dismissed EB-1C Case: Communications Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-G-INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR.30,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a communications test equipment distributor and technical service center, seeks to 
permanently employ the Beneficiary as its CFO aii.d vice president under the first preference 
immigrant classification for multinational executives or managers. See Immigration and Nationality 
Act (the Act) section 203(b)(I)(C), 8 U.S.C. §I I53(b)(I)(C). This classification allows a U.S. 
employer to pennanently transfer a qualified foreign employee to the United States to work in an 
executive or managerial capacity. 
The Director of the Nebraska Sencice Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (I) it will employ the Beneficiary in the United States in a managerial 
or executive capacity; (2) that the Beneficiary was employed abroad in a managerial or executive 
capacity prior to his entry to the United States to work for the Petitioner as a nonimmigrant; (3) that 
the Beneficiary's f(Jreign employer continues to do business as defined in the regulations: and (4) 
that it has the ability to pay the Beneficiary's proffered wage. 
On appeal, the Petitioner submits additional evidence and asserts that the Director failed to consider 
the evidence in its entirety and misapplied the regulations to the facts presented. 
Upon de novo review, we will withdraw the Director's finding that the Petitioner did not establish 
that the Beneficiary's foreign employer continues to do business abroad.' However, as the Petitioner 
has not overcome the remaining grounds for denial, 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 atliliate. Section 203(b)(l)(C) of the Act. 
1 We disagree with the Director's finding that the evidence the Petitioner submitted. which inclu.ded copies of certificates 
of good standing, rent and utility payments. purchase agreements, tax and payroll ·records, invoices and contracts was 
insufficient to establish that the Beneficiary"s foreign employer continues to conduct business in Japan. We find the 
Petitioner has established that the foreign entity is doing business as defined at 8 C.F.R. § 204.5UJ(2). 
Maller ofN-Ci- Inc. 
The Form I- I 40, 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 tiling of the petition, that the beneficiary is coming to work in the United States lor the same 
employer or a subsidiary or aftiliate 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(j)(3). 
II. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization: has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
IOI(a)(44)(A) of the Act, 8 U.S.C. § IIOI(a)(44)(A). 
"Executive capacity" is defined as an assignment within an organization in which the employee 
primarily: directs the management of the organization or a major component or function of the 
organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction tr01n higher-level executives, the board of directors, or stockholders of the organization. 
Section IOI(a)(44)(B) of the Act. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World. Inc. 
v. INS, 940 f.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must 
prove that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue we will address is whether the Petitioner established that it will employ the 
Beneficiary in a managerial or executive capacity in the United States. 
1 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be perfom1ed by the Beneficiary. Beyond the required description of the job 
duties, U.S. Citizenship and Immigration Services (USCIS) reviews the totality of the evidence when 
examining a beneficiary's claimed managerial or executive capacity, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, and 
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Marler ofN-G- Inc. 
any other l~1ctors that will contribute to understanding a beneficiary's actual duties and role in a 
business. Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the 
company's staffing levels and reporting structure. 
A. Duties 
In its initial supporting letter, the Petitioner stated that the Beneficiary will be responsible lor the 
management of the company as a whole, including its sales and service operations. The Petitioner 
further stated his responsibilities would include: "establishing the goals and policies of the 
organization, including how to interact with its custon1ers and vendors"; "exercise wide latitude in 
discretionary decision-making," "total authority over all personnel decisions"; discretionary 
authority to make strategic decisions"; "entering into contracts with clients and negotiating with 
prospective clients for the provision of technical services" and "final approval of any sales 
negotiations entered into by the company's sales staff." 
This initial description and the broad breakdown of the Beneficiary's duties provided in response to 
a request for evidence (RFE) suggest that he will perform a combination of managerial duties 
associated with the overall oversight of the company's operations, and non-managerial duties related 
to the marketing, sale and delivery of the Petitioner's services. The description was lacking in 
specificity regarding the Beneficiary's actual day-to-day duties and the amount of time he would 
allocate to specific managerial and non-managerial tasks. 
