dismissed EB-1C Case: Dairy Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 6, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, describing itself as a manufacturer of dairy products, 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. § 1153(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 Nebraska Service Center denied the petition on multiple grounds concluding that 
the Petitioner did not establish that: (1) the Beneficiary would be employed in a managerial or 
executive capacity in the United States; (2) the Beneficiary was employed in a managerial or executive 
capacity in her former position abroad; (3) the Petitioner was doing business consistent with the 
regulations as of the date the petition was filed; (4) the Petitioner had provided a bona fide job offer 
to the Beneficiary; and (5) the petition was properly executed by an individual holding signatory 
authority. 
On appeal, the Petitioner asserts that it engages sufficient contractors and foreign entity employees to 
primarily relieve the Beneficiary from non-qualifying operational level tasks and states that she would 
act in an executive capacity in the United States. The Petitioner further provides an additional support 
letter on appeal meant to demonstrate that the Beneficiary acted in an executive capacity in her former 
capacity abroad. In addition, the Petitioner states that there were mistakes in its tax documentation from 
2015 and 2016 and it asserts that it was doing business by buying and shipping cheese to its foreign 
parent. The Petitioner also indicates that the Beneficiary would spend a minimum of 40 hours per week 
acting as its CEO; and therefore, she received a bona fide job offer. Lastly, the Petitioner asserts that 
the individual who signed the Form 1-140 had signatory authority for the company. 
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 
Matter of A-LLC 
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. § 204.5(i)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
an executive capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in a managerial capacity in the United States. Therefore, we restrict our analysis to 
whether the Beneficiary would be employed in an executive capacity. 
"Executive capacity" means 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, 8 U.S.C. § 1101(a)(44)(B). 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive capacity. 
8 C.F.R. § 204.5(j)(5). Beyond the required description of the job duties, we examine 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, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the Beneficiary 
will be primarily engaged in 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. 
2 
Matter of A-LLC 
In a support letter provided with the petition, the Petitioner stated that it "is a manufacturer and 
exporter of cheese and dairy-based infant formula" and that its main goal "is to produce cheese and 
formula and export it to the Chinese market through its [foreign] parent company." The Petitioner 
indicated that its "advanced production technique[ s] and highly effective cost management renders [it] 
highly competitive" in both the U.S. and Chinese markets. The Petitioner also stated that the 
Beneficiary had been successful in "securing investment" and that it was "expected to begin 
production and manufacturing no later than 2018." 1 The Petitioner's foreign parent, the Beneficiary's 
former foreign employer, added that it had established the Petitioner in 2012 "for dairy production," 
noting that it had "entered the approval stage" for a trademark, begun U.S. Food and Drug 
Administration certification, and that it had purchased 21 acres of land for the construction of a plant 
that was "expected to be completed in 11 months that will be completed in 2018." 
In response to the Director's request for evidence (RFE), the Petitioner emphasized its "export 
operations," explaining that it was branding U.S. cheese products and exporting them to China for sale 
by its foreign parent. The Petitioner indicated that it had "secured contracts with other U.S. companies 
to package the cheese for retail distribution for export" and "successfully exported multiple air and 
water freight container shipments of the [Petitioner]-branded cheese products to China." 
The Petitioner submitted some of the following duties for the Beneficiary specific to her role in the 
United States: 
• Formulate business plans and strategy, annual budget, profit distribution, and loss 
recovery plans, as well as domestic and foreign investment programs, 
• Research and develop investment programs and negotiate with investors, 
• Review and analyze financial reports from the finance department, 
• Formulate business plans, 
• Prepare financial budgets for board approval, 
• Negotiate contracts or agreements with government ent1t1es, and approve 
contracts negotiated by department heads with suppliers and distributors, 
• Formulate the Petitioner's market and development plan and review its 
implementation, 
• Review export research reports from sales and marketing departments, 
• Formulate the Petitioner's export market development plans and policies, 
• Approve company's financial statements and major financial expenditures, 
• Provide regular reports to the board of directors and oversee implementation of 
board resolutions, 
• Recruit and oversee the Petitioner's management team. 
