dismissed EB-1C Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
MA TIER OF D-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 20,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which markets professional testing instruments manufactured by its parent company, 
seeks to permanently employ the Beneficiary as its 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 Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (1) the Petitioner had been doing business in the United States for at 
least one year at the time it filed the petition; and (2) the Beneficiary was employed abroad in a 
managerial or executive capacity for at least one year in the three years preceding his entry to the 
United States as a nonimmigrant. 
On appeal, the Petitioner submits additional evidence and asserts that the Director denied the petition 
in error as a result of misreading and mischaracterizing the submitted evidence. The Petitioner 
maintains that it has met all eligibility requirements for the requested classification. 
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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 affiliate. Section 203(b )( 1 )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
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The Petitioner also asserts that the evidence establishes that the Beneficiary would be employed in the United States in 
a managerial or executive capacity. Although the Director addressed this issue in a request for evidence (RFE), the 
Director made no adverse finding regarding the Beneficiary's proposed employment capacity in the denial decision. 
Accordingly, we will not address the Petitioner's arguments regarding the Beneficiary's U.S. employment. 
Matter of D-S-, Inc. 
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. § 204.50)(3). 
II. DOING BUSINESS 
The Director found that the Petitioner did not submit sufficient evidence to establish that it was 
doing business for at least one year prior to filing the petition on August 26, 2015. To establish that 
it is doing business for the purposes of this classification, the Petitioner must demonstrate that it has 
been engaged in "the regular, systematic, and continuous provision of goods and/or services'' since 
on or before August 26, 2014. See 8 C.F.R. § 204.5(j)(2). 
The Director noted that, while the Petitioner provided evidence, including a lease, insurance 
documentation, and bank statements, showing that the company had existed for more than one year 
at the time of filing, the Petitioner's federal tax return for 2014 reflected that the Petitioner did not 
have any gross receipts or sales during that calendar year. 
On appeal, the Petitioner asserts that the company has been actively providing services for its foreign 
parent company since May 2014, as it has been marketing its parent company's products and 
services, locating buyers, and maintaining relationships with customers since that time. The 
Petitioner cites Matter of Leacheng Int'l, Inc., 26 l&N Dec. 532 (AAO 2015) in support of its 
assertion that it may establish that it is doing business as defined in the regulations by demonstrating 
that it is providing goods and/or services in a regular, systematic, and continuous manner to a related 
company within its multinational organization. 
The Petitioner explains and documents the Beneficiary's interactions with potential clients dating 
back to May 2014 and asserts that some of these relationships eventually resulted in product sales in 
2016. The Petitioner also provides evidence that it hired subordinate employees in early August 
2014, more than one year prior to filing the petition, and provides evidence of wages paid to 
employees. In addition, the Petitioner submits evidence that it received a shipment of products from 
its foreign parent in September 2014. 
We agree with the Petitioner that Leacheng specifically clarifies that provision of services to other 
companies in the same qualifying organization constitutes "doing business" as defined in the 
regulations. The petitioner in Leacheng was not a named party to contracts involving sales of its 
parent company's products, but nevertheless provided extensive evidence of its participation in sales 
transactions, as well as evidence that it derived significant income from a foreign affiliate which paid 
the petitioner millions of dollars in commission fees under the terms of a service agreement. 
The Petitioner here claims to provide similar services, emphasizing that the company was 
established to market and sell the foreign entity's products in the United States. However, the facts 
here can be distinguished from the facts in Leacheng, where the petitioner reported a significant 
annual income that was derived from the direct sale of its services and the indirect sale of its foreign 
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Matter of D-S-, Inc. 
entity's products. While the record establishes that the Petitioner is seeking to expand the reach of 
the foreign organization to the United States, the evidence indicates that the company was 
established to directly sell those products to U.S. customers. Specifically, the Petitioner's sales 
invoices from 2016 show that it directly billed its customers; it is not providing sales and marketing 
services to its foreign parent in exchange for a fee but rather operates as a subsidiary sales office 
with its own independent sales revenue. Also, unlike the petitioner in Lec1cheng, the Petitioner was 
unable to establish that it participated in any completed sales transactions in 2014, either directly or 
indirectly. We acknowledge the many business meetings 
the Beneficiary attended in 2014; however, 
these initial efforts to get the U.S. company's sales operation up and running do not meet the 
definition of "doing business." 
Accordingly, we agree with the Director's determination that the Petitioner did not establish that it 
met this eligibility requirement. 
III. ONE YEAR OF EMPLOYMENT ABROAD 
The Director also determined that the Petitioner did not establish that the Beneficiary had one year of 
employment abroad in a managerial or executive capacity within three years preceding his entry to 
the United States? 
The regulations require that, if a beneficiary is already in the United States working for an entity that 
has a qualifying relationship with his or her foreign employer, the petitioner must establish that the 
beneficiary was employed by the entity abroad in a managerial or executive capacity for at least one 
year in the three years preceding the beneficiary's entry as a nonimmigrant. See 8 C.F.R. 
§ 204.5(j)(3)(i)(B). 
The Beneficiary began working for the Petitioner as a nonimmigrant L-1 A intracompany transferee 
in July 2014. The Petitioner's supporting letter stated that its foreign parent company employed the 
Beneficiary as its overseas business director from January 2013 until June 2014, and specified that 
his employment was "at our corporate head office in China." In a Form G-325-A. 
Biographic Information, the Beneficiary submitted with his concurrently tiled Form I-485. 
Application to Register Permanent Residence or Adjust Status, he stated that he resided in Australia 
from September 2012 until July 2014. 
