remanded EB-1C Case: Business Management

(b)(6)
. \ 
DATE: APR 2 6 2013 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
·Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
-Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Fll..E: 
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. § 1153(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. 
Thank you, 
r-Rid~ .· 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director,_ Texas Service Center; The 
director dismissed the petitioner's subsequent motion to· reopen and reconsider ,the. decision. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The decision of the 
director will be withdrawn and the petition· will be remanded for further action and entry of a new 
decision. 
The petitioner is a Florida limited liability company that seeks to employ the beneficiary in the 
United States as its Regional Operations 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. § 1153(b)(l)(C), as a multinational executive or 
manager. 
The director denied the petition on February 13, 2012 concluding that the petitioner failed to 
establish its ability to pay the beneficiary's proffered annuaL wage of $50,000. 
On March 13, 2012 in a motion to reopen and reconsider the decision, the petitioner submitted a 
copy of its IRS Form 1065, U.S. Return of Partnership Income, for the 2011 ta~ year. The petitioner 
asserted that the document could not be prepared until the conclusion of the calendar year and was 
thus unavailable for submission at the time the petition was filed in August 2011, or at the time the 
petitioner responded to the director's request for additional evidence (RFE) in December 2011. The 
petitioner asserted that its 2011 corporate tax return establishes the company's ability to pay the 
beneficiary's proffered wage as of the date of filing. 
On June 26, 2012, the director dismissed the motion finding that petitioner's filing failed to meet the 
requirements of a motion to reopen. Specifically, the director determined that consideration of the 
2011 tax return was not required since the retum for tax year 2010 had already been provided and 
considered in the director's decision. 
On appeal, the petitioner asserts that the director erred by not considering the new evidence in 
analyzing whether the petitioner had the ability to pay the beneficiary's proffered wage. The 
petitioner does not dispute that the company's tax retums stibmitted for years 2009 and 2010 do not 
establish an ability to pay. However, the petitioner contends that it is capable of paying the 
proffered $50,000 annual wage as· of the August 2011 filing date as· evidenced by its .newly 
submitted 2011 tax retum. 
Upon review, the petitioner's assertions are persuasive. While the director appropriately relied upon 
the petitioner's 2010 IRS Form 1065 in the absence of the company's 2011 tax return, the petitioner 
properly submitted the 2011 Form 1065 as new evidence on motion. 
The regulation at 8 C.F.R § 204.5(g)(2) states in pertinent part: 
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Ability of prospective employer to pay wage. 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, fedet:al tax returns, or audited financial statements. 
Federal regulations affirmatively require an alien to establish eligibility for an immigrant visa at the 
time an application for adjustment of status is filed or when the visa is issued by a United States 
consulate. 8 C.F.R. § 245.1(a), 22 C.F.R. § 42.41. The petitioner bears the ultimate burden of 
establishing eligibility for the benefit sought, and that burden is not discharged until the immigrant 
visa is issued. Tongatapu Woodcrajt1ofHawaii, Ltd. v, Feldman, 736 F.2d 1305 (9th Cir. 1984). 
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 did not establish that it had 
previously employed the beneficiary and paid 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, 539F. Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). 
. . 
According to the newly submitted 2011 tax return, the petitioner had a net taxable income of 
$65,931.00 for the year in which the petition was filed. Therefore, based on this tax return the 
petitioner has established its. ability to pay the ~eneficiary's $50,000 annual proffered wage. The 
AAO concurs with the petitioner's assertion that the director's failure to consider the petitioner's IRS 
.Form 1065 U.S. Return of Partnership Income for tax year 2011 was incorrect since the tax return 
reflects the company's income and financial data for the year during which the petition was filed. 
Since the ability to pay is establisped, the petitioner has successfully overcome the sole ground cited 
as the basis for denial and the director's decisiori is hereby withdrawn. 
