dismissed EB-1C Case: Lab Testing Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 11105880 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 24, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a provider a lab testing services, seeks to permanently employ the 
Beneficiary as its chief executive officer (CEO) and president in the United States under the first 
preference immigrant classification for multinational executives or managers. Immigration and 
Nationality Act (the Act) section 203(b)(l)(C) , 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that: (1) the Beneficiary would be employed in the United States in a managerial 
or executive capacity, (2) the Beneficiary was employed abroad in a managerial or executive capacity, 
(3) the Petitioner was doing business as defined by the regulations, (4) the Petitioner had the ability to 
pay the Beneficiary's proffered wage, and (5) the foreign employer was doing business. On appeal, 
the Petitioner contends only that it has submitted sufficient evidence to establish that the Beneficiary 
would act in a managerial and executive capacity in the United States. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not establish that it had the ability to pay the Beneficiary's proffered wage. Since 
the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve the Petitioner's appellate arguments regarding the Beneficiary's claimed employment with the 
foreign parent entity. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not 
required to make findings on issues the decision of which is unnecessary to the results they reach"); 
see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
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. § 204.50)(3). 
II. ANALYSIS 
As indicated above, the Director denied the petition on five different grounds. However, the Petitioner 
only specifically addresses one of these issues on appeal; namely, whether the Beneficiary would be 
employed in a managerial or executive capacity in the United States. Since the Petitioner has not 
addressed four of the five issues at issue on appeal, it has abandoned these issues. Sepulveda v. U.S. 
Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 
WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be abandoned 
as he failed to raise them on appeal to the AAO). 
When an appellant fails to properly challenge one of the independent grounds upon which the Director 
based the overall determination, the filing party has abandoned any challenge of that ground, and it 
follows that the Director's adverse determination will be affirmed. Sapuppo v. Allstate Floridian Ins. 
Co., 739 F.3d 678, 680 (11th Cir. 2014); United States v. Cooper, No. 17-11548, 2019 WL 2414405, 
at *3 (11th Cir. June 10, 2019); McCray v. Fed. Home Loan Mortg. Corp., 839 F.3d 354, 361-62 (4th 
Cir. 2016); In re Under Seal, 749 F.3d 276, 293 (4th Cir. 2014) (finding "an appellant must convince 
us that every stated ground for the judgment against him is incorrect."); United States v. Kama, 394 
F.3d 1236, 1238 (9th Cir. 2005). It is, therefore, unnecessary to analyze the remaining independent 
grounds when another is dispositive of the appeal. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
(finding it unnecessary to analyze additional grounds when another independent issue is dispositive of 
the appeal); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
Aside from the Petitioner's failure to challenge most of the Director's bases for denial on appeal, we 
affirm the decision as the previously submitted evidence is insufficient to establish that the Petitioner 
had the ability to pay the Beneficiary's proffered wage. The regulation at 8 C.F.R. § 204.5(g)(2) states: 
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. 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. In appropriate cases, 
additional evidence, such as profit/loss statements, bank account records, or personnel 
records, may be submitted by the petitioner or requested by the Service. 
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In the Form 1-140 Immigrant Petition for Alien Worker, Part 6, Item 8 the Petitioner indicated that the 
Beneficiary's annual wage would be $70,000 per year.1 In denying the petition, the Director pointed 
to submitted documentation reflecting that the Beneficiary was only paid $44,700 during 2018 and 
also noted that its 2018 IRS Form 1120S, U.S. Income Tax Return for an S Corporation indicated that 
it did not have sufficient assets to pay his proffered wage. 
The regulations explicitly state that "the petitioner must demonstrate [the] ability [to pay] at the time 
the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence." However, the submitted documentation indicates that the Petitioner no longer had the 
ability to pay the Beneficiary's proffered wage when the Director denied the petition in February 2020. 
As noted by the Director, the Petitioner submitted a 2018 IRS Form W-2 Wage and Tax Statement 
reflecting that it only paid the Beneficiary $44,700 during that year. Likewise, the Petitioner's 2018 
IRS Form 1120S indicated that it paid only $44,700 as "compensation of officers." This evidence 
leaves substantial uncertainty as to the Petitioner's continuing ability to pay the Beneficiary's 
proffered wage of $70,000, and the Petitioner provided no other supporting documentation to 
substantiate the payment of his proffered wage thereafter. The Petitioner must resolve inconsistencies 
in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
l&N Dec. 582, 591-92 (BIA 1988). 
Further, as an alternate means of determining a petitioner's ability to pay, we examine a 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 Rest. Corp. v. Sava, 
632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 
F.2d 1305 (9th Cir. 1984)); 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that former Immigration and 
Naturalization Service (INS) properly relied on the petitioner's net income figure reflected on its 
corporate income tax returns rather than gross income. The court rejected the argument that INS 
should have considered income before expenses were paid rather than net income. There is no 
precedent that would allow the Petitioner to "add back to net cash the depreciation expense charged 
for the year." See, e.g., Chi-Feng Chang, 719 F. Supp. at 537; see also Elatos Rest. Corp., 632 F. 
Supp. at 1054. 
As discussed by the Director, the Petitioner's most recent 2018 IRS Form 1120 reflected a net taxable 
income of -$74,162. As such, not only did the Petitioner not pay the Beneficiary his proffered wage 
of $70,000 in 2018, it could not pay his wage out of its income during that year. 
In addition, if a petitioner does not have sufficient net income to pay the proffered salary, we will 
review its net current assets. Net current assets are the difference between a petitioner's current assets 
1 The petition was filed on November 26, 2016. The Director issued a request for evidence (RFE) in May 2019 to which 
the Petitioner responded in August 2019. The petition was denied on February 13, 2020. 
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and current liabilities. Net current assets identify the amount of "liquidity" that a petitioner has as of 
the date of the petition 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 we are satisfied that a 
petitioner's current assets are sufficiently "liquid" or convertible to cash, or cash equivalents, then a 
petitioner's net current assets may be considered in assessing the prospective employer's ability to pay 
the proffered wage. 
Therefore, we will look to Schedule L of the Petitioner's most recent 2018 Form 1120S to determine 
the Petitioner's net current assets. Schedule L of the Petitioner's 2018 IRS Form 1120S reflects that 
it had net assets of $24,496 and net liabilities of $5027 as of the end of 2018. As such, the Petitioner 
did not establish with sufficient evidence that it had the ability to pay the Beneficiary's proffered wage 
of $70,000 using net current assets as of its most recent tax return. Further, as noted, the Petitioner 
does not address this material deficiency on appeal with additional assertions or documentary 
evidence. 
In conclusion, because the Petitioner did not contest the Director's conclusion regarding its continuing 
abi I ity to pay the Beneficiary's proffered wage, we consider this issue to be abandoned, and the appeal 
will be dismissed for this reason. Further, notwithstanding the Petitioner's lack of a challenge to this 
ground for denial, the evidence does not establish that it had the ability to pay the Beneficiary's 
proffered wage. 
ORDER: The appeal is dismissed. 
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