dismissed EB-1C Case: International Trade

U.S. Citizenship 
and Immigration 
Services 
In Re: 15744243 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 02, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner states that it was established "to further open the U.S. market for our products and to 
introduce U.S. technology and products to the Chinese market."1 It seeks to permanently employ the 
Beneficiary as its "General Manager" 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). 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 
1 The Petitioner states that it is a wholly owned subsidiary of a China-based company that exports pharmaceuticals and 
manufactures and trades furniture. It is noted that the Form 1-290B, Notice of Appeal or Motion, contains the Beneficiary's 
signature and lists his title as "Owner." 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(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. PRIOR PETITION APPROVALS 
As a preliminary matter, we acknowledge the Petitioner's reference to approvals of prior 
nonimmigrant petitions that were filed on behalf of the Beneficiary. The Director's decision does not 
indicate whether he reviewed the prior approvals of the other nonimmigrant petitions. If the previous 
nonimmigrant petitions were approved based on the same evidence contained in the current record, 
the approval would constitute an error on the part of the Director. We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. Matter of Church Scientology lnt'I, 19 l&N Dec. 593, 597 
(Comm'r 1988). It would be unreasonable for USCIS or any agency to treat acknowledged errors as 
binding precedent. Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
Accordingly, we will assess the Petitioner's eligibility based on the evidence contained in the record 
that is currently before us. 
Ill. 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 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). 
The petition was filed in December 2017 and shows that the Petitioner claimed five employees and a 
proffered wage of $60,000 annually. In support of the petition, the Petitioner provided 2015 and 2016 
tax returns pertaining to itself and the Beneficiary. 
In a request for evidence (RFE), the Director acknowledged the Petitioner's submission of the tax 
returns but determined that these documents did not constitute sufficient evidence of the Petitioner's 
ability to pay at the time of filing. The Director therefore instructed the Petitioner to provide its 
"2017/2018" annual reports, audited financial statements, or federal income tax returns complete with 
the applicable schedules to demonstrate that it meets this eligibility requirement. 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 a brief claiming that it is "more than able to pay the salary" and 
submitted its 2017 corporate tax return and unaudited financial statement for the 11-month period 
immediately following the filing of this petition. The Petitioner's 2017 tax return shows that it paid 
2 
$64,506 in salaries and wages and was left with a net income of $32,043; Schedule L of the same tax 
return shows that the Petitioner had $5314 in net current assets. 2 The Petitioner did not provide 
evidence showing the petitioning entity as the source of the income listed in the Beneficiary's personal 
tax returns. 
In denying the petition, the Director considered the net income and net current assets provided in the 
Petitioner's 2016 and 2017 tax returns and determined that neither showed income or assets that were 
equal to or greater than the Beneficiary's proffered wage. As such, the Director concluded that the 
Petitioner did not provide sufficient evidence demonstrating that it met the ability to pay requirement. 
We agree with the Director's assessment of the Petitioner's 2017 tax return and the determination that 
the tax return does not constitute sufficient evidence of the Petitioner's ability to pay the Beneficiary's 
proffered wage. Likewise, the Petitioner's submission of an unaudited financial statement, which 
accounts for an 11-month period immediately following the date of filing, also does not meet the 
regulatory criteria. Not only is the statement unaudited, but it also does not pertain to the Petitioner's 
financial status at the time of filing. 
On appeal, the Petitioner argues that its ability to pay should not be considered "under the same criteria 
as a non-self owned [sic] company," claiming that the Beneficiary and his wife own the Petitioner and 
can therefore set the proffered wage to "whatever the petitioner wants it to be," even after the petition 
has been filed, so long as a realistic job offer exists. However, the Petitioner does not cite to legal 
authority, such as statutory or regulatory provisions, published precedent decisions, or USCIS policy, 
in support of these assertions, which are squarely at odds with existing regulations. Further, the 
Petitioner has not provided evidence corroborating the claim that the Beneficiary and his wife own the 
U.S. entity, which the record indicates is a wholly owned subsidiary of the Beneficiary's foreign 
employer. Although the Petitioner indicates that the Beneficiary derives an indirect ownership interest 
in the U.S. entity, it has not offered evidence to support this claim. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 l&N Dec. 369, 
376 (AAO 2010). 
The Petitioner also contends that it can meet the ability to pay requirement by establishing that it has 
and will continue to pay the Beneficiary "the prevailing wage," even if that wage is lower than what 
the Petitioner designated as the proffered wage at the time of filing. Again, however, the Petitioner 
offers no legal authority to support this contention. Although there is no statute or regulation 
preventing a petitioner from offering the prevailing wage as a beneficiary's proffered wage, the 
proffered wage must be designated on the petition form at the time of filing and the Petitioner must 
comply with the ability to pay regulation, which requires the submission of evidence showing the 
ability to pay the proffered wage commencing with the time of filing and continuing until the 
beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). There is no legal provision 
permitting a petitioner to lower the proffered wage after filing the petition. 
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. 
3 
In addition, the Petitioner sites Matter of Sonegawa, 12 l&N Dec. 612 (Reg'I Comm'r 1967), asserting 
that USCIS may consider evidence beyond net income and net current assets to assess the Petitioner's 
ability to pay. However, 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. That petitioner 
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 the cited case 
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 same cannot 
be said of the Petitioner in the matter at hand, where three tax returns were submitted of which only 
the 2015 tax return demonstrates a net income that was sufficient to cover the Beneficiary's proffered 
wage, while the Petitioner's 2016 and 2017 tax returns showed net income and net assets that were 
not sufficient to compensate the proffered wage. Further, despite stating that it was established in 
2002, thereby indicating that it existed for 15 years when the petition was filed, the Petitioner has not 
offered evidence showing that it consistently generated income above the Beneficiary's proffered 
wage as in Sonegawa. Nor has the Petitioner established a nexus between the "economic downturn 
caused by the global pandemic" and its inability to generate a net income or net current assets sufficient 
to pay the Beneficiary's proffered wage in December 2017, when this petition was filed, which was 
approximately two years prior to the onset of the global pandemic. 
Lastly, the appeal includes tax returns that are not relevant in this matter because they pertain to I I I lthe Petitioner's claimed U.S. affiliate, not to the Petitioner itself.3 Although the Petitioner urges 
us to consider! ~s tax returns as evidence that the ability to pay requirement has been met, the 
regulatory criteria applies specifically to the prospective U.S. employer, which is the petitioning entity. 
A U.S. entity that is related to the Petitioner, but is not the Petitioner itself, is not the intended U.S. 
employer that filed this petition. As such, whether the affiliate entity has the ability to pay the 
Beneficiary's proffered wage is not relevant to the issue of whether the Petitioner itself has that abi I ity. 
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 when this petition was filed 
and for this reason the instant petition cannot be approved. 
ORDER: The appeal is dismissed. 
3 The Petitioner claims that both it and I I are owned by the Beneficiary and his spouse. Althoughc=}s tax 
returns corroborate the claim regarding its ownership, the Petitioner's tax returns identify! I 
~------~as the Petitioner's sole owner. Because the Petitioner did not provide evidence of the foreign 
entity's ownership, we are unable to verify the Petitioner's claim that it andc=Jare affiliates by virtue of being jointly 
owned by the Beneficiary and his spouse. See 8 C.F.R. § 204.50)(2) for the definition of "affiliate." 
4