dismissed EB-1C Case: Freight Forwarding

(b)(6)
DATE : OFFICE: TEXAS SERVICE CENTER 
OCT 0 7 2013 
INRE : Petitioner : 
Beneficiary: 
U.S. Department ofJiomehmd Securit y 
U. S. Citizen ship and Immigration Se1·vi< 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N
.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE : 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C . § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law 
or policy to your case or if you seek to present new facts for consideration, you may file a motion to 
reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or 
Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form l-290B 
instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and 
other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
i/L-
1--Ron Rosenberg 
Chief , Admini strative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a Texas limited liability company that seeks to employ the beneficiary as its 
General Manager. 1 Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner did not establish it has the ability 
to pay the proffered wage. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to the AAO. On appeal, counsel submits additional documentation that 
was previously unavailable and asserts that the petitioner has now demonstrated an ability to pay 
the proffered wage. Counsel provides a legal brief and additional evidence in support of the 
appeal. 
I. The Law 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described in 
this subparagraph if the alien, in the 3 years preceding the time of the alien's 
application for classification and admission into the United States under this 
subparagraph , has been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and who seeks to enter the 
United States in order to continue to render services to the same employer or to a 
subsidiary or affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
1 
The petitioner indicated its name as ' 
for Alien Worker. The petitioner also uses the name ' 
documents throughout the record. 
on the Form I-140, Immigrant Petition 
on various 
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NON-PRECEDENT DECISION 
Page 3 
A United States employer may file a petition on Form I-140 for classification of an alien under 
section 203(b )(1)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United 
States in a managerial or executive capacity. Such a statement must clearly describe the duties to 
be performed by the alien. 
II. Ability to Pay Proffered Wage 
The sole issue addressed by the director is whether the petitioner established its ability to pay to 
the beneficiary the proffered wage of $45,000 per year. 
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition 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. 
A. Facts 
The petitioner filed the immigrant visa petition on July 30, 2012. The petitioner, a freight 
forwarding business, stated that the beneficiary has been offered a full-time position serving as 
the General Manager. The petitioner indicated on the Form I-140, Immigrant Petition for Alien 
Worker, that it has a gross annual income of $806,058 and a net annual income of $620,082. 
At the time of filing, the petitioner submitted the following documents relevant to its ability to 
pay the proffered wage: (1) IRS Form 1065 U.S. Return of Partnership Income for 2008, 2009, 
and 2010 showing the company's net income of $36,517 for the most recent return; (2) an 
unsigned document entitled "Working Balance Sheet" dated December 31, 2010; (3) IRS Form 
941, Employer's Quarterly Federal Tax Return, for the last three quarters of 2011; and (4) bank 
statements for the period February 1, 2012 to April 30, 2012. 
On February 8, 2013, the director requested additional evidence (RFE) to establish the 
petitioner's ability to pay the beneficiary's proffered wage of $45,000 per year as of July 30, 2012 
and continued ability to pay. The director requested a one of three types of evidence to include : 
(1) federal income tax returns with all accompanying schedules for 2011; (2) a 2011 annual 
report; or (3) 2011 audited financial statements. The director also requested evidence of wages 
paid to the beneficiary for 2011 and 2012. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
In response to the RFE counsel submitted the following documents: ( 1) a copy of the 
beneficiary's IRS Form W-2 for 2012 indicating that he received $8,148 in wages and (2) IRS 
Form 1065, U.S. Return of Partnership Income for 2011 showing the company's net income as 
$31,137. In an accompanying letter, the petitioner explained that the beneficiary was employed 
for only part of the year in 2012. The record reflects that the beneficiary was admitted to the 
United States as an L-1A nonimmigrant on June 11, 2012. 
On April 24, 2013, the director denied the petition finding that the petitioner failed to establish 
that it had the ability to pay the proffered wage to the beneficiary. The director found that the 
petitioner did not pay the beneficiary the proffered wage and that neither the company's net 
income nor the company's net current assets as reflected on its IRS Form 1065 U.S. Return of 
Partnership Income for 2011 were sufficient to compensate for the difference between the wages 
paid and the proffered 
wage. 
On appeal, the petitioner submits a copy of its IRS Form 1065, U.S. Return of Partnership 
Income for 2012 showing a net loss of $23,519. The petitioner also submits a "Comparative 
Chart" submitted by a CPA showing an increase in revenues between the first quarter of 2013 
and the last quarter of 2012, as well as investment in fixed assets for the years 2011 and 2012 . 
Counsel emphasizes that the organization made substantial investments in fixed assets and 
remodeling expenses in 2012 as compared to 2011 and asserts: "If we consider the investments 
made by [the petitioner] in 2012, it is arguable that the Petitioner had the ability to pay the 
proffered salary of $45,000." Counsel requests a favorable exercise of discretion in light of the 
petitioner's financial information for 2013 and the fact that the petitioner "incurred expenses 
which are not part of their ordinary expenses, including evidence in fixed assets." 
