dismissed EB-1C Case: Wholesale Trade

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Oflce ofAdministrafive Appeals MS 2090 
Washington, DC 20529-2090 
identifying data deleted to 
prevent clearly unwpns~ied 
 U. S. Citizenship 
invasian of personal ~ii~~i~l 
 and Immigration 
MAY 0 1 2009 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 06 235 52206 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 8 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. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
John F. Grissom 
Acting 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 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)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
tj 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: 1) the petitioner 
failed to establish that it has an employerlemployee relationship with the beneficiary; 2) the 
petitioner failed to establish that it would employ the beneficiary in a managerial or executive 
capacity; and 3) the petitioner failed to establish that it had and continues to have the ability to pay 
the beneficiary's proffered wage. 
On appeal, the beneficiary, on behalf of the petitioner, submits a letter of explanation in an attempt 
to address the director's concerns. A comprehensive discussion of the director's decision and all 
relevant evidence is provided below. 
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 this proceeding is whether the petitioner and the beneficiary have the requisite 
employer/employee relationship to qualify for the immigration benefit sought herein. 
As explained in 8 C.F.R. 5 204.5(j)(5), the petitioner must establish that the beneficiary will be 
"employed" in an executive or managerial capacity. It is noted that "employer," "employee," and 
"employed" are not specifically defined for purposes of the Act even though these terms are used 
repeatedly in the context of addressing the multinational executive and managerial immigrant 
classification. Section 203(b)(l)(C), 8 U.S.C. tj 1153(b)(l)(C), requires beneficiaries to have been 
"employed" abroad and to render services to the same "employer" in the United States. Further, section 
101 (a)(44), 8 U.S.C. 5 1 101 (a)(44), defines both managerial and executive capacity as an assignment 
within an organization in which an "employee" performs certain enumerated qualifying duties. Finally, 
the specific definition of "managerial capacity" in section 101 (a)(44)(A), 8 U.S.C. 5 1 101 (a)(44)(A), 
refers repeatedly to the supervision and control of other "employees." Neither the legacy Immigration 
and Naturalization Service nor U.S. Citizenship and Immigration Services (USCIS) has defined the 
terms "employee," "employer," or "employed" by regulation for purposes of the multinational 
executive and managerial immigration classification. See, e.g., 8 C.F.R. 5 204.5 and 8 C.F.R. tj 
214.2(1). Therefore, for purposes of this immigrant classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Page 4 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at 5 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
In the present matter, the petitioner provided a letter dated July 26, 2006 in support of the petition in 
which it claimed that the beneficiary owns 70% of the foreign entity and 50% of the U.S. entity. The 
AAO notes for the record that among its supporting documents, the petitioner included the foreign 
entity's executive summary, where the beneficiary was identified as 100% owner of the foreign 
entity. This document is inconsistent with the claim made by the petitioner in its support letter. 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). 
On June 22, 2007, the director issued a request for additional evidence (WE), instructing the 
petitioner to provide evidence showing how many of its shares are outstanding and establishing the 
ownership of the outstanding shares. 
In response, the petitioner provided a letter from counsel dated September 13,2007 in which counsel 
explained that the beneficiary owned all of the foreign entity's shares when the company was first 
established. Counsel further explained that prior to the beneficiary's departure from her home 
country, she transferred 30% of her ownership shares to be equally divided among her three siblings, 
leaving the beneficiary with a 70% ownership interest in the foreign entity. With regard to the U.S. 
entity's ownership, the petitioner provided a document dated January 17, 2005, entitled, "Minutes of 
Action of Incorporator of [the petitioner] (a California corporation) Taken Without a Meeting by 
Written Consent." In the section discussing the issuance of company stock, the document shows that 
the beneficiary owns 25,000 shares, r owns another 25,000 shares, and the foreign 
entity owns the remaining 50,000 shares. In addition, the record contains the petitioner's stock 
certificate No. 20, dated January 14, 2007, which purports to issue an unspecified number of shares 
to the beneficiary. No information was provided as to the whereabouts of stock certificate Nos. 1- 
19, nor did the petitioner clarify whether the issuance of the latest stock certificate changed the 
previously specified ownership breakdown. See id. 
On April 14, 2008, the director denied the petition citing the lack of an employer/employee 
relationship between the petitioner and the beneficiary as one of three grounds for denial. The 
director observed that the petitioner failed to provide a stock transfer ledger despite having been 
requested to do so. The director pointed out that failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 4 103.2(b)(14). The 
director also noted that the petitioner failed to provide documentation to support the claim that 30% 
of the beneficiary's ownership interest had been transferred to her siblings. 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)). Accordingly, based on the 
evidence submitted, the director concluded that the beneficiary has controlling interest in both the 
U.S. and foreign entities, which precludes the existence of an employer/employee relationship 
between either company and the beneficiary. 
