dismissed EB-1C Case: Technology Products

(b)(6)
DATE: MAY 0 5 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
"' U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service ! 
Administrative Appeals Office {AAO} 
20 Massac huse tts Ave. N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)( I )(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)( I )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-2908) 
within 33 days of the date of this deci sion. Please review the Form 1-2908 instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
itL-_ f Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDl:.riT DECISION 
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DISCUSSION: The Director , Tex as Service Center , denied the preference visa petition . The matter is now 
before the Admini strati ve Appeals Office (AAO) on appeal. The appeal will be dismi ssed . 
The petitioner filed this Form J-140, Immigr ant Pet ition for Alien Worker, to classify the benefici ary as an 
emplo yment-b ased immigrant pursuant to section 203( b )( I )(C) of the Immigration and Nationalit y Act (the 
Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational ex ec utiv e or manager. The petiti oner , a New York 
co rpor ation engaged in the design , manufacture and sa le of technology products, claims to be an affi liate of 
Ltd ., the beneficiary 's former employer in the United Kingdom . The petitioner 
seeks to employ the benefici ary in the po sition of Des ign and Production Techn o log y Executive. 
The dir ector denied the petition based on three indep endent and alternative grounds, co ncluding that the 
petition er failed to es tab lish : ( I) that it has a qualif y ing relationship with the beneficiar y's for eig n employer; 
(2) that the beneficiary would be employed in the United States in a qualifying man ag erial or exe cutive 
ca pacit y; and (3) that it had the ability to pay the benefi cia ry 's proffered wage at the time the Form J-140 was 
filed. 
The petition er subsequently filed an appeal. Th e dir ec tor declined to treat the appeal as a motion and 
forwarded the app ea l to the AAO for review . On appeal, counsel submits a brief disputing the director's 
adve rse findings . Counsel co ntends that the dir ec tor misinterpreted and overlooked key ev idenc e, thus 
res ultin g in an err oneou s conclusion regarding the petitioner's eligibility. 
I. THE LAW 
Sec tion 203(b) of the Act states in pertinent part: 
( l) Priority Workers. -- Visas sha ll first be made ava ilable . . . to qualified immigrant s who 
are aliens described in any of the following subp ara graphs (A) through (C): 
* * * 
(C) Cer ta in Multinational Exe cutiv es and Managers. --An alien is describ ed 
in this subp aragr ap h if the alien, in the 3 years preceding the time of the 
a lien's ap plica tion for classification and admission into the United States 
under this subpar ag raph, has been employed fo r at least I ye ar by a firm or 
corporation or other lega l entity or an affiliate or subsidiary thereof and who 
see ks to enter the United Stat es in order to continu e to render se rvices to the 
same employer or to a s ubsidiary or affiliate thereof in a capacity that is 
manag eria l or executive. 
Th e lang uage of the statute is s peci fic in limiting this prov ision to only those executives and managers who 
have prev iou sly worked for a firm, corporation or other leg al entity, or an affiliate or subsidiary of that entity, 
and who a re co min g to the United State s to work for the sa me entity , or its a ffili ate or sub sidiar y. 
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Additionally , the reg ulations at 8 C.F.R. § 204 .5(j)(3)(i) state that the petitioner must provide the following 
evidence in support of the petition in order to establish eligibility: 
(A) lfthe alien is outside the United States, in the three year s immediately prec eding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a firm or corporation, or other legal 
entity, or by an affi liate or subsidiary of such a fim1 or corporation or other leg a l 
entity; or 
(B) If the alien is alr ea dy in the United States working for the same employer or a 
subsidi ary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years prece ding entry as a nonimmigrant , 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity ; 
(C) The pro spective employer in the United States is the same employer or a subsidiary 
or affili ate of the firm or corporation or oth~r leg al entity by which the alien was 
employed overseas ; and 
(D) The pro spective United States employer has been doing business for at least one year. 