The Petitioner did not submit a sufficiently detailed duty description describing the Beneficiary's day­
to-day executive-level duties to support that she would devote her time primarily to qualifying tasks. 
The Beneficiary's duty description includes several generic duties that could apply to any executive 
acting in any business or industry and they do not provide insight into the actual nature of her role. 
The Petitioner provided insufficient examples and little supporting documentation to demonstrate the 
Beneficiary's performance of qualifying duties, such as business plans and strategies she formulated, 
1 The petition was filed on May 31, 2017. 
3 
Matter of A-LLC 
annual budgets she approved, profit distribution and loss recovery plans she implemented, investment 
programs she installed, investment negotiations she conducted, market and development plans and 
policies she formulated, or major financial expenditures she approved. The Director pointed to this 
ambiguity in the denial decision; however, the Petitioner does not address this further on appeal stating 
only that "the nature of [the Beneficiary's job as CEO] makes it hard to be specific on its duties." 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive 
in nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). As such, the Petitioner has not provided a sufficiently detailed duty description for the 
Beneficiary to demonstrate her eligibility as an executive. 
The Beneficiary's duty description also includes several discrepancies that leave further question as 
to their credibility. For instance, the duties emphasize the Beneficiary's implementation of 
"investment programs" and negotiations with investors; however, there is no indication that the 
Petitioner has investors, despite seeking to launch dairy production capabilities in the United States 
since 2012. In fact, in an additional letter submitted on appeal and dated in April 2019, almost two 
years after the petition, the Petitioner states that "negotiations to bring investors have been on-going" 
and that it had postponed its plans to construct and infant formula facility." As such, it appears 
questionable that the Beneficiary would have been devoting significant time to investor programs and 
negotiations when the petition was filed in May 2017. 
Likewise, the Petitioner refers to "profit distribution plans," but there is no indication that it was 
earning a profit as of the date the petition was filed or that it has done so as of the date of the appeal. 
For example, the Petitioner's 2017 IRS Form 1120, U.S. Corporation Income Tax Return reflected 
that it lost nearly $589,000 during that year. It also states on appeal that in 2017 it "was not profitable 
at that time" and that the foreign parent was responsible for the operating capital and any funds it 
needed. Therefore, it is also doubtful that the Beneficiary would have spent time on "profit distribution 
plans" as of the date the petition was filed. 
In addition, the Beneficiary's duties also reference analyzing financial reports from the finance 
department and seeking board approval for financial budgets. However, the Petitioner indicated in the 
Form 1-129 that it had only three employees as of the date the petition was filed and state wage 
documentation from second quarter of 2017 indicated that it only employed two part-time employees, 
a designer and an export manager, and a fulltime "translator/operations manager." As such, there is 
no indication that the Petitioner had a finance department to generate financial reports for the 
Beneficiary to analyze. In addition, the record includes no evidence that it has the board of directors 
referenced in the Beneficiary's duties. Similarly, the Petitioner submitted no evidence reflecting the 
Beneficiary's recruitment of a management team or her coordination with a "sales and marketing" 
department, additional duties mentioned in her duty description. 
We acknowledge that the Petitioner provides documentation indicating that it did engage contractors 
in its efforts to establish a dairy business. It also asserts that it works closely with foreign parent 
employees. However, there is no supporting evidence to establish the assertions in the Beneficiary's 
duties related to investors, profit distribution, a board of directors, a management team, or a sales and 
marketing and finance department both in the United States and as is it relates to foreign parent 
4 
Matter of A-LLC 
employees. In sum, the Beneficiary's duties lack credibility due to these discrepancies and the 
Petitioner again does not address them on appeal, despite the Director's direct reference to them in the 
denial decision. 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). 
