dismissed EB-1C Case: Food Import And Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re: 19110733 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 18, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner seeks to permanently employ the Beneficiary as its "managing director and chief 
executive officer" 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) . 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner has the ability to pay the Beneficiary the proffered wage, that the Petitioner 
has been doing business in the United States for one year prior to filing the petition, and that the 
Beneficiary will be employed in a managerial or executive capacity in the United States. The matter 
is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
We review the questions in this matter de novo.2 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 time of the petition 
for classification and admission into the United States, 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 )( 1 )(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, 3 that the beneficiary is coming to work in the United States for the same 
1 See Section 291 of the Act; Matter ofChawath e, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
3 If a beneficiary entered the United States to work for a qualifying entity as a nonimmigrant (for example in an H-lB or 
other work-authorized status) , U.S . Citizenship and Immigration Services will reach back three years from the date of their 
admission to determine whether they had the requisite one year of employment abroad . Matter of S-P- Inc., Adopted 
Decision 2018-01 (AAO Mar. 19, 2018); 8 C.F.R. § 204.5(j)(3)(i)(B) . 
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). 
TI. ANALYSIS 
The Petitioner is a limited liability company established in 2015 in the State of Delaware. On the Form 
I-140 filed in March 2020, the Petitioner states that it is a food importer and distributor, has one employee, 
a gross annual income of approximately $68,000, and a net annual income of $21,173. The Petitioner 
lists the annual wage for the proffered position as $221,316. The Petitioner previously received approvals 
for the Beneficiary as an L-1 A employee for validity periods beginning September 2015 through 
September 2019. The Petitioner's L- lA petition for the Beneficiary filed in September 2019 was denied 
in January 2020.4 
On appeal, the Petitioner refers to its prior approvals for the Beneficiary's L-lA status and asserts that 
U.S. Citizenship and Immigration Services (USCIS) will generally defer to prior determinations of 
eligibility while adjudicating petition extensions involving the same parties and facts. 5 Here, however, 
the Form 1-140 is for an immigrant visa and is not a nonimmigrant petition extension. As the Director 
pointed out many 1-140 immigrant petitions are denied after USCIS approves prior nonimmigrant 
I-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 
IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22, 23 (D.D.C. 1999); Fedin Bros. Co. Ltd. v. Sava, 
724 F. Supp. 1103, 1104 (E.D.N.Y. 1989). There is a significant difference between a nonimmigrant 
L- IA visa classification, which allows a foreign national to enter the United States temporarily, and 
an immigrant E-13 visa petition, which permits a foreign national to apply for permanent residence in 
the United States. See, e.g.,§§ 204 and 214 of the Act;§ 316 of the Act. 
A. Petitioning Employer 
As a preliminary matter, we note that the record includes confusing information regarding the nature 
of the Petitioner's organization. 6 The Petitioner submits a certificate of formation filed in the State of 
Delaware to establish that the Beneficiary owns 51 percent of the Petitioner and that their spouse owns 
the remaining 49 percent. LLCs are generally obligated by the jurisdiction of formation to maintain 
records identifying members by name, address, and percentage of ownership, and written statements 
of the contributions made by each member, the times at which additional contributions are to be made, 
events requiring the dissolution of the limited liability company, and the dates on which each member 
became a member. These membership records, along with the LLC' s operating agreement, certificates 
of membership interest, and minutes of membership and management meetings, must be examined to 
determine the total number of members, the percentage of each member's ownership interest, the 
appointment of managers, and the degree of control ceded to the managers by the members. The 
Petitioner in this matter does not provide such evidence. Additionally, although the Petitioner claims 
to be a limited liability company, with two owners, the record shows that the Petitioner filed all its 
federal tax returns on the Beneficiary's IRS Form 1040, U.S. Individual Tax Return, Schedule C, Profit 
4 The Beneficiary's claimed foreign employer) l filed an L- lA petition on behalf of the Beneficiary in October 
2021. U.S. Citizenship and Immigration Services' records indicate that petition is pending. 
5 The Petitioner does not mention that its latest L- lA petition was denied. 
6 The record includes sufficient information to demonstrate that the Beneficiary owns 90 percent of the foreign employer, 
and that their spouse owns the remaining 10 percent of the foreign entity. 
