dismissed EB-1C Case: Online Gaming And Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 5-U- CORP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an online gaming and software development company, seeks to permanently employ 
the Beneficiary as its general manager under the first preference immigrant classification for 
multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition on multiple grounds concluding that 
the Petitioner did not establish that: ( 1) the Petitioner was doing business as defined by the regulations; 
(2) the Petitioner had provided a bona fide job offer to the Beneficiary; (3) Beneficiary would be 
employed in a managerial or executive capacity in the United States; and (4) the Beneficiary had been 
employed in a managerial or executive capacity in his former position abroad. 
On appeal, the Petitioner asserts that, despite its lack of revenue, it does business by regularly providing 
services for the foreign employer; specifically marketing and relationship development services in the 
United States. Further, the Petitioner contends that it submitted sufficiently detailed duty descriptions 
related to the Beneficiary's proposed employment in the United States, and her former employment 
abroad, and asserted that it has demonstrated he would act in the United States, and that he acted abroad, 
in an executive capacity. 
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)(l)(C) of the Act. 
The Fonn 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 
Matter of 5-U- Corp 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
II. PETITIONER DOING BUSINESS 
The first issue we will address is whether the Petitioner established that it had been doing business for 
one year prior to the date the petition was filed. 
The regulations require that the beneficiary work in the United States for the same employer or a 
subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.5(j)(3). The regulations define doing business as 
"the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or 
other entity and does not include the mere presence of an agent." 8 C.F.R. § 204.5(j)(2). 
The Petitioner indicated that its foreign parent company is a large publicly traded company engaged 
in providing "a comprehensive and integrated suite of online sports lottery services, information, user 
tools sand virtual community venues to its users." In denying the petition, the Director pointed to the 
Petitioner's 2016 and 2017 IRS Forms 1120 U.S. Corporation Income Tax Returns and noted that they 
reflected that it did not earn any income during either of these years, suggesting that it was not 
regularly, systematically, and continuously providing services as of the date the petition was filed. 1 
On appeal, the Petitioner asserts that evidence of revenue or income is not required to demonstrate 
that it was doing business as defined by the regulations. The Petitioner contends that it provided 
regular marketing and relationship development services for its foreign parent company and states that 
it receives financial support from the foreign parent to conduct these activities. The Petitioner asserts 
that it submitted supporting documentation substantiating that the Beneficiary oversaw employees 
providing these services for the foreign parent in the United States. 
Upon review, the Petitioner has not submitted sufficient evidence to establish that it was regularly, 
systematically, and continuously providing goods and services as of the date the petition was filed. 
First, we acknowledge the Petitioner's assertion that the regulatory definition does not explicitly 
require that a petitioner generate income or revenue. However, the regulation also indicates that the 
Petitioner's operations should consist of more than "the mere presence of an agent." See 8 C.F.R. 
§ 204.5(j)(2). 
Further, we note that the definition of "doing business" at 8 C.F.R. § 204.5(j)(2) contains no 
requirement that a petitioner for a multinational manager or executive must provide goods and or 
services to an unaffiliated third party. 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 
1 The petition was filed on November 30, 2017. We note that the Petitioner's 2016 IRS Form 1120 covered a fiscal year 
running from June 1, 2016, to June 30, 2017, or the year just preceding the date the petition was filed; and that its 2017 
IRS Form 1120 was applicable to July 1, 2017, through June 30, 2018. 
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Matter of 5-U- Corp 
manner to related companies within its multinational organization. Matter of Leacheng, 26 I&N Dec. 
532 (AAO 2015). 
However, unlike the petitioner in Matter of Leacheng, the Petitioner in this matter has not sufficiently 
described the services it provides or adequately documented that it was regularly, systematically, and 
continuously carrying out its asserted "marketing" and "relationship development" services. For 
instance, the aforementioned 2016 and 2017 IRS Forms 1120 include no expenses for marketing, 
advertising, or costs relevant to the referenced "marketing services." In addition, on appeal, the 
Petitioner contends that it provided evidence of the Beneficiary overseeing several employees 
providing these services; including presumably, the sales manager, sales assistant, brand and 
marketing manager, brand and product promotion employees, public relations coordinator, and others, 
listed in its U.S. organizational chart. 
However, there is no evidence on the record of the Petitioner performing sales, brand or product 
management, marketing, advertising, public relations or other such similar services. Likewise, 
contrary to the Petitioner's assertions, it submitted no documentation reflecting the Beneficiary's 
supervision of U.S. based employees or services. The Petitioner also named sales staff on its 
organizational chart, but it has not documented any sales revenue. In fact, the Petitioner only provided 
documentation reflecting the Beneficiary's coordination with potential clients and investors, 
confidentiality agreements he executed with these potential clients, and other research reports related 
to potential investing in the U.S. online gaming and gambling industry. 
