dismissed EB-1C Case: Automotive Parts

U.S. Citizenship 
and Immigration 
Services 
In Re : 17288352 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE 24, 2022 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner states that it operates as an "import export auto parts /repair" business. It seeks to 
permanently employ the Beneficiary as its "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)(l)(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 Petitioner did not 
establish that: (1) the Beneficiary was employed abroad in a managerial or executive capacity; (2) the 
Beneficiary would be employed in the United States in a managerial or executive capacity; and (3) the 
Petitioner had the ability to pay the Beneficiary's proffered wage . We summarily dismissed the 
Petitioner's subsequent appeal for failure to specifically identify an erroneous conclusion of law or 
statement of fact in the unfavorable decision under 8 C.F.R . § 103 .3(a)(l )(v). The matter is now before 
us on a motion to reopen. 
The evidence submitted with the motion to reopen establishes that the Petitioner timely submitted an 
appeal brief that specifically alleged an erroneousconclusionoflaw or statement of fact. Accordingly, 
we will provide a decision on the merits of the matter concerning the ability to pay. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review of the entire record of proceeding, we 
conclude that the Petitioner has not established that it had the ability to pay the Beneficiary's proffered 
wage . Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the Petitioner's appellate arguments regarding the remaining issues. 1 
I. LEGAL FRAMEWORK 
An immigrant visa is 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 
1 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer 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 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(i)(3). The petition must also be 
accompanied by evidence demonstrating the Petitioner's ability to pay the Beneficiary's proffered 
wage at the time of filing. 8 e.F.R. § 204.5(g)(2). 
II. ABILITY TO PAY 
The Petitioner must establish that it has the ability to pay the $140,000 proffered wage stated in the 
petition. The regulation at 8 C.F.R. § 204.5(g)(2) states: 
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. In a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records may be submitted by the 
petitioner or requested by [USeIS]. 
As indicated in the above regulation, the Petitioner must establish its ability to pay the proffered wage 
from the priority date of the petition. 2 The priority date in this case is August 1, 2019. 
In determining a petitioner's ability to pay the proffered wage, users first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 e.F.R. § 204.5(g)(2), may establish the petitioner's ability to 
pay the proffered wage. 
Absent evidence that the Petitioner has paid the Beneficiary a salary equal to or above the proffered 
wage from the priority date onward, users next examines the net income and net current assets 
figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited financial 
statements(s). If either of these figures, net income or net current assets, equals or exceeds the 
proffered wage, or the difference between the proffered wage and the amount paid to the beneficiary 
decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
2 For multinational executives or managers, the priority date is the date the completed, signed petition is properly filed 
with USCIS. Sec 8 C.F.R. § 204.5(d). 
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in a given year, the petitioner would ordinarily be considered able to pay the proffered wage during 
that year. 
If a petitioner's net income or net current assets are not sufficient to establish its ability to pay the 
proffered wage, USCIS may also consider the totality of the Petitioner's circumstances. See Matter 
ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). USCISmay, at its discretion, consider such 
factors as the number of years the petitioner has been doing business, the established historical growth 
of the petitioner's business, the petitioner's reputation within its industry, the overall number of 
employees, the occurrence of any uncharacteristic business expenditures or losses, and any other 
evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
In the matter at hand, the Petitioner was structured as a corporation and claims to have been established 
in June 2016. At the time of filing, it claimed to have three employees and gross income of $400,971. 
It also claimed to have employed the Beneficiary at the time of filing. In support of the petition, the 
Petitioner provided its 2016 federal income tax return and bank statements for 2017 and 2018. 3 The 
petition also contained the 2017 and 2018 federal income tax returns of the Petitioner's U.S. 
subsidiary, ________ 
In a subsequent request for evidence (RFE), the Director stated that the submitted documents did not 
establish that the Petitioner possessed the ability to pay the proffered wage. The Director noted that 
the Petitioner's bank statements are not among the types of required evidence specified in the 
regulation and further informed the Petitioner that evidence pertaining to its subsidiary is not relevant 
to the Petitioner's ability to pay the proffered wage. Accordingly, the Director requested additional 
evidence of the Petitioner's ability to pay, including evidence of wages it had paid to the Beneficiary, 
such as IRS Forms W-2, Wage and Tax Statement, IRS Fonns 1099-MISC, Miscellaneous Income, 
pay vouchers, or IRS Forms 941, Employer's Quarterly Federal Tax Return. 
In response, the Petitioner provided its 2019 federal income tax return showing a net income of-$ 8,854 
and net current assets of $55,212. 4 The Petitioner also submitted! 2019 federal 
income tax return and Quarterly Federal Tax Return for 2017 and 2018, asserting that by virtue of 
owning the I I the Petitioner and its subsidiary are "[e ]ssentially ... the same entity." 
Finally, the Petitioner submitted 2019 IRS Form W-2s and IRS Form W-3, Transmittal of Wage and 
Tax Statements, which document wages paid by I 
In denying the petition, the Director noted that the record does not show that the Petitioner paid any 
wages to the Beneficiary; and the Petitioner's 2019 tax return showed that its net income and current 
net assets did not establish its ability to pay the $140,000 proffered wage. The Director also declined 
to consider the documents relating tol I as evidence of the Petitioner's ability to pay, 
explaining that despite the Petitioner's ownership of the company, the two are separate legal entities 
and only the Petitioner's finances are considered in determining whether it has the ability to pay the 
3 Since these documents precede the priority date of the petition, they do not establish the Petitioner's ability to pay the 
proffered wage. 
4 Net current assets are the difference between a petitioner's current assets and current liabilities. A corporation's year­
end current assets are shown on Schedule L, lines 1 through 6 and its year-end current liabilities are shown on lines 16 
through 18. The2019returnalso showed that no funds were paid in officercompensationoremployeewagesandsalaries. 
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proffered wage. In light of these deficiencies, the Director concluded that the Petitioner did not 
demonstrate that it met the ability to pay requirement. 
On appeal, the Petitioner contends that the tax returns it provided show "sufficient sources" of funds, 
arguing that its assets include its ownership of I and that the Director "blindly" denied 
the petition without considering those assets. We disagree and find that the Director correctly 
addressed this issue both in the RFE and in the denial. The Director correctly infom1ed the Petitioner 
that the financial documents pertaining to lmay not be used to establish its ability to 
pay the proffered wage. Since a corporation is a separate and distinct legal entity from its owners and 
shareholders, the assets of its shareholders or of other enterprises or corporations cannot be considered 
in determining the petitioning corporation's ability to pay the proffered wage. See Matter of Aphrodite 
Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case, the court in Sitar Restaurantv. 
Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated that "nothing in the governing 
regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of individuals or 
entities who have no legal obligation to pay the wage." Accordingly, the determination of whether 
the Petitioner has met the ability to pay requirement must be made based on the Petitioner's finances, 
rather than those of a separate legal entity, even if that entity is a subsidiary. See id. Therefore, the 
Director's exclusion of the subsidiary entity's federal income tax return and other financial data is in 
accordance with the applicable law and does not demonstrate unfair "bias" against the Petitioner. 
Further, considering the totality of the circumstances, the record lacks evidence showing that the 
Petitioner has been a consistently profitable and growing business, nor does the record show the 
Petitioner's reputation within its industry, the magnitude of its operations, the occurrence of any 
uncharacteristic business expenditures or losses, or other factors that would overcome the shortfall in 
net income and net current assets on its tax return. 
In light of the above, in this reopened proceeding, we conclude that the Petitioner has not established 
its continuing ability to pay the proffered wage from the priority date of the petition. The petition 
remains denied. 
ORDER: The motion to reopen is dismissed. 
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