dismissed EB-1C Case: Communications Equipment

U.S. Citizenship 
and Immigration 
Services 
In Re : 13860877 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 04, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner , a service and distribution center for communications test equipment, seeks to 
permanently employ the Beneficiary as its chief financial officer and vice president under the first 
preference immigrant classification for multinational executives or managers . Immigration and 
Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition on multiple grounds , concluding the 
Petitioner did not establish that: (1) the Beneficiary would be employed in a managerial or executive 
capacity in the United States; (2) the Beneficiary was employed in a managerial or executive abroad; 
(3) the Beneficiary's former foreign employer was doing business as defined by the regulations; (4) it 
had provided a bona fide job offer to the Beneficiary; and (5) it had the ability to pay the Beneficiary's 
proffered wage. 
The Petitioner later appealed the Director's decision and we dismissed the appeal I concurring with the 
grounds for denying the petition. However , we withdrew the Director's conclusion that the Petitioner 
did not establish that the Beneficiary 's foreign employer was doing business. The Petitioner then filed 
a motion to reopen and a motion to reconsider 2 with us, but we denied the motions as untimely 
consistent with 8 C.F.R. § 103.5(a)(l)(i) . The Petitioner filed another motion to reopen and motion to 
reconsider, 3 we dismissed the motions and affirmed our decision that the previous motions had been 
untimely filed. The Petitioner again filed a motion to reopen and a motion to reconsider and upon 
reviewing the merits, we concluded that it had not demonstrated eligibility for the benefit sought and 
we dismissed both motions. 4 The matter is now before us again on a fourth combined motion to reopen 
and motion to reconsider. 5 
1 I-290B receipt tA ~ 
2 I-290B receipt #11 
3 I-290B receipt # ! I 
4 I-290B receipt J I Although we did not agree that an extension to the time period to file a motion in 
~onse to our appeal was properly granted, we nonetheless reconsidered our prior decision to dismiss the appeal. In our 
L._J 2020 decision, we only reconsidered whether the Petitioner had established the ability to pay the Beneficiary 's 
proffered wage aJ of the date the petition was filed and reserved all other bases of denial. 
5 I-290B receipt _ I 
On motion, the Petitioner contends that it now submits its 2015 tax return and asserts that this reflects 
it earned over $136,000 during the year the petition was filed, or sufficient income to pay the 
Beneficiary's proffered wage of $72,000 annually. Further, with respect to its motion to reconsider, 
the Petitioner states that we erred by not remanding this matter to the Director for initial field review 
in December 201 7. The Petitioner contends that the Director did not have all the supporting appeal 
documentation in their possession at this time to complete a full and complete initial field review. 
With respect to its ability to pay, the Petitioner states that the Beneficiary works for the Petitioner and 
asserts that it "maintains the ability to pay the proffered wage." The Petitioner also points to previously 
approved L-1 A nonimmigrant intracompany visa petitions approved by United States Citizenship and 
Immigration Services (USCIS) on behalf of the Beneficiary. 
Upon review, we conclude that the Petitioner has not met the requirements of a motion to reopen; 
therefore, we will dismiss this motion. Further, we will dismiss the motion to reconsider as the 
Petitioner has not articulated why our prior decision with respect to ability to pay was incorrect based 
on the record at that time. See 8 C.F.R. § 103.5(a)(2); 8 C.F.R. § 103.5(a)(3). 6 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must ( 1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). 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 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
A. Motion to Reopen 
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 
8 C.F.R . § 103.5(a)(2). On motion, the Petitioner states that "USCIS has left the Petitioner company 
with no choice but to submit its tax return, as copy of its 2015 federal tax return is enclosed." 7 
However, despite asserting that it is providing its 2015 federal tax return on motion, this 
documentation is not included with the evidence submitted on motion, nor is any other additional 
6 The sole issue we will discuss in this decision is the only issue discussed in our prior motion decision; namely, whether 
the Petitioner established that it had the ability to pay the Beneficiary 's proffered wage as of the date the petition was filed. 
Since this issue is dispositive, we decline to reach and hereby reserve its arguments with respect to the other bases of our 
prior appeal dismissal. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make 
findings on issues the decision of which is unnecessary to the results they reach"); see also Matter of L-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) . 
7 Although we acknowledge the Petitioner's assertion on motion that it desired to keep its federal tax returns private since 
we "publish decisions on our website," we note the regulations themselves explicitly require that the Petitioner demonstrate 
its ability to pay "in the form of copies of annual reports, federal tax returns, or audited financial statements." See 8 C.F.R. 
§ 204.5(g)(2). As such, our determination that the Petitioner was, and is, required to submit this financial documentation 
is not our choice, but a distinct regulatory requirement to demonstrate its ability to pay as of the date the petition was filed. 
Further , decisions we publish are for the benefit of petitioners and counsel and are redacted to protect privacy. Submitted 
documentation , such as annual tax returns, are not shared with the public. 
