U.S. Citizenship and Immigration Services

MATTER OF D-I-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 17,2017

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, described as a holding company, seeks to permanently employ the Beneficiary as its director and president under the first preference immigrant classification for multinational executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b )(1 )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity.

The Director of the Texas Service Center denied the petition, concluding that the record did not establish, as required, that: (1) the Petitioner has been doing business for at least one year prior to the petition's filing date; (2) the Beneficiary will be employed in the United States in a managerial or executive capacity; (3) the Beneficiary has been employed abroad in a managerial or executive capacity; and (4) the Petitioner has the ability to pay the Beneficiary's proffered wage. We dismissed the Petitioner's appeal from that decision, finding that the Director had been correct on each cited basis for denial.

On motion to reconsider, the Petitioner asserts that it had provided enough evidence and information to meet its burden of proof, and that we erred by holding the Petitioner to too strict a standard. The Petitioner states that factors in this case distinguish it from the case law that we had cited in our dismissal notice.

Upon review, we will deny the motion.

I. LEGAL FRAMEWORK

Section 203(b )(1 )(C) of the Act makes an immigrant visa available to a beneficiary who, in the three years preceding the filing of the petition, has been employed outside the United States for at least one year in a managerial or executive capacity, and seeks to enter the United States in order to continue to render managerial or executive services to the same em.ployer or to its subsidiary or affiliate.

A United States employer may file Form I-140, Immigrant Petition for Alien Worker. The petition must include a statement from an authorized official of the petitioning entity which demonstrates that the beneficiary has been employed abroad in a managerial or executive capacity for at least one year in the three years preceding the filing of the petition, that the beneficiary is coming to work in the United

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States for the same employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3).

A motion to reconsider must establish that our decision was based on an incorrect application of law or policy and that the decision was incorrect based on the evidence in the record of proceeding at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must be supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy.

We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested immigration benefit. For the reasons discussed below, the Petitioner's motion to reconsider does not establish eligibility and will be denied.

II. DOING BUSINESS

In our dismissal notice, we agreed with the Director's finding that the Petitioner did not establish that it has been doing business for at least one year prior to the date of filing the petition, as 8 C.F .R. § 204.5(j)(3)(i)(D) requires. 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. 8 C.F.R. § 204.5(j)(2). On motion, the Petitioner repeats prior assertions that it qualifies through affiliation with other well-established businesses. We disagree, and note that the Petitioner has not addressed serious deficiencies and discrepancies in the record.

The Petitioner filed a certificate of formation with the State of Texas in July 2014, less than six months before it filed the Form I-140 petition in December 2014. Throughout this proceeding, the Petitioner has contended that it has been doing business for more than a year through its affiliation with and two companies that have existed and done business for more than the required year. On motion, the Petitioner states that these two companies "operate ... as divisions of' the petitioning entity.

Dismissing the appeal, we did not dispute the Petitioner's affiliation with but we also found that this connection with an older company does not establish that the Petitioner has been doing business for at least a year. We stated: "The petitioning U.S. employer itself~ rather than any affiliate or subsidiary, must have been doing business for at least one year."

The Petitioner, on motion, calls our decision "egregious" but does not rebut the above finding. The Petitioner also asserts, on motion, that the parent company "had been doing business in Pakistan for more than one year," but the "doing business" requirement specifically applies to the prospective U.S. employer, not its foreign parent company or any affiliate. See 8 C.F.R. § 204.5(j)(3)(i)(D).

With respect to the Petitioner's other claimed affiliate, the Petitioner has offered conflicting claims about The Petitioner initially stated that its foreign parent company had "elected to acquire

· but submitted no evidence of that acquisition. When the Director requested such evidence,

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the Petitioner claimed "[t]here was no exchange of money involved in the transactions since our parent company . . . acquired [i]n exchange for the support and expansion of opportunities that it would receive from including it under the umbrella of [the petitioning company]." On appeal, the Petitioner's then-attorney of record referred to "stock certificates" showing the above acquisition, but the record does not include those certificates.

Now, on motion, the Petitioner's new counsel states "the petitioner bought Assertions of counsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Furthermore, the new claim that "the petitioner bought contradicts the Petitioner's prior claim that the acquisition involved "no exchange of money." Given these conflicting claims of fact, the Petitioner cannot resolve this discrepancy except with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). The record contains no evidence of any transaction, paid or otherwise, by which the Petitioner's foreign parent company acquired

Compounding the Petitioner's conflicting and unsupported claims are tax documents from 2013 and 2014 (prepared both before and after the filing date), which identify as the sole owner of We noted these materials in our dismissal notice, but the Petitioner does not rebut or even acknowledge this issue onmotion.