As noted, the Petitioner asserts that the Beneficiary qualifies as an executive. 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 10l(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 beneficiary 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. A beneficiary must 
also exercise "wide latitude in discretionary decision making" and receive only "general supervision 
or direction from higher level executives, the board of directors, or stockholders of the organization." 
Id. 
The record includes substantial evidence indicating the Beneficiary's involvement with non-qualifying 
operational duties leaving question as to whether she would be primarily focused on directing the 
management and setting the goals and policies of the Petitioner. For instance, the Petitioner submitted 
a price and shipping confirmation from a vendor dated in September 201 7, after the date the petition 
was filed, listing the Beneficiary's name. Likewise, the Petitioner provided invoices from a dairy 
consultant, several of which are dated after the time of the petition, reflecting the Beneficiary's daily 
involvement in operational matters such as scheduling shipments and resolving freight, packaging 
issues, and mold problems. In addition, the Petitioner submitted two invoices dated in March 2017, 
just before the date the petition was filed, from a photography contractor and a website professional 
both of which list the Beneficiary as the contact. 
Meanwhile, the Petitioner provided other evidence from prior to the date of the petition reflecting the 
Beneficiary's likely involvement in non-qualifying operational matters, such as two U.S. Department 
of Agriculture reports from December 2015 listing the Beneficiary as the contact and documentation 
indicating her paying the company's telecommunications bill in August 2016. Although this evidence 
predates the petition, it is nevertheless relevant as the Petitioner asserts that the Beneficiary has been 
acting in her role as CEO since entering the Unites States as a nonimmigrant in October 2014. 
Further, the Petitioner submits additional evidence on appeal indicating the Beneficiary's engagement 
with non-qualifying operational matters after the date of the petition, including an invoice from a 
marketing consultant to the Beneficiary from June 201 7 requesting that she review it for accuracy and 
a cheese purchase order from December 2017 showing her signature. In sum, the submitted 
documentation reflecting the Beneficiary's involvement in non-qualifying operational tasks stands in 
contrast to the lack of detail and the discrepancies related to the qualifying tasks provided in her duty 
description. This indicates that it is more likely than not that the Beneficiary would have been 
primarily engaged in these non-qualifying operational tasks rather than high-level executive duties 
5 
Matter of A-LLC 
related to directing the management of the organization or setting goals and policies within a complex 
organizational hierarchy. 
Whether a beneficiary is an executive employee turns on whether the petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See section 10l(a)(44)(B) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties would be executive 
functions and what proportion would be non-qualifying. The Petitioner submits evidence indicating 
the Beneficiary's involvement in operational-level tasks that do not fall directly under executive duties 
as defined in the statute, but does not quantify the time she spends on these duties. For this reason, 
we cannot determine whether the Beneficiary is primarily performing the duties of an executive. See 
IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a senior position within the organization, the fact that she will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational executive within the meaning of section 101 (a)( 44 )(B) of the Act. The Beneficiary may 
exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that her actual duties would be primarily executive in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
On the Form 1-140, the Petitioner stated that it had three employees at the time the petition was filed. 
However, it did not submit a current U.S. organizational chart, only a projected "staffing plan" 
reflecting various positions, including human resources, a secretary, a "product R&D director," a dairy 
formula consultant, a sales director, investment manager, planning manager, a "chainstore," "import 
and export management," amongst other subordinate positions. 
In response to the RFE, the Petitioner provided a substantially different organizational structure, 
reflecting the Beneficiary overseeing operations and finance, sales and marketing, human resources, 
and product development departments. The operations and finance department was shown to consist 
of an operations manager, listed as an "employee," overseeing accounting, payroll, and tax consultant 
positions. Meanwhile, the sales and marketing department was depicted as including an export 
manager, also an employee, overseeing a contracted designer supervising marketing, design, 
photography, and food stylist contractors. The sales and marketing department was also shown to 
consist of an export consultant subordinate to the aforementioned export manager overseeing 
packaging, packaging and printing, cheese manufacturing, and international delivery contractors. The 
chart also indicated that the human resources department was made up of one human resources 
consultant, while the product development department consisted of two dairy consultants. 
