dismissed EB-1C Case: Online Gambling

U.S. Citizenship. 
and Immigration 
Services 
MATTER OF 5-C-USA CORP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY29,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an affiliate of a foreign company providing an online gambling platfom1, seeks to 
permanently employ the Beneficiary as its general manager 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 record did not 
establish, as required, that: (I) the Petitioner has been·doing business for at least one year prior to 
the petition's filing date; and (2) the Petitioner will employ the Beneficiary in the United States in an 
executive capacity. 
On appeal, the Petitioner asserts that the Director erred by disregarding persuasive evidence of 
eligibility. 
Upon de novo review, we will dismiss the appeal. 
l. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who; in the three years preceding the tiling 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 )(I )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or 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. § 204.50)(3). 
Matter of 5-C-USA Corp 
II. 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. See 8 C.F.R. § 204.5(j)(3)(i)(D). Specifically, the 
regulation at 8 C.F.R. § 204.5(j)(2) defines that term as the regular, systematic, and continuous 
provision of goods, services, or both, by a firm, corporation, or other entity. The mere presence of 
an agent or office does not constitute doing business. 
The Petitioner tiled the Form 1-140 petition on April 27, 2016, and therefore must have been doing 
business a year before that date. The Petitioner initially submitted documentation of the company's 
legal existence, such as its July 20 I 4 certificate of incorporation, and copies of various bank, tax, 
and payroll documents. 
Under the regulatory definition, the key indicator of "doing business" is the regular, systematic, and 
continuous provision of goods, services, or both. The Petitioner cannot meet this threshold with 
evidence that simply shows that the company exists, holds a bank account, and has hired employees. 
None of these traits provides goods or services. 
The Petitioner's business plan included a "Strategy for Entering the US Market," listing the 
following goals (note: errors in the original have not been corrected): 
I. July 2014, set up a company branch ... in New Jersey. 
2. August 2014- December 2015, apply for license in New Jersey and (or) Nevada. 
3. January 2016- December 2019, Operation of New Jersey acquisition and Nevada 
oftline Bingo and Keno or investing in entity online gambling company are just 
one of the best springboards and references for applying California license; 
4. At mean time, apply for online poker license in California, and make it our main 
operation income; . 
5. Expand to other states soon to be opened. 
The above time1ine indicated that the Petitioner itself did not expect to be in operation until January 
2016, less than four months before the April 2016 filing date. The business plan indicated that the 
company intended to "[a]pply for three types of licenses in Nevada" (entailing a waiting period of 
"about I 1-16 months") and "[b]uy shares from [a] small-sized online gambling company" to pave 
the way for applying for a license in New Jersey. The plan identified a "potential" target for this 
share purchase but did not indicate that the Petitioner had purchased any such shares. The plan 
further indicated: "It is easier to apply for [a] license in California atier obtaining licenses from 
Nevada or New Jersey." The Petitioner did not submit evidence to show that it has taken any of 
these steps, or to explain what business activity it has been conducting without those licenses. 
Furthermore, obtaining a license is not "doing business"; it provides no goods or services. If a 
license is required for the business activity that the Petitioner intends to perform, then it cannot 
suffice for the Petitioner to show a prospective plan for obtaining that license. Rather, the Petitioner 
2 
Matter of 5-C-USA Corp 
must show that it obtained the license at least a year before the filing date, and then actually 
conducted regular business under that license for a year or more. 
In response to a request for evidence (RFE), the Petitioner stated: 
[The Petitioner] is the American arm of a global business that runs an international 
online sports lottery and gaming platform ..... Therefore, the bulk of [its] activities 
are related to marketing, localization, investing, and building relationships with US 
gaming/tech companies in order to grow the international platform. Given the nature 
of [the Petitioner's] business, there is not an extensive paper trail (such as invoices, 
receipts, etc.) as with other traditional businesses. 
However, [the Petitioner] is in fact doing business as it is ultimately providing the 
service of online sports lottery through its activities. · 
The Petitioner's documents did not establish that the company has taken in any business income (as 
opposed to startup capital). The Petitioner reported no income except interest on its 2014 and 2016 
income tax returns (the 2015 return is not in the record). Bank statements from 2015 and early 2016 
show substantial withdrawals and debits, but negligible deposits and credits apart from interest and a 
transfer ·between two of the Petitioner's own accounts. If the Petitioner engaged in income­
generating activity in 2015, it did not deposit the revenue into the bank accounts documented in the 
submitted statements. 
Quarterly tax returns showed that the Petitioner had only one employee (the Beneficiary) in June 
2015; four employees in September 2015; and nine in December of that year. The Petitioner did not 
explain what business activities it performed before it was fully staffed, or describe its ongoing 
activities as of the filing date. 
As evidence of business activity, the Petitioner submitted tax returns, insurance and utility bills, 
documentation of participation in trade shows, and evidence of existing or planned investments in 
American gaming companies. None of these documents showed that the Petitioner provided goods 
or services during the year preceding the April 2016 filing date. The trade show documentation is 
from late 2016 and early 2017. Likewise, some of the Petitioner's investment targets did not exist 
until after the filing date, and even then; investing in an existing company may constitute preparation 
for future business activity, but the investment itself is not "doing business" because it does not 
provide goods or services. 
