dismissed EB-1C Case: Travel

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-T-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 13,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a tour and travel agency, seeks to permanently employ the Beneficiary as its chief 
financial officer under the first preference immigrant classification tor multinational executives or 
managers. See Immigration and Nationality Act (the Act) section 203(b )(I )(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 that it has the ability to pay the Beneficiary his proffered wage as required by the regulations. 
On appeaL the Petitioner states that the Director overlooked evidence establishing that it is part of a 
large multinational group of companies which earns significant revenue suf1icient to pay the 
Beneficiary's proflered salary. 
Upon de novo 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 tor 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 )(I )(C) of the Act. 
The Form I-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 tiling of the petition, that the beneficiary is coming to work in the United States tor the same 
employer or a subsidiary or at1iliate of the foreign employer, and that the prospective U.S. employer has 
been doing business tor at least one year. See 8 C.F.R. § 204.5(j)(3 ). 
In addition, 8 C.F.R. § 204.5(g)(2) states: 
Matter of M-T-. Inc. 
Ability of prospective employer to pay wage. Any petition tiled 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 proflered 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. 
II. ABILITY TO PAY 
The sole issue to be addressed is whether the Petitioner established that it has the ability to pay the 
Beneficiary his proffered wage of $70,000 per year. 
In the denial decision, the Director pointed to the Petitioner's most recent federal tax return and 
concluded that neither the company's net income nor its net current assets exceeded the 
Beneficiary's proffered wage. 
On appeal, the Petitioner indicates that the Beneficiary's former foreign employer will pay his 
salary. The Petitioner states that it is part of a large multinational group of companies with 12,000 
employees and more than €3.4 billion in revenue. The Petitioner emphasizes that it submitted its 
foreign parent company's 2015 annual report, which substantiates the multinational group's 
substantial level of revenue and profit. 
In determining the Petitioner's ability to pay the proffered wage, United States Citizenship and 
Immigration Service (USCIS) will lirst examine whether the Petitioner employed the Beneficiary at 
the time the priority date was established. If the Petitioner establishes by documentary evidence that 
it employed the Beneficiary at a salary equal to or greater than the proffered wage, this evidence will 
be considered primafcrcie proof of its ability to pay the Beneficiary's salary. 
The Petitioner asserts that it has employed the Beneficiary since his transfer to the United States as 
an L-IA intracompany transferee in November 2012. However. it did not provide evidence that it 
has ever paid his wages. Indeed, the Petitioner states that the Beneficiary has been and will be paid 
by its foreign parent company. Further, the Petitioner submitted payroll documentation from 
September 2015 indicating that the Beneficiary was not on its payroll. 
Further, even if the Petitioner had demonstrated that the Beneficiary was being paid by the foreign 
employer since his transfer to the United States, the Petitioner must still establish that it had the 
ability to pay his salary as of the date it tiled the petition. We note that the regulations require that 
2 
Matter of M- T-, Inc. 
the United States employer have the ability to pay the Beneficiary's proffered wage. Here, the 
Petitioner indicates that it does not have the ability to pay the Beneficiary's wage as it points 
exclusively to the foreign employer's financial status and its annual report. 
As an alternate means of determining a petitioner's ability to pay. we will 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 Tm1Katapu Woodcrafi Haw.. Ltd 1'. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); Chi-FenK ChanK v. Thornhurgh, 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); Uheda v. Palmer. 
539 F. Supp. 647 (N.D. Ill. 1982), afj'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 I 054. 
The petition· s priority date falls on November 18. 2015. but the most recent tax return provided was 
for the 2014 tax year. The Petitioner's 2014 IRS Form 1120, U.S. Corporation Income Tax Return, 
presents a net taxable income of -$909,193. The Petitioner could not pay the proffered wage of 
$70,000 per year out of this income. 
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 and cutTent 
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 arc satisfied that a 
petitioner's current assets are sufficiently "liquid" or convertible to cash. or cash equivalents. then a 
petitioner's net cutTent 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 2014 Form 1120 to determine the 
Petitioner's net current assets. The aforementioned Schedule L reflects that the Petitioner had net 
assets of $451,767 and net liabilities of $5,578,586 as of the end of2014. As such, the Petitioner has 
not established with sufficient evidence that it has the ability to pay the Beneficiary's proffered wage 
of $70,000. For this reason. the appeal must be dismissed. 
Matter of M- T-, Inc. 
III. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that it has the ability to pay 
the Beneficiary his proffered wage as required by the regulations. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-T-. Inc., !D# I 007119 (AAO Feb. 13, 20 18) 
4