First, it is questionable that the Petitioner submitted two substantially different organizational charts 
on the record. While we acknowledge that certain changes to a petition will organically occur as a 
6 
Matter of A-LLC 
company develops while the Petitioner's responds to the Director's evidentiary requests, the complete 
difference in the two organizational charts from the petition to the RFE is striking. For instance, the 
first appeared to indicate that it had no employees; while the latter also specific to May 201 7, asserted 
a robust organizational structure. Despite the Director directly pointing to this discrepancy in the 
denial decision, the Petitioner provides no explanation for this on appeal. Again, the Petitioner must 
resolve this inconsistencies and ambiguities in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 582, 591-92. 
In addition, on appeal, the Petitioner points to its purchase of a cheese packaging plant in November 
2018; and in tum, additional employees under the Beneficiary's executive control as a result. 
However, the Petitioner's acquisition of a plant and additional employees more than a year after the 
date the petition was filed is not relevant to demonstrating the Beneficiary's eligibility as of the date 
the petition was filed. 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). As such, the nexus of our analysis will be the Petitioner's 
asserted organizational chart as of the date the petition was filed in May 201 7. 
The submitted evidence leaves question as to whether the Beneficiary operated within a complex 
organizational hierarchy as of the date the petition was filed. In response to the RFE, the Petitioner 
indicated that the Beneficiary's "management team" consisted of a subordinate operations director, a 
designer, and an export manager. A state quarterly wage report closest to the date the petition was 
filed from the second quarter of 2017 reflected that the Petitioner had only one folltime employee 
beyond the Beneficiary, the asserted operations director and two part time employees, the claimed 
designer and export manager. However, there is no evidence to demonstrate that any of these 
employees acted as subordinate supervisors overseeing departments and subordinate contractors as the 
Petitioner asserts. For instance, in the asserted organizational chart, the export manager was shown to 
supervise the designer and nine other contractors directly and indirectly. However, the Petitioner's 
payroll documentation reflected that the claimed export manager worked only 24 hours in May 2017, 
31 hours in June 2017, and as little as 18.5 hours in September 2017, leaving question as to her asserted 
organizational responsibility. Similarly, the designer listed in the Petitioner's payroll was shown to 
have worked only 48 hours in the month the petition was filed, again leaving uncertainty as to whether 
she acted as a supervisor of four different contractors as asserted in the organizational chart. 
Further, it is noteworthy that the Petitioner provides no evidence of the Beneficiary delegating tasks 
to her claimed subordinates. In contrast, the record includes evidence, as we have discussed, of the 
Beneficiary coordinating with contractors on a number of operational matters, such as dairy business 
development, ordering, shipping, product quality, amongst other similar issues. For instance, the 
Petitioner submitted a series of invoices from a dairy consultant reflecting that the Beneficiary met 
with him on several occasions beginning in 2016 and through to 2018. However, there is little 
indication that this consultant acted as subordinate of the Beneficiary or as a part of the company's 
organizational hierarchy. Likewise, the Petitioner lists a number of other contractors and provided 
documentation that it has engaged them for services including, an accountant, a photographer, 
packaging contractors, shipping contractors, an export consultant, amongst others. However, there is 
insufficient evidence to demonstrate that these contractors are regularly engaged such that they can be 
considered a part of the Petitioner's organizational hierarchy and under the direction of the 
7 
Matter of A-LLC 
Beneficiary, or her subordinates, as asserted. In fact, the evidence indicates that they are more likely 
than not vendors that the Petitioner or Beneficiary, as reflected by supporting evidence, reaches out to 
for services when required. In total, the Petitioner has not sufficiently established that its contractors 
are a part of its organization; or specifically, that the Beneficiary acted within a complex organizational 
hierarchy as of the date the petition was filed. 
