dismissed EB-1C Case: Wholesale Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re: 6500373 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 30, 2020 
Form I-140C, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, describing itself as a wholesale distributor, seeks to permanently employ the 
Beneficiary as an "executive manager" in the United States under the first preference immigrant 
classification for multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Texas Service Center denied the petition on multiple grounds, concluding that the 
Petitioner did not establish that: (1) the Petitioner was doing business as defined by the regulations; 
(2) Beneficiary would be employed in a managerial or executive capacity in the United States; (3) the 
Beneficiary was employed in a managerial or executive capacity in his former position abroad; and 
(4) the Petitioner had the ability to pay the Beneficiary's proffered wage . 
On appeal, the Petitioner points to 2015 tax documentation and asserts that this demonstrates it was 
doing business as required by the regulations and that it had the ability to pay the Beneficiary's proffered 
wage. Further, the Petitioner contends that it submitted detailed duty descriptions for the Beneficiary 
that establish he acted in a managerial or executive capacity abroad and that he would act in a managerial 
or executive capacity in the United States. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
II. PETITIONER DOING BUSINESS 
The first issue we will address is whether the Petitioner established that it had been doing business for 
at least one year prior to the date the petition was filed. 
The regulations require that the beneficiary work in the United States for the same employer or a 
subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.5(j)(3). The regulations define doing business as 
"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." 8 C.F.R. § 204.5(j)(2). 
In support of the petition, the Petitioner submitted the Beneficiary's 2015 IRS Form 1040 U.S. 
Individual Income Tax Return reflecting in schedule C that he reported $953,419 in revenue for the 
Petitioner as a sole proprietorship. 1 In a request for evidence (RFE), the Director requested that the 
Petitioner submit supporting documentation to substantiate that had been doing business for at least 
one year prior to the date of the petition, including leases, purchase agreements, federal income tax 
returns, employer's quarterly tax returns, invoices, contracts, and/or other such relevant 
documentation. In response, the Petitioner submitted a letter stating that "due to health issues, [the 
Petitioner] has paralyzed most of its activities in 201 7 but is now returning with foll activity for the 
year 2018." Further, the Petitioner provided the Beneficiary's 2017 IRS Form 1040 indicating in 
schedule C that the sole proprietorship did not earn any revenue in 201 7. On appeal, the Petitioner 
again points to the Beneficiary's 2015 IRS Form 1040 and notes that this reflects it earned over 
$950,000 in revenue and approximately $126,000 in income during that year. 
The Petitioner's statements and the supporting evidence indicate that it was not regularly, 
systematically, and continuously providing goods or services as of the date the petition was filed and 
for at least one year prior to this date. As discussed, the Petitioner acknowledged that it had "paralyzed 
most of its activities in 2017" and submitted supporting 2017 IRS Form 1040 indicating that it did not 
generate any revenue during that year. The Petitioner submits no evidence to remedy this deficiency 
on appeal, but only emphasizes tax documentation from 2015. However, this tax document is dated 
well before the date the petition was filed and does not demonstrate that it was doing business as of 
the date the petition was filed in February 2017 or for at least one year prior to this date. In addition, 
it is noteworthy that the Petitioner provides no other evidence that it was regularly providing goods 
and services as of February 2017 or during 2016, despite the Director's evidentiary request. We 
acknowledge that the Petitioner submitted several invoices meant to demonstrate the sale of goods; 
however, these invoices are all dated in 2018 and do not reflect its regular provision of goods or 
services as of the date the petition was filed or for at least one year prior to this date. We note that the 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
1 The petition was filed on February 28, 2017. 
2 
For the foregoing reasons, the Petitioner has not established that it was doing business as of the date 
the petition was filed and for at least one year prior to this date. 
III. ABILITY TO PAY 
The next issue we will address is whether the Petitioner established that it had the ability to pay the 
Beneficiary's proffered wage. 
The pertinent regulation at 8 C.F.R. § 204.5(g)(2) states: 
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 a case where the prospective United States employer employs 100 or 
more workers, the director may accept a statement from a financial officer of the 
organization which establishes the prospective employer's ability to pay the proffered 
wage. In appropriate cases, additional evidence, such as profit/loss statements, bank 
account records, or personnel records, may be submitted by the petitioner or requested 
by the Service. 
