dismissed EB-1C Case: Electronic Security & Investments

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-D- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 25, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner describes its business as "Electronic Security & Investments." It seeks to permanently 
employ the Beneficiary as its corporate president under the first preference immigrant classification 
for multinational executives or managers. See 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 Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that: (I) the Beneficiary will be employed in the United States in an executive 
capacity; (2) the Beneficiary was employed abroad in an executive capacity; and (3) the Petitioner has 
been doing business for at least one year prior to the petition's filing date. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by 
disregarding evidence of eligibility and not giving deference to the prior approval of a nonimmigrant 
petition. 
Upon de novo 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 alliliate. Section 203(b)(l)(C) of the Act. 
A Form 1-140, Immigrant Petition for Alien Worker, seeking to classify a beneficiary as a multinational 
executive or manager 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 tor the same employer or a subsidiary or atliliate 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). 
Malter of 1-D- COijJ. 
II. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary was employed abroad in 
an executive capacity, or that that the Petitioner will employ the Beneficiary in an executive 
capacity. The Petitioner does not claim that the Beneficiary's employment has been, or will be, in a 
managerial capacity. 
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 101(a)(44)(B) ofthe Act, 8 U.S.C. § IIOI(a)(44)(B). 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section I 0 I (a)( 44 )(C) of the Act. 
A. U.S. Employment in an Executive Capacity 
1. Employer-Employee Relationship 
In the denial decision, the Director, in addition to discussing the Beneficiary's job duties and the 
Petitioner's staffing levels, acknowledged that the Beneficiary has a high degree of authority over 
the petitioning company, but found that the Beneficiary was effectively sell~employed. We agree 
with this conclusion and find that the record does not establish, as a threshold matter, that the 
Beneficiary is an employee and that the Petitioner and the Beneficiary will have an employer­
employee relationship. Therefore, the Petitioner has not established that the Beneficiary meets the 
basic statutory criteria discussed at sections IOI(a)(44) and 203(b)(l)(C) of the Act and, based on the 
current record, is not eligible for the immigrant classification sought. 
We note that the four-prong executive capacity detinition is highly relevant to the issue of the 
Petitioner's eligibility, which states that only foreign nationals who were "employed" abroad and are 
coming to the United States "to continue to render services to the same employer or to an affiliate or 
subsidiary thereof' will merit classification as a multinational manager or executive. Also, section 
204(a)(1)(f') of the Act, 8 U.S.C. § 1154(a)(l)(f'), only permits an "employer desiring and intending 
to employ within the United States an alien" to tile an immigrant petition seeking classification 
under section 203(b )(I )(C) of the Act. This is in contrast to provisions in the Act, such as section 
204(a)(l )(E) and (H), which permit a beneficiary to file an immigrant petition on behalf of himself 
or herself. 1 
1 
Of particular note, Congress enacted sections 203(b)(5) and 204(a)( I )(H) of the Act to permit a foreign entrepreneur 
2 
Matter of J-D- Corp. 
Further, the term "executive capacity," which has been codified and incorporated into the regulations 
at 8 C.F.R. § 204.5(j)(2), specifically applies solely to "the employee" of the "United States 
employer" filing the petition on behalf of a beneficiary. See section 101(a)(44)(B) of the Act; 
8 C.F.R. § 204.5(j)(1), (2). If we determine that an employer-employee relationship does not exist 
between the Petitioner and the Benetlciary, this deficiency, by itself would sei"ve as a sufficient 
basis for denying the petition. 
Therefore, applying the above reasoning to the matter at hand, we must determine whether the 
Petitioner and the Beneficiary will have an employer-employee relationship. As indicated above, 
section 203(b)(l)(C) requires the Beneficiary to have been "employed'' abroad and to be coming to 
the United States for the purpose of rendering his services to the same or a related "employer" in the 
United States in a managerial or executive capacity 2 Section 101(a)(44), 8 U.S.C. § 1101(a)(44), 
defines both managerial and executive capacity as an assignment within an organization in which an 
"employee" performs certain enumerated qualifying duties. The Supreme Court has determined that 
where the applicable federal law does not define "employee," the term should be construed as 
"intend[ing] to describe the conventional master-servant relationship as understood by common-law 
agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) ("Darden") 
(quoting Comly. for Creative Non-Violence v. Reid, 490 U.S. 730. 739-40 (1989) ("C. C.N. V ")). The 
Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
"engaging in a new commercial enterprise'· to immigrate to the United States provided ce11ain requirements were met, 
including employment creation. 
