dismissed EB-1C Case: Wholesale Import

identifying data deleted to 
prevent clearly :nw arnnted 
invasion of personal pnvacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
WAC 08 001 5 1090 
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 1 153(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. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form 1-2908, 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. 5 103.5(a)(l)(i). 
I 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a corporation organized in the State of Georgia that claims to be in the business of 
importing glass, toys, and furniture for wholesale. It seeks to employ the beneficiary as its president. 
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 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner had not established that the 
beneficiary was employed by the foreign entity, or will be employed by the United States entity, in a 
primarily managerial or executive capacity. The director also found that the petitioner failed to 
establish that it has the ability to pay the beneficiary his proffered wages. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner contends that the 
director's decision is in error. Counsel submits a brief and additional evidence on appeal. 
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 I 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 the firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and 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 
Page 3 
offer in the form of a statement that 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. See 8 C.F.R. 5 204.5(j)(5). 
The first issue in the present matter is whether the beneficiary would be employed in a primarily 
managerial or executive capacity in the United States. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 1 1 Ol(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 10 1 (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. 
On the Form 1-140, Immigrant Petition for Alien Worker, filed on October 1, 2007, the petitioner 
described the beneficiary's proposed U.S. position as "develop and direct growth of business." In an 
undated letter to counsel, submitted with the Form 1-140, the petitioner reiterated: 
[Flor more than fifteen years until his official transfer to the U.S. in November of 
2006, [the beneficiary] had been our Assistant General Manager. As President of our 
branch in Georgia, [the beneficiary] has assumed the responsibility of directing and 
developing the growth of a new business. 
The petitioner provided no other information relating to the beneficiary's proposed position. 
On November 10, 2008, the director issued a request for further evidence (RFE). Among other 
things, the director requested evidence that the beneficiary would be hnctioning primarily in a 
managerial/executive capacity in his U.S. position. The director requested specific examples of 
managerial or executive tasks to be performed by the beneficiary; the number of subordinates, their 
duties, and level of education; and an organizational chart showing the beneficiary's position in the 
organization with respect to other managers. 
In a letter dated December 1, 2008 responding to the RFE, the petitioner stated the following in 
connection with the beneficiary's U.S. job responsibilities: 
[The beneficiary] supervises the staff of [the U.S. company] for our parent company 
in China. He holds meetings with them. He reviews their performance. He trains 
them the knowledge [sic] of glass production and handling. He exercises discretional 
authority and implements corporation policies of our parent company [sic]. He helps 
to communicate the needs, concerns and suggestions between the office in China and 
the office in the U.S. 
The petitioner also described some of the beneficiary's "accomplishments" for the company since his 
arrival in the United States, including: "helped the [U.S. company] to secure an agent role for GGI, 
one of the leading glass distributors in the U.S."; "present . . . information about the needs of the 
U.S. firm in an understandable fashion to our parent company"; "added two important personnel to 
the company in February and March 2007" (the IT & operation manager and the sales manager); 
"led the marketing team to find out a more practical and long-term position for the company"; "led 
[the] marketing team to do the Glass Build America show in Atlanta, GA"; "slash the original plan 
of selling flat glass [and] recommended to develop the shower door business"; and negotiating a 
The petitioner provided an organizational chart for the U.S. company as of September 2008, which 
places the beneficiary as president at the top of the hierarchy. Directly below him are the general 
manager and vice president. Below the general manager are a sales manager and an IT & operations 
manager, and below the vice president is a warehouse manager. The chart indicates that the general 
manager, sales manager and IT & operations manager possess bachelor's degrees. 
