dismissed EB-1C Case: Automotive Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 6, 2023 In Re: 29315291 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, an auto body shop, seeks to permanently employ the Beneficiary as its executive 
director under the first preference immigrant classification for multinational executives or managers . 
See Immigration and Nationality Act (the Act) section 203(b )(1 )(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 a managerial or executive capacity . 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish: (1) that the Petitioner will employ the Beneficiary in the United States in a managerial or 
executive capacity; and (2) the Petitioner's ability to pay the Beneficiary 's proffered wage. 
The Petitioner appealed the decision under 8 C.F.R. § 103.3. We rejected the appeal as untimely under 
8 C.F.R. § 103.3(a)(2)(v)(B)(l) , and rejected the Petitioner's motion to reopen because there is no 
provision to permit a petitioner to file a motion on a rejected appeal. But we reopened the appeal on 
our own motion under 8 C.F.R. § 103.5(a)(5) because the appeal had been filed timely, and the 
rejection had been in error. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawath e, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
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 
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 bas 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). 
II. ANALYSIS 
In an employment-based immigrant petition that requires a job offer, the petitioning employer must 
establish its ability to pay the proffered wage from the time the priority date is established until the 
beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). To establish its ability to 
pay, a petitioner must submit annual reports, federal tax returns, or audited financial statements. Id. 
When dete1mining ability to pay, U.S. Citizenship and Immigration Services (USCIS) examines 
whether a petitioner paid a beneficiary the full proffered wage each year, beginning with the year of a 
petition's priority date. If a petitioner did not annually pay the full proffered wage or did not pay a 
beneficiary at all, USCIS considers whether the business generated annual amounts of net income or 
net current assets sufficient to pay any differences between the proffered wage and wages paid. If net 
income and net current assets are insufficient, USCIS may also consider other factors affecting a 
petitioner's ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm 'r 1967). 
The Beneficiary established an insurance brokerage in Venezuela in 1992, and since that time has 
served as its general director. The Beneficiary established the petitioning entity in 2014, and has 
worked for the Petitioner since 2018 in L-1 A nonimmigrant status. The Petitioner filed the petition 
on March 20, 2020, and therefore must establish its ability to pay the Beneficiary's proffered wage of 
$60,000 per year from that date forward. We agree with the Director's conclusion that the Petitioner 
has not established its ability to pay the Beneficiary's proffered wage. 
On F01m I-140, the Petitioner claimed net annual income of$169,723, but the record does not support 
that assertion. At various times in this proceeding, the Petitioner has submitted copies of its federal 
income tax returns for 2017 through 2021. The three most recent returns show the following amounts: 
Year 2019 2020 2021 
Taxable income or loss -$10,585 $0 $0 
Net current assets 29,558 29,352 30,468 
Salaries and wages 127,999 75,354 70,950 
The Petitioner has also submitted balance sheets and profit and loss statements for 2019 and 2020. 
These statements are not audited financial statements as the Petitioner claims; they include disclaimers 
specifying that no audit took place. Many of the figures coincide with the tax returns, but the 2020 
balance sheet claims $449,691 in net current assets, because the balance sheet includes $95,000 in 
"[l]oans to shareholders" and $315,514 in "[ o ]ther investments" under current assets, whereas the tax 
return showed those amounts as longer-term assets. 1 
1 Given these inconsistent descriptions of which of the Petitioner's assets count as "current assets," another irregularity 
bears noting. On every tax return in the record, dating back to 2017, the Petitioner has reported a $15,077 "rental security 
deposit" on an unspecified property as a current asset. "Current assets are assets expected to be converted to cash, sold, 
2 
The Director denied the petition, stating that the Petitioner's 2019 and 2020 income tax returns do not 
show sufficient net income or net current assets to pay the Beneficiary's proffered salary of $60,000 
per year. The Director also addressed the Beneficiary's past compensation, which we will address 
further below. We note that the Petitioner claimed seven employees at the time of filing and eight 
employees on appeal, whose claimed aggregate salaries total more than $250,000 per year. On its 
income tax returns, the Petitioner has consistently reported salary payments well below that amount. 
On appeal, the Petitioner submits or resubmits copies of its tax returns and other documents. The 
Petitioner does not discuss the figures on these documents or explain how they establish that the 
Petitioner has consistently been able to pay the Beneficiary's proffered salary of $60,000 per year 
since the petition's filing date in March 2020. 
In the decision, the Director noted that the Petitioner had employed the Beneficiary before and since 
the filing date, but apparently paid the Beneficiary less than the proffered wage. The Director also 
stated that the Petitioner's net income and net current assets were insufficient, as demonstrated above, 
to pay the Beneficiary's proffered wage. The Director did not address the question of whether or not 
the Petitioner's net income or net current assets were sufficient to cover the difference between the 
Beneficiary's full salary and the amount actually paid to him. 
