dismissed EB-1C Case: Accounting

MATTER OF L-&R- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 15, 2019 
MOTION ON ADMlNISTRA TIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITlON FOR ALIEN WORKER 
The Petitioner, an accounting services provider, seeks to permanently employ the Beneficiary as its 
chief executive officer (CEO) 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. 
§ 1 l 53(b)(I )(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 on multiple grounds. We dismissed the 
Petitioner's appeal from that decision, finding that it had not overcome all grounds for denial. 
Specifically, we found that _the Petitioner had not established that it. would employ the Beneficiary in 
an executive capacity in the United States. 
The matter is now before us on a motion.to reopen. On motion, the Petitioner submitted additional 
evidence regarding the Beneficiary's job duties and explained that it relies on contractors and its 
foreign atliliate's staff to perform various business functions. We reopened the Petitioner's appeal, 
issued a request for evidence (RFE), and have incorporated the Petitioner's timely response into the 
record. 
Upon review, and having already reopened the proceeding, we will affirm our decision to 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 
Matter of l-&R- Inc. 
same employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. 
employ~r has been doing business for at least one year. See 8 C.F.R. § 204.50)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Petitioner has consistently claimed that the Beneficiary will be employed m an executive 
capacity in the United States and that is the pr.imary issue before us on motion. 
The statute defines an "executive capacity" 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 10l(a)(44)(B) of the Act, 8 LJ.S.C. § I I0l(a)(44)(B). 
We review both the beneficiary's stated job duties and the totality of the evidence when examining 
the claimed executive capacity of a given beneficiary, 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. 
A. Business Activities and Staffing 
The Petitioner states that it derives its income from four revenue streams, noting that it provides: (I) 
cloud-based accountancy services offered by subscription; (2) back office accounting, bookkeeping 
and taxation services for clients of its United Kingdom affiliate; (3) tax return preparation services 
for its affiliate's clients; and (4) projects for "direct clients." · 
We dismissed the Petitioner's appeal, in part, based on a finding that it did not establish that it had 
sufficient employees or other staff available to relieve the Beneficiary from significant involvement 
in the non-executive, day-to-day operations of the company. The Beneficiary had .three subordinates 
at the time of filing in November 2016, but one of them, the head of accounting, left the company on 
December 1, 2016. The departure of this employee (who has not since been replaced) left the 
Petitioner with no accounting staff in the United States to provide the company's services. We 
further found that the Petitioner did not submit credible position descriptions for the two remaining 
employees subordinate to the Beneficiary. 
On motion, the Petitioner explained that its essential functions are accounting services, tax services, 
client services, account management, technology, website development and functionality, brand 
development, market research sales, recruitment and human resources, and the company's own 
internal accounting. It submitted a statement explaining who was responsible for each function at 
both the time of filing the petition in November 2016 and at the time it filed the motion in May 
20 I 8. The Petitioner indicated that many functions were outsourced or performed by employees of 
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the foreign affiliate. It also explained that expansion plans for its cloud-based accounting services 
had been put on hold due to uncertainty regarding the Beneficiary's permanent residence process. 
The Petitioner continues to_ employ only three staff: including the Benefi~iary. 
We found that the new evidence and information submitted in support of the motion addressed some 
of the evidentiary deficiencies in the record, but also raised additional questi.ons regarding the 
Petitioner's business operations and its ability to support an executive position. Accordingly, we_ 
issued an RFE, in which we observed that although the Petitioner indicated that it had eight clients 
subscribed to its cloud-based accountancy services in 2016, it derived most of its income from 
provision of "back office accounting, bookkeeping and taxati9n services"· for its U.K. affiliate's 
clients, for which it bills its affiliate on a mpnthly basis, and preparation of United Kingdom 
personal tax returns, for which it bills its affiliate on a per return basis. In its statements submitted 
on motion, the Petitioner indicated that the foreign affiliate's own employees actually perform and 
supervise the accounting and bookkeeping and taxation services for the affiliate's clients, 
notwithstanding the fact that the Petitioner issues-its affiliate an invoice for providing these services. 
Further, the Petitioner explained that the tax return preparation services, although billed by the 
Petitioner as a service provided to its affiliate, are carried out by an Indian accounting firm, whose 
work is overseen by the U.K. affiliate's own staff 
In order to gain a better understanding of what specific services the Petitioner actually provides, we 
requested copies of the Petitioner's 2017 tax returns, general ledgers for 2017 and 2018, copies of 
invoices the Petitioner issued in 20 I 7 and 20 I 8, and evidence of coordination of activities between 
the United States and United Kingdom offices. 
