dismissed EB-1C Case: Wholesale/Retail

"identifying data deteted to 
prevent clearly unwarr~nted 
invasion of personal pnvac) 
PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
u.s. Department of Homeland Security 
u. S. Citizenship and Immigration SelVices 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Date: DEC 1 3 2010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.c. § 1 I 53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion. 
The fee for filing a Form I-290B is $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any 
motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation engaged in the import, distribution, wholesale, and retail of various 
household products. The petitioner seeks to employ the beneficiary as its general manager. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational 
executive or manager. The director denied the petition based on the following 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 brief statement addressing both grounds 
for denial. 
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)(1)(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 this proceeding is whether the petitioner would employ the beneficiary in the United States 
in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
Page 3 
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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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 July 2, 2008, which includes the 
following list of the beneficiary'S duties and responsibilities in his proposed position with the U.S. entity: 
• Established [sic] and direct company goals and policies, including design; 
• Negotiate contracts; 
• Liaise with supplie[r]s, designers, contractors, and customers; 
• Personnel responsibilities[;] 
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• Supervised all financial and legal transactions. 
The petitioner's supporting evidence included a list of seventeen individuals who were classified as active 
drivers for the petitioner in 2006 as well as an organizational chart that listed a total of ten position titles as 
part of the petitioner's staffing hierarchy. The beneficiary's proposed position of president is shown as the 
head of the organization with an executive secretary and a dispatcher as his two direct subordinates. The 
lowest tier of the chart shows seven drivers overseen by the dispatcher. 
On January 13, 2009, the director issued a request for evidence (RFE), instructing the petitioner to provide 
further documentation in order to establish the petitioner's eligibility. The petitioner provided a timely 
response, which included a letter from counsel, dated February 6, 2009, and additional supporting documents. 
In a decision dated March 19, 2009, the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary would be employed in a qualifYing managerial or executive capacity. The 
director specifically noted that eight of the petitioner's employees are non-professional.! The director also 
found that the petitioner offered a deficient description of the beneficiary's proposed employment, noting that 
the petitioner failed to further an understanding of the beneficiary's specific daily duties or the amount of time 
the beneficiary would attribute to qualifYing tasks, thus failing to establish that the beneficiary's time would 
be primarily allocated to tasks within a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary has been and would be relieved from daily operational tasks by 
the executive secretary and the dispatcher. Counsel stated that the beneficiary would allocate his time to 
marketing and sales, determining when to place bids and which business equipment and services to invest in, 
and making other discretionary business decisions, such as determining the type of merchandise to transfer, 
setting sales and share plans as well as determining the drivers' wages, hiring and reviewing drivers, and 
finding customers. 
Counsel's statement does not establish that the beneficiary would primarily perform tasks within a qualifYing 
managerial or executive capacity. Rather, counsel's statement indicates that the beneficiary would allocate 
some unidentified portion of his time to non-qualifYing tasks, including marketing and sales and hiring and 
reviewing the work of non-professional and non-supervisory employees. The AAO recognizes that no 
beneficiary is required to allocate 100% of his time to managerial- or executive-level tasks. However, the 
burden is on the petitioner to establish that the non-qualifYing tasks the beneficiary would perform do not 
constitute the majority of the duties of his proposed position. 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). 
1 The director noted, based on his review of the petitioner's organizational chart, that the petitioner has nine employees. 
The AAO points out that the organizational chart identified a total of ten positions, thus indicating that the director's 
observation regarding the number of employees was inaccurate. The AAO notes, however, that this minor oversight is 
not germane to the overall basis for denial and, therefore, need not be further addressed. 
Page 5 
While the AAO acknowledges the beneficiary's role as the foremost authority within the petItlOning 
organization, this factor, along with the beneficiary's placement within the petitioner's organizational 
hierarchy, must be considered in light of the beneficiary's proposed job duties. In the matter at hand, the job 
description includes a considerable number of non-qualifying tasks from which the beneficiary would not be 
relieved by the individuals listed in the petitioner's organizational chart. Moreover, in reviewing the job 
description submitted in the initial support letter, the petitioner stated that the beneficiary would be directly 
involved in negotiating contracts and communicating with suppliers, designers, and contractors, which are 
also non-qualifying job duties. 
