1-140 was filed. 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 (Cornrn. 
197 1). Therefore, the AAO supports the director's finding regarding the second ground for ineligibility. 
Additionally, the record does not support a finding of eligibility based on grounds that were not previously 
addressed in the director's decision. 
First, 8 C.F.R. tj 204.5Cj)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position for at least one out of the three years prior to his entry 
to the United States as a nonimmigrant to work for the same employer or subsidiary or affiliate thereof. 
Similarly, 8 C.F.R. tj 204.56)(5) also requires that the petitioner provide a detailed description of the 
beneficiary's proposed employment in order to establish that the beneficiary would be employed in a 
managerial or executive capacity. Both regulatory requirements were adequately conveyed in the WE, where 
the petitioner was instructed to provide organizational charts for both the foreign and U.S. entities as well as 
detailed descriptions for all employees. While counsel acknowledged these requests, the response was 
insufficient in meeting the petitioner's burden. 
With regard to the beneficiary's foreign employment, the petitioner provided a percentage breakdown 
consisting of broad job responsibilities that suggest that a large portion of the beneficiary's foreign position 
was comprised of non-qualifying tasks including contract negotiation, promotion of the company's products 
and services, and creating new products and services. While the description suggested that the remaining 
portion of the beneficiary's time was spent managing staff as well as presiding over the foreign and U.S. 
entities, the petitioner did not specify any actual job duties and thereby failed to establish that the primary 
portion of the beneficiary's time was spent in a managerial andlor executive capacity. See Fedin Bros. Co., 
Ltd. v. Suva, 724 F. Supp. 1103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
With regard to the U.S. entity and the beneficiary's proposed employment, the petitioner failed to provide a 
separate job description for the beneficiary and instead provided an organizational chart, which identified a 
total of four employees including the beneficiary. It is noted that none of the documents provided thus far 
suggests that any of the employees listed in the chart were actually working for the petitioner at the time the 
Form 1-140 was filed. Thus, in light of the petitioner's failure to provide necessary evidence and information 
as well as the overwhelming evidence that shows the petitioner was not operational and doing business as 
required, the AAO concludes that the petitioner was not able to employ the beneficiary in a primarily 
managerial or executive capacity at the time it filed the Form 1-140. 
Second, 8 C.F.R. tj 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. In the present matter, the petitioner has provided 
inconsistent documentation to corroborate the initial claim that the foreign entity, which is purportedly owned 
by the beneficiary, is the petitioner's sole stockholder. While the petitioner provided a single stock certificate 
identifying the foreign entity as owner of all 4,000 of the petitioner's authorized shares, Schedule L of the 
petitioner's 2004 and 2005 tax returns contains no information about any stockholder equity. To confuse 
matters further, Form 5472, which was submitted as part of the petitioner's 2005 tax return, names the 
beneficiary as a foreign shareholder who directly owns at least 25% of the U.S. entity. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
Page 6 
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). In the present 
matter, the petitioner has failed to provide consistent, reliable documentation establishing its ownership. 
That being said, all documentation on record suggests that the beneficiary either directly or indirectly owns 
the U.S. petitioner, which leads to the final issue discussed below. 
Specifically, given the petitioner's description of its business organization and the beneficiary's proposed 
relationship to this business, it appears more likely than not that the beneficiary will not be an "employee" of 
the United States operation. As explained in 8 C.F.R. 5 204.5(j)(5), the petitioner must establish that the 
beneficiary will be "employed" in an executive or managerial capacity. It is noted that "employer," 
"employee," and "employed" are not specifically defined for purposes of the Act even though these terms are 
used repeatedly in the context of addressing the multinational executive and managerial immigrant classification. 
Section 203(b)(l)(C), 8 U.S.C. 8 1153(b)(l)(C), requires beneficiaries to have been "employed" abroad and to 
render services to the same "employer" in the United States. Further, section 10 1 (a)(44), 8 U.S.C. tj 1 10 1 (a)(44), 
defines both managerial and executive capacity as an assignment within an organization in which an "employee" 
performs certain enumerated qualifiing duties. Finally, the specific definition of "managerial capacity" in section 
10 1 (a)(44)(A), 8 U. S .C. tj 1 1 0 1 (a)(44)(A), refers repeatedly to the supervision and control of other "employees." 
Neither the legacy Immigration and Naturalization Service nor CIS has defined the terms "employee," 
"employer," or "employed" by regulation for purposes of the multinational executive and managerial 
immigration classification. See, e.g., 8 C.F.R. tj 204.5 and 8 C.F.R. tj 214.2(1). Therefore, for purposes of this 
immigrant classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly define the 
term "employee," courts should conclude "that Congress intended to describe the conventional master-servant 
relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden, 503 
U.S. 3 18, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non- Violence v. Reid, 490 
U.S. 730 (1989)). That definition is as follows: 
In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which the 
product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the duration 
of the relationship between the parties; whether the hiring party has the right to assign 
additional projects to the hired party; the extent of the hired party's discretion over when and 
how long to work; the method of payment; the hired party's role in hiring and paying 
assistants; whether the work is part of the regular business of the hiring party; whether the 
hiring party is in business; the provision of employee benefits; and the tax treatment of the 
hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 8 220(2) (1958); Clackamas 
Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the common- 
law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the 
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. ofAmerica, 390 U.S. 254,258 (1968). 
Page 7 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational manager or 
executive, when a worker is also a partner, officer, member of a board of directors, or a major shareholder, the 
worker may only be defined as an "employee" if he or she is subject to the organization's "control." See 
Clackamas, 538 U.S. at 449-450; see also New Compliance Manual at tj 2-III(A)(l)(d). Factors to be 
addressed in determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the organization. 
Whether the parties intended that the individual be an employee, as expressed in 
written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the beneficiary 
will be an "employee" employed in a managerial or executive capacity. As explained above, the petitioner is 
a corporation, which the petitioner claims is ultimately owned and controlled by the beneficiary, who purports 
to assume a role as the petitioner's principal. While the petitioner's organizational chart names another officer 
within its hierarchy, there is no evidence that this individual has an ownership interest or is in a position to 
exercise any control over the work to be performed by the beneficiary. 
In view of the above, it appears that the beneficiary will be a proprietor of this business and will not be an 
"employee" as defined above. It has not been established that the beneficiary will be "controlled" by the 
petitioner or that the beneficiary's employment could be terminated. To the contrary, the beneficiary is the 
petitioner for all practical purposes. He will control the organization; he cannot be fired; he will report to no 
one; he will set the rules governing his work; and he will share in all profits and losses. Therefore, based on 
the tests outlined above, the petitioner has not established that the beneficiary will be "employed" as an 
"employee," and the petition may not be approved for this and the other additional reasons discussed above. 
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), afyd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility as cited above, this 
petition cannot be approved. 
Page 8 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 683. 
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. 9 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.