The petitioner also submitted a document entitled "Duties of Staff', which lists the duties of the 
beneficiary and other employees as follows: 
Liaison between office in the U.S. and the parent company in China 
Review financial reports 
Oversee logistics 
In charge of personnel, hiring and firing 
Approve purchases of merchandises and major equipments 
Assist [the beneficiary] in supervising of sales and IT operation 
Government regulation and insurance compliance 
Keep record of company 
Run central office and Accounting Department of the company 
Acts as interpreter for [the beneficiary] whenever needed 
- 
In charge of toy operation: Sourcing, purchasing, selling, market research, 
shipping, after sale service. 
Supervise shipping department and warehouse 
Call on all major glass distributors, shops, furniture manufactures [sic], and 
specialty vendors 
Market research 
Product development 
Supervise customer service, sales Reps. Relations 
Do trade shows 
Data base of inventory 
Product specification Data base 
Provide all IT help to the general manager 
Inventory control 
Warehouse supplies 
Page 6 
Shipping and receiving 
Warehouse safety and maintenance 
On December 18, 2008, the director denied the petition, concluding that the petitioner had not 
established that the beneficiary would be employed by the U.S. entity in a primarily managerial or 
executive capacity. Specifically, the director observed that the petitioner's response indicates that 
the beneficiary would "primarily perform the firm's marketing tasks by establishing agreements with 
various companies for future glass finished products." The director noted that the petitioner failed to 
describe clearly other duties of the beneficiary that would be managerial in nature, or clarify the 
amount of time such duties would occupy the beneficiary's daily work. The director further noted 
that the beneficiary has five subordinates who appear to function as workers rather than managers, 
despite their titles. Moreover, the director found, an assessment of the company's overall purpose 
and stage of development would suggest a need for a large staff involved in purchasing, inventory 
maintenance and sales, and the evidence does not show that the petitioner has such a staff, so that the 
beneficiary would be in a position to spend the bulk of his time on managerial or executive duties. 
On appeal, counsel pointed out that in his decision, the director had mistakenly referred to the 
beneficiary's current immigration status as L-1B rather than L-1A. Counsel contends that "this 
confusion is responsible in large part for the denial." Without offering further evidence, counsel 
claims that the evidence of record shows that the beneficiary's duties as president of the U.S. 
company are "clearly executive and managerial." 
At the outset, the AAO acknowledges that throughout his decision, the director erroneously stated 
that the beneficiary is presently in the United States in L-1B status, rather than the correct L-1A 
status. However, contrary to counsel's claim, this error is not germane to the reasons for denial 
stated in the director's decision, as the director properly set forth his assessment of the beneficiary's 
qualification as a multinational executive or manager based on the criteria set forth under section 
203(b)(l)(C) of the Act. Upon review, the AAO concurs with the director's conclusion that the 
petitioner has failed to establish that the beneficiary would be employed in a primarily executive or 
managerial capacity in the United States. 
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's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. Beyond the required 
description of the job duties, the U.S. Citizenship and Immigration Services (USCIS) reviews the 
totality of the record when examining the claimed managerial or executive capacity of a beneficiary, 
including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational 
duties, the nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. 
Further, it is noted that 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). Whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that the beneficiary's duties are "primarily" managerial 
or executive. See sections 101 (a)(44)(A) and (B) of the Act. 
The AAO agrees with the director's observation that the petitioner has provided a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary does 
on a day-to-day basis. In the initial petition, the petitioner merely stated that the beneficiary "has 
assumed the responsibility of directing and developing the growth of a new business." Even though 
the director requested a more detailed job description and specific examples of managerial and 
executive tasks to be performed by the beneficiary, the petitioner responded with more generalities. 
For example, the petitioner claimed that the beneficiary "supervises the staff," "holds meetings," 
"reviews [staffl performance," "trains [staffl," "exercises discretional [sic] authority and implements 
corporate policies," "oversees logistics," and acts as "liaison" between the U.S. office and the 
Chinese parent company. It is unclear based on the evidence what these general duties entail - what 
is involved in the supervision and training of the staff! What are the "logistics" that the beneficiary 
oversees? What "corporate policies" are being implemented? 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. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), agd, 905 F.2d 41 (2d. Cir. 1990). Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Id. 
