dismissed EB-1C Case: Venture Capital

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PUBLIC COPY 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 07 162 51293 
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. 5 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. 
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. 3 103.5 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, as required by 8 C.F.R. 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Florida. 
 It seeks to employ the 
beneficiary as its chief executive officer (CEO). 
 Accordingly, the petitioner endeavors to classify 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. 5 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity; and 2) the petitioner 
failed to establish that it has the ability to pay the beneficiary's proffered wage. 
On appeal, counsel disputes the director's conclusions and submits a statement, explaining his opposition to 
the adverse decision. 
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 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 the proceeding is whether the petitioner has established that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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. 5 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; 
(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. 
In support of the Form 1-140, the petitioner submitted a letter dated April 27,2007, which included a brief list 
of the beneficiary's key responsibilities in his proposed position with the U.S. entity. The list is included in 
the director's adverse decision and need not be repeated in the present discussion. In the same letter, the 
petitioner provided a list of the names and position titles for the four employees, not including the beneficiary, 
whom the petitioner claimed to employ at the time of filing. The list included two business development 
managers, an office and compliance manager, and a vice presidentlventure capitallspecial opportunities 
1 
manager. 
On May 21, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a description of the beneficiary's proposed job duties in much greater detail than what was provided 
in the April 27, 2007 support letter. The petitioner was expressly instructed to list the specific daily tasks that 
were involved in the completion of the duties listed in the support letter, accompanied by an estimate of the 
percentage of time that would be dedicated to each enumerated task. 
In response, counsel provided a letter dated August 5,2008 in which she referenced (and provided a copy of) 
the petitioner's initial support letter, which contained the primary list of duties and responsibilities. Counsel's 
resubmission of this document is unclear, as the director had already determined that the information 
contained therein was insufficient, thereby explaining the basis for the issuance of an RFE. Additionally, 
counsel supplemented the initial list with three paragraphs further discussing the beneficiary's proposed 
employment. Although counsel assigned a percentage of time to each paragraph, the AAO notes that the 
director's express instruction was for the petitioner, rather than c~unsel,~ to provide the supplemental job 
description and for that description to consist of a list of specific daily tasks with the percentage of time 
assigned to each task, not to a group of tasks or to a related group of job responsibilities. The petitioner also 
provided an updated list of employees, including those who were apparently hired after the filing of the Form 
1-1 40. While the updated staffing information appears to be in direct response for the director's request for a 
current organizational chart, precedent case law mandates that 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 (Comm. 1971). As such, U.S. 
Citizenship and Immigration Services (USCIS) must consider the petitioner's organizational hierarchy as it 
existed at the time of filing in order to determine whether the petitioner was eligible to classify the beneficiary 
as a multinational manager or executive as of the priority date. 
In a decision dated September 23, 2008, the director denied the petition, concluding that the petitioner failed 
to provide an adequate job description containing the requisite degree of detail. The director also found that 
the petitioner lacked the organizational complexity to warrant the employment of the beneficiary in a 
primarily executive capacity. 
On appeal, counsel submits a brief, arguing that the beneficiary's proposed position fits under the statutory 
definitions for managerial and executive capacity. Counsel further contends that the director placed undue 
emphasis on the size of the petitioning entity's support staff without taking into account the reasonable needs 
of the organization. While counsel is correct in stating that the size of a company's personnel cannot be the 
sole consideration in determining the petitioner's eligibility, this factor is relevant and should be considered, 
as it allows USCIS to gauge the petitioner's ability to relieve the beneficiary from having to primarily engage 
in the daily operational tasks of an organization. When a petitioner fails to provide a detailed description of 
the beneficiary's proposed tasks within the context of the organizational hierarchy at the time of filing, USCIS 
1 
 As duly noted in the denial, the petitioner also provided a company brochure in which "vice president" was left out of 
the position title for the individual occupying the position of special opportunities manager. While the AAO takes note 
of this minor discrepancy, there is no evidence that this anomaly impacts the beneficiary's proposed position. 
See 8 C.F.R. 5 204.5(i)(5). 
can only conclude that the beneficiary would be required to assist with daily operational tasks and would not 
be able to focus on primarily qualifying managerial or executive tasks. 
Moreover, in reviewing the relevance of the number of employees a petitioner has, federal courts have 
generally agreed that USCIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Family, Inc. v. US. Citizenship and 
Immigration Services, 469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 
923 F.2d 175, 178 (D.C. Cir. 199 1); Fedin Bros. Co. v. Sava, 905 F.2d 4 1, 42 (2d Cir. 1990) (per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Thus, while the AAO concedes the 
beneficiary's placement at the top level within the petitioner's organizational hierarchy, this single factor does 
not displace the significance of other factors, including a detailed description of the proposed tasks and 
evidence of adequate staffing enabling the petitioner to relieve the beneficiary from having to primarily 
perform non-qualifying operational job duties. 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 International, 19 I&N 
Dec. 593,604 (Comm. 1988). 