In determining a petitioner's ability to pay the proffered wage, we first examine whether it has paid 
the beneficiary the full proffered wage each year from the priority date. If the petitioner has not paid 
the beneficiary the full proffered wage each year, we will next examine whether the petitioner had 
sufficient net income or net current assets to pay the difference between the stated wage and the 
proffered wage. If the petitioner's net income or net current assets are not sufficient to demonstrate 
its ability to pay the proffered wage, we may also consider the overall magnitude of the company's 
business activities. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
The Petitioner indicated that the Beneficiary would earn $780 per week under an approved petition, 
or approximately $40,560 per year. The Petitioner did not submit evidence that it was paying the 
Beneficiary's proffered wage as of the date the petition was filed. On appeal, the Petitioner again 
points to the Beneficiary's 2015 IRS Form 1040 and states that this reflects a net income of over 
$125,000, an amount sufficient to pay his proffered wage. However, the Beneficiary's 2015 IRS Form 
1040 is relevant to a time period well before the date the petition was filed and does not establish the 
Petitioner's ability to pay the Beneficiary's proffered wage in February 2017. In fact, the Petitioner 
submitted a 2017 IRS Form W-2 Wage and Tax Statement reflecting that the Beneficiary was paid 
only $15,000 by a different unidentified company, I I, not the Petitioner. 
Further, as we have discussed, the Petitioner acknowledges that it "mostly paralyzed" its operations 
in 2017 and provided the Beneficiary's 2017 IRS Form 1040 indicating that it earned no revenue 
during that year, thereby leaving substantial uncertainty as to its ability to pay the Beneficiary's wage 
as of the date the petition was filed. The Petitioner provides no contemporaneous objective evidence 
to establish that it had the ability to pay the Beneficiary wage as of the date the petition was filed in 
February 2017. The Petitioner must resolve inconsistencies and ambiguities in the record with 
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independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). Again, the Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). 
For the foregoing reasons, the Petitioner has not established that it had the ability to pay the 
Beneficiary's wage as of the date the petition was filed. 
IV. REMAINING ISSUES 
As we have discussed, the Director also denied the petition concluding that the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
States or that he was employed abroad in one of these capacities. Because of the dispositive effect of 
the above findings of ineligibility, we will only briefly address the remaining issues addressed by the 
Director. 
In denying the petition on these grounds, the Director concluded that the Petitioner submitted generic 
duties for the Beneficiary that did not effectively convey his actual day-to-day managerial or executive 
tasks abroad or in the United States. The Director farther noted that the Petitioner did not submit more 
detailed duties in response to the RFE, but only resubmitted the same generic duties specific to the 
Beneficiary's former role abroad and his proposed capacity in the United States. On appeal, the 
Petitioner again resubmits the same foreign and U.S. duties. It asserts that these duties are "detailed" 
and that the Director's analysis in the denial was "out ofreality." 
Upon review, we concur with the Director's conclusion that the Petitioner did not establish that the 
Beneficiary was employed abroad or in the United States in a managerial or executive capacity. For 
instance, the Petitioner set forth several generic duties for the Beneficiary abroad that could apply to 
any executive or manager acting in any industry and these vague tasks did not sufficiently corroborate 
his day-to-day tasks abroad. For instance, the Petitioner indicated that the Beneficiary was tasked 
abroad with preparing "business plans, campaigns, and special development plans," analyzing 
"operational systems and designation of products," evaluating the "final section [sic] of equipment," 
establishing "operational objectives," developing "contacts with existing and potential clients," 
negotiating "sales contracts," and investigating "potential product improvements." However, the 
Petitioner submitted few specifics and no supporting documentation to substantiate the business plans 
and campaigns the Beneficiary worked on, the operational systems he analyzed, equipment he dealt 
with, operational objectives he set, clients he developed, or contracts he negotiated. Likewise, the 
Petitioner provided similarly vague duties for the Beneficiary's proposed U.S. employment and did 
not articulate or document the administrative matters he would oversee, policies and strategies we 
would work on, executive decisions he would make, contracts he would negotiate, costs he would 
reduce, or budgets he would allocate. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily managerial 
or executive in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 
41 (2d. Cir. 1990). The Petitioner did not provide sufficiently detailed duty descriptions for the 
Beneficiary abroad or in the United States, evidence which is required to demonstrate his eligibility as 
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a manager or executive in each instance. The Director specifically noted these insufficiencies in the 
RFE and in the denial decision; however, the Petitioner still provides no additional detail or 
documentation with respect to the Beneficiary's duties and does not remedy these material deficiencies 
on appeal. 
In addition, as discussed, the submitted evidence indicates that the Petitioner was not doing business 
as of the date the petition was filed. As such, this leaves substantial question as to whether it was 
operating sufficiently to support the Beneficiary in a managerial or executive capacity as of the date 
the petition was filed; or more specifically, that it could employ subordinates in the United States to 
primarily relieve him from performing non-qualifying operational tasks. 
For these reasons, the Petitioner did not demonstrate that the Beneficiary was employed abroad in a 
managerial or executive capacity or that he would employed in either of these capacities in the United 
States. 
V. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that: (1) the Petitioner was 
doing business as defined by the regulations; (2) the Petitioner had the ability to pay the Beneficiary's 
proffered wage; (3) the Beneficiary was employed in a managerial or executive capacity in his former 
position abroad; and (4) Beneficiary would be employed in a managerial or executive capacity in the 
United States. 
ORDER: The appeal is dismissed. 
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