In response to the RFE, the Petitioner submitted the following breakdown of the Beneficiary's "daily 
activities": 
I) Negotiating contracts with potential contracts and sourcing new clients- 25% 
2) Managing, overseeing and supervising the activities of the Project Leaders 
(Supervisor level employees) whose teams manage the delivery of the projects 
[the Petitioner] has won- 32% 
3) Reviewing and allocating daily tasks with mid-level managers (who, in turn 
pass onto their subordinates)- 30% 
4) Carrying out other executive leadership duties (including financial and 
infrastructure planning, headcount and internal marketing planning, marketing 
strategy, liaising with CPAs, attorneys and banks, and policy definition) -
13CX) 
The Petitioner listed tasks associated with each area of responsibility and stated, in summary, that 
the Beneficiary would spend 67% of his time on managerial duties, 26% of his time on executive 
duties, and 7% of his time on "functional" duties. This description, while quite lengthy, contains 
multiple· references to the Beneficiary's oversight of subordinate supervisors, "a team of managers," 
"mid-level managers," and "project leaders," but, as discussed further below, the Petitioner has not 
established that it employed managerial or supervisory employees subordinate to the Beneficiary at 
the time of filing. The job description also refers to positions that do not exist within the company's 
organizational structure, such as "research teams," "project delivery teams," "supervisors of 
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Maller ofN-G- Inc. 
domestic and international marketing," and an "office manager." To the extent that the job 
description appears to inflate the Petitioner's staffing levels and the scope of its operations, it has 
limited probative value in establishing the nature of the Beneficiary's day-to-day duties as of the 
time of filing. 
Finally, the Petitioner's response to the RFE also included a "typical daily schedule" from June 
2016 which described the Beneficiary's day as including: reviewing overnight reporting from the 
Japanese office: chairing a daily briefing meeting with U.S. and Japanese managers to allocate tasks: 
a conference call with the Japanese entity's manager; returning calls and e-mails; performing 
"project work" (checking and signing off on documentation, contracts, statements of work, 
quotations, reports, job specifications, consultancy notes and project summaries): two different 
meetings with the company's accountants; interviewing a candidate for a newly created position; 
compiling a briefing note for the Japanese company's general manager; and attending an industry 
event to network with the "board level and senior leadership" of suppliers, customers and partners. 
This description does not add additional clarity to the nature of the Beneficiary's actual day-to-day 
duties. The Petitioner's concurrently submitted breakdown of the Beneficiary's position does not 
even mention any ongoing interactions with the Japanese entity and indicates that the Beneficiary 
spends very little time liaising with the company accountants. Therefore, a day that includes 
multiple meetings with both of these parties does not appear to represent a "typical" day. 
Whether the broad duties attributed to the Beneficiary qualify as managerial or executive in nature 
depends in large part on whether the Petitioner established that he would have sufficient subordinate 
staff to supervise and perform the day-to-day company activities he is claimed to manage. As 
discussed further below, the Petitioner has not shown its ability to relieve the Beneficiary from 
significant involvement in the operational tasks required to operate its business. 
The fact that the Beneficiary will manage a business as its senior employee does not necessarily 
establish eligibility for classification as a multinational manager or executive. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" managerial in nature. 
Section IOI(A)(44)(A) of the Act. Even though the Beneficiary may exercise discretion over the 
Petitioner's operations and possess authority with respect to discretionary decision-making, the 
position description alone is insufficient to establish his employment will be in a managerial or 
executive capacity. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section I 0 I (a)(44)(C) of the 
Act. 
The Petitioner stated on the Form 1-140 that it has seven employees in the United States as of 
October 2015. The Petitioner's organizational chart dated August 2015 identifies the Beneficiary as 
4 
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Matter of N-G - Inc. 
vice president & CFO supervtsmg an engin eering manager with three subordin ates (engineer, 
technici an and seaso nal techni cia n), an office assistant reporting to a vaca nt office manager position, 
an empl oyee w ith n o job title who supervises uniden ti lied "sales represe ntatives,': a 
director of business devel opment with no subordinat es, and an international mark eting emp loyee. 
The chart also depicts the Beneficiary in the role of " Latin Am erica (Acting )" with no subordinate 
staff. 
