remanded EB-1C Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 11, 2024 In Re: 30340388 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a franchisor of quick service cafes, seeks to permanently employ the Beneficiary as its 
director of international operations 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 record did not 
establish the Petitioner's ability to pay the proffered wage. The matter is now before us on appeal 
pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we conclude that the Director overlooked relevant evidence submitted in support of the ability to pay 
requirement and therefore did not base their decision on a complete review of the record. We will 
withdraw the Director's decision and remand the matter for entry of a new decision consistent with the 
following analysis . 
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 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 U.S. 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). The Petitioner must also establish its ability 
to pay the proffered wage . 8 C.F.R. § 204.5(g)(2). 
The sole issue addressed by the Director is whether the Petitioner established its ability to pay the 
Beneficiary's proffered wage. 
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a 
petition's priority date until a beneficiary obtains permanent residence. 8 C.F.R. § 204.5(g)(2). Initial 
evidence of a petitioner's ability to pay must generally include copies of an annual report, federal tax 
return, or audited financial statements for each available year, from the year of the priority date 
onward. Id.; see generally 6 USCIS Policy Manual E.4(A), https://www.uscis.gov/policy-manual. 
The proffered annual wage for the position of director of international operations, as stated on the 
Form 1-140, is $173,181. The petition's priority date is August 26, 2022, the date it was filed with 
USCIS. See 8 C.F.R. § 204.S(d). 
The Director concluded the Petitioner did not establish its ability to pay the proffered wage because it 
did not provide the required initial evidence specified at 8 C.F.R. § 204.5(g)(2). The Director 
acknowledged the Petitioner's submission of "various pay stubs and Wage and Tax Statements (W-2) 
for various employees, Multiple IRS Forms 941, Employer's Quarterly Federal Tax Returns and 
Schedule K-1 (Form 1120-S) for the years 2020 and 2021," but found the Petitioner provided no 
complete federal tax returns, audited financial statements or annual reports. The Director therefore 
determined that the Petitioner submitted only "secondary evidence in lieu of the three types of ... 
primary evidence," and "did not explain why it could not obtain primary evidence or establish that it 
was not available." The Director denied the petition on this ground without discussing any of the 
evidence provided in support of the Petitioner's ability to pay the proffered wage. 
On appeal, the Petitioner asserts that it submitted its audited financial statements for 2021 with its 
initial submission, provided a complete copy of its 2021 federal income tax return in response to a 
request for evidence (RFE), and documented that its 2022 federal tax return was not yet available as 
of June 2023 when it responded to the RFE. It maintains that the Director simply failed to 
acknowledge and consider this evidence. The record supports the Petitioner's assertion and shows it 
provided the initial evidence required by 8 C.F.R. § 204.5(g)(2) for 2021, demonstrated the 
unavailability of such evidence for 2022, and submitted other relevant evidence including the 
Beneficiary's IRS Form W-2 for 2022 and evidence of wages paid to her in 2023. The Director's 
conclusion that the Petitioner did not provide the initial evidence required by the regulations was 
clearly in error. 
Accordingly, we withdraw the Director's decision and remand the matter to the Director to re-evaluate 
the Petitioner's evidence of its ability to pay the offered wage. As the Petitioner's 2022 federal income 
tax return should now be available, the Director should request this evidence and allow the Petitioner 
an opportunity to provide any other relevant documentation showing its continuing ability to pay the 
proffered wage, prior to issuing a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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