The Director requested additional evidence to address this apparent discrepancy between the 
Beneficiary's country of residence and work location, and ultimately found that the Petitioner did 
not submit sufficient evidence to demonstrate that the foreign entity employed the Beneficiary for at 
least one year. 
2 Although the Director concluded that the Beneficiary did not have the required year of employment abroad in a 
managerial or executive capacity, the denial decision did not reach a discussion of the Beneficiary's employment 
capacity and instead focused on whether the evidence was sufficient to establish that he had one year of employment 
abroad during the relevant three-year period. As we find that the Petitioner did not overcome this basis for denial, we 
will not address whether the evidence establishes that his claimed foreign employment was in a managerial or executive 
capacity, as defined at section IOI(a)(44) ofthe Act, 8 U.S.C. § IIOI(a)(44). 
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Matter of D-S-, Inc. 
On appeal, the Petitioner asserts that it never claimed that the Beneficiary resided in China while 
employed by the foreign entity. The Petitioner emphasizes that it explained in response to the 
request for evidence that the Beneficiary's position as overseas 
business manager for the Asia­
Pacific region included a business requirement that he reside in Australia. 
The Petitioner also offers additional evidence in support of the appeal, including: 
• The Beneficiary's labor contract with the foreign entity, which indicated that the 
parties agreed that he would "work from home in Australia" in his position as 
overseas business director, with a start date of January L 2013, and a monthly salary 
of¥ 20,000. 
• "Notification of the Grant of a Subclass 457 Visa" indicated that Australian 
immigration authorities approved the Beneficiary's application to work in Australia 
from September 2012 until July 2016. This visa was sponsored by 
• Copies of the Beneficiary's Australian monthly bank statements for the period 
February 2013 until January 
2014. 
• An internally-generated payroll record indicating that the foreign entity paid the 
Beneficiary ¥20,000 per month from January 2013 through June 2014 (previously 
submitted). 
• Expert opinion letter from Professor of Business Administration at 
who attests that the foreign entity is "indicative of the type of 
enterprise that would appropriately assign a business development manager or 
sales/marketing manager to work remotely in the new sales territory." 
• Letters from other business professionals attesting to the practice of using "Remotely 
Based Sales/Marketing Managers." 
Upon review, the Petitioner has not established that the Beneficiary had 
at least one year of 
employment abroad during the three years preceding his entry as a nonimmigrant in July 2014. 
We recognize the Petitioner's claim that the Beneficiary was assigned to an off-site location to 
oversee the development of a new market; however, the evidence submitted does not reflect that the 
terms of the above-referenced labor contract were fulfilled or that Beneficiary was paid as an 
employee of the foreign entity while residing in Australia. Rather, the evidence submitted on appeal 
introduces new inconsistencies into the record. First, the Beneficiary's Australian work visa was 
sponsored by an Australian company indicating he was actually an employee of the company that 
sponsored his visa, and not the Petitioner's Chinese parent company, during his residence in 
Australia. Specifically, based on the approval date for his visa, it appears the Beneficiary relocated 
to Australia to accept employment with in September 2012. 
This employer is not mentioned in the employment history section of his Form G-325A. 
Further, the foreign entity's internally-generated payroll record for the Beneficiary is not sufficient 
to establish that it actually paid his salary while he was residing in Australia. The Beneficiary's 
personal bank statements for this period do not reflect any payments from the foreign entity and 
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Matter of D-S-, Inc. 
there are several months in which there were no deposits to his account. The Petitioner has not 
submitted sufficient evidence that the foreign entity paid the Beneficiary the salary stipulated in the 
submitted labor contract, or any wages at all. 
While the Petitioner provided evidence that the Beneficiary traveled back to China on several 
occasions while residing in Australia, we note that China was his previous country of residence and 
we cannot determine based solely on his entry and exit stamps that he traveled to China m 
connection with his duties as the overseas business manager for the Petitioner's parent company. 
The Petitioner must resolve these inconsistencies in the record with independent, objective evidence 
pointing to where the truth lies. Matter o.fHo, 19 I&N Dec. 582,591-92 (BIA 1988). Based on the 
lack of independent corroborating evidence of the Beneficiary's employment from 2013 to 2014, and 
the newly submitted evidence suggesting that the Beneficiary had an Australian employer during this 
time period, the Petitioner has not established that the Beneficiary had the required one year of 
employment abroad with the foreign entity in the three years preceding his entry as a nonimmigrant 
to work for the Petitioner. 
IV. PRIOR APPROVALS 
We acknowledge that U.S. Citizenship and Immigration Services (USCIS) has approved other 
petitions that the Petitioner filed on behalf of the Beneficiary, specifically, nonimmigrant petitions 
granting him L-lA status as an intracompany transferee in a managerial or executive capacity. Each 
nonimmigrant petition filing is separate from this immigrant petition, with a separate record and a 
separate burden of proof. In making a determination of statutory eligibility, USC IS is limited to the 
information contained in that individual record of proceeding. 8 C.F.R. § 103.2(b)(16)(ii). 
We are not required to approve applications or petitions where eligibility has not been demonstrated. 
merely because of prior approvals that may have been erroneous. See Matter of'Church Scientology 
Int 'l, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng 'g, Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987). Furthermore, we are not be bound to follow a contradictory decision of 
a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. 
La. 2000). 
V. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that it had been doing business for 
one year at the time it filed the petition or that the Beneficiary had one year of employment with the 
foreign entity in the three years preceding his entry to the United States as a nonimmigrant. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-S- Inc., ID# 7 4 7 496 (AAO Oct. 20, 20 17) 
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