However, we do not find that this demonstrates the regular, systematic, and continuous provision of 
services contemplated by the regulations. For instance, the Petitioner submitted the parent company's 
2017 U.S. Securities and Exchange Commission (SEC) Form 20-F Annual Report and this document 
included no indication of the Petitioner's asserted marketing and relationship development services in 
its "our services" section. In fact, in a section titled "sales, marketing, and branding" there was only 
discussion of brand management in China and Europe, but no mention of the Petitioner or its 
operations in the United States. The foreign parent also listed the Petitioner as an "investment holding" 
company, as opposed to several "software service," "online gaming" or other service related or 
operating entities within its corporate structure. In addition, the foreign parent stated in the 201 7 SEC 
Form 20-F that "[the Petitioner] is incorporated in the USA and does not conduct any substantive 
operations of its own." This evidence and these statements in the foreign parent's 2017 SEC Form 
20-F leave substantial question as to whether the Petitioner was doing business as defined by the 
regulations. The Petitioner must resolve inconsistencies and ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). 
Therefore, in sum, the Petitioner has not sufficiently demonstrated that it is conducting services in a 
regular, systematic, and continuous fashion as of the date the petition was filed. Indeed, the submitted 
documentation more likely reflects the Beneficiary investigating potential clients and investment in 
the United States related to the online gaming and gambling industry and there is little indication that 
he is overseeing an organization regularly providing marketing services for the foreign parent as 
claimed. For example, in contrast, the petitioner in Matter of Leacheng submitted documentation 
clearly reflecting that it was marketing the foreign entity's products, locating buyers, maintaining 
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Matter of 5-U- Corp 
relationships with customers, and facilitating the completion of sales contracts and shipping 
arrangements in the United States. See Matter o/Leacheng, 26 I&N Dec. 536. This petitioner further 
provided copies of its service agreement with its foreign affiliate and substantial evidence that it was, 
in fact, performing the services specified in the contract on a regular, systematic, and continuous basis. 
Id. However, the Petitioner has not provided this level of supporting documentation, but only evidence 
of the Beneficiary's initial investigation of business prospects in the United States. In other words, 
the evidence indicates that the Beneficiary may be acting as a "mere agent" of the foreign parent in 
the United States. Again, the regulations define doing business as "the regular, systematic, and 
continuous provision of goods and/or services by a firm, corporation, or other entity and does not 
include the mere presence of an agent." 8 C.F.R. § 204.5(j)(2). 
For the foregoing reasons, the Petitioner did not establish that it was doing business as defined by the 
regulations as of the date the petition was filed. 
III. FOREIGN EMPLOYMENT IN AN EXECUTIVE CAP A CITY 
The next issue we will address is whether the Petitioner established that the Beneficiary acted in an 
executive capacity in his former position abroad. The Petitioner does not claim that the Beneficiary 
was employed abroad in a managerial capacity. Therefore, we restrict our analysis to whether the 
Beneficiary was employed in an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act, 8 U.S.C. § 110l(a)(44)(B). 
When examining the foreign executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties abroad. The petitioner's description of the foreign 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 foreign job duties, 
we examine the foreign employer's organizational structure, the duties of a beneficiary's subordinate 
employees abroad, the presence of other foreign employees to relieve a beneficiary from performing 
operational duties, the nature of the foreign business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business abroad. 
Accordingly, we will discuss evidence regarding the Beneficiary's foreign job duties along with 
evidence of the nature of the foreign employer's business, its staffing levels, and its organizational 
structure. 
A. Duties 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary performed certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
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Matter of 5-U- Corp 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the Beneficiary 
was primarily engaged in executive duties abroad, as opposed to ordinary operational activities 
alongside the foreign employer's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion World, 940 F.2d 1533. 
In a support letter provided with the petition, the Petitioner stated that the Beneficiary was employed 
as the deputy general manager of an affiliated company within the greater corporate organization of 
the foreign parent from April 2011 to November 2014 prior to his entry into the United States as a 
non-immigrant. The Petitioner indicated that this company,.__ ____________ __. Co. 
Ltd., was devoted to "computer programming and consulting." In a support letter, the foreign parent 
explained that the Beneficiary was the "head executive official" and that he was "responsible for a 
wide range of important executive tasks," including "the public listing of our parent company ... on the 
New York stock exchange in 2013." 
In addition, in a support letter provided with the petition, the foreign employer listed some of the 
following duties for the Beneficiary: 
• manage working relationships with the foreign employer's business partners, 
• handle investment plans, 
• direct joint venture activities or events, 
• maintain contacts with officers in various companies for future business opportunities, 
• spearhead international business development strategy, 
• seek investment opportunities, establish overseas offices, and seek potential foreign 
tech/gaming company business partners, 
• develop and control annual budget, 
• perform high level HR duties such as performance review, hiring, firing of managerial 
employees, 
• resolve any major issues or disruptions, 
• negotiate and sign major business contracts, and 
• oversee the development of sports data analysis software. 
