dismissed EB-1C Case: Art Sales

U.S. Citizenship 
and Immigration 
Services 
In Re: 8305249 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 21, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a consulting company engaged in the sale of artwork, seeks to 
permanently employ the Beneficiary as its president in the United States under the fust 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). 
The Director of the Nebraska Service Center denied the petition concluding the Petitioner did not 
establish that it was doing business as defined by the regulations for at least one year prior to the date 
the petition was filed . The Petitioner later filed a motion to reopen and a motion to reconsider with 
the Director. The Director reopened the matter but affirmed her denial of the petition . The matter is 
now before us on appeal. 
On appeal, the Petitioner contends the Director erred by concluding the Petitioner was not doing business 
because it submitted contracts with third parties to provide services. The Petitioner points to the 
regulations and asserts that it should only be found to not doing business if the evidence reflects that it 
only has a "mere presence" in the United States. The Petitioner contends it has provided sufficient 
evidence to demonstrate that its operations are more than a mere presence and "substantially involve 
[the] provision of services and business transactions ." 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
A motion to reopen is based on factual grounds and must ( 1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that the decision was based on an incorrect 
application of law or U.S . Citizenship and Immigration Services (USCIS) policy and that the decision 
was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. 
§ 103.5(a)(3) . A motion may be granted that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
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 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). 
II. PETITIONER DOING BUSINESS 
The sole issue to address is whether the Director was correct in dismissing the Petitioner's previous 
motion to reopen and motion to reconsider. As noted, the Petitioner would have had to demonstrate 
the Beneficiary's eligibility for the requested benefit in order for the motion to reopen or the motion 
to reconsider to be granted and the petition approved. As such, the sole issue we will address is 
whether the Petitioner established that it was doing business for at least one year prior to the date the 
petition was filed. 
The regulations require that the beneficiary 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). The regulations define doing business as 
"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." 8 C.F.R. § 204.5(j)(2). On appeal, 
the Petitioner asserts that when determining whether it is regularly, systematically, and continuously 
providing goods and services we should only analyze whether its operations represent a "mere 
presence" or a "shell company that is not engaged in any business transactions." 
Although we acknowledge that a petitioner with only a mere presence in the United States would be 
deemed to not be doing business according to the regulations, we note that the regulations also 
explicitly indicate that a petitioner must establish it was regularly, systematically, and continuously 
providing of goods and/or services for one year prior to the date the petition was filed. See 8 C.F.R. 
§ 204.5(j)(2), Matter of Leacheng, 26 I&N Dec. 532 (AAO 2015). 
The Petitioner stated in response to a Director's request for evidence (RFE) that it was "mainly 
engaged in organizing cultural and artistic exchange activities, and holding exhibitions as well as sales 
and exchange of artworks [sic]." The Petitioner also indicated it was engaged in organizing "various 
kinds of seminars and lectures," conducting "art collection appraisal and art exchange activities," and 
holding artwork exhibitions "as well as sales of artworks [sic]." In affirming its denial of the petition 
on motion, the Director emphasized that the Petitioner had only provided appraisal contracts and other 
evidence of payments made to claimed art appraisers. The Director concluded this evidence only 
demonstrated that the Petitioner had received services, but not that it was regularly and continuously 
providing them. The Director acknowledged the Petitioner provided documentation reflecting that it 
had conducted an art exhibition in 2016 but concluded this was not sufficient to establish it had been 
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doing business regularly and systematically for one year prior to the date the petition was filed. 1 On 
appeal, the Petitioner contends the Director improperly concluded it was not doing business and asserts 
that its appraisal contracts with third party providers, and evidence of payment to these parties, 
demonstrate that it is doing business. 
Upon review, the Petitioner has not provided sufficient evidence to establish it regularly, 
systematically, and continuously provided goods and/or services from October 2016 through to the 
filing of the petition in October 2017. The Petitioner submitted a 2016 IRS Form 1120, U.S. Income 
Tax Return reflecting that it earned nearly $121,000 in revenue and a 2017 IRS Form 1120 indicating 
it generated approximately $880,000 in income. Likewise, a provided "Income Sheet" showed that 
the Petitioner earned $312,914.80 in "service revenue" from January 2017 to September 2017. 
