This appeal was not successful at this stage
The AAO dismissed the appeal and affirmed the Director's denial because the Petitioner failed to demonstrate the ability to pay the Beneficiary's proffered wage of $60,000 at the time the petition was filed. The 2016 and 2017 tax returns showed net income and net current assets insufficient to cover the proffered wage, and no valid alternative evidence was accepted.
A U.S. subsidiary of a Chinese pharmaceuticals and furniture company sought to permanently employ its General Manager under the EB-1C multinational executive/manager classification. The Texas Service Center denied the petition solely on ability-to-pay grounds. On appeal, the AAO agreed: the Petitioner's 2017 tax return showed net income of $32,043 and net current assets of only $5,314, both insufficient to cover the $60,000 proffered wage. The AAO rejected attempts to rely on a post-filing unaudited financial statement, a related affiliate's tax returns, and arguments that the proffered wage could be reduced after filing. The appeal was dismissed.
What failed: 1. The Petitioner's 2016 and 2017 corporate tax returns showed net income and net current assets well below the $60,000 proffered wage, which is the primary metric for ability to pay. 2. An unaudited financial statement covering only post-filing months was not accepted as evidence of financial status at the time of filing. 3. Tax returns of a claimed affiliated U.S. entity could not substitute for the petitioning employer's own financial evidence. 4. Attempts to argue the proffered wage could be retroactively lowered or that the pandemic justified the shortfall were rejected for lack of legal support or factual connection to the filing date.
Takeaway: Petitioners must ensure their own corporate tax returns reflect net income or net current assets sufficient to cover the proffered wage as of the petition filing date; post-filing financials, unaudited statements, and affiliated entities' finances will not cure the deficiency. Petitioners relying on the Sonegawa exception should document a long, consistent earnings history with a clearly isolated and explained downturn.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-1C criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The Petitioner's 2016 and 2017 corporate tax returns showed net income and net current assets well below the $60,000 proffered wage, which is the primary metric for ability to pay
- An unaudited financial statement covering only post-filing months was not accepted as evidence of financial status at the time of filing
- Tax returns of a claimed affiliated U.S
- entity could not substitute for the petitioning employer's own financial evidence
Petitioner's 2017 corporate tax return showing salaries/wages of $64,506, net income of $32,043, and net current assets of $5,314 — accepted as the operative financial document but found insufficient to meet the proffered wage requirement
Petitioner's 2015 tax return showing net income sufficient to cover the proffered wage — noted but not determinative given 2016 and 2017 deficiencies
Unaudited financial statement for the 11-month period after filing — rejected because it was unaudited and did not reflect financial status at the time of filing
Tax returns of a claimed U.S. affiliate entity — rejected because ability to pay must be demonstrated by the petitioning employer, not a related entity
Petitioner's argument that as a self-owned company it could set the proffered wage freely after filing — rejected for lack of legal authority and inconsistency with regulations
Petitioner's argument that it could lower the proffered wage to prevailing wage after filing — rejected as no legal provision permits post-filing reduction of proffered wage
Reliance on Matter of Sonegawa — distinguished and rejected because Petitioner's financial history did not mirror the consistently strong earnings and isolated downturn present in Sonegawa
Claim that the global pandemic caused financial hardship — rejected because the pandemic began approximately two years after the petition's December 2017 filing date
Director did not specifically address whether prior nonimmigrant petition approvals were reviewed, though AAO found that any such prior approvals would have been erroneous and not binding
No legal errors in the Director's core denial finding were identified; the AAO agreed with the Director's assessment
Completed
I-140 filed
General Manager of a U.S. subsidiary of a Chinese pharmaceuticals and furniture company
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2021-03-02
AAO decision — Dismissed
The AAO dismissed the appeal and affirmed the Director's denial because the Petitioner failed to demonstrate the ability to pay the Beneficiary's proffered wage of $60,000 at the time the petition was filed. The 2016 and 2017 tax returns showed net income and net current assets insufficient to cover the proffered wage, and no valid alternative evidence was accepted.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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