remanded EB-1C Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-U.S., INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 17, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a kitchen furnishings manufacturer, seeks to permanently employ the Beneficiary as 
its president and chief executive officer 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 an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (1) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer; and (2) the Beneficiary had at least one year of employment in a managerial or 
executive capacity with a qualifying entity abroad within three years of his entry to the United States 
to work for the Petitioner as a nonimmigrant. 
On appeal, the Petitioner submits additional evidence addressing the grounds for denial. After a 
preliminary review of the record, we issued a request for evidence (RFE), asking that the Petitioner 
submit additional documentation to demonstrate its ability to pay the Beneficiary's proffered wage. 
The response to our RFE includes: evidence of the Beneficiary's wages for 2016; evidence that the 
Beneficiary has a new employment offer with a different U.S. employer; and a request for job 
portability under section 204U) of the Act, 8 U.S.C. § 1154U) and 8 C.F.R. § 245.25. 
Upon de nova review of the record, including the new evidence submitted on appeal, we find that the 
Petitioner has a qualifying affiliate relationship with the Beneficiary's foreign employer and that the 
Beneficiary was more likely than not employed in a managerial capacity abroad. However, the 
evidence of record is insufficient to establish that the Petitioner had the ability to pay the 
Beneficiary's proffered wage as of the date of filing. 
Accordingly, we will withdraw the Director's decision and remand the matter for further 
proceedings consistent with our discussion below. 
Matter of P-U.S., Inc. 
I. LEGAL FRAMEWORK 
Section 203(b )(l)(C) of the Act makes an immigrant visa 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. 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(l)(C) of the Act as a multinational executive or manager. The 
petition 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. § 204.5G)(3). 
II. ABILITY TO PAY 
Although the Petitioner overcame both grounds for denial set forth in the Director's decision, the 
record as presently constituted does not establish that it had the ability to pay the Beneficiary's 
proffered wage as of the date of filing. 
Any petition filed 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. 8 C.F.R. § 204.5(g)(2). To establish its ability to pay, a petitioner must submit 
copies of its annual reports, federal tax returns, or audited financial statements. Id. 
The Petitioner filed the Form 1-140 in March 2016 with a copy of the Beneficiary's 2015 IRS Form 
W-2, Wage and Tax Statement, which shows that he had received a salary that exceeds his proffered 
annual wage in that year. In our RFE, we advised the Petitioner that it must submit a copy of its 
most recent annual report, federal tax return, or audited financial statement in order to meet the 
ability to pay requirement. Accordingly, we requested that the Petitioner provide one of these 
required documents for the years 2016 and 2017, along with copies of the Beneficiary's Form W -2 
for 2016 and 2017. 
In response to our RFE, we received a copy of the Beneficiary's 2016 Form W-2. Although the 
Beneficiary's salary in that year exceeded the proffered wage, the response did not include a copy of 
the Petitioner's annual report, federal tax return, or audited financial statement for 2016 as requested. 
The regulations do not allow a petitioner to satisfy this requirement by submitting a beneficiary's 
Form W-2 alone. As such, the submitted documentation does not satisfy the evidentiary 
requirements set forth at 8 C.F.R. § 204.5(g)(2), and does not establish the Petitioner's eligibility for 
the benefit sought as of the date of filing. 
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Matter of P-U.S., Inc. 
As the Director's decision did not address the Petitioner's ability to pay, we will remand this matter. 
The Director should review the Petitioner's ability to pay and may issue another request for evidence 
to establish the Petitioner's eligibility as of the priority date. 
III. JOB PORTABILITY 
In response to our RFE, counsel indicates that the Beneficiary has a new employment offer from a 
different U.S. employer and maintains that he is eligible to port to the new employer to undertake a 
position in the same or similar occupational classification. As such, counsel requests approval of the 
Form 1-140 and approval of the Beneficiary's concurrently filed Form 1-485, Application to Register 
Permanent Residence or Adjust Status. 
The regulation at 8 C.F.R. § 204.5( e )(5) provides: 
A petition filed under section 204(a)(l)(F) of the Act for an alien shall remain valid 
with respect to a new employment offer as determined by [U.S. Citizenship and 
Immigration Services (USCIS)] under section 204(j) of the Act and 8 C.F.R. § 
245.25. An alien will continue to be afforded the priority date of such petition if the 
requirements of paragraph ( e) of this section are met. 
An adjustment of status applicant may affirmatively demonstrate to USCIS, on Form I-485 
Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability, that he or she has 
a new offer of employment from a different U.S. employer in the same or similar occupational 
classification, provided that the application to adjust status has been pending for 180 days or more, 
and the qualifying immigrant visa petition has already been approved, or is subsequently approved. 
See generally, 8 C.F.R. § 245.25(a). A pending immigrant petition will be approved if it was 
eligible for approval at the time of filing and until the applicant's adjustment of status has been 
pending for 180 days, unless approval of the qualifying immigrant visa petition at the time of 
adjudication is inconsistent with a requirement of the Act or another applicable statute. 8 C.F.R. 
§ 245.25(a)(2)(B)(2). 
As discussed, the record establishes that the Petitioner overcame both grounds for denial, but there is 
an evidentiary deficiency with respect to the ability to pay requirement. In order for the Beneficiary 
to benefit from the Act's job portability provisions, the pending Form I-140 must be approved, and it 
may only be approved if the record shows that the Petitioner met the ability to pay requirement at the 
time of filing. See 8 C.F.R. § 245.25(a)(2)(B)(J). 
Further, the Beneficiary has not submitted a Form I-485 Supplement J with supporting 
documentation and therefore has not affirmatively demonstrated to USCIS that he has a new 
employment offer in the same or similar classification. The Director must make the job portability 
determination in the course of adjudicating the Form I-485, and will do so only if the Beneficiary 
files a Form 1-485 Supplement J in accordance with the form instructions, and only if the instant 
immigrant petition is ultimately approved. See generally, 8 C.F.R. § 245.25. Accordingly, we will 
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Matter of P-U.S., Inc. 
not address the Beneficiary's claim that the new employment offer 1s m the same or similar 
occupational classification. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter P-U.S., Inc., ID# 1167478 (AAO July 17, 2018) 
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