The evidence submitted in response to our RFE reflects that the Petitioner did not bill any new 
clients for cloud-based accounting services in 20 I 7 or 2018, despite the fact that it continues to 
claim that it has eight clients subscribed to its services. Nor does the record show that the clients 
who subscribed to the service in 2016 were later billed for renewing their subscriptions. There is 
insufficient evidence in the record to establish that the Petitioner's cloud-based accounting service 
offering currently has any clients. · 
All income reported on the Petitioner's 2017 general ledger, with the exception of one incoming 
payment for $9,900, was paid to the Petitioner by its foreign atliliate for back office accounting 
bookkeeping and taxation services· or for preparation of U.K. tax returns. However, the Petitioner 
has not shown that it actually performed any back office accounting, bookkeeping, or taxation 
services, as these.are performed by its affiliale's own accounting stan: and overs~en by the affiliate's' 
own client services manager, for the affiliate's own clients. It is unclear ,vhy the Petitioner garners 
revenue from these _services when it has no apparent involvement in the actual provision of services 
or communication with the end client; its role appears to be limited to issuing invoices to its foreign 
afiiliate for the services that the affiliate directly provides. 
The Petitioner submitted a letter from its general services manager, addressed to the foreign-entity, 
setting (?Ut the services the Petitioner provides to its affiliate and states that "[the foreign entity J 
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should liaise with the administrative staff of [the Petitioner] (and where necessary any 
subcontractors of [the Petitioner]) with respect to coordinating work and provision of documents." 
We specifically requested evidence of the coordination of services between the two companies but 
the Petitioner has not responded to this request. Based on the Petitioner's acknowledgement that the 
foreign staff actually perfonn the services that the Petitioner agreed to perform, it is unclear what' 
work is left for the Petitioner to perform. While there may be some reasonable business purpose for 
this arrangement, the record does not establish that the Petitioner is actually involved in providing 
the claimed "back office accounting, bookkeeping, and taxation services" for its affiliate. 
Similarly, the Petitioner has not established that it actually prepares U.K. personal tax returns as a 
service to its foreign affiliate . The record establishes that an Indian firm 
prepares the tax returns under the supervision of the foreign entity's head of client services . The 
Petitioner 's role in the transaction appears to be limited to billing the foreign affiliate $300 per 
completed tax return, and paying $30.00 per completed tax return. While the P~titioner 
submitted an agreement to which it, and the foreign entity are all parties, it is unclear why the 
foreign entity opts to outsource this business activity to the Petitioner on paper, rather than simply 
paying directly for the services that provides to the foreign entity's clients under the 
foreign entity's supervision. Again, the Petitioner did not respond to our request for evidence of 
coordination of services between it and its foreign affiliate and the Petitioner's role in preparing the 
tax returns appears to be limited to billing its foreign entity and paying fees. 
Finally, we have reviewed the newly submitted evidence for documentation of the Petitioner's 
"project" work for "direct clients." In the 2017 calendar year, the Petitioner issued a single invoice 
to a U.K. client for its involvement in the client's "company restructuring." All other invoices were 
issued to the U.K. affiliate for the above referenced tax preparation and back office accounting 
services . In the first quarter of 2018, the Petitioner issued two similar invoices for "company 
restructuring" services provided to United Kingdom clients who are also listed as clients of its 
affiliate. It is unknown who actually performed these services as the Petitioner still docs 11·01 employ 
any accounting staff. If the foreign entity actually provided these services, then, again, it is unclear 
why the Petitioner issued the invoice and received payment for providing such services. The most 
recent evidence related to this area of activity is dated in March 2018. 
' Overall, while the evidence submitted on motion clarifies who provides the accounting services that 
are claimed to be offered by the Petitioning company, the staffing arrangement describ-ed in the 
record reflects that the Petitioner is not actually _ responsible for performing any accounting services. 
