dismissed EB-1C Case: Textiles

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U.S. Department of Homeland Security 
20 Mass Ave N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
LIN 07 147 51309 
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. 8 1 153(b)(l)(C) 
IN 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
hn F. Grissom, Acting Chief 
dministrative Appeals Office 
Page 2 
DISCUSSION: 
 The employment based immigrant visa petition was denied by the Nebraska 
Service Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The AAO will dismiss the appeal. 
The petitioner was incorporated in the State of California in 2005 and claims to be engaged in 
wholesale and manufacture of fabrics and textiles. It seeks to employ the beneficiary as its chief 
executive officer pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U. S.C. fj 1 1 53 (b)(l )(C), as a multinational executive or manager. The petitioner claims 
to be the subsidiary of Woong Chun Honduras S.A. de C.V., located in Honduras. 
The director denied the petition, determining that the beneficiary will not be employed in a 
primarily managerial or executive capacity in the United States. Specifically, the director found 
that despite his managerial title, the beneficiary would not be primarily engaged in performing 
qualifying managerial or executive duties. 
On appeal, counsel for the petitioner submits a brief and additional evidence. 
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 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 
Page 3 
required for this classification. The prospective employer in the United States must hmish 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 matter is whether the petitioner has established that the beneficiary will be 
employed in a managerial or executive capacity for the United States entity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S .C. 8 1 101 (a)(44)(A), provides: The term "managerial 
capacity" means an assignment within an organization in which the employee primarily 
(i) 
 manages the organization, or a department, subdivision, function, 
or component of the organization; 
(ii) supervises and controls the work of other supervisory, 
professional, or managerial employees, or manages an essential 
function within the organization, or a department or subdivision of 
the organization; 
(iii) 
 if another employee or other employees are directly supervised, 
has the authority to hire and fire or recommend those as well as 
other personnel actions (such as promotion and leave 
authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or 
with respect to the function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity 
or function for which the employee has authority. A first line 
supervisor is not considered to be acting in a managerial capacity 
merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. § 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in 
which the employee primarily 
(i) 
 directs the management of the organization or a major component 
or function of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, 
or function; 
Page 4 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the 
organization. 
On Form 1-140, filed on April 23, 2007, the petitioner indicated that the beneficiary would be 
employed as its chief executive officer. In a letter of support dated April 10, 2007, the petitioner 
provided the following list of the beneficiary's proposed duties: 
(1) 
 Directing Marketing to Expand New Customers[:] 
[The beneficiary] directs marketing to expand new customers in various regions 
of the U.S. [The beneficiary] will also manage and support sales activities of [the 
foreign entity] as Vice President of extech Co. Ltd. In addition, he 
will plan and direct networking of U.S. spinners, and exploring of new spinners. 
(2) Reinforcing Organization: 
[The beneficiary] is fully authorized to hire employees of [the petitioner]. To 
enforce supporting role of [the petitioner] and to establish solid infrastructure of 
U.S. market for Parent Company, [the beneficiary], as discussed, plans to hire 5 
more employees by the end of 2008. 
(3) Market Research and Analysis: 
[The beneficiary] watches for updated market information, industry trend, new 
technology, customer demands, and best prices of fabric and textile products with 
new style and design, and analyzes and reports these to the parent company in 
Honduras. The research data are used to develop market strategy as well as to 
better equip the parent company in their manufacturing and R&D procedures. 
(4) 
 Developing and Implementing Marketing Policies: 
[The beneficiary] enhances regional marketing policies and implements those 
policies which are realized in the actual marketing programs such as sales 
promotions and advertisements. 
The petitioner also submitted copies of the petitioner's Foms DE-6, Quarterly Wage and 
Withholding Report, for the State of California for all four quarters of 2006, as well as the 
second, third and fourth quarters of 2005. These forms indicated that the beneficiary and one 
other employee,- worked for the petitioner immediately prior to the filing of the 
petition. 