On appeal, the beneficiary, on behalf of the petitioner, reiterates the information previously provided 
with regard to her 70% ownership interest in the foreign entity and her direct 25% ownership interest 
in the U.S. entity. It is noted, however, that no documentation was submitted to support the claimed 
distribution of 30% of the beneficiary's interest in the foreign company to her siblings. Thus, the 
only documentation on record shows that the beneficiary is 100% owner of the foreign entity. As 
such, the beneficiary does not only own 25% of the U.S. entity, but she also indirectly owns another 
50% of the U.S. entity by virtue of her ownership of the foreign entity, thereby giving the 
beneficiary an overwhelming majority, i.e., 75%, ownership of the petitioning entity. 
Accordingly, applying the Darden and Clackamas tests to this matter, the petitioner has not 
established that the beneficiary will be an "employee" employed in a managerial or executive 
capacity. As explained above, the petitioner is a corporation, which appears to be ultimately owned 
and controlled by the beneficiary, who purports to assume a role as the petitioner's principal. There 
is no evidence that anyone other than the beneficiary herself is in a position to exercise any control 
over the work to be performed by the beneficiary. As such, it appears the beneficiary is the 
employer for all practical purposes. She will control the organization; set the rules governing her 
work; and share in all profits and losses. Based on this initial finding, the AAO cannot approve this 
petition. 
The second issue in this proceeding calls for an analysis of the beneficiary's job duties. Specifically, 
the AAO will examine the record to determine whether the beneficiary would be employed in the 
United States in a qualifying managerial or executive capacity. 
Page 6 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. $ 1 101 (a)(44)(A), provides: 
The tenn "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. $ 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 the petitioner's July 26, 2006 support letter, the following list of the beneficiary's proposed job 
duties was provided: 
1. 
 Making discretionary decision[s] on the day-to-day operation of the U[.]S[.] 
subsidiary; 
2. Formulating strategic marketing plans for the development of the U[.]S[.] 
[slubsidiary; 
3. 
 Setting up sales guidance and ensur[ing] its implementation; 
4. 
 Managing and overseeing the general operation of the U[.]S[.] subsidiary; 
5. 
 In charge of company finance, marketing and sales department; 
6. 
 Hiring and firing department managers and subordinate employees; 
7. 
 Promoting or demoting department managers and subordinate employees; 
8. 
 Negotiating and signing contracts as a representative of the company; 
9. 
 Implementing company policies and ensuring its compliance; 
10. 
 Responsible for filing company tax returns for paying federal and state taxes; 
11. 
 Acting as a liaison between the parent company and the U[.]S[.] subsidiary; and 
12. 
 Reporting directly to the parent company regarding the operations of the U[.]S[.] 
subsidiary. 
In the RFE, the director noted that the above list lacked sufficient detail. Accordingly, the petitioner 
was instructed to expand on the above by providing a more specific list of daily tasks to be 
performed and the percentage of time allotted to each enumerated task. The director also asked the 
petitioner to provide a detailed organizational chart, including depicting the positions of all company 
employees and their respective job descriptions. 
In response, the petitioner provided the following percentage breakdown of the beneficiary's 
proposed tasks: 
1. 
 Direct the Management of the Organization and its Employees (40%): [The 
beneficiary] manages and oversees the general operation of [the petitioner]. She is 
in charge of the hiring and firing of department managers and its subordinate 
employees. She is in charge of promoting and demoting them as well. [The 
beneficiary] sees to it that the operations of the company are conducted and 
implemented in accordance with the established company's policies and guidelines 
on a day-to-day basis. 
2. Establishes Goals and Policies (20%): [The beneficiary] establishes and 
implements the company's specific goals and policies. She devises strategies and 
formulates plan [sic] and policies to ensure that the company's objectives are met. 
She utilizes her expertise in promoting their merchandise to increase their clientele 
on different [sltates of the U.S. and overseas. 
 Because of [the beneficiaryl's 
effective marketing strategy and plan, the company continues to experience a 
significant and steady increase on [sic] the company's gross sales and profits for the 
past two years. 
3. 
 Exercises Wide Latitude of Discretionary Decision Making and Receive[s] only 
General Supervision or Direction from Higher Level Executives, Board of 
Directors or Stockholders (40%): [The beneficiary] exercises a wide latitude of 
discretionary decision making, which includes but are [sic] not limited to the 
following: [sletting up the sales guidance and ensuring its strict compliance[;] to 
negotiate and enter into contracts with suppliers or any person or entity, which may 
be necessary for the company's operation and sales[;] to act as a liaison between the 
parent company in Indonesia and [the petitioner; and is] accountable for the 
accuracy of their financial reporting, marketing, and the operational success of the 
company. 