The Beneficiary's oversight of foreign staff that provide accounting services for the foreign entity's 
clients cannot be deemed·an executive duty performed for the petitioning company. · 
The Petitioner's motion to reopen also included evidence related to other contractors or service 
providers including : which provides a hosted server and manages email 
accounts for the foreign affiliate (and the Petitioner); which states that it provides 
the Petitioner with brand development and website services; which assisted the 
Beneficiary with strategic-level planning and implementation of its remote accountancy services 
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business model in 2015 and 2016; and CPA, who states that the Beneficiary 
continues to consult with him about the hiring and growth plan for the Petitioner. The record does 
not contain sufficient evidence that the Petitioner continues working with any of these providers or 
reflect any payments to them subsequent to the filing of the petition . 
. . . 
The Petitioner also submitted a letter from its former head of accounting, who states that she left the 
company "due to uncertainty surrounding [the Beneficiary's] US immigration status," and states that 
she expects to return to· handle "accounting services, tax services, client services account 
management and technology," when the Beneficiary becomes a permanent resident, and will build a 
team at that time. In addition, the Petitioner submitted a letter from an individual who was recruited 
for a "head of sales" position, but not expected to join until the Beneficiary's .;immigration 
situation" is resolved. However, 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)(l). Reliance on future hiring plans does not satisfy this 
requirement. 
In response to our RFE, the Petitioner also submitted evidence related to a hew affiliated United 
Kingdom company , which was established in 2018 and employs the Beneficiary 
as its chief executive. Although the Petitioner submits evidence related to activities and 
staffing, the Beneficiary's oversight of this company does not meet the Petitioner's burden to 
establish that it will employ the Beneficiary in an executive capacity in the United States . ( . 
Finally, the Petitioner has documented its continued employment of its head of online 
marketing/brand manager and' general services manager. We noted in our RFE that it appears that 
the general services manager also works as the property manager for the Petitioner 's buildi.ng, while 
the head of online marketing appears on the foreign entity's organizational chart as an administrator. 
We asked the Petitioner to confirm their concurrent employment with other entities and indicate how 
much time each employee dedicates to the petitioning company . 
In response, the Petitioner states that the general service manager owns the building where the 
Petitioner's· office is located, is onsite at the location full-time, and that '-'her services to [the 
Petitioner] are of such a scope and frequency as to relive the Be_neficiary from any non-qualifying 
duties ." Initially, at the time of filing, the l~etitioner indicated that the general services manager, 
manages the "administration department," supervises human resources (hiring/firing/payroll/ 
benefits), is responsible for internal bookkeeping and accounting and facilities management , recruits 
personnel for the administration , marketing, and IT departments, and would eventually supervise a 
secretary . On motion, in describing the staffing of each of the company's essential functions, the 
only function attributed to the general services manager is the human resources function, including 
duties such as writing job descriptions, placing recruitment ads, and short listing candidates . 
However the Petitioner has not hired any staff in the last two years. Further, the Petitioner indicates 
that the foreign entity's staff performs its internal bookkeeping and accounting, functions that it 
previously attributed to the general services manager. Although this employee remains on the 
payroll , it is unclear what specific functions she performs or how much time she devotes to the 
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Matter of l-&R- Inc. 
company. The Petitioner's statement that she works frequently enough to relieve the Beneficiary 
from "any non-qualifying duties" is not suffi_cient. 
The Petitioner has also confirmed that its head of online marketing divides his time between this 
position and a position as the foreign afftliate's company secretary and administration. [n 2017, the 
Petitioner paid him $20,000 and the foreign entity paid him £12,000. The Petitioner states that the 
amount of time he spends performing duties for each company varies but that he spends more time 
overall on work performed for the U.S. company. At the time of tiling, the Petitioner stated that the 
head of online marketing researches local , state, and national market conditions , gathers competitor 
information, develops pricing strategies, monitors trends, and supp011s the refinement of the 
company's service vision . On motion, the Petitioner indicated that the head of online ,marketing is 
currently responsible for website development/functionality and brand development (performed by 
outsourced provider and performs market research to prepare lists of potential 
clients. As noted , the Petitioner has not submitted evidence of any recent · payments to 
The Petitioner pointed out that it has "minimal sales function as revenue has so far come 
from back office work of [the foreign affiliate] and some direct instructions for [the foreign 
affiliate's] clients." Therefore, it is not entirely clear what this employee does on a day-to-day basis 
given that the company's marketing activities appear to be very limited in scope. 
