Date of Decision: December 6, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Ultrasonic Inspection Design and Development
Beneficiary Information
Profession: Division Manager, Subsea and Oil & Gas
Field: Ultrasonic Inspection Design and Development
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Case Overview
The petitioner, a multinational entity engaged in ultrasonic inspection design, development, and application, sought to employ the beneficiary as its Division Manager for the Subsea and Oil & Gas division under the EB-1C classification for multinational executives or managers. The Director of the Texas Service Center denied the petition, concluding that the petitioner did not adequately demonstrate its ability to pay the beneficiary’s proffered wage of $110,000 per year from the priority date onward. The matter was brought before the Administrative Appeals Office (AAO) on appeal.
Key Issues
The Director’s denial was based on the finding that the petitioner failed to establish its ability to pay the proffered wage as required under 8 C.F.R. § 204.5(g)(2). Specifically:
- Inadequate Financial Documentation: The petitioner provided financial documents that predated the priority date of the petition, including a tax return and bank statements. However, these documents were not sufficient to demonstrate the petitioner’s ability to pay the proffered wage from the priority date (August 15, 2022) onward. The Director requested additional documentation, including the petitioner’s tax return for the fiscal year ending October 31, 2022, but the petitioner was unable to provide it at the time due to its unavailability.
- Incomplete Evidence of Ability to Pay: Although the petitioner submitted the beneficiary’s W-2 forms and earnings statements showing compensation from August 2022 through January 2023, these documents did not cover the entire period required to establish ongoing ability to pay.
USCIS Findings
Upon review, the AAO determined that the Director’s decision was premature, as the petitioner’s relevant tax return for the fiscal year ending October 31, 2022, was not available at the time of the request for evidence (RFE) or the initial appeal. The AAO found that the petitioner had shown reasonable efforts to comply with the evidentiary requirements and that the tax return for the relevant period should now be available.
The AAO remanded the case to the Director with instructions to allow the petitioner to submit the previously unavailable tax return and any subsequent financial documentation to demonstrate its ability to pay the proffered wage from the priority date onward.
Supporting Evidence
The petitioner provided various financial documents, including:
- The beneficiary’s 2022 W-2 form and earnings statements from August 2022 through January 2023
- The petitioner’s 2020 tax return
- The parent company’s audited financial statements for the fiscal year ending October 31, 2021
However, the lack of a tax return covering the period from November 1, 2021, to October 31, 2022, at the time of the RFE response was a key issue leading to the initial denial.
Additional Notes
The AAO emphasized that the Director should provide the petitioner with a reasonable opportunity to submit the necessary tax return and any subsequent financial documentation to establish its ability to pay the proffered wage. The remand allows for a comprehensive review of the petitioner’s financial standing during the relevant period.
Conclusion
Final Determination: The Director’s decision was withdrawn, and the case was remanded for further review. The petitioner must be given an opportunity to provide additional financial documentation, including the relevant tax return, to demonstrate its ability to pay the proffered wage from the priority date onward.
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