The Petitioner also contends that the Beneficiary delegates tasks to foreign subordinates as a part of 
her role in the United States noting in response to the RFE that it "relies heavily on the support of 
parent company's employees." Although the Petitioner submits a foreign organizational chart and 
duty descriptions for foreign employees, it provides no explanation or documentary evidence to 
substantiate that it engages foreign parent employees as a part of its organizational structure. The 
Petitioner also provides no evidence to demonstrate the Beneficiary delegating tasks to foreign 
subordinates as a part of her role in the United States. 
Lastly, the submitted evidence leaves substantial question as to whether the Petitioner was sufficiently 
developed to support its claimed organizational structure and the Beneficiary in executive capacity 
and as of the date the petition was filed. For instance, on appeal, the Petitioner still refers to its 
operations prospectively noting that it is "new to the industry and the area" and that it is "still in the 
stage of investing and building up its operations" and not profitable from 2015 through 2017, relying 
on foreign parent capital to support its operations. These assertions are especially noteworthy in light 
of the fact that the Petitioner also asserted that it was established in 2012 to manufacture baby formula 
for the foreign parent. However, there is little indication that these plans were realized as of the date 
the petition was filed. 
The Petitioner submits 2015 and 2016 IRS Forms 1120 reflecting that it earned no revenue and paid 
no salaries during either of these years. This stands in stark contrast to submitted IRS Forms W-2, 
Wage and Tax Statements, IRS Forms 941 Employer's Quarterly Federal Tax Returns, and other 
payroll documentation elsewhere on the record showing the payment of significant wages during these 
years. For instance, the Petitioner's provided 2015 and 2016 IRS Forms W-2 indicating that it paid 
over $200,000 in wages during each of these years. Although the aforementioned 2015 and 2016 IRS 
Forms 1120 do not relate directly to the date the petition was filed in May 2017, these material 
discrepancies are particularly noteworthy in light of the fact that the Petitioner presented itself as a 
start-up company with no employees in support of the petition. 
On appeal, the Petitioner only vaguely states that "the tax returns for 2015 and 2016 were not correct 
as filed," but provides no farther explanation or clarification for this material discrepancy. In addition, 
although the Petitioner's 2017 1120 reflects that it earned nearly $400,000 in revenue and that it paid 
around $61,000 in wages and salaries during that year, it also indicates that it lost almost $600,000, 
leaving significant uncertainty as to its financial viability approximately five years after it was 
established as a claimed manufacturing arm of the foreign parent. Once again, the Petitioner must 
resolve discrepancies in the record with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. at 582, 591-92. Altogether, this evidence leaves substantial question 
as to whether the Petitioner had developed sufficiently to support the Beneficiary in a qualifying 
executive capacity as of the date the petition was filed. 
8 
Matter of A-LLC 
In conclusion, the Petitioner has not established that the Beneficiary would act in an executive capacity 
under an approved petition. The Beneficiary's duty description is overly vague and it includes several 
material discrepancies. The record also includes substantial documentary evidence indicating that the 
Beneficiary performed many non-qualifying duties related to the company's day-to-day operations 
alongside its few employees and the vendors it has engaged to develop the business. The evidence is 
not sufficient to demonstrate that the Beneficiary would act in an elevated position within a complex 
organizational hierarchy or that she would be primarily tasked with directing the management and 
establishing the goals and policies of the organization, consistent with the statutory definition of an 
executive. 
III. PETITIONER DOING BUSINESS 
The next issue we will address is whether the Petitioner established that it had been doing business for 
one year prior to the date the petition was filed. Because of the dispositive effect of the above finding 
of ineligibility; namely, our affirmation of the Director's conclusion that the Petitioner did not 
establish that the Beneficiary would act in an executive capacity in the United States, we will only 
briefly address the remaining issues addressed by the Director. 
