sustained EB-1C Case: Trade Promotion

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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 U.S. Citizenship 
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PUBLIC COPY 
FILE: WAC 03 247 53400 Office: CALIFORNIA SERVICE CENTER Date: MAY 0 4 2006 
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. tj 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. 
f~obert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 03 247 53400 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based immigrant petition on 
December 6, 2004 and certified the matter to the Administrative Appeals Office (AAO) for review. Counsel 
for the petitioner also submitted a brief in support of an appeal. The matter is now before the Administrative 
Appeals Office (AAO) on appeal and certification. The appeal will be sustained. 
The petitioner avers: it is a branch office of Far East Trade Service, Inc., a foreign non-profit corporation 
qualified to do business in the State of California in September 1973. It provides two-way trade promotion 
and an information network in the United States. It seeks to employ the beneficiary as its executive director. 
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 December 6,2003, determining that the petitioner had not established: (1) 
that it was doing business in the United States; or (2) that it had the ability to pay the beneficiary the proffered 
annual wage of $78,960. 
On appeal, counsel for the petitioner asserts that the director's decision is in error and submits a brief in 
support of the 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 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 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 offer in the form of a 
WAC 03 247 53400 
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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. 
3 204.5@(5). 
The first issue in this proceeding is whether the United States entity has the ability to pay the beneficiary's 
proffered annual salary of $78,960. 
The regulation at 8 C.F.R 3 204.5(g)(2) states in pertinent part: 
Ability ofprospective employer to pay wage. Any petition filed by or for an employment-based 
immigrant whch 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 thls 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. 
Counsel claims that the beneficiary's wage is paid by its foreign office and that it is well established that a 
multinational executive may be paid from outside the United States. Counsel cites Matter of Pozzoli, 14 I&N 
Dec. 569 (BIA 1974), wherein the Regional Commissioner concluded that the use of the foreign qualifying 
entity's funds could also be used to support a beneficiary's wage in the context of the nonimmigrant petition. 
However, this matter concerns an immigrant petition and thus can be distinguished from the Pozzoli matter. 
The AAO observes that the regulation cited above specifically requires that "an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability to pay the proffered 
wage." (Emphasis added.) In this matter the petitioner is a branch office of the foreign entity and does not 
generate any income of its own but rather depends on the foreign entity to pay its expenses including the 
beneficiary's salary. When analyzing a petitioner's ability to pay the proffered wage, the fundamental focus is 
whether the employer is making a "realistic" or credible job offer and has the financial ability to satisfy the 
proffered wage. Matter of Great Wall, 16 I&N Dec. 142, 145 (Acting Reg. Comm. 1977). In this matter, the 
petitioner has established that the beneficiary was paid the proffered wage in the past and the AAO 
acknowledges that the foreign entity is sufficiently viable to continue to pay the beneficiary the proffered 
wage. The AAO concludes that the petitioner's ability to pay the beneficiary the proffered wage has been 
sufficiently established, the director's determination to the contrary is withdrawn. 
The next issue in thls proceeding is whether the petitioner has established that it is doing business and is not 
merely an agent for the foreign entity. 
The regulation at 8 C.F.R. tj 204.56)(3) states in pertinent part: 
(i) Required evidence. 
 A petition for a multinational executive or manager must be 
accompanied by a statement from an authorized official of the petitioning United States 
employer which demonstrates that: 
WAC 03 247 53400 
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(D) 
 The prospective United States employer has been doing business for at least one 
year. 
The regulation at 8 C.F.R. 9 204.5(j)(2) states in pertinent part: "Doing Business means the regular, systematic, 
and continuous provision of goods andlor services by a firm, corporation, or other entity and does not include the 
mere presence of an agent or office." 
The record contains the petitioner's 2001, 2002, and 2003 Internal Revenue Service (IRS) Forms 1120-F, U.S. 
Income Tax Return of a Foreign Corporation. Appended to the 2001, 2002, and 2003 IRS Forms 1120-F is a 
statement indicating that: 
Far East Trade Service, Inc. is a branch of a Taiwan Corporation whose activities in the United 
States are the promotion of trade to and from and the improvement of business conditions 
between Taiwan and the United States. The branches of the Far East Trade [Slervice in the U.S. 
are supported in whole by funds received from the "parent" company in Taiwan and have no 
U.S. source income or receipts. Therefore, Far East Trade Service, Inc. is not subject to income 
taxes. 
The IRS Forms 1120 also indicate that the petitioner's only source of revenue is fiom its "parent company." 
The record also contains the petitioner's California Forms DE-6, Employer's Quarterly Wage Report, including 
the report for the quarter in which the petition was filed. The petitioner's 2003 California Form DE-6 for the third 
quarter shows the petitioner employed nine individuals including the beneficiary. 
The record further contains the petitioner's Certificate of Qualification as a foreign corporation to transact 
intrastate business in the State of California in September 1973; the petitioner's lease to occupy premises in Santa 
Clara, California; the petitioner's business tax registration certificates for the city and county of San Francisco; 
and the petitioner's "parent company's" May 2002 brochure which sets forth its mission as a non-profit trade 
promotion organization in the Republic of China on Taiwan (R.O.C.) to help promote foreign trade, to assist 
Taiwan businesses and manufacturers to reinforce their international competitiveness and to cope with challenges 
faced in foreign markets, as well as help foreign businesses establish a wider presence in Taiwan. The "parent 
company's" brochure further details its foreign offices, including the petitioner's, and indicates that its major 
functions include market development, trade information services, exhibitions, design promotion, convention 
services, and trade education. In an August 3,2003 letter in support of the petition, the petitioner indicates that it 
functions to process Taiwan-America trade opportunities; assists with contacts to key companies and investors; 
provides American business people with information on Taiwan trade and industry profiles and programs; 
organizes purchasing shows; and has established a two-way trade promotion and information network in the 
United States. 
The director denied the petition on December 6, 2004, determining that the petitioner served primarily as an 
operational agent of the Taiwanese parent organization; that the petitioner was not directly involved in the sale 
WAC 03 247 53400 
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and distribution of products; and that the petitioner's source of funding was only through the foreign entity. The 
director concluded that the petitioner was not doing business. 
On appeal, counsel for the petitioner asserts that the petitioner is doing business by providing services, thus 
fulfilling the criteria of an organization that is doing business with the meaning of 8 C.F.R. 
 204.5(')(2) 
Counsel's claim is persuasive. The critical focus in the definition of "doing business" is not whether the petitioner 
is an agent or representative office, but whether the entity constitutes the "mere presence of an agent or office" 
without conducting any business activities. The proper focus on ths issue thus, is the nature and conduct of the 
petitioner's business activities, if any. In the matter at hand, the petitioner has presented information that it 
facilitates foreign trade between Taiwan and the United States by bringng together Taiwanese and American 
businesses through market development, trade information services, exhibitions, convention services, and trade 
education. The petitioner has adequately established that it is engaged in facilitating the regular, systematic, and 
continuous provision of services. The director's decision will be withdrawn as it relates to the question of whether 
the petitioner was doing business in a regular, systematic, and continuous manner. 
The petition will be approved. In visa petition proceedings, the burden of proving eligbility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has been 
met. 
ORDER: The appeal is sustained.