However, despite these claimed levels of income, the record includes little evidence to substantiate 
that the Petitioner was actually conducting services for, or receiving payments from, customers. 
In the RFE, the Director requested that the Petitioner provide evidence to substantiate its provision of 
goods and services, including invoices or sales contracts. However, as noted by the Director, the 
Petitioner only submitted agreements for appraisal services completed prior to the date the petition 
was filed from September 2016 through February 2017. The appraisal service contracts indicated that 
the Petitioner had contracted with unexplained third parties for the appraisal of jade, vases, calligraphy 
items, and other artwork for relatively small payment amounts ranging from $200 to $1800. The 
Petitioner further provided internally generated invoices and accounting records it claimed reflect its 
payment to these third-party appraisers. 
Even if we accept these services were provided by these third parties and that these contractors were 
paid by the Petitioner, it is not clear how these agreements, appraisals, and asserted payments 
demonstrate its regular provision of services for an entire year. As noted, the Petitioner's 2016 and 
2017 IRS Forms 1120 indicated it earned nearly $1 million in combined income during these years; 
yet, there is no supporting documentation reflecting it being paid for services or goods during these 
two years. The Petitioner still does not remedy this insufficiency despite having the opportunity to do 
so in response to the Director's RFE, on motion, and now on appeal. The fact that the Petitioner did 
not provide one document substantiating it being compensated for its provision of services leaves 
substantial question as to its claimed business operations and its asserted levels of income. The 
Petitioner must resolve inconsistencies and discrepancies 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). 
The Petitioner also points to other provided documentation, including an "Agreement for Cooperation 
in~-----~----...,,..... Exhibition" (Exhibition Agreement) signed in May 2017, a list of 
artwork displayed at this event, photographs from an asserted art exhibition, and an article from a 
Chinese-American publication. The Petitioner contends this evidence demonstrates that it organized 
an art exhibition in June 2017. Although we acknowledge that the aforementioned evidence appears 
to suggest that the Petitioner was involved in an art exhibition in June 2017 and that the Beneficiary 
was engaged in some capacity, it is not clear how this evidence demonstrates the regular and 
continuous provision of services on the part of the Petitioner for one year prior to the date the petition 
1 The petition was filed on October 24. 2017. As such, the Petitioner would have to establish it was doing business as 
defined by the regulations from approximately October 2016 through to the date the petition was filed. 
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was filed. For instance, the Exhibition Agreement, executed with the'.__ _________ ___. 
I t' indicates that this entity would select artwork to be displayed at an exhibition, while the 
Petitioner would assist with inviting guests, arranging and removing artwork, music, "cooperat[ing] 
with media," and perform other such logistical matters related to the event. The agreement further 
stated in Section 3 that the Petitioner would be paid a portion of the proceeds of the sale of any artwork 
displayed and these 25 pieces of art were priced at approximately $4000 per piece. 
However again, there is no supporting documentation on the record to corroborate that the Petitioner 
received any payments for artwork and there is little evidence reflecting its provision of services 
discussed in the provided Exhibition Agreement. The Petitioner statements and its tax documentation 
appear to suggest it regularly conducted art exhibitions, sold and exchanged artwork, and organized 
"various kinds of seminars and lectures." Yet, it has only provided evidence substantiating it 
contracted with third parties to provide appraisals of jewelry and artwork and that it arranged one art 
exhibition in June 2017. There is little evidence to substantiate it generated nearly $1 million in 
revenue in 2016 and 201 7 as claimed. It is reasonable to assume that given this asserted level of 
revenue, there would be ample supporting documentation of the Petitioner being paid for its services, 
selling and exchanging artwork, and organizing "various seminars and lectures." The lack of 
documentation to support payment for its services leaves substantial question as to whether it was 
regularly providing services for one year prior to the date the petition was filed. 
For the foregoing reasons, the Petitioner has not submitted sufficient evidence to establish it was doing 
business for at least one year prior to the date the petition was filed. For this reason, we conclude that 
the Director properly denied the Petitioner's previous motion to reopen and motion to reconsider as it 
did not establish the Beneficiary's eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
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