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(i)(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) 
In denying the petition, the Director pointed to, as we did in the last section, the fact that the 
Petitioner's 2016 IRS Form 1120 reflected that it had earned no revenue and that it had paid no salaries 
during that year. Being that the petition was filed in May 201 7, this would indicate that the Petitioner 
had not been doing business as defined by the regulations for one year as of the date the petition was 
filed. On appeal, the Petitioner only vaguely states that "the tax returns for 2015 and 2016 were not 
correct as filed" and notes that it contacted its accounting firm, but provided no further explanation. 
Again, on appeal, the Petitioner still refers to its operations prospectively indicated that it is "new to 
the industry and the area," and that it is "still in the stage of investing and building up its operations" 
and that it was not profitable from 2015 through 201 7. The Petitioner also states that during this time 
it relied completely on foreign parent capital to support its operations. As such, these statements leave 
question as to whether the Petitioner was doing business as of the date the petition was filed. In fact, 
in response to the RFE, the Petitioner referred to five separate import orders from the foreign parent 
from "October 2017 to 2018;" however, there is little evidence to indicate that these transactions took 
place prior to the date the petition was filed, let alone for one year prior to the date the petition was 
filed. 
Indeed, as we discussed, the Petitioner submitted 2015 and 2016 IRS Forms 1120 reflecting that it 
earned no revenue and paid no salaries during either of these years; the latter leaving significant 
uncertainty as to whether it was doing business for one year prior to the date the petition was filed, or 
from May 2016 to May 2017. Again, this evidence is particularly notable in light of the fact that the 
9 
Matter of A-LLC 
Petitioner presented itself as a start-up company with no employees in support of the petition, but later 
changed this in response to the RFE. 
For the foregoing reasons, the Petitioner had not demonstrated that it was doing business for one year 
prior to the date the petition was filed as defined by the regulations. 
IV. FOREIGN EMPLOYMENT IN AN EXECUTIVE CAPACITY 
We will now briefly address whether the Petitioner established that the Beneficiary was employed in 
an executive capacity prior to her entry into the United States as a nonimmigrant in 2014. 
Similar to the Beneficiary's employment in the United States, the Petitioner did not submit a 
sufficiently detailed foreign duty description describing the Beneficiary's day-to-day executive-level 
duties to support that she devoted her time primarily to qualifying tasks. The Beneficiary's foreign 
duty description includes several generic duties that could apply to any executive acting in any 
business or industry and they do not provide insight into the actual nature of her role abroad. The 
Petitioner provided insufficient examples and little supporting documentation to demonstrate the 
Beneficiary's performance of qualifying duties, such as financial or budget activities she directed or 
coordinated, business plans she formulated, contracts or agreements she negotiated, market and 
development plans she implemented, or investment programs she put in place. In fact, the record 
includes no documentation to substantiate the Beneficiary's performance of her duties abroad. The 
Director pointed to this ambiguity in the denial decision; however, the Petitioner does not address this 
further on appeal stating only that she founded the company in 2005. Again, specifics are clearly an 
important indication of whether a beneficiary's foreign duties are primarily executive in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, at 724 F. Supp. 1103, 1108). 
For the foregoing reasons, the Petitioner has not established that the Beneficiary acted in an executive 
capacity in her former role abroad. 
V. REMAINING ISSUES 
As noted, the Petitioner also denied the petition concluding that the Petitioner had not provided a bona 
fide job offer to the Beneficiary and determined that the petition had not been properly executed by an 
individual with signatory authority. However, because of the dispositive effect of the above findings 
of ineligibility; we decline to address these additional issues raised by the Director on appeal. 
VI. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
10 
Matter of A-LLC 
ORDER: The appeal is dismissed. 
Cite as Matter of A-LLC, ID# 5396627 (AAO Sep. 6, 2019) 
11