11. THE ISSU ES ON APPEAL 
A . Qualifying Relationship 
The fir st issue to be addressed in this proceeding is whether the petitioner has a qualifying relationship with 
the entity where the benefici ary was employed abroad. To establish a "qualifying relationship" under the Act 
and the regulation s, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. 
employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent an d 
subsidi ary" or as "affiliates." See generally§ 203(b)(I)(C) of the Act, 8 U.S.C. § ll53(b)(l)(C). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate mea ns : 
(A) On e of two sub sidiaries both of which are owned and controlled by the same parent or 
individu a l; 
(B) One of two leg a l entities owned and controlled by the same group of individuals , each 
individu al owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
MultinationaL mean s that the qualifying en tity, or its affiliate , or subsidia1y , conducts 
business in two or more countrie s, one of which is the United States. 
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NON-PRECEDENT DECISIO N 
Subsidiary means a firm, corporation, or other leg al entity of which a parent owns , dire ctly or 
indirectly , mor e than half of the e ntity and co ntrols the entity; or owns, directly or indi rec tly , 
half of the entity and controls the entity; or own s, directly or indirectly , 50 percent of a 50-50 
joint venture and has equa l co ntrol and ve to powe r over the entity; or owns, directly or 
indirectly , less than half of the entity, but in fact co ntrols the entity. 
In the present matt er, the petitioner claims to be an affili ate of the Ltd ., where 
the benefici ary was employed prior to coming to the United States to work for the petiti o ner. This claim is 
based on the assertion that the CEO and sole owner of the U.S. peti tion er is the same individu al who owns 
50% of the foreign entity wh ere the ben efi ci ary w as previously employed. Although the petitioner provided 
foreign document s a nd the pet ition er 's share certificate in support of thi s c laim , the director determined that 
the petitioner provided inform ation on Schedule K o f its 2011 IRS Form 1120, U.S. Corporation Income Tax 
Return , that is not consistent with the petitioner' s c la imed ownership. Specifically, the director pointed out 
that the petitioner marked the box for "no" in response to no. 4b of IRS Form 1120 , Schedule K, which asks 
the petitioner to indicate ·whether an individu al or es tate ow ns directly 20% or more of its voting class stock, 
or owns dir ec tly or indirectl y 50% or more of its voting class sto ck. The director determined that by 
res ponding "no" to thi s query the petitioner contradicted the information provided in its share certificate, 
which names Dr. as the sole owner of all 200 issued shares of the petitioner ' s sto ck. 
On appeal, counsel asserts that the director did not prop erl y co nstrue Sch edule K, no . 4b , contending that the 
qu estion being po sed s ee ks to det ermine "whether the U.S. petitioner, ... rather than any individu al, owns 
and controls 20% or more shares and 50% or mor e of controlling power of any other foreign or dome st ic 
corporation ." Th e AAO has reviewed the passage in question and finds that this interpr etation is incorr ec t. 
Schedule K, no. 4a, which prece de s the query addr esse d in the director's decision, does use the term "fo reign 
or domestic co rpora tion" in an attempt to determin e whether the entity filing the Form 1120 wa s ow ned in 
some part by a for e ign or domestic corporation at the time of filing the tax return. In addition, Schedule Kat 
no. Sa inquires about the U.S. corporation's stock ownership in other domestic and for eign co rpor ation s. 
However, subsecti on 4b of Schedule K expressly as ks the filing entity whether an individual or an est ate 
directly owns 20% or mo re, o r owns indirectl y 50% or more of its voting cla ss stock . Th e director properly 
determined that responding "no" to this question is not co nsi stent with the petition er's c laim that a ll of its 
stock is owned by one indivi d ual shareho lder. 
It is incumb ent upon the petition er to res ol ve an y inc onsistencie s in the record by independent obj ecti ve 
evidence. Any attempt to explain or reconcile such inco nsis tencie s will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho , 19 l&N Dec. 582, 59 I-
92 (BIA 1988). For the reason s stated, counsel 's assertions on appe al do not effectively address and reconcile 
the anomaly pointed out in the dire ctor's decision. Given that ownership of the petitionin g entity is germ ane 
to establishing the ex istence of an affi liate rel ationship betwee n the petitioner and the ben eficiary's employer 
abroa d, the petitioner's failur e to provide con sistent and reliable evidenc e to identify its owne r(s ) preclud es 
the AAO from concluding that the petitioning U.S. employer and the beneficiary's employer abroad are 
co mmonl y owned and co ntroll ed. See Matter ol Church Scientology int ernational , 19 I&N Dec. 59 3 (BJA 
1988 ); see also Matter of Sieme ns Medical Syste ms, inc., 19 I&N Dec. 362 (Assoc. Comm 'r 19 86) ; Matter of 
Hughes , 18 I&N Dec. 289 (Comm'r 1982). In light of this unresolved incon sistenc y, the petition er has no t 
(b)(6)
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established that it maintains the requisite qualifying relationship with the beneficiary's foreign employer and 
on the basis of thi s initi a l adverse conclusion the instant petition cannot be approved. 