It is noted that the organization chart for the U.S. company depicts two levels of subordinates below 
the beneficiary. 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 tj 10 1 (a)(44)(A)(ii) of the Act. Here, 
the record is insufficient to show that the beneficiary's subordinates in the U.S. company are indeed 
supervisory, professional, or managerial personnel. Although all five members of the beneficiary's 
staff have managerial or executive titles, it is not clear based on the information provided that any of 
these employees in fact function in a "supervisory or managerial" capacity. For example, the vice 
president is described as being "in charge of toy operation" including "sourcing, purchasing, selling 
market research, shipping and after sale service," and "supervis[ing] shipping department and 
warehouse." However, below the vice president, there is only one employee, with the title of 
"warehouse manager." The brief descriptions of the duties of these two employees do not provide 
sufficient detail to determine whether either of them in fact function in a supervisory or managerial 
capacity rather than performing the day-to-day tasks relating to the "toy operation" and shipping and 
warehouse inventory, particularly when there appears to be no other employees to perform such 
tasks. Similarly, the general manager is described as, among other things, "oversee[ing] the daily 
operations," "assist[ing] [the beneficiary] in supervising of sales and IT operation," and "run central 
office and Accounting Department of the company." However, the "sales and IT operation" appear 
to consist of only two employees, the "sales manager" and the "operation manager," who are 
apparently managers in title only, and there is no mention of any employee in the "accounting 
department." Again, the cursory descriptions of the duties of these employees leave unanswered the 
question of to what extent the general manager actually supervises or manages the other two 
employees rather than performs along with them the day-to-day tasks in sales, IT, and accounting. 
In all, the evidence presented is insufficient to demonstrate that any of the beneficiary's subordinates 
actually function in a managerial or supervisory role, despite their titles. 
The petitioner has also failed to demonstrate that any of the beneficiary's subordinates qualify as a 
"professional." 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. 817 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of 
education required by the position, rather than the degree held by subordinate employee. Here, the 
petitioner claims that three of the beneficiary's subordinates hold bachelor's degrees. However, 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 the work of any of the beneficiary's subordinates. As such, the record is 
insufficient to show that the beneficiary's subordinate employees are supervisory, professional, or 
managerial, as required by section 10 1 (a)(44)(A)(ii) of the Act. 
The AAO notes that in the December 1, 2008 letter responding to the WE, the petitioner indicated 
that it considers the beneficiary to be functioning in an executive capacity in the U.S. company. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" 
and "establish the goals and policies" of that organization. The beneficiary must also exercise "wide 
latitude in discretionary decision making" and receive only "general supervision or direction from 
higher level executives, the board of directors, or stockholders of the organization." Id. As 
discussed above, the petitioner has provided job descriptions that are too vague and lacking in detail 
to support a conclusion that the beneficiary's position meets the criteria set forth in the statutory 
definition of "executive capacity." 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)). 
Page 9 
Further, inherent to the definition of "executive capacity," the organization must have a subordinate 
level of managerial employees for the beneficiary to direct and the beneficiary must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. Again, as discussed above, the petitioner has not sufficiently demonstrated that the 
beneficiary in fact directs a subordinate level of managerial employees that would relieve him from 
direct involvement in the company's day-to-day operations. An individual will not be deemed an 
executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. 
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has 
failed to establish that the beneficiary would be employed in the United States in a primarily 
executive or managerial capacity. For that reason, the petition will be denied. 
The second issue in this matter is whether the beneficiary was employed abroad in a primarily 
executive or managerial capacity. 
As the petitioner had failed to provide any evidence relating to the beneficiary's overseas 
employment, the director requested further evidence demonstrating that the beneficiary was 
employed overseas in an executive or managerial capacity for at least one of the three years prior to 
the beneficiary's admission into the United States, The director requested specific examples of 
managerial or executive tasks performed by the beneficiary; the number of subordinates, their duties, 
and level of education; and an organizational chart showing the beneficiary's position in the 
organization with respect to other managers. 
