dismissed EB-1C Case: Digital Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 5605266 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC. 31, 2019 
Appeal of Texas Service Center Decision 
PETITION: Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, a digital marketing company, seeks to permanently employ the Beneficiary as its 
"President /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. 
§ 1153(b)(l)(C). 
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 commencing on 
the date this petition was filed. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. 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)(l)(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker , must be accompanied by evidence demonstrating 
the Petitioner's ability to pay the Beneficiary's proffered wage at the time of filing. 8 C.F.R. § 204.5(g)(2). 
II. ABILITY TO PAY 
The issue to be addressed in this decision is whether the Petitioner provided sufficient evidence 
demonstrating that it had the ability to pay the Beneficiary's proffered wage at the time this petition 
was filed. 
When filing a Fonn I-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). 
The petition was filed in November 2016 and indicates that the Beneficiary's proffered wage is 
$15,000 per month, which is equivalent to $180,000 annually. The Petitioner also showed that its 
gross earnings at that time were $178,983, approximately $1000 less than the Beneficiary's proffered 
wage. The Petitioner did not provide its annual reports, federal tax returns, or audited financial 
statements in support of the petition. Instead, it offered bank statements from August 2015 through 
October 2016 to demonstrate "the volume of capital being transacted" and to show "availability of 
adequate funds to cover the entire expected business expenses" for a one-year period. 
In a request for evidence (RFE) the Petitioner was asked to provide its annual reports, audited financial 
statements, or complete federal tax returns for 2016 and 2017 to demonstrate its ability to pay. The 
Petitioner was also given the opportunity to submit IRS Form W-2s or Form 1099-MISC for 2016 and 
2017 to show the Beneficiary's earnings. 
In response, the Petitioner provided a statement saying that the Beneficiary would be compensated 
$180,000 annually and that such compensation would include the Beneficiary's expenses for 
transportation, travel, food, and medical insurance. The Petitioner also stated that although the 
Beneficiary would have discretion over profit distribution, his portion of the distribution would be 
limited so that the total amount of his compensation would not exceed the proffered wage of$180,000. 
The Petitioner added that in 2016 the Beneficiary's expenses totaled $39,486 and further stated that in 
2017 the Beneficiary was compensated a total of $95,435 of which $40,000 was commission. 
The Petitioner also provided its tax returns and W-2 statements for 2016 and 2017. The 2016 
documents show that the Petitioner's ordinary income totaled $86,373 after it paid $123,478 in salaries 
and wages of which $96,412 was paid to the Beneficiary. The 2017 documents, however, show that 
the Petitioner paid $67,484 in salaries and wages, of which only $10,696 was paid to the Beneficiary, 
and had ordinary income totaling $73,029, thus showing that the Petitioner earned a total income of 
over $20,000 less and paid the Beneficiary more than $55,000 less than the year during which this 
petition was filed. The Petitioner also provided the Beneficiary's pay stubs for 2016 and 2017 showing 
compensation that was consistent with his Form W-2s for those years, and two pay stubs for January 
2018 showing that he was paid a total of $20,804 in officer compensation. However, none of the pay 
stubs accounted for itemized expenses showing that the Beneficiary's compensation included expenses 
and profit distributions as described in the Petitioner's RFE response statement. 
In denying the petition, the Director considered the Beneficiary's wages and the Petitioner's earnings, 
assets, and liabilities and concluded that the Petitioner established its ability to pay in 2016, but did 
not maintain that ability in 201 7. 
On appeal, the Petitioner contends that the denial was arbitrary and capricious and argues that the 
Director "imposed novel substantive and evidentiary requirements beyond those set forth in the 
regulations." The Petitioner indicates that the Director did not apply the preponderance of the evidence 
standard in evaluating the supporting evidence and appears to question the Director's consideration of 
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the Beneficiary's wages and the Petitioner's net mcome, assets, and liabilities m making a 
determination regarding its ability to pay in 2016. 
We find that the Director correctly cited to published case law that supports his analysis of the 
Beneficiary's wages and the Petitioner's net income, assets, and liabilities. See Elatos Rest. Corp. 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 Changv. 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); Ubeda v. Palmer, 539 F. Supp. 
647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). Furthermore, we note that the Director made 
a favorable determination about the Petitioner's ability to pay in 2016 and focused exclusively on the 
lack of evidence demonstrating the Petitioner's ability to pay in 2017. As the Petitioner's ability to 
pay in 2016 is not in contention, any arguments on this issue are considered moot and need not be 
addressed farther. 
The Petitioner also contends that the wages shown in the Beneficiary's Form W-2 statement are his 
"basic salary," which does not include the additional $95,435 that the Petitioner claims it paid in the 
Beneficiary's "expenses." In support of this claim, the Petitioner provided its 2017 tax return, which 
included Statements 4 and 14. Statement 4 listed a total of 21 deductions of which the following six 
were highlighted: car and truck expenses, commissions, meals and entertainment"@ 50% limitation," 
parking fees and tools, telephone, and travel. Statement 14 only one deduction - "amount paid for 
medical insurance" - which was highlighted like the included six deductions in Statement 4. The 
combined total of the highlighted deductions totaled $95,435 and thus matched the amount the 
Petitioner claimed it compensated the Beneficiary in addition to his Form W-2 wages. However, there 
is no evidence, such as Form 1099-MISC, showing that the Petitioner declared any of the highlighted 
deductions as a source of the Beneficiary's income. Thus, despite the fact that the sum of the 
highlighted deductions matched the amount claimed as the Beneficiary's "expense" income, there is 
no evidence that the deductions were attributed to the Beneficiary as part of the proffered wage amount 
indicated in the petition. The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. 369,376 (AAO 2010). 
Moreover, the purpose of the RFE is to elicit farther information that clarifies whether eligibility for 
the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Here, the Petitioner did not provide 
evidence, such as an employment contract, itemizing the specific amounts and components of the 
Beneficiary's compensation package. In fact, the Petitioner did not originally claim that the proffered 
wage would be comprised of multiple components, including a base salary and payment for various 
living and business expenses. Rather, the Petitioner first made this claim in its RFE response, but it 
did not specify the components that are claimed as part of the Beneficiary's proffered wage. The 
Petitioner also neglected to provide evidence, such as a Form 1099-MISC, to support its claim. In 
light of these deficiencies, we find that the Petitioner has not provided sufficient evidence to support 
the claim that the Beneficiary's annual proffered wage of $180,000 includes compensation in the form 
of payment for various expenses and distribution of profits. 
Further, as indicated in the Director's decision, an analysis of the Petitioner's net income, assets, and 
liabilities does not indicate that it had the ability to pay the Beneficiary's proffered wage in 2017. The 
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Petitioner's net income of $73,029, when added to the Beneficiary's 2017 W-2 wages of $10,696, is 
far short of the Beneficiary's $180,000 proffered wage. Likewise, the Petitioner's assets of $28,961 
less its liabilities of $935 leaves only $28,026 in net assets, which is also far below the proffered wage. 
Thus, despite providing sufficient evidence of its ability to pay the Beneficiary's wage in 2016, the 
Petitioner did not demonstrate that it maintained that ability in 2017 and thus it did not continue to 
meet the regulatory criteria beyond the date of filing this petition. See 8 C.F.R. § 204.5(g)(2). 
ORDER: The appeal is dismissed. 
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