2 
documentary evidence. As such, the Petitioner has not met the requirements of a motion to reopen 
and this motion will be dismissed. 
B. Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration; be supported by any pertinent 
precedent decision to establish that the decision was based on an incorrect application oflaw or policy; 
and establish that the decision was incorrect based on the evidence in the record at the time of the 
decision. 8 C.F.R. § 103.5(a)(3). 
In denying the previous motion, we reviewed our previous conclusion that the Petitioner did not 
demonstrate it had the ability to pay the Beneficiary's proffered annual wage of $72,000 as of the date 
the petition was filed in October 2015. We indicated that the regulations controlling ability to pay are 
explicit, requiring that evidence of ability to pay "shall be either in the form of copies of annual reports, 
federal tax returns, or audited financial statements." We pointed to our previous appeal decision from 
April 2018 which clearly stated that the Petitioner had "not submitted supporting evidence showing 
its actual level of income or assets for the year in which the petition was filed or any other year." We 
explained that the Petitioner did not remedy this material deficiency despite filing an appeal and three 
sets of motions. In fact, we noted that the Petitioner did not submit tax returns or audited financial 
statements for any year, including the year the petition was filed. 8 
On motion, the Petitioner does not clearly indicate why our previous decision with respect to its ability 
to pay was an incorrect application of law or policy based on the evidence in the record at that time. 
Further, the Petitioner still provides no documentary evidence to establish it had the ability to pay the 
Beneficiary's proffered wage as of the date the petition was filed, including the annual reports, tax 
returns, or audited financial statements required by the regulations that we have previously discussed 
at length. The Petitioner suggests only that it already employs the Beneficiary and points to USCIS' 
approval of other L-lA nonimmigrant petitions on behalf of the Beneficiary. However, ability to pay 
is not a requirement under the L-lA regulations. Also, we are not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may have 
been erroneous. See Matter of Church Scientology Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see 
also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Furthermore, we are 
not bound to follow contradictory decisions of a service center. La. Philharmonic Orchestra v. INS, 
No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), ajfd, 248 F.3d 1139 (5th Cir. 2001). In any 
event, the Petitioner still does not provide the supporting documentation necessary to demonstrate its 
ability to pay his wage in 2015, nor evidence of him being paid his proffered wage in any given year 
thereafter. 
The Petitioner also states on motion that we should have remanded this matter to the Director of the 
Nebraska Service Center at the time of its appeal since they did not conduct proper initial field review 
at that time. The Petitioner asserts that at the time of the appeal the Director was not in possession of 
all the documentation it later provided to us on appeal. However, again, this does not directly address 
the merits of this matter; namely why our previous decision as to ability to pay was in error. Further, 
it is not clear how the Director would have exercised favorable discretion and granted the petition, 
8 The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
3 
particularly since the Petitioner did not provide ( and still does not provide with this fourth set of 
motions), the documentation required by the regulations to demonstrate ability to pay. In addition, it 
is also not clear what remedy would have been provided by the Director, or could be provided now 
through initial field review, that could not be provided by us, an appellate body. Our authority over 
the service centers is comparable to the relationship between a court of appeals and a district court. 
Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
The Petitioner further asserts on motion that it is entitled to "equitable relief'' having been "subjected 
to numerous errors by USCIS throughout its years of filing petition[s] for [the] Beneficiary." 
Similarly, the Petitioner contends that the approval of the petition is "critical to national security," and 
as a result should be approved. Although we do not agree that the Petitioner has faced "numerous 
errors," even if these errors were established, equitable forms of relief are only available through the 
courts. Our jurisdiction is limited to that specifically granted by the Secretary of the U.S. Department 
of Homeland Security. See, e.g., DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. 
§ 2.1. Our jurisdiction is limited to those matters described at 8 C.F.R. § 103.l(f)(3)(E)(iii). 
Accordingly, we have no authority to address the Petitioner's equitable claims. Further, whether the 
approval of the Beneficiary's petition is "critical to national security" is not an issue for our 
consideration per applicable law, even if it were possible for us to make such a determination. Our 
review was, and is, strictly limited to determining whether the Petitioner demonstrated the 
Beneficiary's eligibility for the benefit sought as of the date the petition was filed. As we have 
discussed extensively in our previous decisions, the Petitioner has provided insufficient supporting 
documentation to establish that it had the ability to pay the Beneficiary's proffered wage as of the date 
the petition was filed or at any time thereafter. 9 
For the foregoing reasons, we conclude that we were correct to determine that the Petitioner did not 
establish the ability to pay the Beneficiary's proffered wage as of the date the petition was filed. On 
motion, the Petitioner provides no basis in fact or applicable to law to demonstrate that our previous 
decision was in error based on the record at that time. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not demonstrated that we were incorrect in our decision 
to dismiss its previous motion to reopen and motion to reconsider; therefore, both current motions are 
dismissed. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
9 We also note that there is nothing precluding the Petitioner from filing another more current petition, it being now more 
than five years since the petition at issue was filed. 
4