As stated above, while the AAO takes note of the expansion in the petitioner's staff, the petitioner's eligibility 
must be established based on the facts that were in existence at the time the Form 1-140 was filed. See Matter 
of Katigbak, 14 I&N Dec. at 49. In the present matter, the petitioner did not employ any marketing, graphic 
design, or administrative personnel at the time of filing. However, there is no explanation as to who, at the 
time of filing, was performing the tasks that are currently assigned to these additional employees. 
Counsel stresses the beneficiary's discretionary authority in expanding the business by developing new 
markets. However, much like the single factor of the beneficiary's top placement within the petitioner's 
hierarchy, the beneficiary's discretionary authority is also not a determining factor. Rather, his authority must 
be considered within the context of the specific tasks the beneficiary would perform on a daily basis. At the 
time of filing, the petitioner was staffed with four employees in addition to the beneficiary. It is the 
petitioner's burden to specifically define what actual tasks the beneficiary was performing at the time of filing 
given its staffing structure. It is noted that the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afSd, 905 F.2d 4 1 (2d. 
Cir. 1990). Thus, if counsel claims that approximately 40% of the beneficiary's time was spent making 
decisions about growth into different markets, evaluating the petitioner's potential competitors, deciding how 
the petitioner will distinguish itself, and forming partnerships with other entities, it is the petitioner's 
responsibility to establish what actual underlying tasks the beneficiary would perform to meet these business 
goals. Moreover, counsel indicated that part of that 40% would include hiring a team of employees to ensure 
that the petitioner attains its desired business goals. It is therefore unclear whether the staffing at the time of 
filing was sufficient to allow the beneficiary to carry out the four remaining responsibilities, as the petitioner 
was not yet fully staffed. 
Counsel also claimed that another 30% of the beneficiary's time would be spent establishing and executing an 
operating plan, which would include assessing company expenditures and determining fund allocation. 
Again, while these statements generally convey the fact that the beneficiary would be charged with broad 
discretionary authority over all business matters, they fail to convey a meaningful understanding of the 
specific tasks the beneficiary would perform to ensure that these broad business objectives are met. Reciting 
the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations 
require a detailed description of the beneficiary's daily job duties. See 8 C.F.R. 3 204.5(j)(5). 
In summary, the petitioner has failed to comply with the director's request for a detailed description of the 
beneficiary's proposed daily tasks. Thus, given this deficiency coupled with the petitioner's limited staffing, 
the AAO is unable to determine whether the petitioner was able to relieve the beneficiary from having to 
primarily perform non-qualifying tasks at the time of filing. On the basis of this initial determination, the 
AAO cannot approve the petition in the instant matter. 
The other issue in this proceeding is whether the petitioner established its ability to pay the beneficiary's 
proffered wage. The regulation at 8 C.F.R. 3 204.5(g)(2) states the following, in pertinent part: 
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 either in the form of copies of annual reports, federal 
tax returns, or audited financial statements. . . . In appropriate cases, additional evidence, such 
as profitlloss statements, bank statements, or personnel records, may be submitted by the 
petitioner or requested by the Service. 
As properly noted by the director, Part 6 of the Form 1-140 indicates that the beneficiary will be remunerated at a 
rate of $1 80,000 per year under an approved petition. While the petitioner is under no obligation to actually pay 
the proffered wage prior to the petition's approval, the petitioner must nevertheless establish that it was able to 
pay that wage at the time of filing. See id. 
The petitioner was instructed in the RFE to provide documentation establishing that it meets the provisions 
contained within 8 C.F.R. 3 204.5(g)(2). In counsel's August, 5, 2008 response letter, counsel stated that the 
petitioner's parent entity "continues to provide financial support to the company." Although counsel 
acknowledged that the $717,021 the petitioner had received in loans is categorized as a liability, she argued that 
the petitioner has nearly three quarters of one million dollars in operating capital and that this amount is sufficient 
to establish the petitioner's ability to pay. Counsel also pointed out that the petitioner is still in its initial growth 
phase and that as a result, USCIS should consider other evidence, citing Matter of Sonegawa, 12 I&N Dec. 612 
(Reg. Comm. 1967), in support of her argument. 
In the denial, the director rejected counsel's prior arguments, focusing instead on the financial figures that 
represented the petitioner's net income and net assets at the time of filing. First, the director determined that, 
while the evidence on record established that the petitioner employed the beneficiary at the time of filing, it did 
not pay the beneficiary a salary that was equal to or greater than the proffered wage and that as a result, there was 
noprima facie proof of the petitioner's ability to pay the beneficiary's salary. 
As an alternate means of determining the petitioner's ability to pay, the director examined the petitioner's net 
income figure as reflected on the federal income tax return, without consideration of depreciation or other 
expenses. Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the 
proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 
1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd, v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); 
see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C. P. Food Co., Inc. v. Sava, 
623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 
(7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court held the Immigration and Naturalization Service 
(now USCIS) 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. Accordingly, the director focused on Line 22 of the 
petitioner's 2007 tax return, which showed a negative business income in the amount of $325,590. 
