dismissed EB-1C Case: Communications Equipment

U.S. Citizenship 
and Immigration 
Services 
In Re: 19405452 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 12, 2022 
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 capacity 
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 
dismissed both motions. 4 The Petitioner then filed another motion to reopen and a motion to 
reconsider that we also dismissed. 5 The matter is now before us again on a motion to reconsider. 
1 I-290B receipt 
2 I-290B receipt 
3 I-290B receipt 
4 I-290B receipt . ...._ ____ __, Although we did not agree that an extension to the time period to file a motion in 
response to our appeal was properly granted, we nonetheless reconsidered our prior decision to dismiss the appeal. In our 
July 2020 decision, we only reconsidered whether the Petitioner had established the ability to pay the Beneficiary 's 
proffered wage as of the date the petition was filed and reserved all other bases of denial. 
5 I-290B receipt~ I 
I. MOTION REQUIREMENTS 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or U.S. Citizenship and Immigration Services (USCIS) 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). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reconsider to instances where the 
Petitioner has shown "proper cause" for that action. Thus, to merit reconsideration, a petitioner must 
not only meet the formal filing requirements (such as submission of a properly completed Form 
I-290B, Notice of Appeal or Motion, with the correct fee), but also show proper cause for granting the 
motion. We cannot grant a motion that does not meet the applicable requirements. See 8 C.F.R. 
§ 103.5(a)(4). 
We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested 
immigration benefit. A motion to reconsider must include an allegation of material factual or legal 
errors in the prior decision, supported by pertinent authority, and if there has been a change in law, a 
reference to the relevant statute, regulation, or precedent and an explanation of how the outcome of 
the decision is materially affected by the change. Matter of 0-S-G, 24 I&N Dec. 56 (BIA 2006). 
II. ANALYSIS 
The nexus of our analysis in adjudicating this motion is again whether the Petitioner demonstrated 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. 6 In denying the Petitioner's prior motion to reopen, we noted that the 
Petitioner asserted that it provided its 2015 federal tax return in support of the motion. However, this 
evidence required by the regulations, was not submitted, nor was any other additional documentary 
evidence specific to ability to pay. As such, we concluded that the Petitioner had not met the 
requirements of a motion to reopen and we dismissed the motion. 
We also dismissed the Petitioner's motion to reconsider stating that it did not clearly indicate why our 
previous decision with respect to its ability to pay was an incorrect application oflaw or USCIS policy 
based on the evidence in the record at that time. We emphasized that the Petitioner still had not 
submitted 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, previously discussed at length in our prior decisions. We 
further dismissed the Petitioner's assertion that the matter should have been remanded to the Director 
for initial field review it claimed was not provided when the appeal was filed. We stated that there 
was no purpose in such a remand since there was no remedy the Director could provide that we could 
not as an appellate body. Finally, we discussed the Petitioner contention that it was entitled to 
equitable relief based on the denial of its petition, the subsequent appeal, and the several following 
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). 
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sets of motions. We explained that we had no authority to address the Petitioner's equitable claims, 
nor its assertions that the petition was "critical to national security." We again dismissed the motion 
to reconsider since the Petitioner had not established that our prior decision to dismiss was an incorrect 
application of applicable law or USCIS policy. More specifically, we determined that our prior 
conclusion that the Petitioner did not demonstrated its ability to pay the Beneficiary's proffered wage 
as of the date the petition was filed, or thereafter, was consistent with the regulations. 
Now, in support of its fifth set of motions, the Petitioner contends that our interpretation of the 
applicable ability to pay regulation is mistaken, asserting the applicable regulation does not require 
annual reports, federal tax returns, or audited financial statements. The Petitioner contends that the 
regulations reflect that we should "in appropriate cases" consider additional evidence such as profit 
and loss statements, bank account records, or personnel records that may be submitted by the Petitioner 
or requested by us. See 8 C.F.R. § 204.5(g)(2). The Petitioner contends that it established its ability 
to pay as of the date the petition was filed based on its submission of a "stand alone 'Current Asset 
Net Worth" calculation dated October 31, 2016" as well as evidence that "it paid the Beneficiary 
$4,000 per month in 2015, the year the petition was filed." 
First, the Petitioner has not specifically addressed the determinations discussed in our prior decision 
and articulated why these conclusions were inconsistent with applicable law or USCIS policy. For 
instance, the Petitioner previously asserted that it had submitted a 2015 federal tax return, but in fact, 
it was not provided. Further, it contended that the matter should have been remanded to the Director 
and that it was entitled to equitable relief, and we addressed both these assertions in our prior decision. 
However, again, the Petitioner does not discuss in detail these conclusions or indicate how they were 
in error. For this reason alone, the Petitioner has not met the requirements of a motion to reconsider. 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or USCIS 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 cannot grant a motion that does 
not meet the applicable requirements. See 8 C.F.R. § 103.5(a)(4). 
Further, we do not agree that our prior interpretation of the ability to pay regulations was incorrect. 
As we have clearly indicated in our prior decisions, the regulations regarding ability to pay are explicit, 
stating that evidence of ability to pay "shall [ emphasis added] be either in the form of copies of annual 
reports, federal tax returns, or audited financial statements." See 8 C.F.R. § 204.5(g)(2). In our appeal 
decision in April 2018 we clearly noted this deficiency and 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." The Petitioner still does not remedy this material deficiency in support of 
this, its fifth motion, nor did it do so in support of the previous appeal and several motions. 
To illustrate, the Form I-140 stated the Petitioner earned $1.2 million in gross annual income and 
$110,000 in net annual income; however, there was no indication in what year these amounts were 
earned nor was there supporting evidence to substantiate this claimed level of revenue and income. 
Later, in response to the Director's request for evidence (RFE), the Petitioner asserted that its "current 
asset net worth" was $131,755 and it provided an unaudited financial document dated in October 2016 
to support this contention. However, the Petitioner did not submit, and still does not provide in support 
of its fifth motion, documentation required by the regulations to establish its ability to pay; namely, 
copies of annual reports, federal tax returns, or audited financial statements. Further, it is noteworthy 
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that the Petitioner has not provided tax returns or audited financial statements for any year, including 
the year the petition was filed, and the provided unaudited financials are brief and applicable to a time 
approximately one year after the date the petition was filed. 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). As we have discussed at length in our prior 
decisions, the Petitioner did not provide documentary evidence as to the Petitioner's financial situation 
as of the date the petition was filed, therefore, our determination that it had not established that it had 
the ability to pay the Beneficiary's proffered wage at that time was correct and consistent with the 
regulations. 
The Petitioner's continued refusal to submit this documentation leaves only more uncertainty as to its 
ability to pay the Beneficiary's proffered wage as of the date the petition was filed and through to this 
adjudication. 7 The Petitioner must resolve these discrepancies and ambiguities with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. Id. 
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. 
ORDER: The motion to reconsider is dismissed. 
7 This uncertainty is heightened by the fact that the Petitioner's legal entity status in California Secretary of State records 
as of the date of this adjudication was listed as "FTP Suspended." The frequently asked questions section of this website 
indicates that the Petitioner has been suspended for "failure to pay taxes/penalties or to file a tax return." This information 
leaves fmther question as to the Petitioner's financial situation and whether it has the ability to pay the Petitioner's 
proffered wage. See California Secretary of State, Business Entity Search, https://businesssearch.sos.ca.gov/CBS/Detail 
(last visited January 12, 2022). 
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