Overall, the evidence submitted on motion and in response to our RFE does not establish that the 
Petitioner has sufficiently. developed to support the Beneficiary in an executive capacity as of the 
date of filing or at any time subsequent to that date . We acknowledge that the .Petitioner cites to 
Maffer <?f Z-A-: Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016) in support of its claim that a 
U.S. company's size alone is not dispositive in determining eligibility" for a multinational executive 
or manager. The Petitioner emphasizes that the reasonable needs of the organization as a whole, 
including any related entities within the qualifying organization, should be given consideration. 
The Petitioner's stated purpose at the time of filing was to provide subscription cloud-based 
accounting services through its own website and with its own team of employees, and to supplement 
that income by providing back office accounting and tax ·preparation services for its foreign affiliate. 
The Petitioner concedes that its hiring and expansion plans for the cloud-based services have been 
put on hold pending completion of the Beneficiary's permanent residence process, notwithstanding 
the Beneficiary's ongoing nonimmigrant status authorizing him to work for the company in the 
United States. Its sole accounting employee left the company and was not repiaced, and the back 
office accounting and tax preparation services that it claims to provide for its foreign affiliate are 
actually performed or overseen by the foreign affiliate itscl f and not by the Petitioner. 
If the Petitioner established that it had its own clients and relied on the foreign entity's staff to assist 
with the provision of services to those clients, then it wouid be reasonable to consider the foreign 
entity's personnel in our assessment of the Petitioner's organizational structure . However, that is not 
the case here, where the foreign affiliate is the Petitioner's primary "client" and the Petitioner does 
not actually provide or supervision the provision of services for which it bills its affiliate . Further, 
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Matter<?/ L-&R- Inc. 
we emphasize that our conclusion here is .not based on the Petitioner's size, but rather on the lack of 
evidence that the company has sufficient operational activities to support an executive position. 
While we recognize the Beneficiary's continued ·1eadersh1p of foreign comp_anies engaged in the 
provision of services to U.K. clients, the Petitioner cannot establish his cl_igibility for the benefit 
sought by stating that he will oversee the staff and activities of these companies while based in the 
United States. The Petitioner itself must demonstrate "that it can support an executive position. 
B. Duties 
In our dismissal order, we determined that the Petitioner had provided only a broad overview of the 
Beneficiary's general responsibilities and level of authority, without specifying the nature of his day­
to-day tasks as its CEO. We further found that, while the Petitioner offered few examples to 
substantiate the Beneficiary's claimed executive duties, the record contained ~vidence of his 
performance of non-executive tasks such as participating in networking events, fonnulating and 
approving blog posts and written notes to customers, conducting ·marketing research, and perfom1ing 
other administrative functions. As the Petitioner did not quantify how the Beneficiary would allocate 
his time between specific executive and non-executive. functions, we found the submitted position 
description insufficient to demonstrate that his actual duties would be pri'marily executive in_ nature. 
In response to the RFE we issued upon reopening the appeal, the Beneficiary submits a declaration 
explaining that ·he allocates I 00% of his time to executive duties related to his oversight of the 
Petitioner, its U.K. affiliate and the new U.K. affiliate, 
established in 2018. Specifically, the Beneficiary states that he allocates 25% of his overall time in a 
typical month , to the Petitioner's company management (30%), business development (45%), and 
staff management (25%). He indicates that he allocates 55% of his remaining time to 
and 20% to 
The Beneficiary states that his "company management" duties include refining the Petitioner's 
company technology platforms, representing the company to . external technology suppliers· and 
holding authority over trial and/or purchase terms, performing quality control reviews of the 
Petitioner's work, representing the Petitioner to banking partners and tax specialists on an ad­
hoc/intermittent basis, meeting with the Petitioner's employees twice monthly to discuss 
management, business, marketing and branding issues, and meeting with U.K. staff and department 
heads "looking afl:er" the Petitioner's business. 
With respect to the his "business development" duties, the Beneficiary states that he: reviews and 
approves all website changes and marketing materials prepared by determines 
important/topical issues for blog posts and articles; liaises with copywriters and PR agents 
reviews and approves all blog posts, articles and social media posts prepared by 
either the Petitioner's employees or drai1s, edits and publishes articles; 
represents the company in meetings lunches and other public events; and seeks opportunities to 
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partner with ·other businesses including banks, financial planners, and accountants in order to grow 
the business. 
