dismissed EB-1C Case: Import/Export

U.S. Citizenship 
and Immigration 
Services 
In Re: 15822955 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 3, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner describes itself as an import, export, and consulting operation. It seeks to permanently 
employ the Beneficiary as its "Director" 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 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. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal and affirm 
the Director's denial of the petition. 
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 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. § 204.5G)(3). The Form 1-140 must also 
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 from the priority date 
onward. The regulation at 8 C.F.R. §204.5(g)(2) states, in part: 
Ability of prospective employer to pay wage. Any pet1t10n 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. 
In this case, the priority date is December 22, 201 7, the date the immigrant petition was filed. See 
8 C.F.R. §204.5(d). 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the foll 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
foll proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. 1 
The Petitioner claimed three employees and a proffered wage of $40,000 annually to the Beneficiary. 
In a supporting cover letter, the Petitioner added that the Beneficiary would be compensated "$40,000 
+ [b ]onuses and incentives based performance [sic] as well as profit sharing." The Petitioner also 
provided its 2016 tax return as well as its unaudited balance sheet and unaudited profit and loss 
statement accounting for its finances from January through November 2017. 
In October 2018 the Director issued a request for evidence (RFE) acknowledging the Petitioner's 
submissions. However, the Director determined that the submitted evidence was not sufficient to 
establish the Petitioner's ability to pay at the time of filing and therefore instructed the Petitioner to 
provide its "2017/2018" annual reports, audited financial statements, or federal income tax returns 
complete with the applicable schedules. The Petitioner was also permitted to submit the Beneficiary's 
Form W-2s, Form 1099s, pay vouchers, or employer's quarterly reports showing that it paid the 
Beneficiary's proffered wage from the priority date onwards. 
In response, the Petitioner provided the following evidence: (1) 2017 and 2018 printouts from the 
Florida Secretary of State website listing the Petitioner's name, address, and federal employee 
identification number, as well as information about the Petitioner's registered agent and three 
1 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts. LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-946 (S.D. Cal. 2015); Rizvi v. Dep 't 
of Homeland Sec.. 37 F. Supp. 3d 870. 883-84 (S.D. Tex. 2014), affd, 627 Fed. App'x. 292, 294-295 (5th Cir. 2015). 
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authorized persons; (2) the Petitioner's 2017 tax return showing that it paid no salaries or wages, 
generated a net income of $10,513, and had $49 in net current assets;2 and (3) the Petitioner's complete 
bank statement from April 2018 and partial bank statements for the Petitioner and the Beneficiary 
showing wire transfers from the Petitioner's parent entity in Brazil to the Petitioner as well as fond 
transfers in varying amounts from the Petitioner to the Beneficiary. The Petitioner did not submit any 
W-2 or U.S. pay information for the Beneficiary, or quarterly Forms 941 exhibiting employment of 
the Beneficiary. 
In denying the petition, the Director considered the net income and net current assets provided in the 
Petitioner's 2016 and 201 7 tax returns and determined that neither showed net income or net current 
assets that were equal to or greater than the Beneficiary's proffered wage. The Director also rejected 
the Petitioner's assertion that its profits will increase as a result of the Beneficiary onboarding, finding 
this argument to be speculative and lacking in supporting evidence. 
On appeal, the Petitioner asserts that its 2016 tax return is not relevant for the purpose of determining 
whether it had the ability to pay the Beneficiary's proffered wage in 2017 when this petition was filed. 
Nevertheless, the Director accurately assessed the Petitioner's 2017 tax return and explained how the 
information contained therein lead to the conclusion that the Petitioner did not establish its ability to 
pay the Beneficiary's proffered wage at the time of filing. Further, although before the priority date, 
the Petitioner's 2016 tax return might be considered generally and in the Petitioner's totality of the 
circumstances under Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). In this instance, 
the Petitioner's 2016 tax return shows that it had a net income of negative $150 and no net assets. 
The Petitioner also points to previously submitted bank records showing that the foreign entity wired 
fonds to the Petitioner in April, May, and June 2018 and that the Petitioner subsequently transferred 
fonds to the Beneficiary's account. The Petitioner argues that it had "more than enough fonds to cover 
the Beneficiary's annual salary" and that by overlooking this evidence, the Director imposed "a stricter 
standard of proof than permissible." 
We disagree with the Petitioner's argument. Not only does the Petitioner provide evidence of 
transactions that took place after this petition was filed, but, more importantly, it overlooks the fact 
that bank records are not among the types of permissible evidence that is specifically listed in the 
regulation, which requires the ability to pay to be established through the submission of a petitioner's 
annual reports, federal tax returns, or audited financial statements and only permits the submission of 
additional evidence, such as bank records, in certain "appropriate cases." See 8 C.F.R. § 204.5(g)(2). 