On December 31, 2007, the director issued a request for additional evidence. The director 
requested more details pertaining the beneficiary's duties and the amount of time the beneficiary 
devoted to each of these duties. In a response dated January 25, 2008, the petitioner addressed 
the director's request, and provided the following clarification with regard to the beneficiary's 
duties: 
The current position of president, as explained in our letter submitted first, 
requires exercise of executive responsibilities, but not all, it also includes a kind 
of market research responsibilities. Since the duties of market research and 
analysis among those assigned to the beneficiary are predictable of marketing 
activities, they could not be ignored. On the contrary, these kinds of duties are 
more highly required under the circumstances of our company when we are 
considering the start-up stage and numbers of staffs. We think that every 
employee including president has to be all-round player in our situations. Upon 
the basis of market data well analyzed, we can draw up best marketing policies, 
and therefore the former duties are inseparable from the latter, duties to develop 
and implement marketing policies that the beneficiary should first carry out in the 
U.S. 
The petitioner also provided the following breakdown of the percentage of time the beneficiary 
would devote to his duties: 
Specific Job 
Duties 
Direct Marketing to 
Expand New 
Customers (60%) 
Reinforce 
Organization (5%) 
Market Research 
and Analysis (1 5%) 
Develop and 
Implement 
Marketing Policies 
(20%) 
Detailed Description 
Developing new customers 
Setting supplier network 
Importing and distributing parent's 
products 
Hiring and training new staffs 
Researching, analyzing U. S. textile 
markets 
Analyzing U.S. yarn supply 
industry 
Support customer requirement 
Establishing and implementing 
marketing plans and strategies 
Planning sales promotion 
Developing and managing parent 
company' s investment 
opportunities 
Percentage of Time 
(YO) 
20 
10 
30 
5 
5 
5 
5 
10 
5 
5 
Hours 
per Week- 
8 
4 
12 
2 
2 
2 
2 
4 
2 
2 
- 
Page 6 
The petitioner also submitted copies of its Forms W-2, Wage and Tax Statement for 2006, 
showing that the beneficiary earned $84,000 and that ed $30,000. 
Total 
On February 14, 2008, the director denied the petition. The director noted that other than 
possessing a managerial title, the beneficiary's position as a manager or executive required 
further review. Specifically, the director noted that it did not appear that the beneficiary was 
engaged primarily in managerial or executive tasks, and instead appeared to be primarily 
engaged in performing the marketing functions of the company. The director also noted that the 
current organizational hierarchy of the petitioner, with only one other employee in addition to the 
beneficiary, did not support a finding that the beneficiary would be employed in a primarily 
managerial or executive capacity. 
On appeal, counsel for the petitioner submits a detailed brief and a declaration form counsel, 
alleging that the director's conclusions were erroneously based on the size of the petitioning 
entity. Moreover, counsel claims that the beneficiary is managing an essential function of the 
petitioner, and simultaneously claims that the beneficiary is managing a professional employee. 
Counsel submits additional documentary evidence in support of these claims. 
100 
Upon review, the AAO concurs with the director's findings. 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. 8 204.5(j)(5). The petitioner must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or 
managerial capacity pursuant to the definitions at section 101 (a)(44) of the Act. At a minimum, 
the petitioner must establish that the beneficiary's responsibilities will meet the requirements of 
one or the other statutory definitions. 
40 
The definitions of executive and managerial capacity each have two parts. First, the petitioner 
must show that the beneficiary performs the high level responsibilities that are specified in the 
definitions. Second, the petitioner must prove that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his or her time on day-to-day 
functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 
30, 1991). 
Although the petitioner provided a detailed list of the beneficiary's duties with the petition, this 
list is nondescript and appears to focus primarily on market research and analysis. Based upon 
the evidence submitted, it cannot be determined that the beneficiary would be primarily engaged 
in qualifying managerial and executive duties. Specifically, in both the initial letter of support 
and in the response to the request for evidence, the petitioner identifies the beneficiary four main 
tasks: (1) directing marketing to expand new customers; (2) "reinforcing organization"; (3) 
market research and analysis; and (4) developing and implementing marketing policies. The 
general headings provided, with the brief statements accompanying them in the documentary 
Page 7 
evidence, do little to clarify how tasks which are clearly marketing-based equate to managerial or 
executive tasks as contended by the petitioner. 