2 We note there is existing precedent case law, namely Maller of Allen Gee, Inc., 17 l&N Dec. 296 (Comm'r 1979). and 
Maller of Aphrodite, 17 l&N Dec. 530 (Reg'\ Comm'r 1980), that is relevant to the issue discussed here in this matter. 
In !vfatler of Allen Gee. Inc., the Regional Commissioner determined that, as the petitioning corporation '"is a legal entity 
distinct from its sole stockholder,'' it may ·'petition for the beneficiary's services." Similarly, in A1atter of Aphrodite, 
17 I&N Dec. at 531, the Commissioner focused on the corporation's separate legal existence from that of its shareholder 
and pointed out that the term "employee" was not used in section I 0 I (a)( IS)(L) of the Act, 8 U.S.C. § I I 0 I (a)( IS)(L). 
However, both decisions were issued prior to the Immigration Act of \990 ("IMMACT90"). which codified the 
definitions for managerial and executive capacity. See Pub. L. No. 101-649, § \23, 104 Stat. 4978, § 123 (1990). It is 
critical to note that both definitions in the Act now incorporate the term "'employee'' in referring to the beneficiat)' as one 
who assumes an assignment \Vith an organization in a managerial or executive capacity. !d.: section IOI(a)(44) of the 
Act. Therefore, while the holdings in A1aller of Allen Gee, Inc. and kfatter of Aphrodite were in line with the statutory 
provisions that were in effect at the time those decisions were issued, the changes that resulted from the enactment or 
IMMACT 90 indicate that our current contemplation of the term ·'employee'' within the scope of an employer-employee 
relationship between the Petitioner and the Beneficiary is inherent to determining whether the Petitioner meets the 
current eligibility criteria. That said, these prior precedent decisions remain instructive as to whether a petitioner may 
seek classification for a beneficiary who has a substantial ownership interest in the organization; they were only 
superseded by statute to the extent they held or implied that such a beneficiary need not be an "employee" of the 
petitioning organization to qualify as a multinational manager or executive. 
3 
Maller of 1-D- Corp. 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment ofthe hired party." 
Darden, 503 U.S. at 323-324 (quoting CCN.V, 490 U.S. at 751-752); see also Clackamas 
Gastroenterology Assocs. P.C v. Wells, 538 U.S. 440, 445, 447 & n.5 (2003). As the common-law 
test contains "no shorthand formula or magic phrase that can be applied to find the answer, ... all of 
the incidents of the relationship must be assessed and weighed with no one factor being decisive." 
Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968)) 
(emphasis added). 
In Clackamas, the Supreme Court articulated the following factors to be weighed in determining 
whether an individual with an ownership interest is an employee: 
• Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
• Whether and, if so, to what extent the organization supervises the individual's 
work. 
• Whether the individual reports to someone higher in the organization. 
• Whether and, if so, to what extent the individual is able to influence the 
organization. 
• Whether the parties intended that the individual be an employee, as expressed in 
written agreements or contracts. 
• Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (deferring to the factors enumerated in the Equal Employment 
Opportunity Commission's Compliance Manual § 605:0009 (EEOC 2000) (currently cited as 
§ 2-TTI(A)(l)(d)) for detennining "whether [a partner, officer, member of a board of directors, or 
major shareholder) acts independently and participates in managing the organization, or whether the 
individual is subject to the organization's control." and accordingly whether the individual qualifies 
as an employee). 
As with the common-law factors listed in Darden, the factors relevant to the inquiry of whether a 
shareholder-director is an employee are likewise not exhaustive. Clackamas, 538 U.S. at 450 n.l 0 
(citing Darden, 503 U.S. at 324). Not all of the listed criteria need be met; however, the fact finder 
must weigh its assessment of the combination of the factors in analyzing the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee relationship. See id. at 448-449. 
4 
.
.Matter of 1-D- Corp. 