Review of the record shows that the Petitioner has provided inconsistent evidence and information 
relating to its past salary payments to the Beneficiary. These inconsistencies raise questions of 
credibility. See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner's initial submission included copies of purported pay receipts for the Beneficiary for 
the period from June 7 to December 19, 2019, prepared by a contracted payroll service. The 
statements, listing checks numbered between 10278 and 10448, show payments every two weeks, 
consistently reflecting gross pay of $2,307.69 and net pay of $1,983.88. The Beneficiary's last pay 
statement for the year, issued December 20, 2019, shows gross pay of $57,692.25 for the year, an 
amount equivalent to 25 payments of $2,307.69 each. One more paycheck would put the yearly total 
within a few cents of the proffered $60,000. 
But other documents submitted at the same time cast doubt on these pay statements. The Petitioner's 
initial submission included federal and state quarterly reports showing the total wages that the 
Petitioner paid during each of the first three quatiers of 2019. The Florida reports also show the wages 
paid to each employee. The Florida reports show gross wages paid to the Beneficiary totaling 
$12,471.12 in the first quarter; $21,585.20 in the second quarter; and $2,600.00 in the third quarter. 
The Florida third quarter report and corresponding federal quarterly return indicate that the Petitioner 
paid a total of$6,527.50 in gross wages to all its employees between July and September 2019.2 The 
or consumed during the next twelve months." Jay Alix & Elmer E. Heupel, Financial Handbook for Bankruptcy 
Professionals § 9 .2, at 354 ( 1991), quoted in Asset, Black's Law Dictionary (11th ed. 2019). The Petitioner changed its 
address in early 2020 but has continued to claim the same security deposit as a current asset. 
2 The federal quarterly return indicates that seven employees "received wages" during the quarter, but the Florida 
counterpart shows payments to only three employees, one of whom is the Beneficiary. Three other employees are listed 
with the amount "0," and a seventh employee shown during other quarters is not listed on the third quarter report. 
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stated third quarter sum of $2,600 is not consistent with the pay receipts referenced above that purport 
to indicate that the Petitioner paid the Beneficiary $16,153.83 in gross wages during that same quarter. 
Bank statements from 2019, submitted at the same time as the above pay statements, do not show that 
the checks corresponding to the pay statements were actually presented for payment. For instance, a 
pay statement from June 2019 shows check number 10278, in the amount of $1,983.88. The June 
2019 bank statements shows payments for checks numbered 10277 and 10279, but not 10278. The 
statement does not show any other fonn of withdrawal or debit in the amount of$1,983.88. 
In a request for evidence (RFE), the Director requested further evidence of the Beneficiary's past 
salary payments. The Petitioner's response included a new set of purported pay statements dated 
between January 2019 and December 2020. The Beneficiary's purported 2019 pay receipts submitted 
in response to the RFE are entirely different from those submitted with the initial filing of the petition. 
The newly submitted statements show weekly payments in varying amounts instead of biweekly 
payments in consistent amounts, and some show different names for the petitioning employer. As an 
illustrative example, the Petitioner has submitted two different pay receipts for the Beneficiary, both 
dated September 27, 2019. The receipts show the following information: 
Initial submission RFE response 
Payroll check number: 10367 50004 
Period starting: 09/13/2019 09/20/2019 
Period ending: 09/26/2019 09/26/2019 
Pay Date: 09/27/2019 09/27/2019 
Gross pay this period: $2,307.69 $900.00 
Gross pay year to date: $43,846.11 $24,185.20 
Net pay: $1,983.88 $698.07 
The receipts also show two different variations of the name of the petitioning company, and two 
different "company codes." 
The September 2019 bank statement in the record does not show any five-digit check numbers starting 
with "1." The statement also shows a gap between the checks numbered 50003 and 50005. It does 
not show payments or withdrawals in the amount of$1,983.88 or $698.07. 
Also regarding the purported pay statements submitted in response to the RFE, the year-to-date figures 
on the last-dated statements from each year indicate that the Petitioner paid the Beneficiary gross 
wages totaling $31,271 in 2019 and $70,500 in 2020. The last pay statements from 2020 indicate that, 
as of December 18th, the Petitioner had paid the Beneficiary $36,063 during the year. There are two 
pay statements dated December 24th, one showing gross pay of $1,500, the other showing a much 
larger payment of $32,937. The large payment at the end of the year, made after the Director issued 
the RFE in November 2020, does not establish that the Petitioner was able to pay the Beneficiary the 
full proffered wage at the time of filing in March 2020 and continuously thereafter. 
The new set of pay statements submitted in response to the RFE generally reflects weekly payments 
in 2020, but there are some gaps. The longest gap is between the statements dated February 21 and 
May 22, 2020. Year-to-date sums on each statement indicate that the Beneficiary received no pay 
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statements between those two dates. There is only one pay statement from August 2020, and two from 
September. 
It is the petitioner's responsibility and burden to resolve any inconsistencies in the record with 
independent objective evidence, and attempts to explain or reconcile such inconsistencies will not 
suffice without competent objective evidence pointing to where the truth, in fact, lies. See Matter of 
Ho, 19 I&N Dec. at 591-92. A petition can only be properly approved upon a detennination that the 
facts stated in the petition are true. See section 204(b) of the Act, 8 U.S.C. § 1154(b). Doubt cast on 
any aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. at 591. 