B. U.S. Employment in a Managerial or Executive Capacity 
The next issue to be addressed is whether the petitioner established that it will employ the beneficiary in a 
qualifying managerial or executive capacity. 
Section IOI( a)(44)(A) of the Act, 8 U.S.C. § l10l( a)(4 4)(A), provides: 
The term ''manageri al capacity" me ans an assignment within an organization 111 which the 
employee primarily--
( i) manages the organization , or a department , subdivision , function , or 
component of the org anization; 
(ii) supervises and controls the work of other supervisory, profession al, or 
man ageri al 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 , ha s the 
authority to hir e and fire or recommend those as well as other personnel 
ac tion s (such as promotion and leave authorization) , or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hier archy or with respect to the function managed ; and 
(iv) exercises discretion over the day-to-d ay 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 IOI(a)(44)(B) ofthe Act , 8 U.S.C. § 110l( a)( 44)(B), provides: 
The term "executive capacity" means an assignment within an organization 111 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) exerci ses wide latitude in discretionar y deci sion-making ; and 
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NON-PRECEDENT DECISION 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Finally , if staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, USCJS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. Section I 0 I (a)( 44)(C) of the Act. 
I. Facts 
The petitioner has offered the beneficiary the position of Design and Production Technology Executive. In a 
letter dated February 28, 2012, the petitioner described the beneficiary's duties as follows: 
The beneficiary ' s primary responsibilities consist of overseeing the operations of [the 
petitioner] and the employees of the company. He oversees the mana_gement at [the 
petitioner ' s] joint venture partner, as well. has a total 
staff of fifteen. Additionally, [the beneficiary] reviews output and 
production , and instructs the management of the company in its continued manufacture of 
[the petitioner's] products. In addition to overseeing he has a staff directly 
beneath him consisting of three professional-level workers . . . . He was responsible for 
hiring this staff, and indeed continues to have complete latitude in deciding hiring, firing, and 
other staffing matters at [the petitioner]. 
ln addition , he has both the authority and the ability to direct the operations of [the 
petitioner]. The staff of [the petitioner] includes an engineer who tests finished products and 
subsequently reports his findings to [the beneficiary], who reviews them and personally 
decides whether the findings are acceptable . . [H]e 's able to direct the staff in continued 
research and testing without input from any other individuals. As such, thanks not only to his 
experience but also to his technical knowledge of [the foreign entity's] products he is 
uniquely able to manage the operations of [the petitioner] 
Further, he is answerable only to Dr. the owner of [the petitioner] and [the 
foreign entity], and to no one else. Therefore the beneficiary works as an executive at [the 
petitioner] in accordance with 8 U.S.C. § 1 101(a)(44)(B). 
The petitioner stated on the Form l-140 that it had one employee at the time the petition was filed . ln the 
supporting letter, the petitioner stated that it employs the beneficiary, an office manager, a sales manager and 
the aforementioned engineer. The petitioner's supporting evidence, which included IRS Forms 941, 
Quarterly Federal Tax Returns, and its New York state quarterly wage reports, indicate that the beneficiary 
was the company's only employee in 201 I. 
The initial evidence included a copy of the petitioner 's one-page "Design and Manufacturing Agreement" 
with d/b/a which is dated October 1, 2008. The terms of the 
agreement provide that the petitioner will "design, develop , manage and supervise the manufacturing of 
' Digital Interactive Photo Album' and related products exclusively for to market in North 
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America." The petitioner provided evidence of the foreign entity's U.S. patent for this product and explained 
its plans for marketing the product. 