B. Analysis 
Upon review, the petitioner's assertions are not persuasive. The petitioner has not established 
that it had the ability to pay the proffered wage at the time of filing. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine 
whether the petitioner employed the beneficiary at the time of filing. If the petitioner establishes 
by documentary evidence that it employed the beneficiary at a salary equal to or greater than the 
proffered wage, this evidence will be considered prima facie proof of the petitioner's ability to 
pay the beneficiary's salary . 
In the present matter, the petitioner provided an IRS Form W-2 for 2012 reflecting its payment 
of $8,148 in wages to the beneficiary. In response to the RFE, the petitioner states that the 
beneficiary did not work a full year in 2012 but fails to indicate the beneficiary's start date. The 
beneficiary's resume stated that he began working for the petitioner in June of 2012 and that 
information is consistent with his date of admission to the United States as an L-1A 
nonimmigrant authorized to work for the petitioner. Assuming this start date to be accurate, the 
beneficiary's salary of $8,148 paid over the course of six and a half months does not establish 
that the petitioner was paying the beneficiary the proffered wage of $45,000. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine 
the 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 Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also 
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); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), 
affd, 703 F.2d 571 (7th Cir. 1983). 
In K.C.P. Food Co., Inc. v. Sava, the court held the Immigration and Naturalization Service (now 
USCIS) had properly relied on the petitioner's net income figure, as stated on the petitioner's 
corporate income tax returns, rather than on the petitioner's gross income. 623 F. Supp. at 1084. 
The court specifically rejected the argument that the Service should have considered income 
before expenses were paid rather than net income. Finally, there is no precedent that would 
allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." Chi­
Feng Chang v. Thornburgh, 719 F. Supp. at 537; see also Elatos Restaurant Corp. v. Sava, 632 
F. Supp. at 1054. 
As the petition's priority date falls on July 30, 2012, the AAO will examine the petitioner's tax 
return for 2012, which was previously unavailable but is now provided on appeal. The petitioner 
does not contest the director's finding that its 2011 Form 1065 did not provide evidence of the 
company's ability to pay the proffered wage. 
The petitioner's IRS Form 1065 U.S. Return of Partnership Income for calendar year 2012 
presents a net taxable income of -$23,519. Therefore, for tax year 2012 , the petitioner did not 
have sufficient net income to pay the difference between wages actually paid to the beneficiary 
and the proffered wage . 
If the petitioner does not have sufficient net income to pay the proffered salary, the AAO will 
review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities . Net current assets identify the amount of 
"liquidity" that the petitioner has as of the date of filing and is the amount of cash or cash 
equivalents that would be available to pay the proffered wage during the year covered by the tax 
return. As long as the AAO is satisfied that the petitioner's current assets are sufficiently "liquid" 
or convertible to cash or cash equivalents, then the petitioner's net current assets may be 
considered in assessing the prospective employer's ability to pay the proffered wage. 
According to petitioner's Form 1065 U.S. Return of Partnership Income for 2012, Schedule L, 
the company has net current assets in the amount of $15,441. Therefore, the petitioner did not 
establish the ability to pay the proffered salary based on its net current assets during the relevant 
year. 
The petitioner requests additional scrutiny of the company assets and liabilities because as noted 
above, petitioner asserts that it would have been able to pay the beneficiary's salary had it not 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
made the investments in fixed assets. The petitioner is essentially stating that in the future its 
profits will remain the same and its net income will increase without the fixed asset purchase s. A 
visa petition may not be approved based on speculation of future eligibility or after the petitioner 
or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg . Comm'r 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
users may consider the overall magnitude of the petitioner's business activities in its determination of 
the petitioner's ability to pay the proffered wage. See Matter of Sone gawa, 12 I&N Dec. 612 (Reg'! 
Comm'r 1967). While the petitioner has provided an explanation for the company 's net loss in 2012, 
the evidence does not show that the petitioner's net income has been consistently sufficient to pay 
the proffered wage of $45,000. 
The petitioner indicates that the beneficiary is replacing a former employee in the position of 
general manager. Specifically, the petitioner indicates that the beneficiary replaced Francisco 
Saldivar as general manager in 2012. The petitioner provided evidence that it paid Mr. 
$36,180 in 2011, a figure which is lower than the beneficiary's proffered wage. The petitioner did 
not provide evidence of wages paid to Mr. in 2012. Further, the petitioner did not provide 
any supporting evidence of Mr. s job title and dates of employment and termination. 
The petitioner failed to demonstrate that it had the ability to pay the proffered wage beginning on 
the priority date/filing date. Accordingly, the appeal will be dismissed. 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here , that burden 
has not been met. 
ORDER: The appeal is dismissed.