MATTER OF Y-, INC.

APPEAL OF TEXAS SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 24, 2018

PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a real estate development company, seeks to permanently employ the Beneficiary as its managing director/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. § l 153(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 Petitioner did not establish, as required, that: (1) it will employ the Beneficiary in the United States in a managerial or executive capacity; (2) the Beneficiary was employed in a managerial or executive capacity abroad prior to his entry to the United States to work for the Petitioner as a nonimmigrant; and (3) it has the ability to pay the Beneficiary's proffered wage.

On appeal, the Petitioner submits additional evidence, asserts that the Director misinterpreted certain facts in the record, and maintains that it has met all eligibility requirements by a preponderance of the evidence.

Upon de nova review, we will dismiss the appeal.

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)(l)(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. § 204.50)(3).

Matter of Y-, Inc.

II. DEFINITIONS

"Managerial capacity" means an assignment within an organization in which the employee primarily manages the organization, or a department, subdivision, function, or component of the organization; supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; has authority over personnel actions or functions at a senior level within the organizational hierarchy or with respect to the function managed; and exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A).

"Executive capacity" is defined as an assignment within an organization in which the employee primarily: directs the management of the organization or a major component or function of the organization; establishes the goals and policies of the organization, component, or function; exercises wide latitude in discretionary decision-making; and receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization. Section 101(a)(44)(B) of the Act.

The Petitioner must show that the Beneficiary will perform certain high-level responsibilities consistent with the statutory definitions of managerial or executive capacity. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533.

III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

The first issue we will address is whether the Petitioner established that it will employ the Beneficiary in an executive capacity. The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity in the United States. Therefore, we restrict our analysis to whether the Beneficiary will be employed in an executive capacity.

The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which clearly describes the duties to be performed by the Beneficiary. Beyond the required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) reviews the totality of the evidence when examining a beneficiary's claimed executive capacity, including the company's organizational structure, the duties of a beneficiary's subordinate employees, the presence of other employees to relieve a beneficiary from performing operational duties, the nature of the business, and any other factors that will contribute to understanding a beneficiary's actual duties and role in a business.

Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the company's staffing levels and reporting structure.

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A. Duties

In its initial supporting letter, the Petitioner stated that the Beneficiary is "solely responsible for [the petitioning company] and the decisions it makes in the United States" and will perform the following duties:

• Meeting with subordinates and analyzing reports submitted, then conducting impartial evaluations on employee performances (15%)

• Supervising the purchase and development of real estate constructions and developments (20%)

• Managing the internal financial operations of the Company, including overseeing the spending budget (10%)

• Reviewing and approving detailed plans for maintaining or approving Company's output, client services, data processing efficiency, and human resources utilization (10%)

• Securing external financial resources for the Company, including obtaining investments from investor, private lenders, and banks (15%)

• Identifying potential improvements that can be done to current projects ... and future projects ( 10%)

• Negotiating, reviewing, and finalizing all outsourced contracts to maximize efficiency of external resources ( 10%)

• Coordinate and update progress to [the parent company] on a weekly basis ... (5%)

• Establishing objectives for the Company and authorizing corporate policies and procedures to ensure the achievement of those objectives (5%)

In a request for evidence, the Director advised the Petitioner that this description appeared to include several non-qualifying duties and requested a more description of the specific tasks the Beneficiary is expected to perform on a day-to-day basis. We agree with the Director's determination that this description was lacking in specificity regarding the Beneficiary's actual duties and the amount of time he would allocate to specific executive tasks, versus the amount of time he would spend on non-executive activities. For example, the Petitioner did not provide sufficient detail to establish that the Beneficiary's involvement in the purchasing and development of real estate development projects would be executive in nature, or identify what specific executive duties he would perform to identify potential project improvements, secure financing, or review contracts.

In response to the RFE, the Petitioner provided a revised breakdown of the Beneficiary's duties:

10% Overseeing purchasing and real estate construction and development. 10% Directing and managing the company's financial, legal, trade, human

resources and sales activities. 8% Arranging for funding of all current and proposed projects ... 5% Forming local business procedures and streamlining of foreign company's

business procedures.