In response, the petitioner submitted a translated letter from the corporate officer of the foreign 
entity describing the beneficiary's overseas position as follows: 
[The beneficiary] had been the of our company since 1990. Our 
company was formerly 
expanding of the busine 
City in 1996. [The beneficiary] has been the - 
e change. In 2003, he invested and became one of the shareholders 
, while being the -1 
With a decade's worth of hard works, our business is expanding 
worldwide. Aside from sales and marketing, [the beneficiary] has also been 
responsible in handling company personnel, investments, purchasing of raw 
materials, etc. 
The petitioner did not provide an organizational chart of the foreign entity or any information 
regarding the beneficiary's subordinate staff. 
In concluding that the petitioner has failed to demonstrate that the beneficiary was employed abroad 
in a primarily executive or managerial capacity, the director found that "the job duty description is 
too limited." The director noted that the petitioner stated only that the beneficiary "served as 
assistant general manager responsible for handling sales, marketing, personnel, investments and the 
purchase of raw material." The director observed that managerial or executive titles alone do not in 
themselves establish that the beneficiary fimction primarily in qualifying capacities. 
counsel asserts that in the foreign company, the beneficiary "served as th- 
supervising numerous professionals and subordinate managers in the more than 200 
employee group, for which the [bleneficiary was in charge." Counsel further contends that the 
director's decision on this issue was affected by the "mistaken impression that the [bleneficiary had 
come to the U.S. on a L- 1 B." 
Upon review, the AAO concurs with the director's finding that the petitioner has failed to establish 
that the beneficiary was employed abroad in an executive or managerial capacity. 
As previously noted, 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. $ 204.5(j)(5). The 
petitioner's description of the job duties must clearly describe the duties to be performed by the 
beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. 
Contrary to counsel's claim that the petitioner provided sufficient evidence to demonstrate that the 
beneficiary was employed overseas in an executive or managerial capacity, the description of the 
beneficiary's overseas position suffers fkom the same vagueness and lack of detail discussed in 
connection with the U.S. job description. In fact, evidence of the beneficiary's job responsibilities 
overseas consisted solely of the statement of the foreign entity's corporate officer that, "Aside fiom 
sales and marketing, [the beneficiary] has also been responsible in handling company personnel, 
investments, purchasing of raw materials, etc." Again, the petitioner has failed to provide any detail 
or explanation of the beneficiary's activities in the course of his daily routine in his position abroad, 
and the brief statement above provides no insight into what it was that the beneficiary actually did on 
a day-to-day basis in his job. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108. 
Further, it is noted that in addition to the petitioner's failure to address the director's request for a 
complete, detailed description of the day-to-day duties performed by the beneficiary abroad, the 
petitioner also failed to provide any information relating to the beneficiary's subordinate staff 
overseas, or an organizational chart of the foreign entity, as requested. The regulation states that the 
petitioner shall submit additional evidence as the director, in his or her discretion, may deem 
necessary. The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Without a more detailed explanation of 
the beneficiary's job duties and further information regarding his staff or the organizational structure 
of his foreign employer, the AAO is unable to determine what role the beneficiary actually occupied 
within the foreign entity, and whether he in fact primarily functioned in an executive or managerial 
capacity. 
The AAO notes counsel's claim on appeal that, in his overseas position, the beneficiary supervised 
"numerous professionals and subordinate managers in the more than 200 employee group, for which 
Page 11 
the [bleneficiary was in charge." However, there is no evidence in the record to support this claim. 
Without documentary evidence to support the claim, the assertions of counsel will not satis@ 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). In addition, contrary to 
counsel's claim, the director's mistaken reference to the beneficiary's "L-1B" status again does not 
appear to have any bearing on his analysis of the issue at hand. 