The director issued a request for additional evidence (RFE) on June 6, 2012. The director requested, in part, a 
definitive statement from the petitioner regarding the offered position , including the beneficiary's job title , all 
specific daily duties, and the percentage of time he will spend on each duty. The director also instructed the 
petitioner to submit an organizational chart, with brief descriptions of job titles, job duties and educational 
levels for any employees who report to the beneficiary. The director requested evidence of wages paid to 
employees in 20 ll and the first quarter of 2012. Finally , the director requested that the petitioner document 
the number of contractors the petitioner uses and the duties they perform, if applicable. 
In a letter dated August 16, 20 12, the petitioner described the beneficiary's duties as follows: 
[The beneficiary's] daily job duties include : being in charge of the designing and 
development of our patented product the ; prototyping, testing, and 
modifying the design of our products involving our innovative technologies; [the beneficiary] 
exercises executive level supervisory duties over the personnel including 
reviewing the reports from lower level management in terms of the final 
engineering design and manufacture , such as our [The beneficiary] 
has overall supervisory authority on prototyping, testing and modifying the design of the 
products handled by the engineering department and manufacturing department. 
[The beneficiary] spends 30% of his working time on this executive function. 
Besides, [the beneficiary] confers with management and engineers at the UK company in 
terms of the invention of new technology and integration of new technology through email, 
tele-conference , correspondences, telephone and Skype ; advising our patent attorneys .. 
He is in charge of the registration of our patents in the U.S. [The beneficiary] spends 25% of 
his working time on this executive function . 
ln addition, [the beneficiary] makes the final decision on the technological modification 
concerning after-sale returned products in the U.S. market, and he is also in charge of all the 
legal matters relating to the after-sale returned products in the U.S. As our after-sale return 
rate is 5% in the U.S. market, [the beneficiary] therefore has to spend a considerable amount 
of his working time on this part of job duties. He reports directly to Dr. in the 
UK for all relevant issues and results. [The beneficiary] spends 20% of his working time on 
these executive level job duties. 
[The beneficiary] participates in negotiation and signing of new contracts with U.S. business 
partners. He is in charge of the supervision of the execution of all U.S. contracts and 
generates executive reports . . . . [The beneficiary] spends 25% of his working time on these 
executive job duties. 
The petitioner stated that all of the beneficiary's functions are executive and managerial in nature, while all 
"administrative and day-to-day operations are handled by personnel." The petitioner 
explained that CEO and owner of "supervises and manages all the day-to-
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day operations of the stuff, and Mr. reports directly to [the beneficiary] as to all business 
and manufacture matters relating to the production and sale of the products containing the patented 
technologies from [the petitioner]." 
The petitioner's response to the RFE included two organizational charts. One shows the beneficiary 
supervising the areas of design and development for the interactive photo album, prototyping and testing, and 
manufacturing of the product , with supervision over three unnamed employees for manufacturing. 
These same employees also report to management, and the chart shows tbat IS 
responsible for marketing and sales. The second chart is focused solely on the beneficiary and his claimed 
subordinates. lt shows that he directly supervises Mr. who in nu-n supervises an engineer, a 
design and development manager, two manufacturing managers, and two manufacturing employees. 
The petitioner also submitted a letter from Mr. who describes his company's relationship with the 
petitioner as a joint venture partnership . He stated that the beneficiary performs executive level job duties for 
the partnership and "is responsible for all the ultimate business and technological decisions concerning the 
patented technologies from [the petitioner]." Mr. further indicated that the beneficiary has the 
authority to hire and fire 
included a copy of Mr. 
staff , as he follows the beneficiary's recommendations. The petitioner 
's personal income tax return and his Form W-2 for 201 1, but did not 
provide any additional evidence related to 
Finally , the petitioner submitted a copy of its IRS Form 941, Employer's Quarterly Federal Tax Return, 
which indicates that it had one employee at the time of filing the Form 1-140. 