As indicat ed abov e, it is critical to consider not only the factor of owne rship, but also the factor of 
control when making this deter mination, as neither facto r, by itse lf is suflicient to determine whether 
an employ er-emp loyee relations hip exists between any given petitioner and benefic iary. fn other 
words, the fact that a bene ficiary owns the majority or all of a petiti oning entity's shares does not 
automati cally lead to the conclusion that the petitioner and the benefic iary do not have an empl oyer­
employee relations hip. 
Applyin g these factors of control under the common law of agency to the eviden ce presented in this 
matter , we find that the Petitioner has not established with the c urrent evidence that it vvill be a 
"United State s employer" having an emplo yer-employee relationship with the Beneficiar y as an 
"emplo yee." 
A 20 l 0 share certificate in the record show s that the Benefici ary holds all 100 shares authorized 
under the Petitioner's articles of incorporati on. The Petitioner submitted no evidence that the 
Benefici ary later sold or othenvise transf erred any of those shares, instead asserti ng that the 
Beneficiar y o wns " 1 00% of the stock" and "also has compl ete control over" the petit ioning 
company. Later, the Petitioner stated that the Beneficiar y «does not have any superv isors. He 
reports only to the Board of Directors and stock holders." If the B ene ficiary is the Petitioner ' s sole 
shareholder, he does not report to stockhold ers as claimed. If the Beneficiary is not the sole 
sharehold er, then the Petitioner l1as submitted inaccurate evidence regardin g the company's 
ownership , which is a material requirement under 8 C.F.R. § 204.5U)(3)(i)(C). 
On appeal, the Petitioner submits the minutes of a February 2014 meeting, in which the Petitioner 
named the Beneficiary and his spouse as directors of the company. The board has no other 
member s. The reliability of the meeting minu tes is uncertain, because they contain a significant and 
mater ial discrepancy. Specifically, the minute s of a May 2014 meeting idemi fy the Beneficiary and 
his spouse as the Petitioner 's shareholders, which conflicts with the 2010 share certificate and with 
the Petitioner's 20 14 IRS Form 1120S , U.S. Income Tax Return for an S Corpor ation, both of ,,vhich 
iden tified th
e Benefici ary as the Petitioner 's only share holder. The Petitioner called th e Benetic iary 
the sole share holder when ir fi led the petition in 20 15. The reco rd contains no additional share 
cert ificates or other first-hand evidence to show that the Bene fi ciary's spouse is a shareholder. 
Therefor e, the preponderance of available evidence favors the conclusion that the Beneficiary was, 
and remains , the Petitioner's sole shareholder, which indicates that the meeting minut es are factually 
incor rect. Those minut es, however, are the Petitioner's only evidence that the comp any has any 
djrect or other than the Beneficia ry himself. 
More directly related to the claim that the Benefic iary's spouse is a director of the corpo ration, or at 
least was a d irector in 2014, the Petitioner's 20 14 and 20 15 income tax returns show no 
compen sation of corporat e officers, and no salary payments to anyone other than the Beneficiary. 
The Ben eficiary and his spouse jointly filed a 20 14 IRS Form 1040, U.S. Individu al Income Tax 
Return. That return , prepared by (later identified as the Petitioner's 
"ad mini strator"), identified the Benefici ary as a "manage r'' and his spouse as a "'housewife." 
5 
l\llaller of I-D- Corp. 
Whether the Beneficiary is the Petitioner's only director, or he shares that authority with his spouse, 
the Petitioner has not established any meaningful higher control over the Beneficiary's actions. The 
foreign entity has a board of directors, but the foreign entity does not own or control the petitioning 
U.S. entity and therefore it has no authority over the Beneficiary with respect to the U.S. company. 
Taken out of context, a finding that the Beneficiary will receive no supervision or direction may 
appear on its face to satisfy the fourth prong of "executive capacity" at section l 0 l (a)( 44)(B)(iv) of 
the Act. But while the fourth prong indicates that supervision over the Beneficiary should be 
limited. such that the Beneficiary can maintain the requisite level of authority to meet the criteria of 
the first three prongs, inherent to this fourth criterion is also a requirement that the Beneficiary, as an 
"employee," wi II receive some degree of supervision or direction from higher level executives, a 
board of directors, or stockholders of the organization. Absent evidence that the Beneficiary reports 
to a higher authority and is subject to supervision from another individual or board of directors, the 
Petitioner has not established that it has satisfied section 101 (a)(44)(B)(iv) of the Act with respect to 
the foreign or U.S. job. 
