dismissed EB-1C Case: Food Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re : 14910390 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 3, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a manufacturer of tortillas and other com products, seeks to permanently employ the 
Beneficiary as its "President and 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. § l 153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity . 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that (1) it had the ability to pay the Beneficiary's proffered wage commencing 
on the date this petition was filed and (2) it has a qualifying relationship with the Beneficiary's foreign 
employer. 1 The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we conclude that the Petitioner has 
not overcome the Director's findings and we will therefore 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 )(1 )(C) of the Act. 
The Form 1-140, 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 filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate 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) . The petition must also be 
1 The petition was initially denied for abandonment pursuant to 8 C.F .R. § l 03 .2(b )( 13). The Petitioner subsequ ently filed 
a motion to reopen and reconsider , which resulted in a new decision that is currently befor e us on appeal. 
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 first issue to be addressed 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 Form 1-140, 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). 
In the matter at hand, the Petitioner filed a Form 1-140 in September 2016, but it did not complete Part 
6, No. 8 in the petition, which asks the Petitioner to specify the hourly, weekly, monthly, or yearly 
wages it plans to pay the Beneficiary under an approved petition. In a notice of intent to deny (NOID), 
the Petitioner was notified of this deficiency and given an opportunity to supplement the record with 
the required evidence. In response, the Petitioner provided wage and tax documents, such as the 
Beneficiary's tax returns, the Petitioner's annual and quarterly tax returns, Form W-2 wage and tax 
statements, and the Petitioner's unaudited financial statements. Although the Petitioner also provided 
a statement addressing other elements of the NOID, the response did not include a specific amount 
clarifying the Beneficiary's proffered wage at the time of filing. 
On appeal, the Petitioner resubmits the wage and tax documents referenced above and contends that 
the Beneficiary "has always been on the payroll" and was compensated "approximately $57,000" 
during the prior year. To date, however, the Petitioner has not specified the Beneficiary's proffered 
wage, which has remained unknown since this petition was filed. 
The evidence shows that the Petitioner has exclusively focused on the fact that the Beneficiary has 
been financially compensated and neglected to specify the Beneficiary's proffered wage at the time of 
filing. Regardless of the amount of the Beneficiary's actual compensation, the Petitioner has not 
completed the Form 1-140, which requires specification of the Beneficiary's proffered wage under an 
approved petition. Without disclosure of this fundamental information, we are unable to conduct a 
proper assessment of the relevant evidence and we are therefore preluded from making a determination 
as to whether the Petitioner had the ability to pay the Beneficiary's proffered wage at the time of filing. 
In light of the deficiency discussed above, we conclude that the Petitioner has not established that it 
meets the ability to pay requirement. 
III. QUALIFYING RELATIONSHIP 
Next, we will address the Director's determination that the Petitioner did not establish that it has a 
qualifying relationship with the Beneficiary's employer abroad. To establish a "qualifying 
relationship," the Petitioner must show that it and the Beneficiary's foreign employer are the same 
employer (i.e., a U.S. entity with a foreign office) or that they are related as a "parent and subsidiary" 
or as "affiliates." See generally section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
2 
Leading up to the appeal, the Petitioner claimed that it and the Beneficiary's foreign employer are 
affiliates, indicating that the relationship is based on the Beneficiary being "owner and Principal" of 
both entities. The Petitioner provided evidence showing that the Beneficiary owns 50% of the U.S. 
entity and that he owns 71 % of the foreign entity. 2 Although the appeal includes the Petitioner' 2018 
tax return and an April 2020 letter from the Beneficiary, both noting the Beneficiary's ownership of 
71 % of the foreign entity, the Petitioner also provides an April 2020 statement from the foreign entity's 
accountant, whose iteration of the foreign entity's ownership distribution is inconsistent with the 
previously mentioned documents. Namely, the accountant's letter shows the Beneficiary as owning 
only 50% of the foreign entity and names a fourth owner. The Petitioner must resolve these 
inconsistencies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Matter of Church Scientology Int'!, 19 I&N Dec. 593 (Comm'r 1988); Matter o_f Siemens Med. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter o_f Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter of Church Scientology Int'!, 19 
I&N Dec. at 595. 
Because the Petitioner offers inconsistent evidence pertaining to the foreign entity's ownership, we 
cannot conclude that the Petitioner did not provide sufficient reliable evidence establishing that it and 
the Beneficiary's foreign employer are commonly owned and controlled as affiliates and that their 
common ownership and control meets the qualifying relationship requirement. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 
ORDER: The appeal is dismissed. 
2 The record shows that in 2013 ownership of the foreign entity was redistributed among its three owners -the Beneficiary, 
his spouse, and his father-in-law- and that as a result of the redistribution, the Beneficiary's ownership interest increased 
from 60% to 71 %. 
3