The director denied the petition on February 21, 2013 , concluding that the petitioner failed ·to establish that it 
will employ the beneficiary in a qualifying managerial or executive capacity . In denying the petition, the 
director determined that the petitioner provided an overly broad job description that failed to convey an 
understanding of what the beneficiary primarily does on a day-to-day basis. The director further noted that 
the beneficiary is the petitioner's sole employee and that no documentary evidence was submitted to 
corroborate its claim of the joint venture partnership with The director concluded that the 
beneficiary would not supervise a staff comprised of subordinate managerial , supervisory or professional 
employees, or that he would otherwise be relieved from primarily performing non-managerial and non­
executive functions associated with the operation of the petitioner 's business . 
On appeal, counsel asserts that the director misinterpreted the nature of the petitioner ' s business , and failed to 
understand the complexity of the process of designing patented technologies , integrating them into products , 
and then contracting for their manufacture. Counsel asserts that "the complexity and sophistic ated nature of 
the global development , manufacture, marketing and sale process ensure that there is a need for the position 
of Design and Production Technology Executive." Counsel also refers to two new contracts relating to the 
petitioner's products which were signed in June and July of 2012 and states that such contracts further 
establish the need for the beneficiary's position. 
In addition , counsel contends that the director placed undue emphasis on the petitioner's staffing levels, and 
failed to take into account the company's reasonable needs in light of its overall purpose and stage of 
development. Counsel suggests that the director overlooked the "joint vennu-e agreement" between the 
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petitioner and and improperly disregarded the organizational charts submitted in response 
to the RFE which show the beneficiary ' s supervision of managerial and supervisory personnel. 
In support of the appeal, the petitioner submits 20 I 0 IRS Forms W -2 for four of the staff 
depicted on the organizational chart. The petitioner also re-submits a copy of the previously submitted one-
page "Design and Manufacturing Agreement" with 1 
2. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of the record, 
starting first with the petitioner's description of the beneficiary ' s proposed job duties. See 8 C.F.R. § 
204 .5(j)(5). A detailed job description is crucial , as the duties themselves will reveal the true nature of the 
beneficiary's foreign and proposed employment. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. ll 03, 1108 
(E.D.N.Y. 1989) , aff'd, 905 F.2d 41 (2d. Cir. 1990). The AAO will then consider this information in light of 
other relevant factors, including job descriptions of the beneficiary's subordinate employees, the nature of the 
business that is conducted, the petitioner's subordinate staff, and any other facts contributing to a 
comprehensive understanding of the beneficiary's actual role within the petitioning entity . While an entity 
with a limited support staff will not be precluded from the immigration benefit sought herein, it is subject to 
the same burden of proof that applies to a larger entity with a moderate or large subordinate staff [n other 
words, regardless of an entity's size or support staff, the petitioning entity must be able to provide sufficient 
evidence showing that it has the capability of maintaining its daily operations such that the beneficiary would 
be relieved from having to primarily perform the operational tasks. 
In the present matter, upon review of the totality of the record , the evidence does not support a finding that the 
beneficiary would allocate his time primarily to the performance of tasks that are within a qualifying 
managerial or executive capacity. 
First, the petitioner did not fully comply with the director's express RFE instructions, which asked the 
petitioner to list the beneficiary's daily job duties and to assign a time allocate to each job duty rather than to 
categories of job duties. Looking to the job description the petitioner provided in response to the RFE , we 
observe that the petitioner assigned a percentage breakdown to groups of actions rather than to individual 
tasks. For instance the first group of duties consists of the following : designing and developing the 
petitioner's patent ed product ; prototyping, testing, and modifying product designs ; and overseeing another 
entity ' s personnel by reviewing management ' s reports concerning a product 's final engineering design and 
manufacture . The petitioner assigned a single time allocation- 30%- to this entire group of tasks rather than 
indicating how much time would be spent performing each task individually. The petitioner maintained this 
pattern in another portion of the job description indicating that 25% of the beneficiary's time would be spent 
negotiating and signing contracts with U.S. business partners, supervising contract execution, and generating 
reports for the petitioner 's owner to review. 
1 
We note that on the previously submitted copy of this document, two words had been covered with 
correction fluid. The newly submitted copy reveals that the document is actually the "Rider to Design and 
Manufacturing Agreement. " The petitioner has not provided any other portion of the agreement with 
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Additionally, the petitioner sta ted that the beneficiary would allocate 25% of his time to conferring with the 
foreign entity's management and engineers through emails, teleconference, and Skype regarding the 
integration of new technology and the remaining 20% of his time to making final decisions regarding product 
modification and legal matters associated with the post- sa le return of products. 