The petitioner also provided its organizational chart, illustrating a five-tier hierarchy with the 
beneficiary at the top, as shareholder directly below the beneficiary, - 
as the sales manager and third from the top of the hierarchy, as the secretary directly 
subordinate to the sales manager, and two sales associates and a shipping and supply clerk at the 
bottom of the hierarchy. 
The petitioner also provided photographs of its business showing what appears to be the storefront of 
a retail jewelry operation. The accompanying hours of the operation summary shows that the store 
is open from 9 a.m. until 6 p.m. seven days per week and further indicates that the beneficiary is at 
the store location during all hours of operation, seven days per week. The schedule also shows that 
the beneficiary is assisted by one of two sales associates Monday through Saturday and by both sales 
associates on Sunday. The work schedule also shows that - who was previously 
identified as a secretary, is an independent contractor who comes in bi-weekly to complete payroll. 
The petitioner also provided 2006 Form 1099s for each of its sales associates, as well as a 2006 
Form 1120 showing no officer compensation or employee salary and wages. 
In the denial, the director actively notes the inconsistency with regard to the role of- 
within the U.S. entity, pointing out that this individual had been identified by two different position 
titles. The director further concluded that the evidence indicates that the beneficiary would be 
directly involved in the petitioner's day-to-day operational tasks and that she would not manage 
professional, managerial, or supervisory personnel. Based on these findings, the director concluded 
that the beneficiary would not be employed in the United States in a managerial or executive 
capacity. 
On appeal, the beneficiary, on behalf of the petitioner, provides a confusing explanation, stating that 
she manages the independent contractors, who are paid 40% commission. The beneficiary does not 
distinguish between the sales associates and the secretary/accountant who does the company's 
payroll. As such, it is unclear on what basis the petitioner can pay commission-based 
wages. The AAO further notes that the two Form 1099s for each of the petitioner's sales associates 
- 
show that both were paid identical wages in 2006. It is unclear, and requires further clarification to 
explain how two commission-based employees could have received identical pay when both 
individuals' wages were based on the total amount of their respective sales transactions. When this 
anomaly is considered further in light of the inconsistent information provided in the petitioner's 
2006 tax return regarding the salaries and wages paid, the AAO is lead to question the authenticity of 
the documentation submitted. Doubt cast on any aspect of the petitioner's proof may, of course, lead 
to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. at 591. In light of these unanswered questions, the AAO 
further doubts the authenticity of the organizational hierarchy that was illustrated in the petitioner's 
organizational chart, as it is unclear which employees the petitioner actually employed at the time 
the Form I- 140 was filed. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 197 I), requiring the 
petitioner to establish eligibility at the time of filing. 
While the petitioner's staffing is not the sole factor being considered, it is highly relevant for the 
purpose of determining who within the petitioner's organization is available to relieve the beneficiary 
from having to primarily performing non-qualifying tasks. 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. U.S. 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. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). In the present matter, the petitioner 
has not submitted adequate documentation establishing whom it employed at the time of filing. 
Without sufficient evidence of an adequate support staff, the AAO can only assume that the 
beneficiary is lefi to perform the petitioner's daily operational tasks. It is noted that 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 
(Comrn. 1988). 
Lastly, in examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and 
Immigration Services (USCIS) will look first to the petitioner's description of the job duties. See 
8 C.F.R. 5 204.5(j)(5). 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. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), afyd, 905 F.2d 41 (2d. Cir. 1990). In the instant matter, the description of the beneficiary's 
job duties is too general to convey an understanding of exactly what the beneficiary will be doing on 
a daily basis and how much of her time would be spent on qualifying tasks versus the non-qualifying 
ones. For instance, in response to the RFE, counsel stated that 20% of the beneficiary's time would 
be allotted to establishing and implementing goals and policies. However, counsel failed to specify 
any actual goals or policies, nor did she provide a thorough explanation of the specific tasks the 
beneficiary would undertake on a daily basis in her efforts to implement these goals and policies. 
Counsel stated that another 40% of the beneficiary's time would be spent making decisions regarding 
sales guidance and contract negotiation, communicating with the foreign company, and ensuring 
accuracy regarding financial reporting, marketing, and operational success. These broad statements, 
however, fail to indicate any specific tasks the beneficiary would perform. In other words, it is 
unclear what specific actions amount to sales guidance. Furthermore, if the beneficiary is involved 
in contract negotiation, the petitioner must specify the role to be assumed so that the beneficiary's 
tasks can be distinguished from those of a sales associate. Counsel also failed to expand on the types 
of tasks the beneficiary would undertake with regard to the petitioner's finances, marketing, and 
operational success. Aside from a contracted payroll employee (for whom the petitioner has 
provided no wage or salary information), the petitioner does not claim to employ anyone to deal with 
the company's finances, nor is there any indication that anyone other than the beneficiary is available 
to assume any of the petitioner's marketing responsibilities. It appears, therefore, that any non- 
qualifying tasks that are associated with finances or marketing are performed by the beneficiary 
herself. As the petitioner has provided no specific information establishing exactly what these tasks 
entail, the AAO cannot conclude that they are of a qualifying nature. 
