dismissed EB-1C Case: Communications Equipment

U.S. Citizenship 
and Immigration 
Services 
In Re: 7966383 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 10, 2020 
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 Texas 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 decision and we dismissed the appeal concurring with the Director 's 
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 with us, but we denied the motions as untimely 
consistent with 8 C.F.R. § 103.5(a)(l)(i) . The Petitioner later filed another motion to reopen and 
motion to reconsider, we dismissed the motions and affirmed our decision that the previous motions 
had been untimely filed. The matter is now before us again on a motion to reopen and a motion to 
reconsider. 
On motion, the Petitioner again contends we granted an extension to the period within which it was 
required to file its June 2018 motions and asserts that because of this extension , it filed timely motions . 
Although we do not agree that an extension to the time period to file a motion in response to our appeal 
was properly granted 1, we will nonetheless reconsider our prior decision to dismiss the appeal. 
1 As discussed in our previous decision, the regulations require that a motion to reopen and a motion to reconsider be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen, including three days for service by mail. 8 
C.F.R. § 103.S(a)(l)(i) ; 8 C.F.R. § 103.8(b). The regulations do not discuss our ability to grant an extension to this 
requirement. Therefore, the Petitioner's continued assertion that an extension was granted by this office, whether by 
telephone or otherwise, has no basis in law. Given that we have no power to grant such extensions to the time period to 
file motions, reliance on such a perceived extension, even if established sufficiently established, was not reasonable. 
Upon review, we affirm our previous appeal decision on the merits and the petition will remain denied. 
As the Petitioner would need to demonstrate the Beneficiary's eligibility for the benefit sought for us 
to grant either motion, we will therefore dismiss the motions as it has not established said eligibility. 
See 8 C.F.R. § 103.5(a)(2); 8 C.F.R. § 103.5(a)(3). 
I. ABILITY TO PAY 
The sole issue we will discuss is whether the Petitioner established that it had the ability to pay the 
Beneficiary's proffered wage as of the date the petition was filed. 2 Since this issue is dispositive of 
the Petitioner's motion, we decline to reach and hereby reserve its arguments with respect to the other 
bases of our 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). 
The regulation at 8 C.F.R. § 204.5(g)(2) states: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. 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 the Service. 
The Petitioner stated the Beneficiary would be employed as its chief financial officer (CFO) and vice 
president and indicated in the Form 1-140, Immigrant Petition for an Alien Worker, that he would earn 
$6000 per month ( or the equivalent of $72,000 annually). The Petitioner later stated that it erred when 
listing the Beneficiary's proffered salary in the Form 1-140 and indicated he would in fact be paid 
$4000 per month plus a "bonus of $24,000 at the end of the year." 
In concluding the Petitioner did not establish it had the ability to pay the Beneficiary proffered wage, 
the Director emphasized that the Beneficiary's 2015 IRS Form W-2 reflected he earned only $40,000 
during that year. The Director also noted that the Petitioner had only provided unaudited financial 
statements and no audited financials or corporate tax returns to demonstrate its ability to pay the 
Beneficiary's annual salary. We later affirmed the Director's conclusion in our appeal decision, 
emphasizing the lack of evidence to establish that the Beneficiary was paid his proffered wage or tax 
documentation to substantiate it had sufficient income or assets to pay his annual wage as of the date 
2 The petition was filed on October 1, 2015. 
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the petition was filed. We further stated that, contrary to the Petitioner's assertions on appeal, future 
income projections could not be considered in determining whether it had the ability to pay the 
Beneficiary's proffered wage as of the date the petition was filed. 
The issue before us is whether we were incorrect in our determination on appeal that the Petitioner did 
not establish the ability to pay the Beneficiary's proffered wage as of the date the petition was filed. 
The regulations regarding ability to pay are explicit, stating that evidence of ability to pay "shall be 
either in the form of copies of annual reports, federal tax returns, or audited financial statements." 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 does not remedy this material deficiency in 
support of this, its third set of motions, nor did it do so in support of the previous motions. The 
Petitioner only vaguely indicates that it "maintains the ability to pay the proffered wage." However, 
it still provides no objective 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. 