In light of these deficiencies in the evidence, the AAO finds that the petitioner has failed to establish 
that the beneficiary was employed abroad in an executive or managerial capacity as required by 
section 203(b)(l)(C) of the Act, 8 U.S.C. $ 1 153(b)(l)(C). For this additional reason, the petition 
will be denied. 
The third issue in this matter is whether the petitioner has established its ability to pay the 
beneficiary's proffered wages for the U.S. position. 
In this matter, the petitioner indicated in the Form 1-140 that the beneficiary's proffered salary for the 
U.S. position is $576.92 per week, which would amount to approximately $30,000 annually. 
In his decision, the director noted that the petitioner's IRS Forms 1120, U.S. Corporation Income 
Tax Return, shows that for the year 2007, the company had a loss of $52,376, and for 2006, a loss of 
$18,33 1. Based on that evidence, the director concluded that "it is difficult to see how the company 
can pay the beneficiary's salary, including the salary of the staff of five that work for him." 
On appeal, counsel points out that the petitioner had submitted IRS Form W-2 and Form 1040, U.S. 
Individual Income Tax Return, for the beneficiary, which show that the beneficiary received $30,000 
in wages from the U.S. company during that year. Counsel also submits on appeal the beneficiary's 
IRS Form W-2 for 2008, also indicating that the beneficiary received $30,000 in wages from the 
U.S. company in 2008. Counsel contends that such evidence is sufficient to demonstrate the 
petitioner's ability to pay the beneficiary's proffered wages. Counsel further asserts that the 
beneficiary is paid an additional $24,000 in China plus other benefits. 
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 beneficiary's salary. In the present matter, based on the beneficiary's IRS Forms W-2 for 
the years 2007 and 2008, and Form 1040 for 2007, it appears that the beneficiary received wages 
from the U.S. company in the amount of $30,000 for each of those years. This amount equals the 
beneficiary's proffered wages, as stated in the Form 1-140. Accordingly, the AAO finds that the 
petitioner has satisfactorily established its ability to pay the beneficiary's proffered wages at the time 
the petition was filed. See 8 C.F.R. § 204.5(g)(2). The director's decision with respect to this issue 
is therefore withdrawn. 
Page 12 
However, notwithstanding the foregoing, the petition will still be denied based on the petitioner's 
failure to establish that the beneficiary was employed abroad, and will be employed in the United 
States, in a primarily managerial or executive capacity, as discussed above. 
Finally, the AAO acknowledges that USCIS has previously approved L- 1 A nonimmigrant petitions 
filed by the petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 
immigrant petitions are denied after USCIS approves prior nonimmigrant 1-129 L-1 petitions. See, 
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103. Examining the 
consequences of an approved petition, there is a significant difference between a nonimmigrant L- 
1A visa classification, which allows an alien to enter the United States temporarily, and an 
immigrant E- 13 visa petition, which permits an alien to apply for permanent residence in the United 
States and, if granted, ultimately apply for naturalization as a United States citizen. CJ: $8 204 and 
2 14 of the Act, 8 U.S.C. $5 1 154 and 1 184; see also 8 3 16 of the Act, 8 U.S.C. tj 1427. Because 
USCIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, 
some nonimmigrant L- 1 A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 29-30; see also 8 C.F.R. $ 214.2(1)(14)(i) (requiring no supporting documentation 
to file a petition to extend an L-1A petition's validity). Despite the previously approved petitions, 
USCIS does not have any authority to confer an immigration benefit when the petitioner fails to 
meet its burden of proof in a subsequent petition. See section 291 of the Act. Based on the lack of 
required evidence of eligibility in the current record, the AAO finds that the director was justified in 
departing from the previous nonimmigrant petition approvals by denying the instant petition. 
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. $ 1361. Here, 
that burden has not been met. Accordingly, the director's decision will be affirmed and the petition 
will be denied. 
ORDER: The appeal is dismissed.