Howev er, the Petitioner ' s tax and payroll record s do not corrobor ate the information provided on the 
organizational chart. The compa ny's payroll summary and IRS Form W-2 s, Wage and Tax 
Statem ent, indicated that, at the time of filin g, the Petitioner employed the Benefic iary, the 
engine erin g manager, and the e ngineer. 2 The oHice assis tant named on the organizational chart 
worked only in the third quarter of 2015 and was not replaced. The Petitioner also pro vided an IRS 
Form 1099, Miscellaneous [ncome, showing that it paid $15000 to the "director of busines s 
developm ent" in 2015. 3 The record does not contain evidence that the two individual s identified as 
techni cians on the original organ izational chart rece ived any payments from the Petiti one r in 20 I 5, 
nor did the Petitioner pro vide evidence that it employed or contracted the interna tiona l m arke ting 
empl oyee in 2015. 
In resp onse to the RFE, the Petitioner submitted an updated organizational chart and indicated that 
both techni cians named on the initial chart had since been replac ed b y a single part-tim e e mployee, 
and that the international marketing functions had been transferr ed to its Japane se aftiliate. The 
Petition er identi fied a new department heade d by a new employee, but did 
not provide evidence of payments to him or indic ate t hat his departm en t was staffe d. 
The Petiti oner also exp lained that an individual named on the original organiza tional chart , 
was replaced by a technical sales engine er, . shortly after submission of the 
Form l-140 . The Petitioner indi cated that "is the person who primarily solicit s contracts" 
with new customers and that he works part-tim e o n a commis sion basi s. However , the record docs 
not include evidence of payments to or or ev idence of the "sale s agents" 
each individual was claim ed to supervise. 
In sum, the company's actual statli ng at the tim e of filing, as docu mented in the reco rd, included (at 
most) the company presid ent!. the Bcndiciary , an engineering manage r, a part- time engin eer, and a 
part-time business development director, and not seve n employe es as claimed. 
The statut ory defin itio n of "managerial capacity" allows for both " personnel manage rs" and 
" function managers.'' See sec tion IOI(a)( 44)(A) (i) and (ii) of the Act. Personnel manage rs are 
requir ed to prim arily supervise and control the work of other su pervisory, profess ional, or 
2 The Petitioner's CEO is the majority owner of the company. The Petitioner indicates that this is a part-time position 
and the CEO does not appear on the payroll. 
3 In response to the RFE, the Petitioner confirmed that both the e ngineer and business development director work on a 
part-time basis. 
5 
Mauer ofN-G- Inc. 
managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that a "first line supervisor is not considered to be acting in a managerial capacity 
merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professiona1." 4 Section 10l(a)(44)(A)(iv) of the Act. 
The Petitioner maintains that all of the Beneficiary's direct subordinates are managers, supervisors, 
or pro!Cssionals. However, the only position that had a documented subordinate employee was the 
engineering manager, who has a part-time engineer below him on the organizational chart. While 
the engineering manager may inspect the work of the"lower-level employee, the Petitioner has not 
established that its engineering/technical department had sufficient staff to require a supervisory 
employee, nor has it submitted a description for the engineering manager indicating that he primarily 
performs managerial or supervisory duties. As noted, the Petitioner claimed that this department 
when fully staffed, supports two technicians, an engineer, and a manager. Without sufficient staff, it 
is reasonable to believe that the engineering manager would need to perform duties normally 
performed by a technician in order for the company to provide its services. 
The Petitioner also indicates that the engineering manager and director of business development 
both have bachelor's degrees, but has neither documented their credentials nor provided sutlicient 
information regarding their job duties to establish that a bachelor's degree is required for these 
positions. We note that the Beneficiary, who is responsible for training the technical staff to provide 
the company's services, docs not have a bachelor's degree, and the Petitioner does not indicate that 
its engineer has a degree. Rather, it appears that the type of work performed by the 
technical/engineering staff requires, at most, a two-year degree and training on the appropriate 
equipment. Similarly, the Petitioner did not document the director of business development's 
credentials or provide sufficient information regarding his duties to establish that this is a 
professional position. For these reasons, the record does not support the Petitioner's claim that the 
Beneficiary would supervise subordinate professional employees, or that he would act primarily as a 
personnel n1mlager. 