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or Loss from Business. The Beneficiary claimed on the IRS Forms that he is and has been 
self-employed. He does not identify the Petitioner, a separate limited liability company, as his 
employer. 7 
First-preference immigrant status requires that a beneficiary have a permanent employment offer from 
a petitioner. Section 203(b)(l)(C) of the Act. A petitioner who is a nonimmigrant temporary worker 
is not competent to offer permanent employment to a foreign national for the purpose of obtaining an 
immigrant visa. See, e.g., Section 203(b)(l)(C) of the Act, Matter of Thornhill, 18 I&N Dec. 34 
(Comm'r 1981). The record in this matter includes contradictory evidence regarding the petitioning 
employer. On one hand, the certificate of formation shows that the Petitioner is a limited liability 
company. On the other hand, the Beneficiary's actions and other statements and documents in the 
record suggest that the Petitioner is a sole proprietorship and thus is not an entity separate and apart 
from the Beneficiary, a nonimmigrant. Although these unresolved questions are not a basis for the 
dismissal of the appeal, we note this issue must be addressed in any future proceedings. 
B. Doing Business 
The record does not include sufficient evidence to establish that the Petitioner had been doing business 
for one year prior to the date the petition was filed. 
The regulations define "Multinational" as a qualifying entity or its affiliate, or its subsidiary, that 
conducts business in two or more countries, one of which is in the United States. See 8 C.F.R. 
§ 204.5(j)(2). The regulations also require that the beneficiary work in the United States for the same 
employer 8 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(i)(2). This definition does not contain a requirement that a petitioner for a multinational 
manager or executive must provide goods and/or services to an unaffiliated third party. That is, a 
petitioner may establish that it is "doing business" by demonstrating that it is providing goods and/or 
services in a regular, systematic, and continuous manner to related companies within its multinational 
organization. Matter of Leacheng, 26 I&N Dec. 532 (AAO 2015). 
7 We note that in response to the Director's request for evidence (RFE), the Petitioner provided a letter from a tax firm 
stating that the Beneficiary is the only member of the Petitioner since March 2015. This statement appears to contradict 
the Petitioner's initial letter and the certificate of the Petitioner's formation and casts further doubt on the legitimacy of 
the Petitioner as a multinational company. The Petitioner must resolve this inconsistency in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
8 If a petitioner submits evidence to show that it is incorporated in the United States, then that entity will not quality as "an 
... office of the same organization housed in a different location," since that company is a distinct legal entity separate 
and apart from the foreign organization. See. e.g., Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of 
Aphrodite lnvs. Ltd., 17 I&N Dec. 530 (Comm'r 1980); and Matter ofTessel, 17 I&N Dec. 631 (Acting Assoc. Comm'r 
1980). As the Petitioner is organized as a limited liability company it cannot be considered a branch office of the foreign 
entity. 
3 
On appeal, the Petitioner asserts that its situation is similar to Matter of Leacheng in that it has aided 
the foreign entity's import activities as part of the multinational import/export organization. 9 The 
Petitioner claims that the foreign entity compensated the Beneficiary, as demonstrated by paystubs 
and wire transfers, notes the Petitioner's market investigation and import activities for the foreign 
entity, states that it has been designated the agent for handling customs matters and that it has issued 
invoices for delivery of products to customers, and that it has registered with the National Association 
of Wholesale Distributors and the Food and Drug Administration as well as with storage facilities. 
The Petitioner also refers to renting business premises and to its credit card statements. 10 The 
Petitioner further references the documentation provided to demonstrate that the foreign entity is 
actively doing business exporting products to the United States. 
A review of the information submitted shows that a document labeled "Market Research" is a business 
plan written on the letterhead of the foreign entity in 2014. This document does not establish that the 
Petitioner was doing business the year before the petition was filed. The record also included market 
research performed by a third party which consisted of emails referring to an invoice and budget as 
well as a single invoice for $1000 for the January 2020 timeframe. Although the single invoice is 
within the pertinent time period, a single invoice does not demonstrate the regular and systematic 
provision of services to either the Petitioner or the foreign entity. The only additional reference to 
market research is a proposal prepared by the foreign entity for a digital marketing plan which is dated 
December 2019. Again, although this proposal is within the relevant timeframe, it does not establish 
that the Petitioner is performing market research on behalf of the foreign entity. Moreover, the 
proposal does not establish that the Petitioner has actually contracted with the foreign entity to provide 
the digital marketing services. These documents do not help in establishing that the Petitioner was 
providing marketing services and thus was engaged in doing business. 
The record also includes a contract the Petitioner entered into with a custom broker in August 2019, 
two distribution agreements dated subsequent to filing the petition, 11 and an office agreement for a 
virtual office in New York. On appeal, the Petitioner submits an invoice from the foreign entity to the 
Petitioner for $1000 for personnel outsourcing which is dated May 2019. 12 This "business expense" 
does not appear to be included on the pertinent IRS Form 1040, Schedule C. In sum, these documents 
are insufficient to establish that the Petitioner was engaged in the regular, systematic, and continuous 
provision of goods and/or services for one year prior filing the petition. Although the Petitioner does 
not have to be a party to contracts with unaffiliated entities, it is reasonable to expect it to provide 
9 The Petitioner also provides documentation of a new company, established in October 2020, subsequent to filing the 
instant petition, and states that the purpose of the new company is to raise capital for the foreign entity's business. The 
creation of this business is not relevant to the matter at hand except to raise further concerns regarding the purpose, nature, 
and continued existence of the Petitioner's business. 