To illustrate, the Form 1-140 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 October 31, 
2016 to support this contention. However, the Petitioner did not submit, and still does not provide in 
support of its third set of motions, 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 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). Therefore, without 
objective documentary evidence as to the Petitioner's financial situation as of the date the petition was 
filed, we cannot conclude that it had the ability to pay the Beneficiary's proffered wage at that time. 
In support of this motion, the Petitioner continues to highlight its potential for future earning, in lieu 
of simply submitting the documentation required by the regulations to establish its ability to pay as of 
the date the petition was filed. In support of its initial motion in June 2018 the Petitioner pointed to 
Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967), and asserted that we "may consider the 
overall size and amount of the petitioner's business activities in [our] determination of the petitioner's 
ability to pay the proffered wage." The Petitioner suggested that this could include "expectations of 
continued increase in business and increasing profits." The Petitioner asserted that it had a "quite 
reasonable" expectation of increased business and profits, noting that it was "one of the only entities 
in the United States that can service the test equipment of. .. government entities" and pointed to a 
recent "major agreement" it signed with a large manufacturer of test equipment. The Petitioner 
indicated that we did not explain how it had not established ability to pay given that "its customers are 
government agencies (meaning that the customers are unlikely to cease to exist), and [the] Petitioner 
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company has little competition (meaning that these government agencies are unlikely to migrate to 
one of the Petitioner's competitors)." 
However, the Petitioner's assertions in support of its first motion do not address the heart of the matter; 
specifically, whether it provided sufficient evidence to demonstrate that it had the ability to pay the 
Beneficiary's proffered wage as of the date the petition was filed. It is not clear how the prospect of 
future earnings in June 2018, the date the first motions were filed, is relevant to demonstrating the 
Petitioner's ability to pay in October 2015. In other words, the Petitioner did not, and still does not, 
address why it has not submitted its 2015 ( or any other year's) tax returns or audited financial 
statements to demonstrate its ability to pay the Beneficiary's proffered wage as required by the 
regulations. Its continued refusal to address this material deficiency, particularly since it was 
emphasized in our appeal decision, leaves substantial uncertainty as to whether it had the ability to 
pay his wage as of the date the petition was filed. Further, the Petitioner's reliance on Matter of 
Sonegawa is not convincing, considering the petitioner in that matter provided company income tax 
returns and audited financial statements to support its financial situation as of the date the petition was 
filed. Id. at 614. In addition, we also note that there has been substantial case law after Matter of 
Sonegawa, decided in 1967; as well as regulations, establishing our reliance on tax returns and net 
income in determining whether a petitioner has the ability to pay. 3 
For the foregoing reasons, we conclude that our previous determination was correct that the Petitioner 
did not establish the ability to pay the Beneficiary's proffered wage as of the date the petition was 
filed. As such, we affirm our dismissal of the Petitioner's appeal. 
II. CONCLUSION 
For the reasons discussed, the Petitioner has not demonstrated that we were incorrect in our decision 
to dismiss its previous appeal; therefore, both motions are dismissed. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
3 We examine a petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a petitioner's ability to 
pay the proffered wage is well established by judicial precedent. Elatos Rest. Co1p. v. Sava, 632 F. Supp. 1049. 1054 
(S.D.N.Y. 1986) (citing Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); 
Ubcda v. Palmer, 539 F. Supp. 647 (N.D. Tll. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that former Immigration and Naturalization Service 
(INS) properly relied on the petitioner's net income figure reflected on its corporate income tax returns rather than gross 
income. The court rejected the argument that INS should have considered income before expenses were paid rather than 
net income. There is no precedent that would allow the Petitioner to "add back to net cash the depreciation expense charged 
for the year." See. e.g., Chi-Feng Chang v. Thornburgh, 719 F. Supp. at 537; see also Elatos Rest. Cotp. v. Sava, 632 F. 
Supp. at 1054. 
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