On appeal, the Petitioner asserts that the Beneficiary manages the engineering function for the 
Petitioner. The tcrn1 "function managcr~
1 
applies generally when a beneficiary does not supervise or 
control the work or a subordinate staff but instead is primarily responsible' for managing an 
"essential function" within the organization. See section IOI(a)(44)(A)(ii) of the Act. !fa petitioner 
claims that a beneficiary will manage an essential function, it must clearly describe the duties to be 
performed in managing the essential function. In addition, the petitioner must demonstrate that "(I) 
the function is a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; 
4 In evaluating whether a beneficiary manages professional employees, we must evaluate .whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean ''any occupation for which a U.S. baccalaureate degree or its fOreign equivalent is the 
minimum requirement for entry into the occupation"). Section IOI(a)(32) of the Act. states that ·'[t]he term profession 
shall include but not be limited to architects, engineers, lawyers. physicians, surgeons, and teachers in elementary or 
secondary schools. colleges, academies. or seminaries." 
6 
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Maller 4lV-G- Inc. 
(3) the beneficiary will primarily manage, as opposed to pe~form, the function; (4) the beneficiary 
will act at a s enior level within the organizational hierarchy or with respect to the function managed; 
and (5) the beneticiary will exercise discretion over the functio n's day-to-day operation s." ,\tfaffer (~( 
G- Inc., Adopted Deci sion 2017-05 (AAO Nov. 8, 2017). 
While we do not doubt that the engineering function is essenti al to the organization or that the 
Beneficiary acts as a senior emp loyee with respect to engineering, the Petitioner has not established 
that it had sufficient engineering and technic al staff to relieve the Beneficiary from performing the 
department 's activities. The Petitioner's claim that it has sufficient staff to relieve the Beneficiary 
from performi ng non-qualif ying technical dutie s associa ted with the function is predicated on its 
claim that it em ployed an enginee ring manag er, engineer, and at least two technician s at the time of 
liling. In fact, as noted, the latest version of the ~eneficiary's dutie s indicate s that he is relieved by 
project leade rs, supervisors, research teams, "functional team member s," and other projec t-related 
staff." 
However , the Petitioner ha<> demon strated its empl oyment of only two staff in its engineer ing 
departm ent in 2015- the engineering manag er and a part-time engine er. The Petitioner empha sizes 
that "t he overwhelming majority of the W<?rk at the Petitioner compan y is the repair , refurbi shment , 
and recalibration process." While ·this statement is credible, it is unclear how the actual stall in g 
levels at the time of tiling were sufficient to relieve the Beneficiary fro m involvemen t i n providing 
the Petitioner 's technical services. The Petitioner did not document its employment of technicians, 
and it did not support its clai m that outside contr actors or vend ors assist with perform ing these 
services. 5 
In fact, the Petitioner is self-de scribed as "the preferred test equipmen t s upport cente r in the Un ited 
States," and is "the only company in the U.S. to offer 24-hou r s upport for test equipment used by 
public safety agencies." The Petitioner states that its customers include "most maj or government 
entities" on all leve ls and indicat es that the Beneficiary "is now the only person in the test eq uipment 
service industr y in the U.S. who was trained by to service the equipment " used by these 
gover nment agencies. While the Petitioner indicate s that he "over sees the work of his underlings" 
to ensure their wo rk compli es with standard s, the Petitioner also states that the compan y wou ld have 
to clost: if the petition is denied because there would be "no one to properly service the test 
equipment." These statem ents undermine the Petitioner's claims that it has suffic ient s taff to 
actually provide its services and to remove the Beneficiary from significa nt involv ement in non­
manageri al duties assoc iated with the delivery of such services. The Petitioner did not establis h that 
the Beneficiary is primari ly managing , rather tha n performin g, the engineeri ng functio n for the 
company. 
