dismissed EB-1C Case: Hotel Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 30, 2024 In Re: 284 70326 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, part of a hotel management organization, seeks to permanently employ the Beneficiary 
as assistant director of engineering at one of its managed properties 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 a 
managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that: (1) the Beneficiary has been employed abroad in a managerial or executive capacity; 
(2) the Petitioner will employ the Beneficiary in the United States in a managerial or executive 
capacity; and (3) the Petitioner has the ability to pay the Beneficiary's proffered wage. The matter is 
now before us on appeal. 8 C.F .R. § 103 .3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
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). 
II. ANALYSIS 
Any petition filed 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. 8 C.F.R. § 204.5(g)(2). To 
establish its ability to pay, a petitioner must submit copies of its annual rep01ts, federal tax returns, or 
audited financial statements. If 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. Id. 
The critical issue in this proceeding is the identity of the Beneficiary's prospective employer. This is 
a central material issue because section 204(a)(l )(F) of the Act, 8 U.S.C. § l 154(a)(l )(F), and 8 C.F.R. 
§ 204.S(i)(l) both require the petition to be filed by the intending U.S. employer. The regulation at 
8 C.F.R. § 204.5(g)(2) requires the employer to establish its ability to pay the proffered wage. The 
Petitioner states that it will employ the Beneficimy but, as explained below, the record contains 
agreements naming a third party as the Beneficiary's employer, responsible for all expenses relating 
to that employment. 
The Beneficiary began working for the Petitioner's branded hotels in 2007. His more recent position 
abroad was as chief engineer at a hotel inl Ifrom 2014 to 2017. He entered the United States in 
2017 as an L-lA nonimmigrant under a blanket L retition and began serving as the assistant director of 
engineering at the I lresort hotel in I Florida. The Petitioner states that it seeks to continue 
to employ the Beneficiary in the same capacity at the same hotel, at a salary of $82,000 per year. 1 
The Petitioner initially submitted copies of IRS Forms 941, Employer's Quarterly Federal Tax 
Returns, indicating thatl lpaid wages to 380 employees in the second 
quarter of 2021 and wages to 372 employees in the third quarter of 2021. The documents do not 
identify individual employees and therefore they do not show wages paid to the Beneficiary. 2 
The Director issued a request for evidence, stating that the Petitioner had not submitted any of the 
required evidence to show the petitioning entity's ability to pay the proffered wage. The Director 
asked the Petitioner to submit the required evidence listed at 8 C.F.R. § 204.5(g)(2). The Director also 
indicated that the Petitioner could submit payroll and tax documentation showing that the Petitioner 
has been paying the Beneficiary the proffered wage. 
In response, the Petitioner submitted copies of tax and payroll documents showing thatl lpaid the 
Beneficimy slightly more than the proffered wage in 2021 and 2022. The Petitioner quoted a 2004 
1 In June 2022, after the filing of the present immigrant petition, the Petitioner filed a nonimmigrant petition to extend the 
Beneficiary's L-lA nonimmigrant status. The Director of the California Service Center approved that petition in 
September 2022. The record of proceeding of the approved extension petition is not before us. The approved petition 
authorized the Beneficiary to work for the Petitioner in Florida until July 2024, but USCIS records indicate the Beneficiary 
no longer resides in Florida. 
2 Also, Form 941 returns report wages paid to employees and federal income taxes withheld from those wages, but Form 
941 returns are not income tax returns that provide necessary information about the employer's income, expenses, assets, 
and liabilities. 
2 
U.S. Citizenship and Immigration Services (USCIS) memorandum, stating that "adjudicators should 
make a positive ability to pay determination" if a petitioner submits "credible, verifiable evidence that 
the petitioner is not only employing the beneficiary but has also paid or is currently paying the 
proffered wage." Memorandum from William R. Yates, Associate Director for Operations, USCIS, 
HQOPRD 90/16.45, Determination ofAbility to Pay under 8 CFR 204.5(g)(2) 2 (May 4, 2004). 
The same memorandum, however, specifies: "Required initial evidence, as specified under 8 CFR 
204.5(g)(2), includes copies of (1) annual repmis, (2) federal tax returns, or (3) audited financial 
statements. The petitioner must submit a copy of at least one of these required documents." Id. 
(Emphasis in original.) The Petitioner's response to the request for evidence does not meet this 
requirement. 