The existence of two different sets of pay statements for the Beneficiary, neither of which is 
conoborated by bank statements in the record, raises significant questions. Those same bank 
statements include images of cashed checks, which, in tum, reflect a third set of payments to the 
Beneficiary under two different variations of his name (with and without his middle name). The 
checks add up to nearly $70,000 apparently paid to the Beneficiary between January and September 
2019. There is no explanation for the purpose ofthese checks. They do not appear to be salary checks, 
because they do not match the dates and amounts on the pay statements, and nearly all the checks are 
in multiples of $100, whereas the reported pay statements show non-rounded amounts consistent with 
withholding of taxes. Whatever the purpose of the checks, the bank statements date from before the 
filing date and therefore do not show payments to the Beneficiary at or after the time of filing. 
The Petitioner's response to the RFE included a copy ofIRS Form W-2, Wage and Tax Statement, 
indicating that the Petitioner paid the Beneficiary $31,271 in 2019, an amount slightly over half the 
proffered wage. This amount is consistent with the second set of purported 2019 pay statements. It 
does not reflect the payments shown in the first set ofpurported 2019 pay statements, nor does it reflect 
the checks to the Beneficiary shown in the bank statements. 
With respect to 2020, the Petitioner's response to the RFE also included a payroll summary indicating 
that the Petitioner paid the Beneficiary $19,713 from January 1 to July 10, 2020. This is consistent 
with the year-to-date figure on the July 10 pay statement in the Petitioner's response to the RFE, 
indicating a rate of pay substantially below the proffered wage. 
The Director issued a notice of intent to deny the petition (NOID), stating that the evidence described 
above shows that the Petitioner paid the Beneficiary substantially less than the proffered wage in 2019 
and 2020. 
In response to the NOID, the Petitioner submitted an uncertified copy ofIRS Form W-2c, Conected 
Wage and Tax Statement, claiming that the Petitioner had paid the Beneficiary $62,601 in 2019. The 
Petitioner did not submit evidence that it had filed this form with the Internal Revenue Service (IRS). 
This newly-claimed amount does not match either set ofpurported pay statements or the checks shown 
in the bank statements. The Director noted "[t]he overall inegular pattern of payments" in the NOID, 
but in its response, the Petitioner did not explain why it has submitted so many different versions of 
the Beneficiary's wages from 2019. The Petitioner did not submit sufficient evidence to resolve the 
discrepancies as required by Matter o,_fHo, 19 I&N Dec. at 591-92. 
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The Petitioner also submitted the Beneficiary's amended individual tax return, adding $31,330 to his 
claimed income for 2019. The Petitioner did not show that the Beneficiary filed this amended return 
with the IRS. The return in the record is not a copy; it includes original signatures in ballpoint pen. 
Additionally, the 2019 tax is for the year before to the priority date, and would not evidence payment 
of wages from the priority date onward. 
The Petitioner's tax returns from 2020 and 2021 do not show any net income, and they do not show 
sufficient net cun-ent assets to cover the Beneficiaty's full salaty from the time of filing onward. The 
Beneficiary's pay receipts from 2021 do not establish ability to pay in 2020. The Petitioner claims to 
have paid the Beneficiary at least a partial salary since the time of filing, but when put on notice of the 
deficiency, the Petitioner submitted evidence that conflicts with the evidence submitted previously. 
The Petitioner has not submitted objective, independent evidence to show how much it actually paid 
the Beneficiaty in salaries and wages in 2019 and 2020. Although 2019 was before the filing date, the 
many substantial inconsistencies in the evidence from that year reflect on the Petitioner's overall 
credibility. 
The bank statements document some cashed checks payable to the Beneficiary in 2019, but the 
Petitioner has not established or claimed that the cashed checks shown in the bank statements represent 
wage or salary payments. 
The Petitioner's net income and net cun-ent assets are insufficient to establish the Petitioner's ability 
to pay the proffered wage. As shown above, there are many unexplained inconsistencies in the 
Petitioner's evidence regarding the Beneficiary's compensation. These inconsistencies prevent us 
from conducting a full Sonegawa analysis of the various factors influencing the Petitioner's ability to 
pay the proffered wage. We cannot conclude that the Petitioner has met its burden ofproof to establish 
that its payments to the Beneficiary, whether viewed separately, or added to either the Petitioner's net 
income or its net cun-ent assets, equal or exceed the proffered wage from the March 2020 filing date 
onward. 
The above conclusions are sufficient to determine the outcome of the appeal. Therefore, we reserve 
argument on the remaining question of whether the Petitioner seeks to employ the Beneficiary in a 
managerial or executive capacity. 3 
III. CONCLUSION 
We will dismiss the appeal because the Petitioner has not submitted credible and consistent evidence 
to show its ability to pay the Beneficiary's proffered wage from the filing date onward. 
ORDER: The appeal is dismissed. 
3 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-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). 
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