remanded EB-1C Case: Software

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 4, 2025 In Re: 37140941 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, which provides software to the airline industry, seeks to permanently employ the 
Beneficiary as a software development manager 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 record did not 
establish that the Petitioner has the ability to pay the Beneficiary's proffered wage, and that the 
Beneficiary has been employed abroad in a managerial or executive capacity. The matter is now 
before us on appeal under 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 l&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. 
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 )(1 )(C) of the Act. 
The Form 1-140, 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 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(i)(3). 
A. Ability to Pay 
Every employment-based immigrant petition which requires an offer of employment must include 
evidence of the prospective U.S. employer's 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. 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. 
On consideration of the totality of the circumstances and evidence submitted, we conclude that the 
Petitioner has established its ability to pay the Beneficiary's proffered salary of $142,088 per year 
during the relevant period. The Petitioner submitted a consolidated income tax return for its then­
immediate parent company "& subsidiaries." The Petitioner is the only subsidiary named on the 
return. The Director concluded that the return has limited value because it did not establish the specific 
finances of the petitioning entity. 
Review of the nearly 200-page return, however, shows that it includes tables that differentiate the 
Petitioner's income and assets from those of the immediate parent entity. The Petitioner's data in 
these tables reflect a net loss for the 2022-2023 tax year, but also show several million dollars in net 
current assets. The Petitioner has therefore met the evidentiary requirements of 8 C.F.R. § 204.5(g)(2). 
Also, the record shows that, in January 2024, the Petitioner merged with the parent entity that filed the 
consolidated 2022-2023 return, with the Petitioner remaining as the surviving entity with the same 
Federal Employer Identification Number. This merger combined the substantial net current assets of 
both entities before the March 2024 filing date. Given this documented merger, it is appropriate to 
consider the financial information for both entities shown on the consolidated return. Mergers are 
among the factors we can take into consideration with respect to the totality of the circumstances. See 
generally 6 USCIS Policy Manual 6.E(4)(C)(3), https://www.uscis.gov/policy-manual. 
Also, pay receipts in the record show that the Beneficiary has been receiving the full salary both before 
and after the petition's filing date, which is another relevant consideration. See generally 6 USCIS 
Policy Manual, supra, at 6.E(4)(C)(l). 
Because the Petitioner has submitted the required documentation; that documentation shows sufficient 
net current assets to cover the Beneficiary's salary for the foreseeable future; and the Petitioner has 
been paying the Beneficiary's proffered salary, we conclude that the Petitioner has satisfactorily 
established its ability to pay that salary. 
B. Managerial Capacity Abroad 
The Director determined that the Petitioner did not establish that the Beneficiary has been employed 
abroad in a managerial capacity. 1 The Director did not base this conclusion on the specific nature of 
the Beneficiary's duties. Rather, the Director concluded that the underlying circumstances of the 
employment did not constitute qualifying employment abroad. We disagree. 
1 The Petitioner did not claim that the Beneficiary's employment abroad was in an executive capacity. 
2 
The Petitioner initially submitted a letter from a senior vice president of the Petitioner's Indian 
affiliate, stating that the Beneficiary "was employed with [the affiliate] in India as a Manager -
Software Development from September 29, 2022, through November 10, 2023." The letter includes 
a description of the Beneficiary's duties and those of her claimed subordinates. The Petitioner 
submitted various supporting documents including email messages and performance reviews. 
The Director issued a request for evidence, stating that some of the Petitioner's evidence indicated that 
the Beneficiary had been working in the United States since 2017. In response, the Petitioner stated 
that, while the Beneficiary was stationed at the offices of the Petitioner's affiliate in India, the U.S. 
Petitioner "remained [the Beneficiary's] employer under common law." 
The Director denied the petition, stating that, because "the beneficiary continued to be paid by the 
petitioner while abroad," "she was not employed by [the affiliate in] India." 
On appeal, the Petitioner asserts that the Beneficiary's employment in India is qualifying employment 
overseas. The Petitioner quotes 8 C.F.R. § 204.5(j)(3)(i)(C), which requires each petitioner to 
establish that "[t]he prospective employer in the United States is the same employer or a [related entity] 
... by which the alien was employed overseas" ( emphasis added). Similar language appears in the 
underlying statute, stating that "the alien seeks to enter the United States in order to continue to render 
services to the same employer or to a [related entity]." 
The Petitioner also quotes the USCIS Policy Manual, which states: "the petitioner must show that the 
beneficiary's foreign employer and the proposed U.S. employer are the same employer (for example, 
a U.S. entity with a foreign office) or related as a parent and subsidiary or as affiliates." 6 USCIS 
Policy Manual, supra, at F.4(B). 
The Petitioner maintains that, because the Beneficiary was employed within the Petitioner's 
organization, it is not relevant whether the entity that employed her in India and paid her salary was 
the Petitioner itself or an affiliate. 
The Director has not cited any statute, regulation, or other controlling authority to show that the 
Beneficiary's employment abroad, while on the payroll of the petitioning U.S. entity, is impermissible 
or disqualifying. We agree with the Petitioner that the statute and regulations allow employment for 
"the same employer" both abroad and in the United States. The relevant factor is whether the 
beneficiary was physically "overseas," "outside the United States." See 8 C.F.R. § 204.5(j)(3)(i). 
In this particular case, the Beneficiary's 2022-2023 employment took place while she was outside the 
United States, and she was working for "the same employer" as contemplated in the statute and 
regulations. Therefore, her inclusion on the U.S. entity's payroll is not disqualifying. 
We will therefore remand the matter to the Director, for a determination on the merits of whether the 
Beneficiary's employment abroad meets the requirements of a managerial capacity as claimed. 
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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