Despite the petitioner's failure to comply with the instructions in the RFE , the job duties as stated conveyed 
that the beneficiary would allocate a significant portion of his time to the petitioner's daily oper at ional tasks. 
We do not dispute that designing and developing a patented product , which the petitioner can then mark et and 
se ll, are essential for the petitioner 's business success. However, these job duties, along with prototyping and 
modifying product designs, negotiating contracts, handling after-sale returns, and generating reports regarding 
work being done in the United States, are all indicative of operational tasks whose end result is to provide a 
viable product for the petitioner to sell. While the AAO acknowledges that no beneficiary is required to 
a llocate I 00 % of his or her time to managerial- or executive-level tasks, the petitioner must establish that the 
non-qualifying tasks the beneficiary will perform are only incidental to the position in question. An employee 
who "primarily" performs the tasks neces sa ry to produce a product or to provide services is not considered to 
be "primarily" employed in a man age rial or executive capacity. See sections 10l(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perfonn the enumerated managerial or executive duties); see also Matter of 
Church Scientology International , 19 l&N Dec. 593, 604 (Comm'r 1988). 
The petitioner bas also failed to provide evidence establishing who, if not the beneficiary, would carry out the 
petitioner's administrative and sales-related tasks . In its letter dated February 28, 2012, the petitioner stated 
that it "has hired three new workers and begun marketing and sale of the its flagship product, 
as well as developing of future products ." The petitioner went on to state that it "expected to hire three new 
workers in the past year- an office manager, an engineer, and a sales manager- and they [sic] have done so." 
The petitioner did not corroborate its hiring or continued employment of any of these workers, and the record 
shows that the petitioner employed only the beneficiary throughout 2011 and up to the date of filing in March 
2012. Further, in response to the RFE, the petitioner attributed performance of administrative and sales tasks 
to unidentified employees . 1t is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsi stencies will not suffice unless th~ petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
Although counsel indicates that the petitioner has a joint venture agreement with a company, 
that will manufacture and distribute the products that the petitioner designs , the document that 
co unsel s claims is evidence of the joint venture lacks sufficient information to corroborate the claims being 
made. More specifically, the document titled "Rider to Design and Manufacturing Agreement," dated 
October I, 2008 states only that the petitioner is obligated to "design, develop, manage and supervi se the 
manufacturing of and related products exclusively for to 
market to North America and any other territories that is felt to be appropriate." While the petitioner clearly 
promised to oversee the manufacturing of a product that will sell, there is no clause in the 
document , which expressly states that is obligated to undertake the manufacturing of the 
product. Furthermore, if the document is meant to represent a joint venture agreement between two 
companies, it is unclear why it has no provisions explaining how profits will be divided from the sale of the 
products or how the joint venture will be managed. Finally, there are no terms providing that will 
perform the petitioner's administrative, marketing and sales tasks or that it will grant authority over its 
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operations and employees to the beneficiary, who was employed by the foreign entity at the time this 
agreement was signed. 
We acknowledge that Mr. provided a letter confirming the existence of a "joint venture 
partnership" with the petitioner and affirming the beneficiary's responsibility for business and technological 
decisions related to the petitioner's technologies. However, the letter is vague and is insufficient to establish 
the beneficiary's claimed supervision of employees or the existence of a joint venture arrangement 
that would reasonably give the petitioner or the beneficiary control over the employees of a separate entity. 
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'r 1998) (citing Matter 
of"Treasure Craft o[California, l4l&N Dec. 190 (Reg. Comm ' r 1972)). 
Additionally, if part of the beneficiary's job is to oversee engineers who will assist in actually making the 
products to be sold, it is unclear why the petitioner has not provided evidence to establish where it derives the 
necessary human resources whom the beneficiary would ultimately be overseeing. In fact, the petitioner 
specifically stated at the time of filing the petitioner stated that its own staff includes "an engineer who tests 
the finished products" and reports his findings to the beneficiary. If this employee does not exist, then it is 
reasonable to believe that the beneficiary is directly performing products tests. Thus, in addition to providing 
a job description that indicates that the beneficiary would allocate a significant amount of time to non­
managerial tasks, the petitioner also appears to be lacking an organizational complexity that can support the 
beneficiary in a position in which he would be required to primarily carry out managerial- or executive-level 
tasks. 