As previously stated, whether the beneficiary is a managerial or executive employee turns on 
whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner's 
chart outlining his duties, which provided a breakdown of the percentage of time he would 
devote to each area, indicates that 60% of his time will be devoted to "direct[ing] marketing to 
expand new customers," and an additional 15% of his time would be focused on "market 
research and analysis." Since marketing tasks do not fall directly under traditional managerial 
duties as defined in the statute, and an aggregate total of 75% of his duties are marketing-based, 
it appears that the beneficiary is not primarily employed in a managerial or executive capacity. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 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 Int 'l., 19 
I&N Dec. 593, 604 (Comm. 1988). Since marketing is integral to the expansion and continued 
prosperity of a company, it is apparent that the beneficiary is not employed primarily in a 
qualifying capacity. 
The AAO will next examine the petitioner's organizational structure. 
 The organizational 
structure of the petitioner indicates that the beneficiary works with one other person; namely, 
f 
Although the petitioner provided details about the organizational hierarchy of the 
oreign entity, the petitioner failed to provide information pertaining to the 
 role in the 
U.S. entity. Prior to adjudication, 
 title and .ob duties were not addressed or identified 
by the petitioner. On appeal, counsel contends that 1 the company's Sales Manager, 
and claims that he is a professional employee by virtue of his bachelor's degree in foreign studies 
from Hankook University and his 25 years of experience in the industry. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 5 1 0 1 (a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the 
field of endeavor. Section 101 (a)(32) of the Act, 8 U.S.C. @ 1 101 (a)(32), states that "[tlhe term 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." The term 
"profession" contemplates knowledge or learning, not merely skill, of an advanced type in a 
given field gained by a prolonged course of specialized instruction and study of at least 
baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor. 
Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Page 8 
Therefore, the AAO must focus on the level of education required by the position, rather than the 
degree held by subordinate employee. The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a 
professional capacity as that term is defined above. In the instant case, the petitioner has not, in 
fact, established that a bachelor's degree is actually necessary to perform duties as 
sales manager. The petitioner's failure to provide additional evidence pertaining to the position 
and duties of the sales manager within the organizational hierarchy renders it impossible to make 
such a determination independently. Although well-reasoned, without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof 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). 
A managerial or executive employee must have authority over day-to-day operations beyond the 
level normally vested in a first-line supervisor, unless the supervised employees are 
professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). For the reasons discussed above,wot be classified as a professional employee 
based on the current record of proceeding. 
In anticipation of this conclusion, counsel relies on Mars Jewelers Inc. v. I.N.S., 702 F. Supp. 
1570 (N.D. Ga. 1988). Specifically, counsel asserts that the court in this case found that the 
plaintiff "was not in fact a first line supervisor because the organization had no supervisors other 
than the plaintiff' and that the plaintiff merely reported to the Board of Directors in England. 
Counsel equates this holding to the case at hand, asserting that the beneficiary is the only 
supervisor of the petitioner and that he reports only to the owners of the foreign company in 
Honduras. 
Upon review, counsel's reliance on Mars Jewelers Inc. v. I.N.S. is misplaced. The court clearly 
states in its decision that the error made by the legacy Immigration and Naturalization Service 
(INS) was applying the 1987 regulations instead of the 1983 regulations to a petition filed in 
1986. Mars Jewelers, Inc. v. I.N.S., 702 F. Supp. at 1570, 1575. Thus, while the court found that 
the beneficiary in that matter was not a first-line supervisor under the 1983 regulations, it implied 
that this would not have been the case had the 1987 regulations applied. Id. at 1575. 
Specifically, the court in Mars Jewelers Inc. v. I. N.S. stated the following: 
It is apparent that the INS was inappropriately applying its 1987 regulations to 
this factor. Under the 1987 regulations, one of the requirements of a manager is 
that he "supervises and controls the work of other supervisory, professional or 
managerial employees. . . ." 8 C.F.R. 214.2(l)(l)(ii)(B) (1988). This language is 
not in the 1983 regulations. 