Applying the factors set forth in Clackamas, the record does not show that the Petitioner can hire or 
fire the Beneficiary, that he would be under any supervision, that he would report to some higher 
authority, or that he is subject to the organization's control. The evidence further indicates that he 
shares fully in the organization's profit and loss due to his ownership of all ofthe Petitioner's shares. 
For these reasons, we conclude that the Petitioner has not demonstrated that the Beneficiary will be 
an employee of the Petitioner, or that it has an employer-employee relationship with the 
Beneficiary. Sections 101(a)(44) and 203(b)(l)(C) of the Act. 
2. Duties 
When examining the executive capacity of a given beneficiary, we will look first to the petitioner's 
description of the job duties. The Petitioner must submit a statement which indicates that the 
Beneficiary is to be employed in the United States in an executive capacity, and clearly describes the 
duties to be performed by the Beneficiary. 8 C.F.R. § 204.5(i)(5). 
The Petitioner stated that the Beneficiary "w~ll not be performing any non-executive or non­
managerial duties of the company," elsewhere clarifying that the Beneficiary's duties would be 
entirely executive rather than managerial. The Petitioner submitted two job descriptions for the 
Beneficiary, including the approximate percentage of his time that he devotes to each listed 
responsibility. The first version contained the following information: 
Plan, develop and implement strategies to advance the company's 15% 
mission and to promote revenue, protitability, and growth as an 
organization 
Oversee company's operations to msure production efficiency, 20% 
quality, service, and cost-effective management of resources 
6 
.
Matter (?f 1-D- Corp. 
Identify ... acqmsttlon and merger opportunities and direct 10% 
implementation activities 
Determine company's operational procedures, policies, and standards 10% 
Review activity reports and financial statements to determine 10% 
progress and status in attaining objectives and revise objectives and 
plans in accordance with current conditions 
Evaluate performance of personnel for compliance with established 5% 
policies and objectives of the company and contributions in attaining 
objectives 
Represent the company in committees, meetings, and governmental 5% 
offices 
Promote the company to local, regional, and national organizations 5% 
and governmental offices 
Build a fundraising network using personal contacts, direct mail, 10% 
special events, and foundation support 
Direct company planning and policy-making committees 5% 
Oversee foreign operations to include evaluating operating and 5% 
financial performance 
Other duties as assigned [not stated] 
The Petitioner later submitted a revised version of the above list, with changes to wording and 
percentages of time and emphasizing the Beneficiary's "[t]inal decision making authority," but the 
above list is the one said to be in effect at the time of filing. The Petitioner submitted the second 
version after staffing changes that would likely affect his duties, and the Petitioner does not 
demonstrate that the second version of the description was in effect at the time of filing. The 
Petitioner clarified that "this is not a managerial capacity position." The job descriptions attest to the 
level of the Beneficiary's authority but do not provide many details about his specific tasks. They 
resemble, instead, general archetypes or template descriptions of a generic executive position. 
The Petitioner did not identify any "planning or policy-making committees" within the organization, 
or establish the existence of a "fundraising network" with "foundation suppo1i." (Such a network 
would appear to be more appropriate for a non-profit organization.) The second version of the job 
description omits the reference to fundraising, but this does not explain why the Petitioner originally 
indicated that fund raising takes up 10% of the Beneficiary ' s time. 
The Petitioner also submitted several exhibits relating to a U.S. subsidiary, 
which operates a restaurant called The Petitioner submitted registration 
information for two other U.S. affiliates, and but no other 
evidence or information about those entities. The Petitioner did not identify separate duties that the 
Beneficiary performed on behalf of those other companies. Instead, the Petitioner indicated that the 
Beneficiary is president of each of the related companies, without differentiating between the duties 
he performs for individual entities. 
7 
Maller of 1-D- Corp. 
The vice president of the Petitioner's foreign afllliate stated: 
[The Beneficiary] is directing, overseeing and controlling the business operations of 
all our companies. In his capacity, he is in charge of the primary function of 
expanding the corporate investments and developing new corporations, including the 
planning and implementation of growth strategies for all the group's corporations. 