The organizational chart that the petitioner has provided merely outlines the beneficiary's responsibilities and 
suggests that employees o would be involved in the manufacture of one of the petitioner's 
products. The petitioner has not provided job duties for the employees, nor has it submitted 
evidence that any of them, other than the company's owner, were employed by at the time the 
petition was filed. The unsubstantiated organizational chart is not sufficient to establish that the beneficiary 
would be relieved from having to allocate his time primarily to the performance of non-qualifying tasks. 
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 l&N Dec. at 165 (citing Matter of Treasure Craft 
ofCalifornia, 14 l&N Dec. 190 (Reg. Comm'r 1972)). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive . 
See§ 10l(a)(44)(C) of the Act, 8 U.S.C. § ll0l(a)(44)(C). However, it is appropriate for USCIS to consider 
the size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g Family inc. v. USCJS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, I 53 F. Supp. 2d 7, 15 
(D. D.C. 2001). The size of a company may be especially relevant when USCIS notes discrepancies in the 
record and fails to believe that the petitioner's assertions are true. See Systronics, 153 F. Supp. 2d at 15. 
Here, the petitioner's assertions that the beneficiary is relieved from performing non-qualifying duties were 
initially predicated on its claimed employment of a sales manager, an engineer, an office manager, and the 
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beneficiary's supervision of the staff of a joint venture partnership that it formed with a U.S. manufacturer. 
The petitioner claimed that this level of staffing is sufficient to establish a reasonable need for a design and 
production technology executive who performs primarily qualifying duties. However, as discussed, the 
record does not substantiate that the petitioner actually employs anyone other than the beneficiary, or that the 
compan y has a joint venture partnership that gives the beneficiary the stated scope of authority over the staff 
of While the petitioner has established the beneficiary's decision-making authority for 
design , technology and post-sales issues, the record does not establish that his actual duties are primarily 
managerial or that he is relieved from performing non-qualifying duties associated with these areas of 
responsibility based on the petitioner's cutTent stage of development. 
Regardless, the petitioner must still establish that the beneficiary is to be employed in the United States in a 
primarily managerial or executive capacity, pursuant to sections I 0 I (a)( 44)(A) and (B) or the Act. As 
discussed above, the petitioner has not established this essential element of eligibility. 
In light of the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in the United States in a qualifying managerial or executive capacity and on the basis of this second adverse 
conclusion, this petition cannot be approved . 
C. Ability to Pay 
The third and final topic to be addressed in this discussion is the petitioner's ability to pay the beneficiary's 
proffered wage. 
The regulation at 8 C .F.R . § 204.5(g)(2), which states , in pertinent part, the following: 
Abilit y a/prosp ective 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 tbe form of copies of annual reports, federal tax returns, 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 evidence will be considered prima facie proof of the petitioner's ability to pay the beneticiary's 
salary. 
The petitioner has offered the beneficiary a wage of $32,000 per year. As the petition was filed on March 2, 
2012, the petitioner must establish its ability to pay the beneficiary the proffered wages as of this date. The 
petitioner has submitted sufficient evidence to meet this requirement. 
The director indicated that the petitioner had not submitted any evidence of wages to verify the beneficiary's 
employment with the petitioner at the time of filing. Upon review, the petitioner provided a copy of the 
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beneficiary' s IRS Form W -2 for 2011 indicating that the petitioner he received $32,525 in wages in 20 I I. Jn 
addition, the petitioner provided a copy of its IRS Form 941, Employer's Quarterly Federal Tax Return, for 
the first quarter of 2012 indicating that the beneficiary received $8,055 in wages in the quarter in which the 
petition was filed. Accordingly, the petitioner has established the ability to pay the beneficiary's wage and 
the director 's adverse determination with respect to this single issue will be withdrawn. 
111. CONCLUSION 
The petition will be denied and the appeal dismissed 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 US. C. § 1361; Mc1tter of 
Otiende , 26 J&N Dec. 127, 128 (BlA 2013). The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.