dismissed EB-1C Case: Cleaning Services

U.S. Citizenship 
and Immigrat1on 
Services 
MATTER OF Z-S-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 13, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of cleaning services, seeks to permanently employ the Beneficiary as its 
"CEO" 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. § l 153(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, as required, that it had the ability to pay the Beneficiary's proffered wage as of the date the 
petition was filed. The Director later denied the Petitioner's motion to reopen and reconsider, 
upholding its original decision. 
On appeal, the Petitioner contends that it submitted sufficient evidence to support its prior motion 
and establish that it met the ability to pay requirement. 
Upon de nova review, we find that the Petitioner has not overcome the basis for denial. Therefore, 
we will dismiss the appeal. 
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 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 )(1 )(C) of the 
Act. 
The Form 1-140, 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). 
Matter of Z-S-, LLC 
IL ABILITY TO PAY 
The primary issue in this matter is whether the correctly denied the Petitioner's motion to reopen and 
reconsider the original decision, which was based on the conclusion that the Petitioner did not 
establish that it had the ability to pay the Beneficiary's proffered wage at the time this petition was 
filed. 
When filing a Form 1-140, a petitioner is required to provide copies of its annual reports, federal tax 
returns, or audited financial statements to establish that it had the ability to pay the beneficiary's 
proffered wage at the time the priority date is established and continuing until the beneficiary obtains 
lawful permanent residence. 8 C.F .R. § 204.5(g)(2). 
In the present matter, the petition was filed in October 2014; it indicates that the Petitioner had 11 
employees at the time of filing and that it would pay the Beneficiary a proffered wage of 
"$36,802.64" per year. 
The Director issued a request for evidence (RFE) asking that the Petitioner submit one of three 
documents - its 2014 federal tax return, its 2014 annual reports, or its 2014 audited financial 
statements - to establish its ability to pay the Beneficiary's proffered wage. 
In response, the Petitioner stated in a letter that it meets the ability to pay requirement through its 
foreign parent entity. The Petitioner provided the parent entity's financial documents and evidence 
showing that the foreign entity compensated the Beneficiary in 2014; the Petitioner submitted the 
Beneficiary's tax return, which shows that she was compensated above the proffered wage. The 
Petitioner also provided its own 2014 federal tax return, which shows that it did not pay salaries, 
wages, or officer compensation and had a negative net income, despite the fact that it was 
established in 2011. 
Although the Director issued a decision acknowledging the submission of the foreign parent entity's 
financial documents, he denied the petition based on the lack of evidence of the Petitioner's ability 
to pay, relying on the Petitioner's 2014 tax return, which showed a negative net income and negative 
net current assets. The Director determined that the regulations do now allow for the submission of 
the foreign entity's financial documents as a means of meeting the ability to pay requirement. In the 
decision that followed the Petitioner's motion to reopen and reconsider, the Director followed 
similar reasoning, and again did not consider evidence of the foreign entity's ability to pay. Despite 
acknowledging the Petitioner's cited references to Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l 
Comm'r 1967), and Full Gospel Portland Church v. Thornburgh, 730 F.Supp. 441 (DDC 1988), the 
Director denied the combined motion, differentiating the facts in the instant matter from those in the 
cited decisions and finding that the Petitioner did not provide new evidence that would warrant 
reopening the matter and reversing the prior decision. 
The record shows that the Petitioner also provided its 2015 federal tax return, which again shows 
that the Petitioner paid no compensation to employees or company officers and only had a net 
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Matter of Z-S-, LLC 
income of $3766 - nearly ten times below the Beneficiary's proffered wage - and showed net 
current assets of only $7575, 1 which also falls far short of the proffered wage. 
On appeal, the Petitioner states that it provided federal tax returns for 2014 and 2015 and contends 
that the Director did not respond to the part in the motion where it discussed its current net assets. 
However, as noted above, neither tax return indicates that the Petitioner had sufficient current net 
assets to pay the Beneficiary's proffered wage at the time of filing. 