He has all of the normal and traditional duties of a President, which can be 
summarized as follows: developing, planning, and establishing all corporate policies, 
objectives, functions and business operations at the highest level; establishing 
responsibilities and procedures in order to attain corporate objectives; direct financial 
programs to ensure the availability of sufficient funds at all times to carry out 
corporate business operations; authority to legally bind the corporation in any and all 
of its legal contracts, agreements and business transactions or to delegate those 
functions in other subordinates at his selection; representing the Company as its 
President; directing and overseeing the business with the goal of consolidating a solid 
groundwork for accomplishments, profitability and growth of the Corporation. 
The Director denied the petition, acknowledging "the beneliciary's heightened degree of 
discretionary authority" but finding that the Petitioner did not provide enough information about the 
Beneficiary's daily duties or show that "the beneficiary received any guidance from a higher level." 
On appeal, the Petitioner states that it had described the Beneficiary's position "in great detail." The 
record does not support this characterization of the Beneficiary's job description, as we have 
discussed above. The Petitioner's submission of two job descriptions, with different time 
distributions, introduced discrepancies, rather than clarity, into the record. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility for 
classification as an intracompany transferee in an executive capacity within the meaning of section 
IOI(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a position 
be "primarily" of an executive nature. Section I Ol(a)(44)(B) of the Act. While the Beneficiary may 
exercise discretion over the Petitioner's day-to-day operations and possesses the requisite level of 
authority with respect to discretionary decision-making, the position description alone is insufficient to 
establish that his actual duties. as of the date of filing, would be primarily executive in nature. 
3. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed executive capacity of a 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 beneticiary's actual duties and role in a business. 
8 
.
.tv/alter of 1-D- Corp. 
We also consider the propo sed pos1t1on in light of the nature of the Petitioner 's business, its 
organizational structure , and the availability of staff to carry out the Petitioner's daily ope rational 
tasks. Feder al courts have generaJly agreed that, in reviewing the relevance of the num ber of 
employe es a Petiti oner has, USC IS "may properly consider an orga nizat ion's small size as one factor 
in asses sing \o\'hether its operat ions are substanti al enou gh to supp ort a manage r."3 
The statutory definition of the term "executive capacity" focuse s on a person's elevated position 
within a complex organi zation al hierarchy , includ ing major components or functions of the 
organization , and that person's authority to direct the organization. Unde r the statute, a beneficiary 
must have the ability to "direct the mana geme nt" and "establi sh the goals and policies" of that 
organization. Jnherent to th e definition , the organi zat ion must have a subordinate level of 
manageri al emp loyees for a beneficiary to direct and a beneficiary must prim arily focus on the broad 
goals and policies of the organization rathe r than the day-to-day operat ions of the enterprise . An 
individual \\rill not be deem ed an exe cutive und er the statute simpl y because they have an executive 
title or becau se the y "direct " the enterprise as a n owner or sole man agerial employee. A bene ficiary 
must also exe rcise "wi de latitude in discr etionar y decision maki ng" and receive only "general 
supervision or dire ction from highe r Jevel exec utives, the board of directors, or stockholders of the 
organi zation.'' Section 10l(a)(44)(B) ofthe Act. 
A brochu re included in the Petitioner's initial submission showed this organ izational chm1: 
Opera tion s & Technology 
I 
Sales 
I 
Technicians 
President 
).few Invest ment 
--~---- ' ------~ 
I 
New Jnvestme nt 2016 
Administration 
! 
Accountin g 
j 
Human Resources 
The Petiti oner described the brochure as its " busines s plan ... for the near future," and the Petitioner 
submitt ed the bwchure in 2015 , and the chart refers to investment in 2016, so the chart clearly refers 
to future plans rather than the existing state of the com pany at the time of its sub mission . T he 
Petitioner did not claim that it already employ ed workers in the listed positions. 
The busine ss p lan listed services inc.iuding "Consulting Servic es in Projects of Electronic S ecurity 
and Automat ion Systems ," " Evaluation of fire detec tion system s," " Maintenance Services," and 
"Sys tem install ation Services. " The Petition er did not spec ify w hethe r it already provided thos e 
serv ices, or intended to begin doing so in "the near future." The brochure menti<med the Petitio ner 's 
affiliate in Venezuela, but the broch ure is in the name of the petitioning U.S. company, and it 
3 Family, Inc. v. U.S. Ci1izenship and lmmigrati<m Services, 469 F.3d 1313, 13 16 (9th Cir. 2006) (citing wi th approval 
Republic of Tronskei v. INS, 923 F.2d I 75, 178 (D.C. Cir. 199 I); Fedin Bros. Co. v. SaFa, 905 F.2d al 42; Q Data 
Consulting, inc. v. INS, 293 F. Supp. 2d 25, 29 (D. D.C. 2003) . 