Notwithstanding the AAO's withdrawal of the director's adverse conclusion on a single issue, the 
AAO finds that the petition does not warrant approval on the basis of evidence that is currently on 
record. After a thorough review of the record, the AAO finds that the petitioner failed to establish: 
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(1) that the beneficiary had been employed by a qualifying foreign employer for at least one year 
within the three years prece~ing the filing of the petition; (2) that the foreign . employer has a 
qualifying relationship with the petitioner; and (3) that the beneficiary's proposed position is in a 
qualifying managerial or · executive capacity. Accordingly, the petition will be remanded to the 
director for further action and consideration pursuant to the discussion 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 ~egal entity or an 
affiliate or subsidiary thereof and who seeks to enter the United 
States in order to ~ontinue 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 or 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. 
According to the record, specifically the beneficiary's Form G-325A, a biographic information 
document submitted concurrently with her application to adjust status (Form 1-485), the beneficiary 
was employed with the relevant foreign employer from March 2009 until September 2009, and from 
April 2010 until August 2010, for a total of approximately 12 months. However, the payroll 
documents submitted by the foreign employer do not substantiate this claim. The record documents 
the beneficiary's seven months of 'employment with the foreign entity in 2009. However, the 
documents for 2010 reflect the beneficiary's employment with the foreign employer for only three 
months (April - Jurie), twq months short of the required total of 12 months employment. 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). 
(b)(6)Page 5 
Further, neither the petitioner nor the foreign employer has provided the beneficiary's exact dates of 
employment abroad, such ~at it can be determined whether the beneficiary acquired one full year of 
employment. Based on the information provided on the beneficiary's Form G-325A, the petitioner 
would need to establish that foreign entity employer her from March 1, 2009 through September 30, 
2009, and from April 1, 2010 until August 31, 2010 in order for her to meet the one year of 
employment abroad requirement. It appears based on the payroll documentation that the beneficiary 
initially commenced employment with the foreign entity on March 6, 2009 and may fall slightly 
short of having one year of employment abroad, even if the petitioner is able to provide evidence 
that the foreign entity paid her in July and August 2010. 
In addition, the · record as presently constituted fails to adequately document the qualifying 
relationship between the foreign employer and the petitioner. To establish a "qualifying 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's 
foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a 
foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally§ 203(b)(l)(C) 
. of the Act, 8 U.S.C. § 1153(b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the 
terms "affiliate" and "subsidiary"). · 
The petitioner claims to be a majority-owned (51%) subsidiary of The 
petitioner submitted a copy of its membership certificate number 6 dated September 19, 2005 
indicating the foreign employer's ownership of 51% of its membership units. However, the 
petitioner also submitted its partnership tax returns for 2009, 2010 and 2011 which identify 
as 51% owner of the petitioning company. 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. at 582. 
Finally, in 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 has 
provided a vague description of the beneficiary's proposed position and it fails to adequately 
document what proportion of the beneficiary's duties would be managerial functions and what 
proportion would be non-managerial. The petitioner lists the beneficiary's duties including both 
managerial and administrative or ·operational tasks, but does not quantify the time the beneficiary 
· spends on each type. This failure of documentation is important because the beneficiary is 
responsible for operational tasks such as contract negotiations. The definitions of executive and 
managerial capacity 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 thin 
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). 
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Accordingly, the case wiil be remanded for a new decision, which shall take proper.notice of the 
beneficiary's proposed duties, the dates of the beneficiary's foreign .employment and the qualifying 
relationship between the petitioner and the foreign company. The director may issue a notice 
requesting any additional evidence he deems necessary m order to determine the peti.tioner's 
eligibility for the benefit sought. 
ORDER: The director's . decisions dated February 13, 2012 and June 26, . 2012 are 
Withdrawn. The matter is remanded for further action and consideration 
consistent with the ~bove discussion and entry of a' new decision, which, if 
adverse to the petitioner, shall be certified to the AAO for review.