The Petitioner also, again, cites Matter of Sonegawa, asserting that we have discretionary authority 
to consider the totality of the evidence that concerns the Petitioner's finances and its ability to pay 
the Beneficiary's proffered wage. Having done so, however, we find that the facts and 
circumstances in the cited case are notably different from those in the matter at hand. Namely, the 
petitioner in Matter of Sonegawa had been doing business for 11 years by the time it filed the 
petition and it had consistently generated income that was well above the beneficiary's proffered 
wage and the wages paid to the petitioner's other employees. That petitioner also established that its 
decreased earnings during the year of filing resulted from a number of circumstances that were 
specific to that isolated time period and were not common throughout its prolonged history of doing 
business in the United States. In addition, the petitioner in the cited case provided ample evidence 
that there was a reasonable likelihood that its business would grow and that its revenues would likely 
increase to account for the beneficiary's proffered wage. The same cannot be said of the Petitioner 
in the matter at hand, which shows that it had been doing business for only three years at the time of 
filing and did not generate an income that was equal to or greater than the Beneficiary's proffered 
wage. Although the Petitioner indicates that it has undergone staffing changes, it has not provided 
evidence to show that such changes would free up sufficient funds that can be used to pay the 
Beneficiary's salary. In fact, there is no evidence that the Petitioner, rather than its foreign parent 
entity, ever paid any employee salaries; as such, it is unclear how a staff reduction would result in 
the Petitioner gaining the ability to pay the Beneficiary's proffered wage. 
Further, we find that the decision in Full Gospel is not binding here. Although we may consider the 
reasoning of the decision, we are not bound to follow the published decision of a United States 
district court in cases arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 
1993 ). We also note that the facts in Full Gospel are distinguishable from those in the instant case. 
Namely, the church as a new parish of a larger church is not the same as the separate and distinct 
foreign corporation claiming the ability to pay in the matter at hand. U.S. Citizenship and 
Immigration Services (USCIS) has long held that it may not "pierce the corporate veil" and look to 
the assets of the petitioning corporation's owner - in this instance, the Petitioner's foreign parent 
1 Net current assets are the difference between a petitioner's current assets and current liabilities. Net current assets 
identify the amount of "liquidity" that a petitioner has as of the date of the petition and is the amount of cash or cash 
equivalents that would be available to pay the proffered wage during the year covered by the tax return. As long as we 
are satisfied that a petitioner's current assets are sufficiently "liquid" or convertible to cash, or cash equivalents, then a 
petitioner's net current assets may be considered in assessing the prospective employer's ability to pay the proffered 
wage. 
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Matter of Z-S-, LLC 
company - to satisfy the Petitioner's ability to pay the proffered wage. It is a fundamental rule that a 
corporation is a separate and distinct legal entity from its owners and shareholders. See Matter of M, 
8 I&N Dec. 24 (BIA 1958), Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 
1980), and Matter of Tessel, 17 I&N Dec. 631 (Acting Assoc. Comm'r 1980). Consequently, 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. Furthermore, there is nothing in the 
governing regulation that allows USCIS to consider the assets or resources of individuals or entities 
that have no legal obligation to pay the wage. See 8 C.F.R. § 204.5(g)(2). Therefore, the 
Petitioner's focus on the Beneficiary's "actual wage," which was paid by the foreign parent entity, is 
misplaced as there is no precedent that would allow us to determine the Petitioner's ability to pay 
based on the finances of the foreign entity. 
In light of the above discussion, we find that the Director's decision denying the motion was correct. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In addition, while not previously discussed in the Director's decisions, information that the 
Petitioner has provided in support of its previously filed motion and again in support of this appeal 
leads us to question whether the Beneficiary would be employed in the United States in a managerial 
or executive capacity. Namely, the Petitioner has stated that it has terminated the employment of its 
manager and several other workers "due to poor performance"; the Petitioner indicates that these 
employees have not been replaced and that their combined salaries would now be available to pay 
the Beneficiary's wages. Although the Petitioner claims that the Beneficiary's spouse will continue 
to be employed as the organization's manager, it states that "the spouse will be working fewer hours 
and will become more dependent upon the Beneficiary to lead and manage the company" due to his 
health complications. This explanation indicates that the Beneficiary would have to perform 
additional job duties that were previously assigned to another employee. The Petitioner has not 
established that its diminished management structure will allow it to employ the Beneficiary in a 
managerial or executive capacity. 
While we are not making an adverse determination based on this new information, the Petitioner 
may need to address the statements it made on appeal regarding the Beneficiary's proposed 
employment in the United States in any future proceedings. 
IV. CONCLUSION 
For the reasons discussed above, we find that the Director correctly denied the Petitioner's motion to 
reopen and reconsider. The appeal will be dismissed for this reason. 
ORDER: The appeal is dismissed. 
Cite as Matter ofZ-S-, LLC, ID# 1572108 (AAO Sept. 13, 2018) 
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