9 
.
Maner of 1-D- Corp. 
specifically states that the company offers installation, a service that staff in Venezuela cannot 
feasibly provide to U.S. customers. 
The Petitioner later submitted an updated brochure which identified three "[n]ew in-house staff 
members": a marketing officer, operations and technology senior, and business development officer. 
An accompanying organizational chart showed no other subordinates below the Beneficiary (except 
for an outside accountant). The Beneficiary was the Petitioner's only employee in 2014, 2015, and 
January through May 2016. Therefore, when the Petitioner filed the petition in October 2015, there 
was no one other than the Beneficiary at the company to provide the services listed in the first 
promotional brochure. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the tiling and continuing through 
adjudication. 8 C.F.R. § 1 03.2(b)(l ). The Petitioner's employment of support staff after the filing 
date cannot establish eligibility as of the filing date. C..Y Mafler qf Katigbak, 14 l&N Dec. 45, 49 
(Reg'l Comm'r 1971) (later developments cannot retroactively show eligibility at the time offiling). 
The Petitioner stated that the Beneficiary's three new subordinates "arc all professional employees." 
In the same letter, however, the Petitioner emphasized that the Beneficiary's "is not a managerial 
position," and therefore the Petitioner does not "have to meet the requirements for a 'managerial 
capacity.'" Supervision of professional employees is a factor in the definition of a managerial 
capacity, but not of an executive capacity. Section 10l(a)(44)(A) of the Act. Therefore, we need 
not consider the question of whether these employees are professionals. 
On appeal, the Petitioner acknowledges that the Beneficiary owns several different businesses. The 
Petitioner states that several of these employees assist with the operation of more than one company. 
The Petitioner does not support this assertion with verifiable evidence. The Petitioner cannot meet 
its burden of proof with a general and unsubstantiated claim that unnamed employees of multiple 
businesses perform unspecified work for other companies within the larger organization. 
The only related U.S. business for which the Petitioner has provided significant information is 
The Petitioner provided information about the staffing and finances of 
That entity is not the Petitioner, and the record does not establish the extent to 
which the Beneficiary exercises executive authority over the restaurant (as opposed to being a 
largely passive investor). 
Furthermore, the restaurant staff consists of the following employees: a head chef; one to two cooks 
or sous chefs ; one to two dishwashers; a hostess; three to six servers; and one to two bartenders. 
The petitioner has not shown that the restaurant has a complex organizational hierarchy with a 
subordinate level of managerial employees. Rather, all of the identified positions appear to involve 
primarily operational rather than managerial tasks. 
For the reasons discussed, the record does not establish that the Petitioner will employ the 
Beneficiary in an executive capacity. 
10 
Matter of 1-D- Corp. 
B. Foreign Employment in an Executive Capacity 
I. Employer-Employee Relationship 
The Beneficiary is not the foreign company"s sole shareholder as he is with the petitioning U.S. 
company, but the record neve11heless establishes his effective control over the foreign entity. The 
translated articles of incorporation state that "[t]he shares of the company are of equal value," and 
that all decisions are binding if they have "the support oftifty-one percent (51%) of the capital.'' A 
shareholder meeting "requires the concurrence of a number of shareholders representing at least 
sixty percent (60%) of the capital." The Beneticiary owns 60% of the shares, giving him de facto 
control over the foreign company under the above provisions. The Petitioner has not shown that 
other shareholders or board members exercise any real authority over the Beneficiary. 
2. Duties and Staffing 
The Director found that the Petitioner did not provide enough information about the Beneficiary's 
earlier employment abroad. On appeal, the Petitioner states that it had submitted ample evidence to 
support approval of the petition. The record does not support the Petitioner's assertion. 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the Petitioner must submit a statement from an authorized official of the petitioning 
United States employer which demonstrates that, in the three years preceding entry as a 
nonimmigrant, the Beneficiary was employed by the entity abroad for at least one year in a 
managerial or executive capacity. 8 C.F.R. § 204.5(j)(3)(i)(B). 