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Matter of Y-, Inc.

I 0% Meeting with and communicating with potential investors and partners. 7% Establishing financial and budgetary plans and goals for the company by

reviewing and monitoring sales, contractual negotiations, and market demand. 5% Developing and recommending corporate operations policy. 5% Establishing objectives and procedures governing the performance of assigned

activities. I 0% Directing and overseeing the work performance and schedules of the

managers and department heads .... 5% Selecting and maintaining qualified personnel in all positions reporting

directly and recommending compensation for them. 5% Identifying training needs, initiating development of subordinates, and

recommending effective personnel action. 5% Review activity reports and financial statements to determine progress and

status in attaining objectives and revise objectives and plans in accordance with current conditions.

5% Consulting with all segments of management responsible for policy or action. Making recommendations for improving the effectiveness of policies and procedures.

I 0% Reviewing and endorsing/revising budget proposals received form direct reports. Approving budget expenses up to authorized dollar amounts.

As noted by the Director, this description was did not provide additional clarity to the initial job description, nor did it establish nature of the Beneficiary's actual day-to-day duties at the time of filing. The Director further found that the Petitioner had made material changes to the position description. On appeal, the Petitioner objects to this finding and explains that the second description was intended to provide additional detail, noting that both descriptions establish that the Beneficiary possesses "the ultimate authority" within the company.

However, the fact remains that neither description provides a detailed account of the types of specific that are claimed to require the largest proportion of the Beneficiary's time. Broad statements such as "establishing objectives and procedures," "developing and recommending corporate operations policy," "directing and managing" all company activities, and establishing financial plans and goals, are too general, provided without context, and do not provide insight into the Beneficiary's role as managing director of a real estate development company. Reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). Here, the Petitioner has not provided the necessary detail or an adequate explanation of the Beneficiary's activities in the course of his daily routine.

In addition, whether the broad duties attributed to the Beneficiary qualify as executive in nature depends in large part on whether the Petitioner established that he would have sufficient subordinate staff to supervise and perform the day-to-day company activities he is claimed to direct. As

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Matter <?f Y-, Inc.

discussed further below, the Petitioner has not adequately documented its staffing and structure, and

has not shown its ability to relieve the Beneficiary from significant involvement in the operational

tasks required to operate its business. Absent such evidence, we can determine that his claimed

executive duties would be his primary job duties.

The fact that the Beneficiary will manage a business as its senior employee and shareholder does not

necessarily establish eligibility for classification as a multinational executive. By statute, eligibility for

this classification requires that the duties of a position be "primarily" executive in nature. Section

101(A)(44)(B) of the Act. Even though the Beneficiary may exercise discretion over the Petitioner's

operations and possess authority with respect to discretionary decision-making, the position

description alone is insufficient to establish his employment will be in an executive capacity.

B. Staffing and Organizational Structure

If staffing levels are used as a factor in determining whether an individual is acting in a managerial

or executive capacity, we take into account the reasonable needs of the organization, in light of the

overall purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act.

The Petitioner is a commercial and residential real estate development company. At the time of

filing, it stated that it owned a 31-unit commercial property ,, a 24-

unit apartment comple -=== , and a parcel of land that it intended to develop into a 120-unit

commercial property after securing sufficient funding. In addition, the

company was leasing, furnishing, and sub-leasing individual apartments on a short-term basis. The

Petitioner provided evidence that it established separate limited liability companies (LLCs) for each

property and for the sub-leasing businesses, but all operations appear to be centrally located at the

Petitioner's headquarters, and it did not claim that the subsidiary LLCs have their own employees.

The Petitioner stated on the Form I-140 that it had eight employees at the time of filing in February

2017. An accompanying organizational chart identified the Beneficiary as managing director with

three direct subordinates - an asset manager, a finance manager, and a marketing manager. The

chart showed that the asset manager supervised an onsite technician, an architect, and a vacant

property manager position, while the finance manager supervised an administrative assistant, an

operations executive, and a vacant financial executive position. Finally, the chart identified two

vacant positions that would report to the marketing manager - a sales executive and a marketing

executive.