Id. (footnote omitted). 
Page 9 
Thus, contrary to the assertions of counsel as the present petition was filed in 2004, it would 
have been legal error for the director to apply the obsolete 1983 regulations and the holding in 
Mars Jewelers Inc. v. L N.S. to the present matter. 
Therefore, in determining whether the beneficiary is a first-line supervisor, it is irrelevant under 
the current regulations whether the beneficiary is supervised by other higher-ranking employees. 
What is relevant is the beneficiary's subordinate staff and whether any are supervisory or 
managerial (as discussed supra) and whether they are sufficient to relieve him from engaging in 
the day-to-day operations of the business. 
While counsel relies heavily on Mars Jewelers, Inc. in support of the premise that the director 
erred in examining the size of the petitioning entity in reaching the decision, counsel fails to 
recognize or discuss the subsequent holding in Systronics, which, as discussed above, permits 
United States Citizenship and Immigration Services (USCIS) to examine an entity's size in 
relation to the reasonable needs of the entity. Consequently, counsel's reliance on Mars Jewelers 
is misplaced and will not be considered for purposes of this analysis. 
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 determining factor in denying a visa to a 
multinational manager or executive. See 8 101 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (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. Systronics Corp. v. INS, 153 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 
facts asserted are true. Id. 
At the time of filing, the petitioner was fabric and textile wholesaler that had been in business for 
approximately two years and claimed to have a gross annual income of $271,680. The firm 
employed the beneficiary as president, plus a sales manager. The AAO notes both of the 
employees have managerial or executive titles. The petitioner did not submit evidence that it 
employed any subordinate staff members who would perform the actual day-to-day, non- 
managerial operations of the company. Based on the petitioner's representations, it does not 
appear that the reasonable needs of the petitioning company might plausibly be met by the 
services of the beneficiary as president and one managerial employee. Furthermore, the 
reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See 
sections 101 (a)(44)(A) and (B) of the Act, 8 U.S.C. 8 1 101 (a)(44). The reasonable needs of the 
petitioner may justify a beneficiary who allocates 51 percent of his duties to managerial or 
executive tasks as opposed to 90 percent, but those needs will not excuse a beneficiary who 
spends the majority of his or her time on non-qualifjmg duties. 
As stated above, the description of duties provided does not provide enough information to 
adequately assess the relationship between the beneficiary and the sales manager. Moreover, it is 
unclear whether the petitioner employs secretarial or administrative staff to operate the business 
and perform day-to-day tasks. The brief and vague overview of the beneficiary's role in the 
company, coupled with the unresolved issues surrounding the beneficiary's subordinate staff, 
precludes a determination that the beneficiary is relieved fiom responsibility for many of the 
day-to-day functions essential to the petitioner's business. While performing non-qualifying 
tasks necessary to produce a product or service will not automatically disqualify the beneficiary 
as long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the 
burden of establishing that the beneficiary is "primarily" performing managerial or executive 
duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" 
manager turns in part on whether the petitioner has sustained its burden of proving that his duties 
are "primarily" managerial. 
On appeal, counsel also asserts that the beneficiary is a function manager. The term "function 
manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 1 01 (a)(44)(A)(ii). The 
term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that 
clearly describes the duties to be performed, i.e. identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of the beneficiary's daily duties 
attributed to managing the essential function. 8 C.F.R. 9 204.5(j)(5). In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. In this matter, the 
petitioner has not provided evidence that the beneficiary manages an essential function. 