The Petitioner asserts that the Beneficiary's duties "are the same for the U.S. Corporation as for the 
company abroad." Therefore, our discussion and findings regarding the Beneticiary's U.S. duties 
apply equally to his stated duties abroad. 
The Petitioner does not, however, claim that the two entities are similarly staffed. The foreign 
company claims ten employees: 
President [the Beneficiary] 
Operations and Project Manager (also called V.P.) Administrative Manager 
4 Technical Specialists Sales Asst. Admin. Asst. Human Resources Asst. 
Unlike the petitioning U.S. entity, the foreign company claims a staff of technicians to install 
equipment, and sales and administrative personnel to handle orders. 
The Director, in denying the petition, stated that "no information concerning the employees could be 
located." The Petitioner, on appeal, asserts that it had provided an organizational chart and job 
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Matter of l-D- Corp. 
descriptions. This information concerns the positions rather than the employees themselves, and an 
organizational chart does not confirm that the company actually employed people in those positions. 
The Director did not appear to take into account payroll documentation from the foreign entity. This 
documentation, however , did not support the structure shown above. Documents from 2014 show 
that the foreign affiliate employed between three and seven employees at any given time. The three 
names on payroll documents from late 2014 correspond to the sales associate, administrative 
assistant, and one of the technical specialists. These materials do not establish the company's 
structure as of October 2015, when the Petitioner filed the petition. 
The Petitioner has not submitted sufficient evidence to establish that the Beneficiary served abroad 
in an executive capacity. 
C. Prior Approval ofNonimmigrant Petition 
The Petitioner noted that USCIS had previously approved a nonimmigrant petition to classify the 
Beneficiary as an intracompany transferee in a managerial or executive capacity. The Petitioner 
acknowledges that this prior approval is not binding, but asserts that the approval demonstrates that 
USCJS previously considered the Petitioner's evidence to be satisfactory. 
In the present matter, the Director reviewed the record of proceedings and concluded that the 
Petitioner was ineligible for immigrant classification sought based on its failure to establish 
eligibility. In both the request for evidence and the final denial, the Director clearly articulated the 
objective statutory and regulatory requirements and applied them to the case at hand. lfthe previous 
L-1 A nonimmigrant petition, which had similar but not identical requirements compared to this 
immigrant petition, was approved based on the same minimal evidence of the Beneficiary's 
eligibility, the approval would constitute error on the part of the Director. 
Ill. DOING BUSINESS 
The Director found that the Petitioner did not establish that it has been doing business for at least one 
year prior to the date of filing the petition. 8 C.F.R. § 204.5G)(3)(i)(D). The regulations define 
"doing business" as the regular, systematic, and continuous provision of goods or services by a firm, 
corporation, or other entity. The definition does not include the mere presence of an agent or office. 
8 C.F.R. § 204.5(j)(2). 
The "doing business" requirement applies specifically to the prospective U.S. employer. 8 C.F.R. 
§ 204.5(j)(3)(i)(D). The Petitioner's subsidiary, is not the prospective U.S. 
employer, and therefore evidence of that company's business activity cannot meet the "doing 
business" requirement. 
The Petitioner states that it "was established in 2010 and is continually doing business since then." 
Most of the cited supporting evidence (such as share cetiificates, articles of incorporation, and an 
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Matler of 1-D- Corp. 
office lease) attested to the Petitioner's existence rather than its business activity. On its income tax 
returns, the Petttioner reported gross receipts of$205,976 in 2012, $98,968 in 2014, and $99,570 in 
2015. (The record does not contain a return for 2013.) The tax returns identified the company as a 
consultant in building automation systems, but the Petitioner submitted no direct evidence of 
consulting work performed prior to the filing date. The Petitioner's brochure describes several 
security and automation products for sale, but the Petitioner did not submit invoices or other 
documentation to show that it has actually sold those products on a regular, systematic and 
continuous basis for at least a year prior to the filing date. 