Other items included in the petitioner's initial description of the proposed employment include establishing 
the company's goals and policies and supervising financial and legal matters. However, the petitioner did not 
list the actual underlying tasks that are associated with these overly vague and ambiguous job responsibilities. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, as the actual job duties themselves reveal the true nature of the proposed employment; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
In summary, the information the petitioner provided does not establish that the beneficiary would primarily 
perform tasks within a qualifying managerial or executive capacity. Neither the petitioner's job description, 
which is vague in some respects while simultaneously inclusive of non-qualifying tasks, nor the petitioner's 
organizational hierarchy, which includes no marketing, sales, or customer service personnel, adequately 
establishes that the petitioner, at the time of filing, was able to relieve the beneficiary from having to devote 
the majority of his time to the performance of non-qualifying tasks. As such, the evidence of record does not 
establish that the beneficiary would be employed within a qualifying managerial or executive capacity and on 
the basis of this initial conclusion the instant petition cannot be approved. 
The AAO now turns to the second issue in this proceeding-the evidence regarding the petitioner's ability to pay 
the beneficiary's proffered wage. The regulation at 8 C.F.R. § 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. 
The documentation submitted in support of the petition to establish the petitioner's ability to pay includes a 
photocopied 2007 IRS Form 1099 issued by the petitioner to the beneficiary in the amount of $39,826 and 
photocopies of two checks issued to the beneficiary in 2008 by Tower Transport, Inc. 
The director determined that these documents were not sufficient to establish the petitioner's ability to pay the 
proffered wage and therefore addressed this issue specifically in the January 13,2009 RFE in which the petitioner 
was instructed to provide any IRS Form W-2s that were issued to the beneficiary or available payroll documents. 
In response, the petitioner provided a letter dated February 6, 2009 from counsel in which counsel indicated that 
the petitioner's response included a 2008 corporate tax return and a Form 1099 issued to the beneficiary by the 
Page 6 
petitioner in the amount of $31,232. Counsel indicated that these documents would be dispositive of the issue of 
ability to pay. 
After reviewing the submitted documentation, the director denied the petition, concluding that the petitioner 
failed to establish its ability to pay the beneficiary'S proffered wage. The petitioner's net loss income as shown in 
the 2008 tax return contributed to the director's conclusion. Although the AAO acknowledges the director's 
observation with regard to the petitioner's 2007 tax return, the regulation pertaining to the ability to pay expressly 
requires that the ability to pay be established as of the priority date, i.e., the date the petition is filed. As the 
instant petition was filed in 2008, not in 2007, the petitioner's financial ability or inability in 2007 would be 
irrelevant in this matter. 
Accordingly, the AAO will review documents pertaining to the petitioner's ability to pay the wage offered at the 
time of filing the petition. In determining the petitioner's ability to pay the proffered wage, u.s. Citizenship and 
Immigration Services (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, while the AAO 
acknowledges the petitioner's submission of a 2009 IRS Form 1099 in response to the RFE, such document 
shows that the beneficiary was paid $31,232, which is approximately $3,800 less than the proffered wage. Thus, 
even if the 2009 document were sufficient to establish the petitioner's ability to pay, which it is not, it does not 
show that the beneficiary was paid the proffered wage. That being said, the record contains a copy of the 
beneficiary'S 2008 personal tax return, which shows that the beneficiary'S total income for that year was declared 
as $16,982, an amount that is significantly lower than the proffered wage. Thus, the record lacks prima facie 
proof of the petitioner's ability to pay. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next exam me 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), aifd, 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 AAO now turns to the petitioner's photocopied 2008 federal tax return, which was submitted in 
response to the RFE. First, the AAO observes that the document appears to have been altered, as a number of the 
lines that are part of the document's original formatting appear to have been covered in the photocopy process. 