Specifically, the description of duties provided attributes 95% of the beneficiary's time to 
marketing research, analysis, development, and the acquisition of new customers through the 
import and distribution of the parent company's products. However, marketing research and 
analysis do not fall directly under traditional managerial duties as defined in the statute, and 
duties such as "implementing marketing strategies" and "planning sales promotion" suggest that 
the beneficiary plays a direct role in the performance of these services. Since the record 
indicates that the petitioner has only one other employee, it appears that the beneficiary performs 
the afore-mentioned marketing duties as opposed to merely managing this function for the 
company. As previously stated, 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. Boyang, Ltd. v. I.N.S., 67 F.3d 305. Therefore, the AAO finds that the 
beneficiary is not primarily performing the duties of a function manager. 
It is also noted that counsel refers to an unpublished decision in which the AAO determined that 
the beneficiary met the requirements of serving in a managerial and executive capacity for L-1 
classification even though he was the sole employee. Counsel has hished no evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decision. 
Page 11 
While 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Finally, as an additional form of evidence, counsel submits a signed declaration attesting to the 
validity of the petition and the eligibility of the beneficiary for the beneficiary sought. As 
previously stated, without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 533; Matter of Laureano, 19 I&N 
Dec. 1 ; Matter of Ramirez-Sanchez, 17 I&N Dec. at 503. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
Beyond the decision of the director, the record contains insufficient evidence to establish that the 
beneficiary has at least one continuous year of full-time employment abroad with a qualifying 
organization within the three years preceding the filing of the petition, as required by 8 C.F.R. 8 
2 14.2(1)(3)(iii). 
In a letter of support dated April 16, 2007, counsel for the petitioner claimed that the beneficiary 
had been employed by the foreign entity in Honduras since February 2004, and was transferred 
to the United States in L- 1A status in September 2005. The petitioner. in its April 10,2007 letter 
of support, specifically claims that the'beneficiary "servei S.A. DE 
C.V. in Republic of Honduras . . . as Senior Managing Director for more than one year 
immediately prior to entering the U.S. in L- 1 status." 
A review of the beneficiary's Form G-325A, Biographic Information, claims that the beneficiary 
never resided in Honduras, and rather resided in Seoul, Korea from April 1989 to September 
2005. The AAO notes that there is a third entity based in Seoul, ~orea, called 
and referred to as the "grand parent company," the petitioner claims that the 
foreign employer in this matter is 
 S.A. de C.V. in Republic of 
- 
~on&ras, and not - Ltd., the Korean entity. 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). Because the petitioner has failed to clarify the exact name and location of 
the beneficiary's employer during the relevant period, the petitioner has failed to satisfy the 
requirements of 8 C.F.R. § 2 14.2(1)(3)(iii). For this additional reason, the petition may not be 
approved. 
Finally, the petitioner has failed to establish that the petitioner has the ability to pay the proffered 
wage. 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 
Page 12 
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 proffered wage of $136,800 per 
1 
year. 
 While the petitioner appeared to pay partial wages in the amount of $84,000 to the 
beneficiary, this amount is insufficient to establish its ability to pay the proffered wage in these 
proceedings. 
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 WoodcraP Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also 
Chi-Feng Chang v. Thornburgh, 71 9 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. 
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 April 23, 2007, the AAO must examine the petitioner's tax 
return for 2006. The petitioner's IRS Form 1120 for calendar year 2006 presents a net taxable 
income of $16,846. The petitioner could not pay a proffered wage of $136,800 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 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. Upon 
review of the petitioner's current assets and current liabilities as set forth on Schedule L of its 
2006 Form 1120, it is apparent that the petitioner's net current assets are insufficient to cover the 
beneficiary's proffered wage. 
It is noted that in its letter of support dated April 10, 2007, the petitioner claims that the 
beneficiary's compensation will come from both the petitioner and the foreign entity in 
Honduras. 
Page 13 
It is noted that the petitioner submitted also its commercial bank statements from UnitiBank to 
demonstrate that it had sufficient cash flow, to pay the proffered wage. However, there is no proof 
that they somehow represent additional knds beyond those of the tax returns. Simply going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). 
Accordingly, the evidence of record does not establish the petitioner's ability to pay the 
proffered wage. For this additional reason, the petition cannot be approved. 
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), affd. 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). 
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. Here, that burden has not 
been met. 
ORDER: The appeal is dismissed.