The Director found that the Petitioner had established its existence, but not that it has been engaged 
in the regular, systematic, and continuous provision of goods, services. or both, for at least one year 
prior to the filing of the petition. On appeal, the Petitioner states that it "continues to be a company 
involve[d] in the security systems services. mostly as a supplier providing equipment to the [foreign 
affiliate], and also business services to ... the subsidiary company." The Petitioner did not 
document or further describe the services it claims to provide to the subsidiary. The description of 
the Petitioner as a supplier to its foreign aftlliate is not consistent with the claim that the Petitioner is 
primarily a consultant. 
To support the assertion that the Petitioner "provides support and logistics to" its foreign affiliate, 
the Petitioner submits a copy of a November 2013 agreement between the Petitioner and the foreign 
entity. The Petitioner states that this agreement "shows that the U.S. Petitioner supplies materials, 
equipment and management support to the company abroad.'' A summary translation of the 
document states that the Petitioner will provide ''General Management, administration, provider of 
products to electronic security technology and controls, technical advice, and projects management" 
to the foreign company. Because the translation is incomplete, we cannot determine what other 
terms and conditions the agreement contains. 
The 2013 agreement does not establish the extent, if any, to which the Petitioner subsequently 
provided the listed services. The wording of the summary translation is very vague and general: it 
does not describe the services in any detail or specify whether the Petitioner would provide the 
services regularly or only occasionally. The document does not establish the Petitioner's regular, 
systematic, and continuous provision of goods, services. or both. 
Furthermore, as we have already noted, the Beneficiary was the Petitioner's only employee during 
the year preceding the tiling of the petition. If the Beneficiary was personally providing 
administrative services, technical advice, and project management and helping the foreign company 
to procure products for resale, then those tasks would contradict the Petitioner's claim that the 
Beneficiary has not performed any non-executive tasks. 
The Petitioner submits copies of invoices that the petitioning company issued to various customers 
in Florida. The Petitioner stated thai it had intended to submit them when it tiled the petition. The 
invoices, however, did not exist at that time. The date on the earliest invoice is March 21, 2016, 
more than tlve months after the filing date. 
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Maffer of 1-D- Corp. 
The Petiti oner asser ts that it "has also been prov id ing su pport and adm inistrative sen· ices to the 
subsidiary compa ny" that runs the restaura nt, for which "the petit ioner h a~ rece ived regu lar 
payme nts through vvire tra nsfers fron1 th e subsidiary compa ny." Elsewhe re, the Petit ioner makes the 
oppos ite claim that ils affiliates and subsidiaries provided administrative assista nce to the Petitio ner. 
If the Petitioner was "providing support and adm inistrative services to the subs idiary company" 
during the year prior to filing , then the Benefic iary must have been the one providing those services 
because the Petitioner had no other employees during that time . Con sistent ·w·ith this conclusion, 
every compa ny c heck reprodu ced in the subsid iary's bank state ments bears the Benefic iary's 
signature. 
The Beneficiar y signed checks on behalf of in 20 14, but this does not lead us 
to conclude that he did so in his capac ity as an executive of the petitioning compa ny, because 
"support and administ rati ve servic es" are nol exec utive-level tasks. Also , s igning the company's 
checks does not amo unt to the Petiti oner's regular , co ntinuous, and systemat ic provisio n of goods 
and serv ices. The record does not support the Petitioner's claim that il "received regular payments 
through wire transfer s from the subsidiary company" in payment for these services. Lnstea d, the 
subs idiary's bank statements from 2014 show seve ral incoming wire t ransfersji ·om the Petitioner 
(apparently reported as " loans fro m pHrtners" on the company' s 2014 JRS Form 1065 , U.S. Return 
of Part nership Income). Loaning money to a s ubsidiary while signing its c hecks does not constitute 
doin g business. 
T he Petition er has documented its ex istence and some degree of fi nanci al activity in certa in yea rs 
precedin g the filing o f the petition. The Pet itioner has not, howe ver, submitted enough evidence to 
show that it regularl y, continuou sly, and sys tematica lly provi ded goods, services, or both fo r at least 
a year prior to the filing date. 
IV. CONCLUS ION 
The Petiti one r did not establish that it will employ the Benefic iary as an executive , that the fo reign 
entity emplo yed the Beneficiary in an exec utive capacity , or that it has been doing business for at 
least a year prior to tiling the petition. 
ORDER: The appeal is dismissed. 
Cite as 1\fa//er o.fl-D- Corp., ID# 357070 (AAO May 25, 20 17) 
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