The Director denied the petition, stating that the Petitioner had submitted "no evidence ... to 
establish when [it] actually began doing business," and noted that "the beneficiary was the only 
employee until the third quarter of2015." 
On appeal, the Petitioner states that a company can provide goods and services with only one 
employee, so the lack of other employees is "immaterial ... particularly in this instance as the main 
3 
Matter of 5-C-USA Corp 
goods/services provided by the [Petitioner] are part of a well-established online suite of products 
already developed by an international group of firms." The Petitioner has not shown what role, if 
any, the U.S. company played in providing the "online suite of products." The Petitioner has not 
shown, for instance, that its employees developed the products or maintain the servers through which 
users access the products. The Petitioner acknowledges that it "is primarily offering an online 
service that is mainly developed and administered by its parent company." 
Instead, the Petitioner asserts that "most of its activity in the US is related to marketing and 
investment to establish brand recognition, build partnerships with related US companies, and expand 
potential service offerings." There is no indication that the Petitioner billed its parent company or 
affiliates for marketing services, and the Petitioner did not submit any marketing materials generated 
during the year preceding the filing date. The Petitioner named sales staff on its organizational 
chart, but the Petitioner has not documented sales revenue. The other activities amount to laying the 
groundwork for future business, or attempting to build name recognition for an established foreign 
company that was not yet engaged in any business in the United States. The record as a whole 
indicates that the company spent 2015-2016 gearing up for business activity that had not yet 
commenced in the United States, supporting itself on startup capital rather than business income. 
The Petitioner states: "given the tasks in starting a business, it is unsurprising that other employees 
were not on the payroll until June 2015. In this interim, the Beneficiary simply relied on his 
previous staff from [the foreign affiliate] to do the necessary background work." The Petitioner does 
not elaborate or document the "background work" or show that this work specifically supported the 
U.S. company, rather than representing the routine, continuing operation of the foreign company. 
"Starting a business" is not the same thing as "doing business," and the Beneficiary's attempts to 
locate investments and collaborators represent preliminary steps that, in themselves, provide neither 
goods nor services to customers. 
The Petitioner has not identified or documented any business actiVIty that took place at the 
petitioning U.S. company during the year preceding the April 2016 filing date. 
III. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
As noted, the Director also found that the Petitioner did not establish that it would employ the 
Beneficiary in an executive capacity. 
1 
On appeal, the Petitioner emphasizes the Beneficiary's role in high-level negotiations and asserts that 
these activities involve "executive discretion" and would not be entrusted to a lower-level employee. In 
the denial notice, the Director acknowledged the Beneficiary's "high-level responsibilities," but found 
that the Petitioner had not shown that the Beneficiary primarily performed executive duties as required 
by section IOI(a)(44)(B) of the Act, 8 U.S.C. § ll0l(a)(44)(B). In this case, the Petitioner's description 
of the Beneficiary's duties was vague and general, lacking details about the specific nature of the 
1 The Petitioner did not claim that it would employ the Beneficiary in a managerial capacity. 
4 
Matter of5-C-USA Corp 
Beneficiary's duties. Examples include "[e]stablish and manage relationships with business partners" 
and ''[ e ]nforce and improve operational policies and procedures." The Petitioner did not provide the 
specific tasks undertaken to fulfill those responsibilities and achieve those goals. 
Furthermore, the negotiations that the Petitioner cited as examples of the Beneficiary's work took place 
after the petition's filing date. Other described activities relate to ''developing partnerships" which, the 
Petitioner acknowledges, occurred "[i]n more recent months" relative to "late 2016." The Petitioner 
must establish eligibility at the time of filing and continuing through the adjudication of the petition. 
8 C.F.R. § 103.2(b)(l). 
As described above, the Petitioner has not shown that it was doing business at the time of filing, and 
therefore there was no business activity for the Beneficiary to oversee as an executive. Because the 
Petitioner already employed the Beneficiary as its general manager at the time it filed the petition, it is 
appropriate to consider the Beneficiary's activities at the time of filing. 
Following a review of the evidence, we concur with the Director's decision that the Petitioner has not 
established that it employs the Beneficiary in an executive capacity. 
Because the other ground for dismissal discussed above is dispositive of the Petitioner's appeal, we 
will not address this issue further. Nevertheless, we note that if the Petitioner seeks to employ the 
Beneficiary in this classification in the future, it will need to submit sufficient evidence to establish 
that it would employ the Beneficiary in the United States in a managerial or executive capacity as 
defined at section 10l(a)(44) of the Act. 
IV. CONCLUSION 
The Petitioner has not established that it was doing business for a year prior to the time of filing, or 
that it will employ the Beneficiary in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of 5-C-USA Corp, ID# 1268257 (AAO May 29, 2018) 
5