dismissed EB-1C Case: Toy Trade

U.S. Citizenship 
and Immigration 
Services 
In Re: 03933783 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 26, 2022 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a marketer and trader oftoys , seeks to permanently employ the Beneficiary as "President 
and General and Operation Manager" 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). 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 instant petition was initially approved. However, the Director of the Texas Service Center later 
revoked the petition 's approval, concluding the Petitioner did not establish that it had the continuing 
ability to pay the proffered wage. 
On appeal, the Petitioner asserts that the Director did not properly consider evidence indicating that 
its foreign affiliate in China has sufficient income and assets to pay the proffered wage and that it has 
been paying his wages abroad for several years. 
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. 
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 )(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). 
After granting a petition, U.S. Citizenship and Immigration Services (USCIS) may revoke the petition's 
approval "at any time" for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by the record and substantial evidence, a director's realization that a petition was 
erroneously approved may justify revocation. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). By 
regulation, this revocation authority is delegated to any USCIS officer who is authorized to approve 
an immigrant visa petition "when the necessity for the revocation comes to the attention of 
[USCIS]." 8 C.F.R. § 205.2(a). 1 
II. ABILITY TO PAY 
The sole issue to be addressed is whether the Petitioner established that it had the continuing ability to 
pay the annual proffered wage of $80,000 from the date the petition was filed on October 6, 2014, 
onward. The regulation at 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. 
In the revocation decision, the Director reviewed the Petitioner's federal tax returns and concluded 
that neither its net income nor its net current assets exceeded the proffered wage in any relevant year. 
On appeal, the Petitioner asserts that its foreign affiliate could have paid, and would pay, the proffered 
wage. The Petitioner submits financial statements specific to its foreign affiliate, a company it asserts 
manufactures toys it markets and trades in the United States. The Petitioner states that its foreign 
manufacturing affiliate has been paying the Beneficiary's wages for over ten years abroad and asserts 
that this evidence is sufficient to establish its ability to pay under an approved petition. 
In determining a petitioner's ability to pay the proffered wage, we first examine whether it paid a 
beneficiary the full proffered wage each year from a petition's priority date. If a petitioner did not pay 
a beneficiary the full 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. 2 
1 A Form 1-140 multinational executive or manager petition, filed on behalf of the Beneficiary on October 6, 2014, was 
approved by the Director of the Texas Service Center on March 26, 2016. The Director later revoked the approval of the 
petition on October 16, 2018, following the issuance of a notice of intent to revoke (NOIR) on August 13, 2018. The 
Director concluded that the petition had been approved in error and that the Beneficiary was not eligible for the benefit 
sought. 
2 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 
2 
The record does not demonstrate that the Petitioner, a New York corporation, has paid the Beneficiary 
any wages from the priority date onward. 3 Instead, the Petitioner submits evidence that its foreign 
affiliate has been paying the Beneficiary's wages for over ten years abroad and asserts, without legal 
basis, that this evidence is sufficient to establish its ability to pay. We disagree. The regulations are 
clear that ability to pay applies specifically to "the prospective United States employer." 8 C.F.R. § 
204.5(g)(2). Thus, the Petitioner must demonstrate its ability to pay the proffered wage, independent 
of any foreign qualifying organizations or affiliates. 4 The Petitioner has not established that it paid 
the Beneficiary wages in any relevant year. 
The Petitioner's statements indicate that it does not have the ability to pay the proffered wage, since it 
points exclusively to the foreign employer's financial status and statements. For instance, the 
Petitioner states the following on appeal: 
The record indicates, pursuant to the nature of the business agency activities and the 
customarily international trade practice, the trading agency [the Petitioner] do[es] not 
generate much business revenue and profit of their own as the business transactions 
and the resulting income though the export of products from China to the United States 
would be paid to the manufacturing base in China, [the Petitioner's foreign affiliate]. 
The business revenue would be required for the factory to cover the cost of production 
of the merchandizes. 
The Service Approval correctly concluded the ability to pay must be assessed in the 
prism of the multi-national corporate formation, the international trade practice, and 
the financial resources and the arrangement of the entire international corporation. 
There is no indication in the record that the Director previously considered the financials of the 
Petitioner's foreign affiliates or "the arrangement of the entire international corporation" when the 
petition was initially approved in March 2016. However, the revocation decision does reflect that the 
Director incorrectly analyzed financial statements of the Beneficiary's former foreign employer 
abroad when assessing ability to pay. As we have discussed, the ability of the Beneficiary's former 
foreign employer or other foreign affiliates to pay the proffered wage is not sufficient to establish 
ability to pay under 8 C.F.R. § 204.5(g)(2). The Petitioner as a prospective United States employer 
must demonstrate its continuing ability to pay the proffered wage as of the date the petition was filed, 
independent of his former foreign employer or any other foreign affiliates. See 8 C.F.R. § 204.5(g)(2). 