Second, the AAO notes that the dollar amount that was placed on line 28 of the first page of the return appears to 
be inaccurate when considering the dollar amounts that appear in lines 11 and 27. More specifically, line 28 
instructs the filing entity to subtract the figure in line 27 from the dollar amount in line II to get the taxable 
Page 7 
income before taking into account the net operating loss and special deductions. In the present matter, the 
petitioner should have subtracted $266,303, which is shown in line 27, from $321,742, which is shown in line 11, 
to get a taxable income of $55,439. However, the dollar amount shown in line 28 of the petitioner's tax return is 
$113,671. Thus, the figure representing the petitioner's taxable income is inconsistent and unreliable. 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). 
Additionally, at line 29 of the petitioner's 2008 tax return, it appears that the petitioner erroneously included its 
operating loss for 2007. Notwithstanding this considerable oversight, it is unclear how the petitioner obtained 
$31,073 as its taxable income when the dollar amount of its net income pre-operating loss was incorrect. 
Moreover, even if the AAO were to assume that $113,671 was the correct pre-operating loss taxable income and 
that $24,366 was the correct net operating loss deduction, after subtracting the latter amount from the amount 
representing the pre-operating loss income, the petitioner should have shown $89,305 as its total taxable income. 
Instead, the petitioner showed $31,073 as its total taxable income, thus showing that yet another dollar amount in 
the same tax return was inconsistent with the other amounts shown and therefore unreliable in establishing the 
amount of funds the petitioner had available to remunerate the beneficiary his proffered wage at the time of filing. 
Although the record contains a second 2008 federal tax return, which the petitioner submitted in a subsequently 
filed Form 1-140 with receipt number the two tax returns are very different. Despite the fact 
that both tax returns purportedly represent the 2008 tax year, the tax return that was submitted in response to the 
RFE was handwritten and dated January 28,2009 while the information provided in the more recently submitted 
tax return appears to have been input using a computer and was dated March 15,2009. Additionally, a number of 
the key figures in the two tax returns are also different, most notably the figures in lines 26-30, which represent 
the petitioner's other deductions, total deductions, taxable income pre-operating loss, net operating loss deduction, 
and the petitioner's taxable income post deductions, respectively. These five figures in the two 2008 tax returns 
do not match. As there is no evidence that either document is a certified tax return, the AAO has no way of 
determining which, if either, is an accurate depiction of the petitioner's financial status in 2008. 
In light of the above, the AAO fmds that the petitioner has failed to provide consistent and reliable documentation 
to establish its ability to pay the beneficiary's proffered wage commencing with the year during which the Form 1-
140 was filed. As such, the petition cannot be approved on the basis of this additional finding. 
Furthermore, while not addressed in the director's decision, the AAO finds that the record does not establish 
that the petitioner has a qualifying relationship with the beneficiary'S foreign employer, a filing requirement 
that is discussed at 8 C.F.R. § 204.5G)(3)(i)(C). 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. As general evidence of a petitioner's claimed 
· .. 
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qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder 
maintains ownership and control of a corporate entity. 
In the present matter, the petitioner provided a photocopied stock certificate dated August 2, 2002 showing 
that 50 shares of its stock were issued to the beneficiary. However, the petitioner provided no documentation 
showing how much total stock it authorized to be issued, thus precluding the AAO from being able to 
determine whether other stock was issued to shareholders other than the beneficiary. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, the petitioner's claim at no. 7, Schedule K of both of its 2008 tax returns indicates that no one 
foreign person owned more than 25% of the petitioner's stock during that filing year. This indicates that 
either the petitioner's stock formation had been altered since 2002 when the original stock certificate was 
issued, or that the petitioner has other undisclosed stockholders. Regardless, the AAO cannot determine who 
owns and controls the petitioning entity. The record is also devoid of evidence establishing who owns and 
controls the foreign entity. Counsel's claim that the beneficiary has 50% ownership of that entity is not 
persuasive. 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 (BrA 1980). Accordingly, the AAO cannot conclude that the 
petitioner had a qualifying relationship with the beneficiary'S foreign employer at the time of filing the 
petition. 
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 Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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. 
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. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.