remanded EB-1C Case: Restaurant And Food Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 25, 2024 In Re: 31384291 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a restaurant and food services company, seeks to permanently employ the Beneficiary 
as its vice president and chief operating officer 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 a managerial or executive 
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's proffered wage. The matter is now before us 
on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
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)(l)(C) of the Act. 
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. In determining a petitioner's ability to pay the proffered wage, U.S. Citizenship 
and Immigration Services (USCIS) first examines whether the beneficiary was employed and paid by 
the petitioner during the period following the priority date. A petitioner's submission of documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage for 
the time period in question, when accompanied by a form of evidence required in the regulation at 
8 C.F.R. § 204.5(g)(2), may establish the petitioner's ability to pay the proffered wage. 
Absent evidence that the Petitioner has paid the Beneficiary a salary equal to or above the proffered 
wage from the priority date onward, USCIS next examines the net income and net current assets 
figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited financial 
statements(s). If either of these figures, net income or net current assets, equals or exceeds the 
proffered wage, or the difference between the proffered wage and the amount paid to the beneficiary 
in a given year, the petitioner would ordinarily be considered able to pay the proffered wage during 
that year. 
If a petitioner's net income or net current assets are not sufficient to establish its ability to pay the 
proffered wage, USCTS may also consider the totality of the Petitioner's circumstances. See Matter 
of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). USCIS may, at its discretion, 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, 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. 
A. Procedural History 
The sole issue addressed by the Director is whether the Petitioner demonstrated its ability to pay 
the 
proffered wage from the petition's priority date of June 14, 2023 onward. 1 
On the Form I-140 petition, the Petitioner indicated that it had been established in 2015 and had 37 
employees. It claimed that it would pay the Beneficiary a proffered wage of $96,000 per year. 
The Petitioner's initial evidence included a copy of its 2022 IRS Form 1040, U.S. Corporation Income 
Tax Return, a copy of the Beneficiary's 2022 Form W-2, Wage and Tax Statement, and copies of 
checks representing bonus distributions payable to the Beneficiary during 2022. 2 The IRS Form 1040 
reflects a net income of $26,650 and net current assets in the amount of -$44,428 for the 2022 calendar 
year. The IRS Form W-2 reflects that the Beneficiary received $52,000 in 2022, but shows that he 
was paid by I I rather than by the Petitioner. 3 
The Director issued a notice of intent to deny (NOID), noting that the initial evidence was insufficient 
to demonstrate that the Petitioner had the ability to pay the Beneficiary's proffered wage and advising 
the Petitioner to provide additional evidence of its ability to pay the proffered wage from the priority 
date onward. 
1 For multinational executives or managers, the priority date is the date the completed, signed petition is properly filed 
with USCIS. See 8 C.F.R. § 204.5( d). 
2 Since these documents precede the priority date of the petition, they do not establish the Petitioner's ability to pay the 
proffered wage. 
3 With its initial submission, the Petitioner did not describe its relationship withl Ior explain why a different 
legal entity had paid wages to the Beneficiary in 2022. 
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In response, the Petitioner explained thatl Iwas its affiliate, and submitted a letter from its 
accountant stating thatl I was the Petitioner's paymaster. The Petitioner also submitted a 
letter from its president explaining the nature of discretionary non-wage distributions paid to the 
Beneficiary, as well as documentation pertaining to a forgiven Payroll Protection Plan (PPP) loan 
issued tol Ithrough the Small Business Association. 
The Director denied the petition, determining that the record as constituted did not establish the 
Petitioner's ability to pay the proffered wage. On appeal, the Petitioner asserts that it demonstrated 
its ability to pay, emphasizing that the Director did not afford evidentiary weight to the forgiven PPP 
loan. It argues that its net revenue for 2022, as shown on Schedule M-1 of its 2022 federal tax return 
and which includes the forgiven loan amount, demonstrates its ability to pay the Beneficiary's 
proffered wage. It also submits copies of its federal tax returns for 2019 and 2021 in support of this 
assertion. 
B. Basis for Remand 
While we agree that the record as presently constituted does not include all required evidence of the 
Petitioner's ability to pay from the priority date and onward, we will withdraw the Director's decision 
and remand the matter to the Director for entry of a new decision consistent with the following 
analysis. 
The regulations explicitly state that "the petitioner must demonstrate [the] ability [to pay] at the time 
the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence." Although the record contains the Petitioner's federal tax returns for 2019, 2021, and 2022, 
and documentation pertaining to payments issued to the Beneficiary in 2022, the Director's decision 
in this matter was issued in October 2023, the same year this petition was filed. As such, required 
evidence of the Petitioner's ability to pay the proffered wage in 2023 was not yet available, and the 
Director based the ability to pay determination on evidence that predates the priority date. 
Here, while the Petitioner's appellate assertions are noted, it has not submitted its federal income tax 
return, annual report, or audited financial statements for 2023 and provides no further supporting 
documentation on appeal to substantiate its ability to pay the Beneficiary's wage from the priority date 
through to the date of this appeal in November 2023. As required evidence of the Petitioner's ability 
to pay after the June 2023 priority date should now be available, the Director is instrncted to request 
the evidence required by 8 C.F.R. § 204.5(g)(2) in the form of the Petitioner's 2023 federal tax return, 
annual report, or audited financial statements. The Director also has the discretion to request any other 
documentation deemed relevant in determining the Petitioner's ability to pay the proffered wage in 
accordance with the factors described in Matter ofSonegawa, 12 I&N Dec. 612. 
Moreover, the record reflects that the Beneficiary's wages of $52,000 were paid by I I in 
2022. While the Petitioner explained that this related entity handles its payroll, the record does not 
contain evidence of any agreements or contracts between the Petitioner and its affiliate related to this 
arrangement, and it is unclear whether the Petitioner ultimately reimburses I I for some or 
all of the Beneficiary's payroll costs. Further, the record must contain credible documentary evidence 
that the affiliate is responsible for administering the Petitioner's payroll and is not the Beneficiary's 
actual employer. If the Petitioner wishes to have USCIS consider the Beneficiary's prior earnings in 
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its ability to pay analysis, the Director is instructed to request documentary evidence of a pre-existing 
payroll arrangement between the Petitioner and its affiliate. 
In sum, based on the lack of evidence of the Petitioner's ability to pay the proffered wage as of the 
June 2023 priority date, and the previous unavailability of such evidence, we are remanding this matter 
to the Director for issuance of a request for evidence and entry of a new decision. 
III. CONCLUSION 
For the reasons discussed above, we will remand this matter to the Director for further consideration 
of the Petitioner's eligibility for the immigration benefit sought. 
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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