10 The Petitioner provides copies of the credit card statements on appeal. However, the statements do not differentiate 
between purchases made by the Beneficiary for his personal benefit and made on behalf of the company, the claimed 
separate entity. Thus, the statements do not establish that the Petitioner incurred business expenses and that any expenses 
demonstrate that the Petitioner is doing business. Moreover, any claimed business expenses do not appear to be sufficiently 
reflected on tax returns. 
11 The distribution agreements identify the Petitioner as the supplier and refers to it as a limited liability company organized 
in New York; however. the agreements identify the foreign entity's email as the contact for the supplier. And again, 
documents dated subsequent to filing the petition do not establish that the Petitioner was doing business for one year prior 
to filing the petition. 
12 The record on appeal also includes a similar invoice, dated November 2020, a date subsequent to filing the petition. 
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some evidence of the types of activities in which it engages in the U.S. market. The Petitioner has not 
provided that evidence here. 
Unlike the petitioner in Matter of Leacheng, the Petitioner in this matter has not adequately defined 
the specific services it provides or submitted documentation to corroborate that it is carrying out the 
broadly described "promotion, distribution, and sales in the American market" it claims to provide for 
the related foreign entity. 13 The Beneficiary is the Petitioner's only employee and the Petitioner does 
not include service agreements between the Petitioner and the foreign entity memorializing any 
agreements for the use of foreign employees or for the Petitioner to perform services on behalf of the 
Argentinian affiliate. The record does not include regular and systematic invoices from the Petitioner 
to the affiliate for any services performed, and the record does not include adequate evidence 
demonstrating how the Petitioner was paid for services rendered. The Petitioner's tax return for the 
pertinent time frame, as set out on the Schedule C, does not reflect corresponding business expenses 14 
for the Petitioner's claimed promotion, distribution, and sales tasks. Although the tax returns reflect 
varying amounts of income, the record does not contain documentation substantiating gross receipts 
and does not establish the source of or reason for the gross receipts. The record does not include 
credible evidence establishing that the Petitioner, an organization established as a separate entity from 
the Beneficiary's foreign employer, has been doing business for one year prior to filing the petition. 
C. Ability to Pay 
We will next briefly address the failure of the Petitioner to establish that it has the ability to pay the 
Beneficiary the proffered wage. In an immigrant visa petition for a multinational executive or manager, 
the Form I-140 must be accompanied by evidence demonstrating the Petitioner's ability to pay the 
Beneficiary's proffered wage at the time of filing. 8 C.F.R. § 204.5(g)(2). When filing a Form I-140, a 
petitioner is required to provide copies of its annual reports, federal tax returns, or audited financial 
statements to establish that it had the ability to pay the beneficiary's proffered wage at the time the 
priority date is established and continuing until the beneficiary obtains lawful permanent residence. 
8 C.F.R. § 204.5(g)(2). 
The petition was filed in March 2020 and indicates that the Beneficiary's proffered wage is $221,3 I 6 
annually. In a request for evidence (RFE) the Petitioner was asked to provide its audited financial 
statements, or complete federal tax returns for 2018 and 2019 to demonstrate its ability to pay the 
Beneficiary. The Petitioner was also given the opportunity to submit the Beneficiary's IRS Form 
W-2s for 2018 and 2019 to show the Beneficiary's earnings. In response to the Director's RFE, the 
Petitioner stated that the Beneficiary did not have W-2s, that he was employed by the foreign entity 
and received payment from that entity, 15 and that his personal tax returns showed the Petitioner's 
profits on Schedule C. 16 In the denial decision, the Director indicated that the foreign entity's support 
13 It appears that the foreign entity performs these tasks as part of its business. The Petitioner's actual involvement in these 
tasks is not supported in the record with credible evidence. 
14 The Schedule C business expenses on the Beneficiary's 2019 Form 1040 include $325 for translation services, $500 for 
accounting, $40 for postage, and $25 for miscellaneous, as well as $33,806 for amortization. 
15 On appeal, the Petitioner submits the Beneficiary's 2020 W-2 showing the foreign entity paid the Beneficiary $8,596, 
an amount far less than the proffered wage. 
