remanded EB-1C Case: Airline Ticketing Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 19158834 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 28, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a provider of airline ticketing services, seeks to permanently employ 
the Beneficiary as a "Director Ancillary Services, Sales Engineering" 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 Texas Service Center denied the petition, concluding that the Petitioner did not establish its 
ability to pay the Beneficiary's proffered wage. The matter is now before us on appeal. On appeal, the 
Petitioner contends that submitted tax documentation demonstrates that it had sufficient net current assets 
in 2019, the year the petition was filed, to account for the difference between wages paid to the Beneficiary 
during that year and his proffered annual wage. 
Upon de nova review, we will withdraw the Director's decision and remand the matter for further action 
and entry of a new decision. 
I. ABILITY TO PAY 
We conclude that the record contained sufficient evidence to establish the Petitioner's ability to pay 
the Beneficiary's proffered wage in the year the petition was filed. As such, the Director's decision 
to the contrary is withdrawn. 
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. 
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. We next examine whether it had sufficient 
annual amounts of net income or net current assets to pay the proffered wage. 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 USCIS may also consider the totality of the petitioner's circumstances, including 
the overall magnitude of its business activities, in determining the Petitioner's ability to pay the 
proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).2 
In the Form I-129, Petition for a Nonimmigrant Worker, filed in July 2019 the Petitioner indicated in 
part 6, item 8, that the Beneficiary's proffered wage would be $75,000 per year. The Petitioner 
submitted a 2019 IRS Form W-2, Wage and Tax Statement, and other supporting payroll 
documentation reflecting that the Beneficiary was paid $50,343.16 during the year the petition was 
filed. As such, the submitted evidence reflects that the Petitioner paid the Beneficiary $24,656.84 less 
than his proffered wage in the year the petition was filed. 
The Petitioner's submitted 2019 IRS Form 1120, U.S. Corporation Income Tax Return, indicated that 
it reported net income of $15,047 and net current assets of $42,232 during that year. The Petitioner's 
net current assets were greater than the difference between the proffered wage and wages already paid 
to the Beneficiary in 2019. 
Therefore, the Petitioner has sufficiently demonstrated its ability to pay the Beneficiary's proffered 
wage, and the Director's determination as to this issue is withdrawn. 
II. MANAGERIAL OR EXECUTIVE CAPACITY ABROAD AND IN THE UNITED STATES 
Although the Director's decision is withdrawn, the record does not establish that the Beneficiary was 
employed in a managerial or executive capacity abroad prior to his entry into the United States as a 
nonimmigrant or that he would be employed in a managerial or executive capacity in the United States. 
Accordingly, we will remand the matter to the Director for farther review of these issues and for the 
entry of a new decision. 
The Petitioner indicated that it is an "executive charter airline" farther offering "indirect distribution 
services to other airlines" and "ticketing solutions to 100,000 travel agencies in 190 markets." The 
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, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi v. 
Dep'tofHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
2 USCTS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of its net 
income and net cunent assets. We may consider such factors as the number of years the petitioner has been doing business, 
the established historical growth of the petitioner's business, the petitioner's reputation within its industry, the overall 
number of employees, whether the beneficiary is replacing a former employee or an outsourced service, the amount of 
compensation paid to officers, the occurrence of any uncharacteristic business expenditures or losses, and any other 
evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
2 
Petitioner stated that the Beneficiary was employed abroad as a "Technical Project Manager" from 
February 2014 to December 2016 and asserted that he qualified as a function manager. 3 The Petitioner 
further explained that since the Beneficiary's entry into the United States in March 2017 as a H-lB 
specialty occupation nonimmigrant the Beneficiary had been employed as "Director Ancillary 
Services, Sales Engineering." Again, in this U.S. position, the Petitioner asserted that the Beneficiary 
would qualify as a function manager. 4 
However, the Petitioner submitted evidence indicating that both the Beneficiary's positions involved 
the performance of non-qualifying operational duties directly related to its provision of services. For 
instance, the Beneficiary's foreign duty description stated that he was engaged in the "implementation 
and validation of airline reservation ticketing messages for interoperability" and "validating the 
product enhancement requirements." The Petitioner also provided the Beneficiary's resume reflecting 
that he was tasked abroad with "advanced analyzing and troubleshooting of Airline GDS systems 
communications," and attending meetings with developers and clients to discuss enhancement issues 
and design modifications. Likewise, the Beneficiary's U.S. duty description included similar non­
qualifying operational duties and his resume discussed his responsibility in the United States for 
"creating user acceptance test script for each project," "post project consulting," conducting "trial runs 
of programs and software applications to be sure they will produce the desired information," and 
"supporting the second level support desk." In sum, several of the Beneficiary's asserted foreign and 
U.S. duties were indicative of his performance of non-qualifying operational level tasks directly 
related to the provision of services to clients. 
Whether the Beneficiary is a managerial or executive employee turns on whether the Petitioner has 
sustained its burden of proving that their duties are "primarily" managerial or executive. See sections 
10l(a)(44)(A) and (B) of the Act. Here, the Petitioner does not document what proportion of the 
Beneficiary's foreign and U.S. duties would be managerial or executive functions and what proportion 
would be non-qualifying. The Petitioner lists the Beneficiary's foreign and U.S. duties as including 
both managerial and executive tasks and administrative or operational tasks, but it does not sufficiently 
quantify the time he spent, or would spend, on these different duties. For this reason, we cannot 
determine whether the Beneficiary was primarily performing, or would perform, the duties of a 
manager or an executive. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
Lastly, the Petitioner asserted that the Beneficiary was primarily relieved from performing non­
qualifying operational tasks by several indirect reports and colleagues, both abroad and in the United 
3 This contrasts with a L-IA nonimmigrant managerial or executive transferee. 
4 The statutory definition of "managerial capacity" allows for both "personnel managers" and ·'function managers." See 
section 10l(a)(44)(A) of the Act. The term "function manager" applies generally when a beneficiary does not supervise 
or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section IO I ( a)( 44)(A )(ii) of the Act. If a petitioner claims that a beneficiary will manage an essential 
function, it must clearly describe the duties to be performed in managing the essential function. In addition, the petitioner 
must demonstrate that "(I) the function is a clearly defined activity; (2) the function is 'essential,' i.e., core to the 
organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at 
a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will 
exercise discretion over the function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 
8, 2017). 
3 
States. However, the Petitioner submitted little supporting documentation to substantiate the 
Beneficiary's delegation of non-qualifying tasks to these colleagues and his primary performance of 
managerial duties overseeing essential functions both abroad and in the United States. 
As such, the record does not contain sufficient evidence to establish that the Beneficiary was employed 
in a managerial capacity abroad or that he would be employed in the United States in a managerial 
capacity. On remand, the Director should request any additional evidence deemed warranted to 
address these noted deficiencies. It is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 
799, 806 (AAO 2012). 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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