The Petitioner submitted a copy of its state quarterly wage report for the fourth quarter of 2016.

During that quarter, the Petitioner paid wages to five employees - the Beneficiary, the finance

manager, the asset manager, the architect, and one employee not named on the organizational chart

The individuals identified as the marketing manager, onsite technician, administrative

assistant, and operations executive were not included on the wage report, and the record does not

include evidence of their employment at the time of filing.

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Matter of Y-. Inc.

Although the Director later requested copies of IRS Forms W-2 for all relevant years and evidence of payments to any contract staff, the Petitioner re-submitted its 2016 IRS Form W-2s in response to

the RFE and provided nothing further, despite claiming that there were significant changes in its

staffing and structure while the petition was pending. The Petitioner has not corroborated its claims

regarding its staffing levels as of the date of filing in February 201 7 with evidence of wages paid to

employees and contractors at that time, nor has it corroborated its staffing changes made subsequent

to the date of filing. A petitioner's unsupported statements are normally insufficient to carry its

burden of proof, particularly when supporting documentary evidence would reasonably be

available. The Petitioner must support its assertions with relevant, probative, and credible

evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

The statutory definition of the term "executive capacity" focuses on a person's elevated position

within a complex organizational hierarchy, including major components or functions of the

organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the

Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish

the goals and policies" of that organization. Inherent to the definition, the organization must have a

subordinate level of managerial employees for a beneficiary to direct and they must primarily focus

on the broad goals and policies of the organization rather than the day-to-day operations of the

enterprise. An individual will not be deemed an executive under the statute simply because they

have an executive title or because they "direct" the enterprise as the owner or sole managerial

employee.

In addition, the Petitioner must establish that all eligibility requirements for the immigration benefit

have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R.

§ 103 .2(b )( 1 ). Therefore, our analysis of the Petitioner's staffing will focus on the date of filing; if

the Petitioner did not have sufficient staff at that time to relieve the Beneficiary from significant

involvement in the day-to-day operations of the company, then any subsequent increase in staffing

or change in structure cannot establish his eligibility as a multinational executive.

At the end of December 2016, less than two months before the date of filing, the Petitioner employed an asset manager, a finance manager, an architect, and the Beneficiary. 1 The Petitioner

did not establish that the asset manager (who had no documented property managers to supervise)

and the finance manager ( who had no documented subordinates) formed a tier of management staff through which the Beneficiary would be primarily directing the company. Nor did it demonstrate

how the three documented subordinates would perform most of the company's day-to-day

operational and administrative tasks, so that the Beneficiary would be able to focus primarily on the

company's broad goals and policies.

Section 101(a)(44)(C) of the Act requires we take into account the reasonable needs of the

organization in light of the overall purpose and stage of development of the organization if staffing

1 Although it appears the company had one more employee in December 2016, the Petitioner did not provide

any information regarding this employee, nor did it claim to employ her at the time of filing.

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Matter of Y-, Inc.

levels are used as a factor in determining whether an individual is acting in an executive capacity. However, it is appropriate to consider the size of the petitioning company in conjunction with other relevant factors, such as the absence of employees who would perform the non-managerial or non­executive operations of the company. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when there are discrepancies in the record. See Systronics, 153 F. Supp. 2d at 15.

As addressed above, the Petitioner has not established that it had subordinate staff to perform many of the actual day-to-day, non-executive operations of the company at the time of filing. The Petitioner identified 12 positons on its organizational staff, claimed to have eight staff in place, and sufficiently documented only four of them, including the Beneficiary. Based on the evidence submitted, we cannot determine who was performing the non-executive duties assigned to the property manager(s), the entire marketing department, the administrative assistant or the operations executive, and cannot conclude that the Petitioner had staff to relieve the Beneficiary from significant involvement in non-executive activities. Again, the Petitioner has not sufficiently documented its staffing levels in 2017 and the record does not adequately describe how the day-to­day operational tasks of the company were distributed among its employees at the time of filing.