Finally, while counsel stated that 40% of the beneficiary's time would be spent directing 
management of the petitioner and its employees, the duties underlying this broad set of 
responsibilities are highly questionable in light of the lack of documentation establishing whom 
exactly the petitioner employed at the time of filing the Form 1-140. As far as directing the 
management of the company, it is unclear how the beneficiary's duties can be limited to mere 
management in the absence of a sufficient support staff to perform daily operational tasks. 
In summary, while the petitioner has provided little information as to what actual tasks the 
beneficiary would carry out on a daily basis, the evidence of record suggests that the petitioner 
operates primarily as a retailer/wholesaler of jewelry. At best, the beneficiary may be the first-line 
supervisor of a staff consisting of two sales associates, a payroll clerk, and a shipping clerk, none of 
whom have been established as being professional, managerial, or supervisory employees. 
However, as previously stated, the beneficiary's job duties have not been made clear despite the 
director's express request for this relevant information. Thus, in light of the deficient documentation 
regarding the petitioner's support staff and the insufficient information regarding the beneficiary's 
actual daily job duties, the AAO cannot conclude that the beneficiary would be employed in a 
qualifying managerial or executive capacity. 
The third ground for ineligibility as cited by the director is the petitioner's ability to pay. 8 C.F.R. 
tj 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 lawfbl 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 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, the petitioner claims that the beneficiary is compensated 
by the foreign entity. Therefore, it cannot be determined that the beneficiary has been remunerated a 
salary equal to or greater than the proffered wage. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu 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), afyd, 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. 
The above analysis was conducted by the director, who properly determined that $5,534, which was 
shown as the petitioner's income in the 2006 tax return, is not sufficient to establish the ability to 
remunerate the beneficiary a proffered wage of $50,000 annually. 
Lastly, if the net income the petitioner demonstrates it had available during the pertinent period 
added to the wages paid to the beneficiary during the period do not equal the amount of the proffered 
wage or more, USCIS will review the petitioner's assets. We reject, however, the idea the 
petitioner's total assets should have been considered in the determination of the ability to pay the 
proffered wage. The petitioner's total assets include depreciable assets that the petitioner uses in its 
business. Those depreciable assets will not be converted to cash during the ordinary course of 
business and will not, therefore, become funds available to pay the proffered wage. Further, the 
petitioner's total assets must be balanced by the petitioner's liabilities. Otherwise, they cannot 
properly be considered in the determination of the petitioner's ability to pay the proffered wage. 
Rather, USCIS will consider net current assets as an alternative method of demonstrating the ability 
to pay the proffered wage. 
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. 
In the present matter, however, the petitioner did not complete Schedule L of the 2006 tax return. 
As such, the AAO cannot conclude that the petitioner's assets were sufficient to establish its ability 
to pay the beneficiary's proffered wage. Therefore, based on this third ground of ineligibility, the 
petitioner's Form 1-140 cannot be approved. 
Page 12 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
First, 8 C.F.R. 5 204.56)(3)(i)(B) states that the petitioner must establish that the beneficiary was 
employed abroad in a qualifying managerial or executive position for at least one out of the three 
years prior to her entry to the United States as a nonimmigrant to work for the same employer. In 
the instant matter, the director specifically addressed this issue in the RFE by instructing the 
petitioner to provide a detailed analysis of the beneficiary's daily activities during her employment 
abroad. Although the petitioner did provide a percentage breakdown, it is not apparent that the 
breakdown applies to the beneficiary's employment abroad. Rather, the description appears to apply 
to the beneficiary's proposed employment. As the petitioner provided little information regarding 
the beneficiary's employment abroad, the AAO cannot conclude that her time was primarily devoted 
to job duties within a qualifying managerial or executive capacity. 
Second, 8 C.F.R. tj 204.56)(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. 5 204.50)(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 photographs provided in response to the WE indicate that the petitioner is a 
sales operation, the record lacks evidence of any sales transactions during the requisite one-year 
period prior to the date the petition was filed. Despite the petitioner's submission of its 2006 tax 
return, there is no way of determining the frequency of the petitioner's sales transactions from this 
annual return. As such, the AAO cannot conclude that the petitioner has been conducting business 
during the time period and in the manner prescribed by regulation. See id. 
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), afd, 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 
grounds 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 1043, afd, 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.