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), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
3 USCTS records indicate that the Beneficiary has not yet been employed in the United States by the Petitioner. 
4 Because a corporation is a separate and distinct legal entity from its shareholders, the assets of its shareholders or of other 
enterprises or corporations cannot be considered in determining the petitioning corporation's ability to pay the proffered 
wage. See Matter of Aphrodite Investments, Ltd., 17 T&N Dec. 530 (Comm'r 1980). In a similar case, the court in Sitar 
v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. § 204.5, 
permits [USCIS] to consider the financial resources of individuals or entities who have no legal obligation to pay the 
wage." Id. at *2. 
3 
In the revocation decision, the Director further concluded that the Petitioner did not have sufficient 
net income or net current assets to pay the proffered wage in any relevant year. The petition's priority 
date fell on October 6, 2014, and the most recent tax return provided in relation to that date was a 
submitted 2014 IRS Form 1120, U.S. Corporation Income Tax Return. The Petitioner's 2014 Form 
1120 presents a net loss of -$2,602. Further, the Petitioner's 2015 Form 1120 reflects a net income of 
$5,055, and its 2016 Form 1120 shows a net income of $3,368. 5 As such, the Petitioner's relevant 
federal income tax returns demonstrate that it did not have sufficient net income to pay the proffered 
wage of $80,000 in any relevant year. 
If a petitioner does not have sufficient net income to pay the proffered salary, we will next review its 
net current assets. Net current assets are the difference between a petitioner's current assets and 
current liabilities. 6 A corporation's year-end current assets are shown on Schedule L, lines 1 through 
6. Its year-end current liabilities are shown on lines 16 through 18. If the total of a corporation's end­
of-year net current assets are equal to or greater than the proffered wage, the petitioner is expected to 
be able to pay the proffered wage using those net current assets. Schedule L of the Petitioner's 2014 
Form 1120 reflects that the Petitioner had net current assets of $3,971 that year. Likewise, the 
Petitioner's 2015 Form 1120 indicates that it had net current assets of $3,644, while its 2016 Form 
1120 shows it had net current liabilities of -$891. As such, the Petitioner has not established that it 
had sufficient net current assets to pay the proffered wage of $80,000 in any relevant year. 
We may consider evidence of a petitioner's ability to pay beyond its net income and net current assets, 
including such factors as: the number of years it has conducted business; the growth of its business; 
its number of employees; the occurrence of any uncharacteristic business expenditures or losses; its 
reputation in its industry; whether a beneficiary will replace a current employee or outsourced service; 
or other evidence of its ability to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 
614-615 (Reg'l Comm'r 1967). 
Unlike in Sonegawa, the record here does not establish the growth of the Petitioner's business; the 
occurrence of any uncharacteristic business expenditures or losses; or its reputation in its industry. 
Additionally, its number of employees is unclear. On the Form I-140, the Petitioner indicated that it 
had seven employees. However, the Petitioner's tax returns do not reflect that it paid wages to seven 
employees. For example, its 2014 federal tax return shows that it paid no salaries or wages, and its 
corresponding New York state tax return for 2014 indicates that it had no employees that year. 
Similarly, its 2015 and 2016 federal tax returns show that it paid no salaries or wages, and its 
corresponding New York state tax returns for 2015 and 2016 indicate that it had no employees. 
Further, as discussed, the Petitioner's 2013 Form 1120 reflected that it had $0 net income and its 2014 
Form 1120 corresponding with the date the petition was filed reflected it had net loss of -$2,602. 
5 Net income is shown on Line 28 of the IRS Form 1120. The Petitioner's IRS Forms 1120 from the years prior to 2014 
reflect the following net incomes/losses: -$13,753 (2010), -$13,988 (2011), $0 (2012), and $0 (2013). As such, the 
Petitioner's lack of net income over several years leaves further question as to whether the Petitioner was doing business 
as asserted and whether its operations were sufficient to support the Beneficiary in a managerial or executive capacity. 
6 Current assets consist of items having (in most cases) a life of one year or less, such as cash, marketable securities, 
inventory, and prepaid expenses. Joel G. Siegel & Jae K. Shim, Barron's Dictionary of Accounting Terms 117 (3d ed. 
2000). Current liabilities are obligations payable (in most cases) within one year, such as accounts payable, short-term 
notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
4 
However, in the Form I-140, the Petitioner stated that it earned net annual income of$119,545.50, an 
amount not reflected in any of its tax returns. Further, as noted, the Petitioner's net income in its 
Forms 1120 either reflected a loss, no income, or minimal income from 2010 through 2016, leaving 
substantial uncertainty as to its level of operations and whether it is doing business as defined by the 
regulations. The Petitioner must resolve discrepancies in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Thus, 
assessing the totality of circumstances in this individual case, the record does not establish the 
Petitioner's continuing ability to pay the proffered wage pursuant to Sonegawa. 
The Petitioner did not establish that it had the continuing ability to pay the proffered wage from the 
priority date onward. Therefore, we will not disturb the Director's decision, and the petition's approval 
will remain revoked. 
ORDER: The appeal is dismissed. 
5