Finally, the Beneficiary states that his "staff management" duties include executive oversight of the 
Petitioner's senior start: determining opportunities for employee learning and continuing 
professional education, and regularly assessing staffing requirements. 
The duties as described appears to be based on an assumption that the Petitioner is actively engaged 
in providing its subscription-based remote accountancy and other accounting services, as well as 
marketing, promoting and selling its services, and continuing to recruit U.S. staff while constantly 
improving its technology platform. For the reasons discussed above, the record does not show that 
·the Petitioner is engaged in any of these activities. For example, the record does not support a claim 
that the Beneficiary is continuously responsible for "refining" technology platforms or that the 
company has regular dealings with technology suppliers, particularly as the Petitioner concedes that 
it is not attempting to grow its cloud-based accounting service business. It is unclear what type of 
work the Petitioner produces for the. Beneficiary to review, or what business and marketing issues 
arise for a company that is minimally engaged in marketing, selling, or providing services. 
As a result, we cannot determine that this is a credible description of the Beneficiary's duties as of 
the date of filing and continuing to the present time. The Petitioner states that it opted to put its 
development on hold pending an approval of the Beneficiary's permanent residence application, but, 
as discussed, the Beneficiary remains authorized to work in the United States. The Petitioner cannot 
establish eligibility for the benefit sought based on a set of speculative duties that the Beneficiary 
would only perfonn upon becoming a permanent resident. Based on the level of activities as 
described in the record, it is unclear that the Petitioner requires the beneficiary to perform the stated 
duties or to devote the claimed 25% of his time to the U.S.-based business. We cannot determine 
what executive duties the Petition~r would reasonably require him to perform given that the 
company is not actively providing services on a regular basis. 
The Beneficiary's oversight over his wholly- and majority-owned group of companies is not iri 
question and we recognized in our prior decision that he acted in a qualifying executive capacity 
with respect to the foreign entities. t-kiwever, the fact that the Beneficiary will manage or direct a 
business as its owner and senior employee 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. Sections 101(A)(44)(B) of the Act. Even though the 
Beneficia~y may exercise discretion over the Petitioner's limited day-to-day operations and possess 
the requisite_ level of authority with respect to discretionary decision-making, the totality of the 
record must support the Petitioner's claim that it had and continues to have a reasonable need for the 
permanent executive position it offered to him and the ability to support the executive position. 
For the foregoing reasons, the Petitioner has not established that it will employ the Beneficiary in an 
executive capacity. · 
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Matter of L-&R- Inc. 
m. DOING BUSINESS 
The Director originally denied the petition, in part, based on a finding that the Petitioner did not 
establish that it was doing business as defined in the regulations for at least one year prior to filing 
• the petition in November 2016. ·we withdrew that determination, noting that the record included 
"ledgers, invoices and bank statements reflecting its provision of bookkeeping and other accounting 
services for several small business in the· United States." 
Doing business means the regular, systematic, and continuous provision of goods and/or services by 
a firm, corporation, or other entity and does not include the mere presence of an agent or 
otlice. 8 C.F.R. § 204.5(i)(2). 
As discussed above, the evidence submitted on motion and in response to our RFE does not show 
that the Petitioner continues to be engaged in the regular, systematic, and continuous provision of 
services since the date of filing. Although the Petitioner states that it provides services to its 
affiliate, the Petitioner only bills the foreign entity for these services, which are actually provided by 
the foreign entity directly, or by a contractor under the foreign entity's supervision. The fact that the 
Petitioner issues the invoice and collects the payment is not sufficient to show that it is actually 
providing a service to the foreign entity. 
The Petitioner has not documented its on-going provision of.cloud-based accountancy services to 
clients who subscribed in 2016 or any new clients in this sector. Lastly, while the record contains 
evidence that the Petitioner has billed three U.K. clients directly for services provided, these 
transactions have not occurred regularly. The Petitioner issued a total of only three invoices to such 
clients between January 2017 and September 2018. ·Accordingly, the Petitioner has not established 
that it continues to do business as defined in the '.egulations. 
IV. CONCLUSION 
Our decision to dismiss the appeal is affirmed because the Petitioner has not established that the 
Beneficiary will be employed in the United States in an executive capacity or that it continues to do 
business as defined in the regulations. 
ORDER: The appeal is dismissed. 
Cite as Mauer<~( l-&R- Inc., ID# 1731697 (AAO Jan. 15, 2019) 
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