5 For example, the Petitioner asserts that is a contractor that works for the company, and re-submits 
a copy of its "Independent Service Center Agreement" with According to the terms of this contract, however, 
appointed the Petitioner "to provide authorized labor and parrs to repair land mobile. avionics, amateur and 
marine radios." Under the terms o f the agreement, the Petitioner is considered independent contractor. At 
most, it appears that equipment dealers may be responsiblt; for shipping equipment to the Petitioner for repair or 
service, but it will not assist the Petitioner with engineering or technical services. 
Matter of N-G- f11c. 
The Petitioner has not established, in the alternative, that the Beneficiary's duties would be primarily 
executive in nature. The Petitioner indicates that the Beneficiary's role is "overwhelmingly 
executive and managerial in nature" and states that the Beneficiary would spend 67% of his time on 
managerial duties and 26% of his time on executive duties. A petitioner claiming that a beneficiary 
will perform as a "hybrid" manager/executive will not meet its burden of proof unless it has 
demonstrated that the beneficiary will primarily engage in either managerial or executive capacity 
duties. See section IOI(a)(44)(A)-(B) of the Act. While in some instances there may be duties that 
could qualify as both managerial and executive in nature, it is the petitioner's burden to establish that 
the beneficiary's duties meet each criteria set forth in the statutory definition for either managerial or 
executive capacity. A petition may not be approved if the evidence of record docs not establish that 
the beneficiary will be primarily employed in either a managerial or executive capacity. 
As addressed above, the Petitioner did not establish that the Benetlci~ry primarily performs 
managerial duties. Nor has the Petitioner shown that that the claimed managerial duties could also 
be categorized as executive duties. The Beneficiary may be responsible for establishing policy for 
the organization, but the Petitioner has not claimed or demonstrated that his duties are primarily 
. those of an executive. 
Section I 0 I (a)(44)(C) of the Act requires that USC IS must take into account the reasonable needs of 
the organization in light of the overall purpose and stage of development of the organization if 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
execittive capacity. However, it is appropriate for USCIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as the absence of employees who would 
perform the non-managerial or non-executive operations of the company. Family Inc. v. USCIS, 469 
F.3d 1313 (9th Cir. 2006): Syslronics Corp. v. INS. !53 F. Supp. 2d 7, 15 (D.D.C. 200 I). The size of 
a company may be especially relevant when USCIS notes discrepancies in the record. See 
Syslronics, !53 F. Supp. 2d at 15. 
As addressed above, the Petitioner has not established that it had subordinate staff to perform many 
of the actual day-to-clay, non-managerial operations of the company at the time of tiling. The 
Petitioner appeared to have an understaffed engineering department, no administrative stall; and did 
not adequately document the existence of its sales and marketing staff. . The Petitioner emphasizes 
that the approval of the petition is critical for public safety reasons, as many government agencies 
and first responders rely on the type of equipment that the company services and refurbishes. We 
acknowledge the value of the work performed by the petitioning company: however, we cannot 
approve a petition for a multinational manager or executive if the Petitioner does not submit 
suftlcient evidence to establish that the Beneficiary will primarily perform managerial or executive 
duties. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
suftlciently relieved from involvement in the day-to-day operations of the company, despite his 
senior position in the company hierarchy. Accordingly, the Petitioner has not met its burden to 
show that his duties would be primarily managerial or executive in nature as of the date of filing. 
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Mauer ofN-G- Inc. 
IV. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The next issue in this case is whether the Petitioner established that the Beneficiary was employed 
abroad in a managerial or executive capacity. Upon review, we agree with the· Director's 
determination that the Petitioner did not meet its burden of proof. The record indicates that the 
foreign entity is engaged in the same type of business .as the Petitioner and the Petitioner submitted 
job descriptions for the Beneficiary's position abroad that are very similar to those provided lor his 
U.S.-based position. As such, those descriptions contain similar deficiencies and do not establish the 
nature of the Beneficiary's actual day-to-day duties or the amount of time he allocated to qualifying 
managerial or executive tasks. 