In our prior decision, we also found that the Petitioner does not appear to have been doing business at all. The Petitioner has not identified any goods or services that it has provided. The Petitioner does not address this finding on motion, relying instead on the aforementioned claim of affiliation with older, active business.

The Petitioner did not exist for a full year before the petition's filing date. The Petitioner's claim to have been doing business through affiliates lacks legal support, and relies, in part, on an unsubstantiated and questionable claim of affiliation with The Petitioner has established no error of law or policy relating to our prior finding in this regard.

III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

In our dismissal notice, we agreed with the Director's finding that the Petitioner did not establish that: (1) it will employ the Beneficiary in tt managerial or executive capacity; and (2) the Bedeficiary has been employed abroad in a managerial or executive capacity, as statutorily defined at section 101(a)(44) of the Act, 8 U.S.C. § 110l(a)(44). On motion, the Petitioner states that its evidence and information were sufficient, and that we relied on case law with significantly different fact patterns from the one in this record of proceeding. We do not agree, and our prior finding stands.

In our dismissal notice, we cited Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff' d, 905 F .2d 41 (2d. Cir. 1990), and Matter ~(Church Scientology Int 'l, 19 I&N Dec. 593, 604 (Comm'r 1988). We cited Fedin for its holding that a petitioner must provide a detailed job description; we cited Church Scientology for its holding, consistent with the regulations, that it

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cannot suffice for a beneficiary to have authority over the petitioning company; the beneficiary must work primarily in a managerial or executive capacity. On motion, the Petitioner attempts to distinguish the present proceeding from the cited cases. The Petitioner asserts that it provided more details about the Beneficiary's duties than the plaintiff in Fedin Bros., and that the Beneficiary's duties were and will be exclusively managerial or executive, unlike the Beneficiary in Church Scientology.

The Petitioner cites no authority to show that the level of detail in Fedin Bros. is the threshold for these petitions, so that any job description is sufficient as long as it has more detail than in Fedin Bros. We did not simply declare the Beneficiary's job description insuf1icient and then cite Fedin Bros. Rather, we quoted the Petitioner's statement that the Beneficiary "makes the major executive decisions, oversees the overall operations of the company and oversees the Managers and Officers of the two subsidiary companies," and we found that this statement "does not describe the specific tasks that the Beneficiary performs in order to exercise that authority." We also noted that the job description was worded so imprecisely that, at times, we could not tell whether the Petitioner was describing the Beneficiary's former duties abroad or his intended future duties in the United States.

With respect to Church Scientology and the time spent on individual duties, the Petitioner states: "USCIS [U.S. Citizenship and Immigration Services] was informed the beneficiary would spend 3 days per week at and 2 days per week at The Petitioner had stated that the Beneficiary's duties included control of and We did not consider the Beneficiary's claimed duties with those companies, because (1) the Petitioner had not documented any affiliation with and (2) the Petitioner's affiliation with through common ownership by a foreign parent company, did not give the Petitioner ownership and control of On motion, the Petitioner continues to rely on the Beneficiary's claimed authority over and

with no rebuttal of our findings regarding those companies. Because the Petitioner has shown no error in our findings regarding and the Petitioner cannot build a case for eligibility based on the Beneficiary's claimed authority over those companies.

Regarding the Beneficiary's past foreign employment, the Petitioner states that it had provided "twelve detailed descriptions of the beneficiary's duties," "a percentage breakdown of the beneficiary's time distributions in his executive capacity," and "a resume which described the beneficiary's experience with the foreign entity." In our decision, we discussed serious concerns with these materials. For example:

• The Petitioner provided conflicting chronologies for the Beneficiary's employment. An official of the petitioning company stated that .the Beneficiary had been "Director" of the foreign company "since 200 I," but the Beneficiary, on his own resume, stated that he had been "Marketing Director" from 1999 to 2012.

• The foreign company's organizational chart showed no "Director" position at the subsidiaries that the Beneficiary purportedly controlled.

• The Petitioner had not documented the foreign company's ownership of those claimed subsidiaries.

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• The record described the foreign employer as a pharmaceutical company, but its president stated that the Beneficiary "[c ]onfers with third party outside consultants for fashion designs and new trends in the clothing and fabrics."

We stated, in our decision, that these deficiencies and discrepancies were issues of serious concern. The Petitioner does not address or resolve them on motion, instead asserting that, because the Petitioner submitted a detailed job description, it has met its burden of proof.