In response to the RFE, the Petitioner provided a new organizational chart intended to show the company's staffing as of January 2018. The updated chart identified nine employees by name, including the Beneficiary, an operations manager (previously identified as the administrative assistant), and a tier of employees reporting to the operations manager (a finance manager, asset manager, and project architect). The chart also identified vacancies for a human resources/office manager and a marketing manager, indicating that these positions would be filled in 2019 and 2020. As with the initial organizational chart, the Petitioner did not provided evidence of wages paid to employees and contractors to corroborate the information provided in the updated chart. Even if corroborated by supporting evidence, the new chart could not meet the Petitioner's burden to establish the Beneficiary's eligibility as of the date of filing.

For the reasons discussed above, the Petitioner has not established that the Beneficiary would be sufficiently relieved from involvement in the day-to-day operations of the company, despite his senior position in the company hierarchy. Accordingly, the Petitioner has not met its burden to show that his duties would be primarily executive in nature.

IV. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY

The next issue is whether the Petitioner established that the Beneficiary was employed abroad in a managerial capacity prior to his transfer to the United States in 2014. The Petitioner does not claim that he worked for its foreign parent company in an executive capacity.

The Petitioner indicates that its parent company is engaged in "residential, commercial and industrial property development." As with the U.S. employment, our analysis of this issue will focus on the Beneficiary's duties with the foreign entity as well as the company's staffing levels and reporting structure.

Matter of Y-, Inc.

At the time of filing, the Petitioner stated that the Beneficiary served as its foreign parent company's general manager from 2007 until 2014, noting that the company had "grown to a staff of 50 full-time employees" under his leadership. It did not provide a description of his duties, evidence of the foreign entity's staffing levels or organizational structure, or supporting evidence of his employment abroad. The Director noted these evidentiary deficiencies in the RFE and requested a detailed description of the Beneficiary's duties, evidence to establish the foreign entity's staffing (such as payroll reports and an organizational chart), and information regarding the employees the Beneficiary supervised.

In response the Petitioner provided a general statement of the Beneficiary's duties, noting that he spent: 30% of his time recruiting, training, monitoring and appraising "managers"; 20% of his time developing a strategic plan by studying technological and financial opportunities and recommending objectives; 20% of his time establishing plans and budgets and allocating resources; 15% of his time establishing procurement, production, marketing, field and technical services policies; and 5% of his time building the company image by collaborating with internal and external associates. This broad overview of the Beneficiary's responsibilities was not the "definitive statement" of his specific daily duties that the Director had requested in the RFE. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros., 724 F. Supp. at 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).

The Petitioner did not provide an organizational chart or payroll reports for the foreign entity as requested in the RFE, but the foreign entity's letter included a list of positions it claimed the Beneficiary supervised. The Petitioner stated that he managed eight subordinate staff, includin~ an architect, a project manager, a four-person quality control team, and a public relations officer. It provided brief position descriptions for these staff, but did not identify employees by name, state the requirements for the positions, or indicate whether they were full-time or part-time.

In the denial decision, the Director acknowledged the position description submitted in response to the RFE, but emphasized the lack of evidence regarding the foreign entity's structure and staffing. The Director found that there was insufficient evidence to substantiate that the Beneficiary actually performed the stated job duties or acted in a managerial capacity.

On appeal, the Petitioner submits an organizational chart for the foreign entity and asserts that it was inadvertently omitted from the Petitioner's business plan submitted at the time of filing. The Petitioner attributes the omission to an "administrative error by previous counsel."

The newly submitted foreign company organizational chart does not include the Beneficiary's claimed position of "general manager." The top tier of the chart includes two civil engineers, a purchasing manager, a marketing manager, and an administrative manager. The next tier includes a personnel manager, purchasing supervisor, and administrative supervisor. Lower level personnel

2 The Petitioner stated that the Beneficiary's supervised eight subordinates, but identified only seven positions that directly or indirectly reported to him.

