remanded EB-1C Case: Specialized Fencing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-A- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 10, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a supplier and installer of specialized perimeter fencing, seeks to permanently employ 
the Beneficiary as its President 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 Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary "has been and will be employed in an executive capacity." 
He also determined that the Petitioner did not establish its continuing ability to pay the proffered 
wage. On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary will be 
employed in a managerial capacity, and that it has established its ability to pay based on wages it has 
paid to the Beneficiary. 
Upon de nova review, we will withdraw the decision of the Director and remand the matter for 
further proceedings and for the entry of a new decision. 
I. LEGAL FRAMEWORK 
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 I-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(j)(3). 
Matter of M-A- Inc. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE OR MANAGERIAL CAPACITY 
The Director dete1mined that the record did not establish that the Beneficiary "has been and will be 
employed in an executive capacity." 1 Without providing any facts or examples from the record, he 
stated that the Beneficiary had to go through another manager to get anything done; that the pay for 
other managers is not commensurate for the positon, indicating that they may be paii-time 
employees; and that there are too few permanent professional employees for the need of an 
executive. However, the Director's analysis of the Beneficiary's executive capacity did not 
specifically analyze the job duties to be performed by the Beneficiary, the company's organizational 
structure, the duties of the Beneficiary's subordinate employees, the presence of other employees to 
relieve the Beneficiary from performing operational duties, the nature of the business, and any other 
factors that would have contributed to understanding the Beneficiary's actual duties and role in the 
business. 
Further, the Director did not review the Beneficiary's eligibility as a manager and solely focused on 
whether he would be employed as an executive. Here, the Petitioner did not claim that the offered 
position was solely an executive one. Thus, the Director's analysis should have included a review of 
whether the Beneficiary will be employed in in an executive or a managerial capacity. On remand, 
the Director shall consider the arguments and evidence submitted by the Petitioner and analyze 
whether the Beneficiary will be employed in the U.S. as an executive or a manager. 
III. ABILITY TO PAY 
The Director also determined that the Petitioner did not establish its continuing ability to pay the 
proffered wage from the priority date of December 17, 2015. The proffered wage is $4,000 per 
month ($48,000 per year). 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pe1iinent part: 
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 f01m of copies of 
annual reports, federal tax returns, or audited financial statements. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
1 It is not clear if this finding includes the Beneficiary's employment with the Petitioner's parent company abroad. On 
remand, the Director should clarify this issue. 
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Matter of M-A- Inc. 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. 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. 2 
In this case, the Petitioner submitted evidence demonstrating that it paid compensation to the 
Beneficiary in 2015 and 2016. However, the Director did not indicate why these payments were not 
included in his analysis of the Petitioner's ability to pay the proffered wage. Therefore, on remand, 
the Director should analyze the payments made to the Beneficiaiy by the Petitioner in each relevant 
year. 
We note that the Petitioner submitted an amended copy of its 2015 federal tax return; the 2015 Form 
W-2c, Corrected Wage and Tax Statement, issued to Beneficiary; its 2015 Form W-3c, Transmittal 
of Corrected Wage and Tax Statements; and its Form 941-X, Adjusted Employer's Quarterly Federal 
Tax Return, for the final quarter of 2015. The documents reflect that the Petitioner made an error 
when initially reporting compensation payments it made to the Beneficiary in 2015. On the 
amended documents, the Petitioner increased its reported payments to the Beneficiary from 
$31,555.53 to $48,193.92, an amount that is $193.92 above the annual proffered wage. 3 The 
payments are reflected on Form 1125-E, Compensation of Officers, and on page one of the 
Petitioner's 2015 amended federal tax return. The record contains the Beneficiary's paystubs for a 
portion of 2015. They show that the Petitioner began paying the Beneficia1y the monthly proffered 
wage of $4,000 in October 1, 2015, an increase from the $2,746.07 paid in prior months. Given that 
he had earned only $27,555.53 in total gross annual pay as of October 31, 2015, it is unclear how he 
earned $48,193.92 by the end of 2015 as reflected on the amended tax documents. 4 Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence 
submitted in support of the petition. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The Director's July 19, 2016, request for evidence (RFE) notified the Petitioner that it failed to 
provide evidence of its ability to pay the proffered wage in 2015. The Petitioner subsequently 
amended its 2015 federal tax return and other supporting tax documents to establish its ability to 
pay. A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1988). Further, the amended tax return shows no evidence of submission to the Internal 
Revenue Service (IRS) or its receipt or processing by the IRS. On remand, the Director may request 
2 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 't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 F. App'x 292, 294-295 (5th Cir. 
2015). 
3 Based on the amended Forms W-2, wages for four other employees were also underreported by the Petitioner in 2015. 
4 The record also contains his paystub for the pay period December 1, 2015, to December 31, 2015. It shows that he had 
been paid $4,000 that month and $4,000 year-to-date. The record does not contain the Beneficiary's paystub for 
November 2015, which would have indicated his year-to-date gross salary for 2015. 
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Matter of M-A- Inc. 
a certified copy of the Petitioner's 2015 federal tax return and allow the Petitioner reasonable time to 
respond. 5 
IV. CONCLUSION 
The Director did not sufficiently evaluate the Beneficiary's eligibility as an executive or manager in 
the U.S. or the Petitioner's continuing ability to pay the proffered wage. Thus, we will remand the 
matter to the Director for finiher consideration. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for fmiher 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of M-A- Inc., ID# 3322896 (AAO May 10, 2019) 
5 The record contains unaudited financial statements for the Petitioner. Where a petitioner relies on financial statements 
to demonstrate its ability to pay the proffered wage, the financial statements must be audited. 8 C.F.R. § 204.5(g)(2). 
4