The Petitioner did not demonstrate that its 201 7 tax return inaccurately represented its income and 
assets such that additional evidence was necessary to demonstrate its ability to pay at the time of filing, 
nor did it establish that the bank records it submitted constitute probative evidence, given that the 
records showed transactions that took place months after the petition was filed. Additionally, without 
the Petitioner's 2018 tax return, we are unable to determine whether amounts reflected on the bank 
statements represent assets separate and apart from those that would be considered and accounted for 
in calculation of the Petitioner's net current assets. The Petitioner must establish that all eligibility 
2 Net current assets are the difference between a petitioner's current assets and current liabilities. A corporation's year­
end current assets are shown on Schedule L, lines 1 through 6 and its year-end current liabilities are shown on lines 16 
through 18. The Petitioner's 2017 tax return shows that its current assets totaled $79,679 and its current liabilities totaled 
$74,365, leaving it with net current assets totaling $5314. 
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requirements for the immigration benefit have been satisfied from the time of the filing and continuing 
through adjudication. 8 C.F.R. § 103.2(b)(l). 
Although the Petitioner also submitted an unaudited balance sheet and profit and loss statements for 
January to November 2017, it did not establish that these documents constitute sufficient evidence of 
its ability to pay, given that the regulation at 8 C.F.R. §204.5(g)(2) requires "audited" rather than 
unaudited financial statements. Additionally, this information would have been considered in the 
analysis of the Petitioner's 2017 tax return. Likewise, the Petitioner cannot meet the ability to pay 
requirement by submitting evidence that it filed an annual report with the State of Florida where it was 
registered to do business. Because the State of Florida annual report does not contain relevant 
information about the Petitioner's finances, it does not constitute sufficient evidence of the Petitioner's 
ability to pay. 
Lastly, the Petitioner points out that only nine days remained in 2017 when this petition was filed, 
indicating that it need only demonstrate its ability to pay the portion of the 201 7 proffered wage that 
accrued after the petition's priority date of December 22. The Petitioner contends that its net income 
amount of $10,633 exceeded the amount necessary to pay the Beneficiary's prorated wage for the 
nine-day period. USCIS policy, however, does not permit petitioners to prorate proffered wages in 
the years of priority dates. Although a short period between a priority date and the end of a calendar 
year may be considered in a totality-of-the-circumstances analysis under Matter of Sonegawa, 12 I&N 
Dec. 612 (Reg'l Comm'r 1967), a petitioner must generally demonstrate its ability to pay the full 
proffered wage of an offered position in the year of a petition's priority date. Even ifwe could prorate, 
which we cannot, nothing shows wages paid by the U.S. entity covering the portion of the year that 
occurred after the priority date in the form of paystubs, or the Petitioner's monthly income statements 
to exhibit net income subsequent to the priority date. 
The record does not establish the Petitioner's ability to pay the full proffered wage in 2017. The 
Petitioner's 2017 tax return reflects only $29,269 in total gross receipts, which is less than the 
Beneficiary's proffered wage of $40,000. The Petitioner's tax return reflects no wages or salaries paid 
for the U.S. entity. 3 Further, the facts and circumstances in the cited case are notably different from 
those in the matter at hand. Namely, the petitioner in Sonegawa had been doing business for 11 years 
by the time it filed the petition and it had consistently generated income that was well above the 
beneficiary's proffered wage and the wages paid to the petitioner's other employees. The petitioner 
in Sonegawa also established that its decreased earnings during the year of filing resulted from a 
number of circumstances that were specific to that isolated time period and were not common 
throughout its prolonged history of doing business in the United States. In addition, the petitioner in 
Sonegawa provided ample evidence that there was a reasonable likelihood that its business would 
grow and that its revenues would likely increase to account for the beneficiary's proffered wage. The 
Petitioner did not establish that factors similar to Sonegawa existed in the instant case, resulting in a 
conclusion that it had the ability to pay the proffered wage despite its shortfalls in its net income and 
net current assets. 
3 The lack of employee salaries is inconsistent with the Petitioner's claim that it had three employees at the time of filing 
and also calls into question whether the Petitioner would have the staffing to support the Beneficiary in a managerial 
position. Although this issue was not included as a basis for denial, it must be addressed in any further filings where the 
Petitioner seeks to employ the Beneficiary in a managerial or executive capacity. 
4 
Accordingly, given the deficiencies described above, we conclude that the Petitioner has not 
established that it had the ability to pay the Beneficiary's proffered wage. 
ORDER: The appeal is dismissed. 
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