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Matter of Y-, Inc.

include an accountant, clerk, and a labor supervisor, who is depicted as supervising carpenters, brick masons, drivers, and 16 "on site staff." The chart identifies a total of 37 staff.

This new chart is insufficient to overcome the Director's concerns regarding the staffing levels and structure of the foreign entity and the Beneficiary's role and placement within that company. At the time of filing, the Petitioner described the Beneficiary as the leader of a SO-person company. In response to the RFE, the Petitioner stated that the Beneficiary oversaw only seven or eight subordinates. The Petitioner now submits an organizational chart for the foreign entity, but it does not corroborate either prior version of its description of the foreign entity's operations. The Petitioner must resolve these inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

Notably, none of the subordinate positions mentioned in response to the RFE (project manager, architect, PR officer, or quality control team) is identified in the organizational chart, and the Petitioner has not provided an explanation for its varying descriptions of the foreign entity's staffing during the Beneficiary's period of employment abroad. The organizational chart shows a structure that would likely support a managerial position, but given the inconsistencies in the record, the chart alone does not sufficiently corroborate the Petitioner's claims. If the Beneficiary served as general manager, it is unclear why that position does not appear on the foreign entity's organizational chart. If he actually supervised all of the employees depicted on the chart, then it is reasonable to expect the Petitioner to explain why it stated in response to the RFE that he directly and indirectly supervised only seven or eight staff. Further, neither of the latter descriptions of the foreign entity's structure support the Petitioner's original claim that the foreign entity had 50 full-time employees working under the Beneficiary's leadership. The Petitioner has not submitted credible evidence substantiating its claims regarding the foreign entity's structure or the Beneficiary's role within its hierarchy.

We agree with the Director's determination that the broad description of the Beneficiary's job duties abroad, without reliable evidence of the foreign entity's structure and staffing, is insufficient to establish that he was employed abroad in a managerial capacity.

V. ABILITY TO PAY

The final issue to be addressed is whether the Petitioner established that it has the ability to pay the Beneficiary's proffered wage.

Any petition filed 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. 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.

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Matter of Y-, Inc.

In determining a petitioner's ability to pay the proffered wage, we examine whether it has paid the beneficiary the full proffered wage each year from the priority date. If the petitioner has not paid the beneficiary the full proffered wage each year, we will next examine whether the petitioner had sufficient net income or net current assets to pay the difference between the stated wage and the proffered wage. If the petitioner's net income or net current assets is not sufficient to demonstrate its ability to pay the proffered wage, we may also consider the overall magnitude of the company's business activities. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).

The Petitioner stated on the Form I-140 and in its supporting letter that the Beneficiary's proffered wage is $86,000 annually, but also provided a letter from its parent company's general manager, who indicated that the Beneficiary's U.S. salary is $168,000. Although the Director noted this discrepancy in both a request for evidence (RFE) and in the denial decision, the Petitioner has not addressed it. Nevertheless, for the reasons discussed below, we find it has not shown its ability to pay the lower of the two salaries.

The Petitioner filed the Form I-140 in February 201 7. The Petitioner provided evidence that it paid the Beneficiary $22,884.61 in the fourth quarter of 2016, and this represented his total earnings for the year. The record does not include evidence of payments made to the Beneficiary in 2017 or his IRS Form W-2 for that year. We agree with the Director's determination that the Petitioner did not submit sufficient evidence showing that it was paying the Beneficiary a salary equal or greater than the proffered wage as of the date of filing.

As an alternate means of determining a petitioner's ability to pay, we will examine a petitioner's net income figure as reflected on the federal income tax return, without consideration of depreciation or other expenses. 3 Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Rest. Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983).

The Director considered the Petitioner's tax return for 2016, as the 2017 tax return was not available at the time he issued the RFE. The Petitioner's IRS Form 1120 for calendar year 2016 presents a net taxable income of $-516,931. The Petitioner did not show that it had the net income to cover the difference between the Beneficiary's 2016 actual wages and the proffered wage.