The Petitioner submitted a document that the Petitioner identified as the hotel's 2020 annual report. 
The format of the document makes it difficult to dete1mine how much of the hotel's revenue went to 
the petitioning organization and how much went to I I This issue is significant because a 
petitioning employer must show its own ability to pay the proffered wage, rather than the ability of an 
unrelated entity that contracts with the petitioner. 
Furthermore, although the Petitioner identifies the document as an annual report, the document itself 
uses the term "Profit and Loss Statement" and focuses on monthly figures from December 2020. Profit 
and loss statements are not primary evidence that satisfies the requirements of 8 C.F.R. § 204.5(g)(2). 
Rather, that regulation specifies that profit and loss statements are "additional evidence" that can 
supplement, but not replace, required initial evidence of ability to pay. There is no indication that the 
profit and loss statement has been audited. 
The Petitioner stated that its response to the request for evidence included an "executed affidavit" from 
thel Iassistant director of people and culture, "confirming petitioner's ability to pay." The 
document in the record is a letter, not an affidavit, indicating that the Beneficiary is "earning a base 
annual salary of $95,000." The regulation at 8 C.F.R. § 204.5(g)(2) states: "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." The Petitioner did not establish that the assistant director of people and culture 
is a financial officer of the organization. Also, the letter does not attest to the number of employees 
whom the Petitioner employs. 3 
The Director denied the petition, stating that the Petitioner had not submitted the primary types of 
evidence required by 8 C.F.R. § 204.5(g)(2), and "did not explain why it could not obtain primary 
evidence, or establish that it was not available." The Director cited 8 C.F .R. § 103 .2(b )(2)(i), which 
states that if a petitioner relies on secondary evidence instead of the specific required documents, then 
the petitioner must demonstrate that the primary evidence "does not exist or cannot be obtained." 
3 The record contains widely diverging claims on this point. On the Form 1-140 petition, the Petitioner claimed 16,500 
employees in the United States, but on appeal, the Petitioner claims "over 170 employees." The higher number appears to 
include employees of other U.S. entities within the larger organization. 
3 
The Director also noted that the submitted payroll documents show that "the organization that pays 
the beneficiary is not the petitioner." The Director stated that financial documents pertaining to 
unrelated third parties cannot establish the Petitioner's ability to pay the proffered wage. 
On appeal, the Petitioner submits a letter from its treasurer, attesting to the size of its staff and its total 
revenues. The Director had previously requested such a letter, but the Petitioner's response to that 
request did not include it. Because the Petitioner had a reasonable opp01tunity to submit a letter from 
a financial officer in response to the request for evidence, we decline to consider the newly submitted 
letter on appeal. See Matter ofSoriano, 19 I&N Dec. 564,566 (BIA 1988) (barring consideration of 
evidence on appeal where a party received prior notice of required materials and a reasonable 
opportunity to provide them). Furthermore, the letter does not address or resolve the central question 
of the identity of the prospective employer. 
The Petitioner contends, on appeal: 
users rejected all of the evidence based solely on the claim that the entity on [the 
Beneficiary's] pay stubs was not identical to the name of the petitioner in this petition. 
However, numerous multi-national organizations have paying entity information on 
pay stubs that differs from the name of the ultimate employer. Moreover, as users is 
well aware, the petitioning organization is the entity that will employ the beneficiary at 
the time lawful permanent residence is granted - it does not have to be the same entity 
that is employing or paying the beneficiary at the current time. . . . [The Petitioner] 
will be the ultimate employer of [the Beneficiary] in the U.S. 
While it is common for employers to rely on third-party contractors to handle payroll issues, the 
Petitioner has not submitted evidence to show that the entity named on the Beneficiary's payroll 
documents is such a contractor. The burden of proof is on the Petitioner to establish that it, rather than 
some other entity, intends to employ the Beneficiary and is able to pay his proffered wage. As 
explained below, the Petitioner has not met this burden. Also, while it is true that the petitioning 
organization does not need to pay the Beneficiary the proffered wage until the Beneficiary attains 
permanent residence, that does not change the Petitioner's burden to establish its ability to pay the 
proffered wage under 8 e.F.R. §204.5(g)(2). We also note that statements in a brief, motion, or Notice 
ofAppeal are not evidence and thus are not entitled to any evidentiary weight. Matter ofS-M-, 22 I&N 
Dec. 49, 51 (BIA 1998). 