The record also docs not clearly establish the structure of the toreign entity in the years preceding 
the Beneficiary's transfer to the United States to work for the Petitioner, and does not establish that 
the company had surticient technical stan· to relieve the Beneficiary from significant involvement in 
providing the company's services. The Petitioner indicates that the foreign entity had a part-time 
chairman of the board, a general manager, a part-time sales employee, and a part-time engineer .at 
the time of the Beneficiary's transfer, but has also submitted an organizational chart which identifies 
the Beneficiary as the toreign entity's engineer. As with the U.S. company, while we do not doubt 
that the Beneficiary had the required level of authority of the company and spent a portion of his 
time performing qualifying managerial or executive duties, the Petitioner has not established that his 
duties tor the to reign entity were primarily managerial or executive in nature. 
The Petitioner has not submitted evidence on appeal to overcome the Director's determination with 
respect to this basis tor denial. 
V. ABILITY TO PAY 
The tina! issue to be addressed is whether the Petitioner established that it has the ability to pay the 
Beneficiary's proffered wage of$6,000 per month ($72,000 annually). 
Any petition·filed for an employment-based immigrant, which requires an offer of employment must 
be accompanied by evidence that the prospective Unifcd 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. 8 C.F.R. 
§ 204.5(g)(2). To establish its ability to pay, a petitioner must submit copies of its annual reports, 
federal tax returns, or audited financial statements. !d. 
The Petiiioner did not submit annual reports, federal tax returns, or audited financial statements in 
support of the Form l-140 and therefore did not meet the evidentiary requirement set forth in the 
regulations. It submitted a standalone "Current Asset Net Worth" calculation dated October 31, 
2016, and evidence that it paid the Beneficiary $4,000 per month in 2015, the year the petition was 
tiled. If the Petitioner would like USC IS tb consider its net current assets in determining its ability 
9 
Mauer o(N-G- Inc. 
to pay the Beneticiary's proffered wage at the time of tiling, it would need to submit a complete tax 
return or audited financial statement for 2015. 
On appeal, the Petitioner asserts that it erred by stating on the petition that the Beneficiary would be 
paid $6000 per month. Rather, it states that the Beneficiary was to be paid $4000 per month with a 
year-end bonus of $24,000. The Petitioner maintains that he did not receive his November or 
December salary payments or bonus in 2015 because his L-1 visa had expired and he was awaiting 
approval of his application for an employment authorization document. This explanation does not 
overcome the Director's finding that the Petitioner did not show that it had paid the Beneficiary 
$72,000 in 2015 or that it had the ability to do so. 
The Petitioner further claims that the Director failed to follow the guidance provided in Maller of 
Sonegawa, 12 l&N Dec. 612 (Reg' I Comm. 1967). Specifically, the Petitioner asserts that the 
Director should have considered "the petitioner's expectations of continued increase in business and 
increasing protits," noting that the Petitioner submitted ample evidence that its services are in 
demand and it has a steady stream of income that is unlikely to diminish. However, as noted, the 
Petitioner has not submitted supporting evidence showing its actual level of income or assets for the 
year in which the petition was tiled or any other year, Without such evidence, we cannot make a 
determination regarding the Petitioner's ability to pay at the time of tiling, or its continued ability to 
pay. 
Pursuant to Sonegawa, we may consider evidence of a petitioner's ability to pay beyond its net 
income and net current assets. 12 J&N Dec. at 6 I 4-15. As in Sonegawa, we may consider such 
t~lCtors as: the number of years it has conducted business; the growth of its business: its number of 
employees: the occurrence of any uncharacteristic business expenditures or losses; its reputation in 
its industry; whether a bene11ciary will replace a current employee or outsourced service; or other 
evidence of its ability to pay a proffered wage. !d. The Petitioner cannot meet its burden under 
Sonegawa by simply claiming that it expects a steady stream of income in the future. 
For the foregoing reasons, the record does not establish the Petitioner's ability to pay the protTered 
wage. 
VI. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the 13eneticiary was 
employed abroad, or would be employed in the United States, in a managerial or executive capacity, 
or that it has the ability to pay the Beneficiary's proffered wage. 
ORDER: The appeal is dismissed. 
Cite as Aiatter ofN-G- Inc., ID# 1208363 (AAO Apr, 30, 20 I 8) 
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