3 In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that former Immigration and Naturalization Service (INS) properly relied on the petitioner's net income figure reflected on its corporate income tax returns rather than gross income. The court rejected the argument that INS should have considered income before expenses were paid rather than net income. There is no precedent that would allow the Petitioner to "add back to net cash the depreciation expense charged for the year." See, e.g., Chi-Feng Chang v. Thornburgh, 719 F. Supp. at 537; see also Elatos Rest. Corp. v. Sava, 632 F. Supp. at 1054.

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Matter of Y-. Inc.

If a petitioner does not have sufficient net income to pay the proffered salary, we will review its net current assets. Net current assets are the difference between a petitioner's current assets and current liabilities. Net current assets identify the amount of "liquidity" that a petitioner has as of the date of the petition and is the amount of cash or cash equivalents that would be available to pay the proffered wage during the year covered by the tax return. As long as we are satisfied that a petitioner's current assets are sufficiently "liquid" or convertible to cash, or cash equivalents, then a petitioner's net current assets may be considered in assessing the prospective employer's ability to pay the proffered wage. The Petitioner's net current assets, based on its 2016 tax return, were calculated as $-1,223,530. Accordingly, the Director determined that the Petitioner had not shown its ability to pay the Beneficiary's proffered wage.

On appeal, the Petitioner submits an "affidavit" from the Beneficiary, who addresses the Director's concerns regarding its ability to pay. First, he notes that his salary in 2016 was only $22,885 because he was outside of the United States for the first eight months of the year waiting for the U.S. Embassy in to process his L-1 visa. While this is a reasonable explanation for his lower wages in 2016, the Petitioner has not supplemented the record with evidence that it was paying the Beneficiary an annual salary of at least $86,000 as of the date of filing in February 2017.

The Beneficiary also explains the Petitioner's negative taxable income and net current asset figures for the 2016 tax year, noting that the company had high construction costs for one of its properties during that year, and that the property, since 2017, has been generating income. With respect to the 2016 net current assets, the Beneficiary states that he is submitting bank statements to demonstrate the Petitioner's financial liquidity, and asks that we consider the Petitioner's real estate assets valued at over $5 million. The Petitioner submits various account statements, but they post-date the filing of the petition and cannot establish its ability to pay when the priority date was established.

The evidence submitted on appeal does not show that the Director made an erroneous calculation of the Beneficiary's 2016 wages or the Petitioner's net current assets or net income for the 2016 tax year. Further, the Petitioner has not shown that it paid the Beneficiary the proffered salary in 2017, or its ability to pay this salary based on its 2017 net taxable income or net current assets in the year in which the petition was filed. The Petitioner's request that we based its ability to pay on the value of its real estate assets (without consideration to its liabilities), or on its gross income figure, is misplaced.

The Beneficiary also emphasizes that the Petitioner has achieved consistent growth since 2016. Pursuant to Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967), we may consider evidence of a petitioner's ability to pay beyond its net income and net current assets. 12 I&N Dec. at 614-15. As in Sonegawa, we may consider such factors as: the number of years it has conducted business; the growth of its business; its number of employees; the occurrence of any uncharacteristic business expenditures or losses; its reputation in its industry; whether a beneficiary will replace a current employee or outsourced service; or other evidence of its ability to pay a proffered wage. Id The Petitioner did not establish that factors similar to Sonegawa existed in the instant case and cannot meet its burden under Sonegawa by simply claiming that it expects a steady stream of income in the future.

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For the foregoing reasons, the record does not establish the Petitioner's ability to pay the proffered wage.

VI. CONCLUSION

The appeal must be dismissed as the Petitioner has not established that the Beneficiary was employed abroad, or would be employed in the United States, in a managerial or executive capacity, or that it has the ability to pay the Beneficiary's proffered wage.

ORDER: The appeal is dismissed.

Cite as Matter ofY- Inc., ID# 1668358 (AAO Sept. 24, 2018)

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