The Petitioner initially submitted portions of a "Hotel Management Agreement" between the 
Petitioner's parent company andI I. The agreement identifies I I as the 
"Owner" of the I I and the Petitioner's parent company as the "Operator" of that hotel. The 
agreement obligates the Operator to "service ... , manage, supervise and direct the Hotel and its staff~" 
to "provide for the maintenance and repair of the Hotel," and to "hire, pay, [and] supervise ... all 
personnel of the Hotel." But despite the provision that the "Operator" will "pay ... all personnel," 
the agreement stipulates that "[a]ll such personnel (other than Senior Hotel Personnel selected by 
Operator) shall be employed by Owner and all expenses relating to the employment ofsuch personnel 
shall be borne by Owner" (emphasis added). 
4 
The last quoted clause in the hotel management agreement indicates that most of the ....I ____ _. 
personnel are "employed by Owner," i.e., I I rather than the Petitioner's organization. This 
information is consistent with the Petitioner's initial submission of IRS Forms 941 filed byl I 
The Petitioner has neither claimed nor established that the Beneficiary is among the "Senior Hotel 
Personner employed by the petitioning organization. An IRS Form W-2, Wage and Tax Statement, 
identifies as the Beneficiary's employer. Also, in a statement that accompanied the filing of 
the petition, the Petitioner asserted that the Beneficiary "receives compensation from I I 
I I 
If I I is the Beneficiary's employer, as shown on payroll records and stated in the hotel 
management agreement, then the petition was not filed by the intending U.S. employer as required by 
section 204(a)(l)(F) of the Act and by 8 C.F.R. § 204.S(j)(l). On the other hand, if the Petitioner is 
the Beneficiary's ejployer, lhen the Petitioner must establish its own ability to pay the Beneficiary's 
proffered wage, and 
I
ability to pay that wage is irrelevant. The record does not show that the 
Petitioner supplies! with the funds that hale paid,I and will pay, the Beneficiary's salary. Rather, 
the hotel management agreement stipulates that is responsible for "all expenses relating to the 
employment of [most hotel] personnel," and thatl I reimburses the Petitioner's organization for 
expenses incurred in managing the hotel. 
The Petitioner has not met its burden of proof to establish its ability to pay the Beneficiary's proffered 
wage, by the evidence required under 8 C.F.R. § 204.5(g)(2). 
The assertion in the agreement that most hotel personnel are "employed by Owner," not by the 
Petitioner or by any related entity, raises another important issue. A similar clause appears in the hotel 
management agreement between one of the Petitioner's affiliates and "a single person company" that 
owns the hotel property in I I where the Beneficiary previously worked. 
A petitioning U.S. employer must have a qualifying relationship with the beneficiary's employer 
abroad. See section 203(b )(1 )(C) of the Act; see also 8 C.F.R. § 204.5(j)(3)(i)(C). The Petitioner has 
neither claimed nor established that the "single person company" that employed the Beneficiary in 
I I has any ownership interest in the I Iin Florida. If the Beneficiary in this proceeding 
has been employed by unrelated entities in I land Florida, then the Petitioner has not satisfied 
this core requirement. If the Beneficiary has consistently been employed by entities within the 
Petitioner's organization, then the Petitioner must explain and account for legally binding agreements 
in the record that say otherwise. 
The above conclusions are sufficient to determine the outcome of this appeal. 4 Therefore, we reserve 
argument on the issues of whether the Beneficiary's past employment abroad, and his intended 
employment in the United States, meet the requirements of a managerial or executive capacity. See 
INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not 
4 We acknowledge that USCIS extended the Beneficiary's L-lA nonimmigrant status, but the granting and extension of 
that status do not require us to approve an immigrant petition based on the same employment. See, e.g., Mahalaxmi Amba 
Jewelers v. Johnson, 652 F. App'x 612, 618 (10th Cir. 2016). See also Saga Overseas, LLC v. Johnson, 200 F. Supp. 3d 
1341, 1350 (S.D. Fla. 2016) (holding that prior L-lA approvals, whether in error or not, do not require approval ofa Form 
1-140 petition). We also note that I-140C petitions have different requirements. For instance, L-1 petitions do not contain 
an ability to pay requirement. 
5 
generally required to make findings and decisions 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). 
III. CONCLUSION 
We will dismiss the appeal for the above stated reasons. 
ORDER: The appeal is dismissed. 
6