Next, in light of the petitioner's negative business income, the director considered the petitioner's net current 
assets, explaining that the net current assets are the difference between the petitioner's current assets and 
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. The director's 
calculation showed that the petitioner's net current assets in 2007 were negative $375,032. 
Additionally, although the director acknowledged the petitioner's submission of unaudited financial 
statements from December 2007 to April 2008 as well as bank statements from January 2007 to March 2008, 
he determined that none of these documents could be used to establish the petitioner's ability to pay. While 
acknowledging that additional evidence may be permitted in certain instances, the director explained that 
additional evidence need not be considered in the present matter, as there is no indication that the evidence 
expressly required by regulation was inapplicable, inaccurate, or unavailable in the present matter. 
On appeal, counsel argues that USCIS must consider the "totality of the circumstances," again citing Matter of 
Sonegawa in support of her argument. 12 I&N Dec. 612. In Matter of Sonegawa, the Regional Commissioner 
considered an immigrant visa petition which had been filed by a small "custom dress and boutique shop" on 
behalf of a clothes designer. Id. The district director denied the petition after determining that the beneficiary's 
annual wage of $6,240 was considerably in excess of the employer's net profit of $280 for the year of filing. On 
appeal, the Regional Commissioner considered an array of factors beyond the petitioner's simple net profit, 
including news articles, financial data, the petitioner's reputation and clientele, the number of employees, future 
business plans, and explanations of the petitioner's temporary financial difficulties. Despite the petitioner's 
obviously inadequate net income, the Regional Commissioner looked beyond the petitioner's uncharacteristic 
business loss and found that the petitioner's expectations of continued business growth and increasing profits were 
reasonable. Id. at 615. Based on an evaluation of the totality of the petitioner's circumstances, the Regional 
Commissioner determined that the petitioner had established the ability to pay the beneficiary the stipulated 
wages. 
As indicated in Matter of Sonegawa, USCIS may, at its discretion, consider evidence relevant to a petitioner's 
financial ability that falls outside of a petitioner's net income and net current assets. USCIS may consider such 
factors as the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, or any other evidence that USCIS deems to be relevant to the petitioner's ability to pay the 
proffered wage. 
Page 8 
In the instant matter, counsel urges the AAO to consider the petitioner's relatively early stage of development 
and to apply the reasoning employed by the Regional Commissioner in Matter of Sonegawa. Id. However, 
many of the relevant facts in Matter of Sonegawa are significantly different from those in the instant matter. 
More specifically, the petitioner in Matter of Sonegawa had been doing business for eleven years and also had a 
business reputation, clientele, and a history of paying wages, all of which could be used to estimate future 
earnings and the ability to pay the proffered wage. See 12 I&N Dec. 612. In is noted that none of these factors 
are true of the petitioner in the present matter. In fact, in the petitioner's April 27, 2007 initial support letter, the 
petitioner indicated that its business had been launched "less than one year ago." Although this factor may 
explain the petitioner's inability to pay the beneficiary's proffered wage, it does not excuse the petitioner from the 
burden of meeting the provisions of 8 C.F.R. 5 204.5(g)(2). Thus, despite any evidence that the petitioner's 
foreign affiliate has supplied and would continue to supply all the funding necessary to financially support the 
petitioner's business operation, the fact remains that the petitioner must establish its own ability to pay the 
beneficiary's proffered wage, notwithstanding the ability of the foreign entity to meet that burden. See id. As 
discussed above, the petitioner has failed to establish its own ability to pay the beneficiary's proffered wage. 
Therefore, on the basis of this second adverse finding this petition cannot be approved. 
Lastly, while not addressed in the director's decision, a thorough review of the statements made in the petitioner's 
initial support letter lead the AAO to believe that there is a third basis for denial. Specifically, the letter dated 
April 27, 2007 mentioned "launching [the petitioner] less than one year ago," which brings into question the 
actual date the petitioner started doing business. The regulation at 8 C.F.R. 9 204.5(j)(3)(i)(D) states that the 
petitioner must establish that it has been doing business for at least one year prior to filing the Form 1-140. 
The regulation at 8 C.F.R. 5 204.5(j)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." 
Although the AAO recognizes that the Form I- 140 was filed on May 1 1, 2007, which is approximately three 
weeks subsequent to the date on the support letter, the indication that the petitioner had not been doing 
business for one full year as of April 27, 2007 is sufficient to question whether the petitioner had been able to 
meet the regulatory 12-month time requirement when the petition was actually filed three weeks later. It is 
noted that going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In the present matter, the 
petitioner claims to be a financial services provider. While the petitioner has provided bank records and 
financial documentation, these documents fail to establish that the petitioner was doing business in the 
manner and within the time prescribed by regulation. 
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). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1 043, 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. Lj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.