16 The IRS 1040 Schedule C for 2018 shows net profit of $21,173; the IRS 1040 Schedule C for 2019 shows net profit of 
5 
for the Beneficiary did not constitute the Petitioner's payment of the proffered wage. On appeal, the 
Petitioner asserts that it and the foreign entity compensated the Beneficiary and cites United States 
Full Gospel v. Thornburgh, 730 F. Supp 441 (1988) for the proposition that USCIS may consider the 
support of parent organizations. 
First, we note that in Full Gospel, the parent organization is in the United States and is not a foreign 
entity as in this matter. Next, the Beneficiary does not reflect the compensation received by the foreign 
entity as income on his personal tax returns, except on the 2020 tax return and that amount is not even 
close to the proffered wage. Further, the Petitioner has not established that the foreign entity is legally 
obligated to pay the wage proffered by the Petitioner. The record does not include sufficient evidence 
establishing that the Petitioner, a company established as a separate entity from the foreign entity, has 
the independent ability to pay the Beneficiary's proffered wage. The record, including the record on 
appeal, does not include persuasive argument or evidence to overcome the Director's decision on this 
issue. 
D. Executive Capacity in the United States 
We next briefly address the issue of the Beneficiary's executive capacity as a claimed employee of the 
Petitioner. The Petitioner does not claim that the Beneficiary would be employed in a managerial 
capacity. 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 10l(a)(44)(B) of the 
Act. 
When examining the executive capacity of a given beneficiary, we 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. 
In this matter, the Petitioner provided a broad overview of the proposed position indicating generally 
that the Beneficiary would have responsibilities including: budgeting; managing the company's 
network of distributors; overseeing promotional efforts and publication of marketing brochures; 
human resources planning, recruitment, and interviewing; and product management. The duties, as 
generically described do not sufficiently substantiate the Beneficiary's asserted role either on behalf 
$34,184; and the IRS 1040 Schedule C for 2020 shows a net loss of $-24,142. The Beneficiaiy lists his income for all 
three years as substantially below the proffered wage. 
6 
of the Petitioner of on behalf of the foreign entity. The Petitioner also refers to the Beneficiary's 
supervision of the training and development of the sales department and involvement in the 
performance review of team members. However, the Petitioner did not employ sales personnel or 
other team members when the petition was filed. Rather, the Petitioner states that it "is in the process 
of hiring an in-house sales force and a network of salaried and commission-based sales representatives 
to carry out sales to end-clients." The record does not include evidence that the Petitioner has carried 
out this process. The record does not include sufficient detail or examples demonstrating the 
Beneficiary's performance of the claimed qualifying duties. 
Although the Petitioner claims that it markets the foreign entity's products through U.S. distributors, 
as discussed above, the record does not include sufficient evidence of active distributorships when the 
petition was filed. This is especially concerning as the Petitioner claims to have been in business since 
2015. Additionally, the record does not include evidence that the Petitioner has subordinate employees 
for the Beneficiary to direct. On appeal, the Petitioner refers to particular individuals at the foreign 
entity who ensure compliance with U.S. law, who provide general secretarial and administrative 
services, who develop recipes for products for the U.S. market, who calculate tariffs, fees, and costs 
of products to be exported as well as accounting tasks, who handle administrative proceedings before 
foreign agencies, who handle export shipments and customs processing, and who develop publicity 
campaigns in the United States. However, as discussed above, the Petitioner does not provide service 
agreements with the foreign entity to use foreign employees to carry out the day-to-day operations of 
the Petitioner's business. The record also does not include probative evidence that the Petitioner paid 
the foreign employees for their services or other evidence demonstrating that the services were 
provided to the Petitioner and were not in the regular course of the foreign entity conducting business. 
The Petitioner has not adequately established or documented how the foreign employees service the 
Petitioner or clients in the United States. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
a complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, 
a beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the 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. 
Here the Petitioner did not substantiate that its organizational structure was sufficient to support the 
Beneficiary within a complex organizational hierarchy as of the date of this appeal. The record is 
deficient in establishing the Beneficiary's actual daily duties and in establishing that the Petitioner 
uses the services of foreign employees to relieve the Beneficiary from performing the operational and 
administrative tasks of the Petitioner. 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). The Petitioner has not established that the Beneficiary would 
act in an elevated position within a complex organizational hierarchy and that he would primarily 
7 
focus on the broad goals and policies of the organization rather than its day-to-day operations. The 
Petitioner has not demonstrated that the Beneficiary would act in an executive capacity in the United 
States. 
III. CONCLUSION 
The Petitioner has not established that more likely than not it was doing business in the United States 
for one year prior to filing the petition, that it has the ability to pay the Beneficiary the proffered wage, 
and that the Beneficiary will act in a primarily executive capacity for the Petitioner in the United 
States. The Petitioner has not established eligibility for this benefit. 
ORDER: The appeal is dismissed. 
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