A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 201 0). In other words, a petitioner must show that what it claims is "more likely than not" or "probably" true. To determine whether a petitioner has met its burden under the preponderance standard, we consider not only the quantity, but also the quality (including relevance, probative value, and credibility) of the evidence. Jd. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). The discrepancies which we identified, and which the Petitioner has not addressed, preclude a finding that the Petitioner has submitted credible evidence and information to meet its burden of proof.

IV. ABILITY TO PAY

The Director found, and we agreed, that the Petitioner did not establish its ability to pay the Beneficiary's proffered wage, $60,000 per year, as required by the regulation at 8 C.F.R. § 204.5(g)(2). We found that the Petitioner had relied on the income and assets of other companies, and that the Petitioner's past payments to the Beneficiary have been inconsistent and usually below the level of his full salary. On motion, the Petitioner cites a USCIS memorandum and case law. The Petitioner has not overcome our prior finding, and relies on assertions that we have already refuted in. our prior decision.

When the Petitioner stated its income on the Form 1-140 petition, the Petitioner derived those figures from the income tax returns filed by and The Petitioner claimed to be the successor in interest to both of those companies, but we found that the Petitioner cannot be the successor in interest to companies that continue to exist as active businesses. Also, as noted above, the Petitioner has not established its claimed affiliation with either of those companies. On motion, the Petitioner maintains that and "operate as divisions even though they are structured like subsidiaries. Therefore, it is appropriate to consider their combined gross sales, total income, and net income."

As noted above, the Petitioner has not substantiated its claimed business ties with or its claimed authority over The petitioning U.S. employer must establish its own ability to pay the Beneficiary's salary; it cannot suffice to assert that the Petitioner can appropriate or redirect funds from other entities for that purpose. For this reason, in our last decision, we found that the Petitioner could not establish its own ability to pay through evidence that paid the Beneficiary $30,000 in 2014. The Petitioner, on motion, maintains that we should take this payment into

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consideration. We will not do so, because the Petitioner has not established that division of the petitioning company as claimed.

is essentially a

Furthermore, aside from the ownership/affiliation question, the Petitioner relies on an incorrect assumption that "it is appropriate to consider their combined gross sales, total income, and net income." The Petitioner identifies no source to support the claim that we should consider gross income, before expenses. A federal court has ruled that it is proper to rely on net income rather than gross income. K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080, 1084 (S.D.N.Y. 1985). By the Petitioner's own calculations, "the entire operation" yielded a net income of $14,265 for 2013, Jess than a quarter of the proffered $60,000 annual salary. The figures for gross receipts and total income were substantially higher, but those sums included expenses that the companies had already paid, meaning that the funds were no longer available to pay the Beneficiary's salary.

The Petitioner indirectly cites a USCIS memorandum which states that a petitioner has established its ability to pay if; (1) the petitioner's net income is equal to or greater than the proffered wage; (2) the petitioner's net current assets are equal to or greater than the proffered wage; or (3) the petitioner already employs the beneficiary and has paid or currently is paying the proffered wage. Memorandum from William R. Yates, Associate Director for Operations, USCIS, HQOPRD 90116.45, Determination of Ability to Pay under 8 CFR 204.5(g)(2) 2 (May 4, 2004), http://www.uscis.gov/laws/policy-memoranda.

On motion, the Petitioner repeats the claim that "[t]he monthly pay statements for August and September 2015 showed the beneficiary was being paid $5,000 per month." These two paychecks do not show that the Petitioner consistently paid the Beneficiary's full salary from the December 2014 filing date onward, as required by 8 C.F.R. § 204.5(g)(2). Also, in our priordecision, we acknowledged those two pay statements, but also identified a significant discrepancy. The Beneficiary's August 2015 pay statement shows a year-to-date total of $21,000; the September 2015 statement shows a year-to­date total of $24,000. These amounts differ by only $3,000, contr"adicting the claim that the Petitioner paid the Beneficiary $5,000 in September 2015. On motion, the Petitioner does not acknowledge this finding or offer any explanation or rebuttal.

The Petitioner cites Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), to support the proposition that the Petitioner can overcome recent poor financial performance if "it has (l) a historical track record of profitability, (2) cash on hand sufficient to pay the wage, and (3) 'a reasonable expectation of increasing profits in the future."' The Petitioner does not, however, cite any evidence to show that it meets any of those three conditions.

The Petitioner has cited case law and USCIS policy documentation in its assertions on motion, but the cited sources do not demonstrate that we erred in dismissing the appeal.

Matter of D-1-, Inc.

V. CONCLUSION

The Petitioner has not established that our prior decision was incorrect at the time of that decision. Therefore, the Petitioner has not shown proper cause for reconsideration.

ORDER: The motion to reconsider is denied.

Cite as Matter of D-1-. Inc., ID# 270038 (AAO Mar. 17, 2017)