In a later request for evidence (RFE) the Director noted that the Petitioner did not reveal the specific 
daily tasks performed by the Beneficiary and requested that it submit a statement clearly describing 
them. However, as noted by the Director, the Petitioner and foreign employer provided no additional 
detail regarding the Beneficiary's duties as requested. On appeal, the Petitioner states that it submitted 
a letter from the foreign employer's chief financial officer (CFO) detailing the specific processes and 
deals the Beneficiary oversaw, including the "IPO process for [the foreign parent]." The Director 
indicated in the decision that this support letter was not apparent on the record. 
The Petitioner now submits this additional support letter on appeal, and it includes largely the same 
foreign duties for the Beneficiary, but farther indicates that the Beneficiary "played an important role 
in the company's major business campaigns in China during the 2014 FIFA World Cup in Brazil" and 
noting that he "successfully negotiated three major agreements." It farther stated that the Beneficiary 
represented the foreign parent in negotiating a "sport content services agreement" with a company 
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Matter of 5-U- Corp 
calledl~--~I and that he represented the company at a 'j~-------~t held in~I --~ 
in 2012. 
Although we acknowledge that the Petitioner provides some additional detail regarding the 
Beneficiary's activities with the foreign employer from 2011 through 2014, we conclude that it has 
not submitted a sufficiently detailed duty description describing the Beneficiary's day-to-day 
executive-level duties abroad to substantiate that he devoted his time primarily to qualifying tasks 
abroad. The Beneficiary's duty description still includes several generic duties that could apply to any 
executive acting in any business or industry and they do not provide insight into the actual nature of 
his former role abroad. The Petitioner provided insufficient examples and little supporting 
documentation to demonstrate the Beneficiary's performance of qualifying duties, such as the 
investment plans he executed on, joint ventures he directed, marketing and brand development he 
supervised, budgets he planned, or managers he hired or fired. 
Likewise, the Petitioner did not detail or document the international business development strategies 
the Beneficiary supervised, major issues or disruptions he resolved, the policies he set, managerial 
difficulties he overcame, or major human resources issued he faced. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive in nature, otherwise meeting the 
definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). As such, the Petitioner has 
not provided a sufficiently detailed duty description for the Beneficiary required to demonstrate his 
eligibility as an executive. 
In addition, the Petitioner does not provide sufficient detail and documentation related to the 
Beneficiary's claimed projects, such as his claimed oversight of the parent company's initial public 
offering (IPO {, negotiation of three contracts related to the FIFA World Cup in 2014 and another 
contract with I' and his attendance at the in 2012. The Petitioner I 
does provide apparent contr-acts related to the aforementioned negotiations; however, there is little 
substantiating documentation to demonstrate the Beneficiary's involvement and direction of these 
negotiations or his delegation of duties to subordinates in an executive level position related thereto. 
Further, the Petitioner regularly references the Beneficiary's oversight of the foreign parent's IPO 
process; but again, it provides little supporting documentation to corroborate him acting in an 
executive capacity overseeing others in the execution of this initiative. In fact, the record does not 
include any documentation reflecting the Beneficiary delegating duties to his claimed subordinate 
managers or other supporting evidence reflecting him acting within a complex organizational 
hierarchy abroad. In sum, the Beneficiary's foreign duty descriptions and the other supporting 
evidence were not sufficient to establish that he primarily devoted his time to qualifying executive 
level tasks for the foreign employer from 2011 through 2014. 
Even though the Beneficiary holds a senior position within the organization, the fact that he managed 
or directed the business does not necessarily establish eligibility for classification as a multinational 
executive within the meaning of section 101 (a)( 44 )(B) of the Act. The Beneficiary may have exercised 
discretion over the foreign entity's day-to-day operations and possessed the requisite level of authority 
with respect to discretionary decision-making; however, the position description alone is insufficient 
to establish that his actual duties were primarily executive in nature. 
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Matter of 5-U- Corp 
B. Staffing 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
a complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 10l(a)(44)(B) of the Act. Under the statute, 
a beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the beneficiary must primarily focus on the broad goals 
and policies of the organization rather than the day-to-day operations of the enterprise. An individual 
will not be deemed an executive under the statute simply because they have an executive title or 
because they "direct" the enterprise as the owner or sole managerial employee. A beneficiary must 
also exercise "wide latitude in discretionary decision making" and receive only "general supervision 
or direction from higher level executives, the board of directors, or stockholders of the organization." 
Id. 
In support of the petition, the Petitioner submitted a ;areign rganizational chart indicating that the 
Beneficiary oversaw the Petitioner and the company's Branch." The Petitioner also provided 
a different foreign organizational chart in support of the petition reflecting that the Beneficiary 
supervised an operations department consisting of a director overseeing a financial manager, a 
technical assistant, and an administrative assistant and an international business group made up of a 
director supervising an international business consultant and an "international business staff' 
employee. Later, in response to the RFE, the Petitioner submitted another foreign organizational chart 
indicating that the Beneficiary oversaw an international business group consisting of a director, 
assistant, and a consultant and a human resources department made up of an administration manager, 
an assistant, financial manager, technical assistance employee, and a driver. Now, in the support letter 
provided on appeal, the Petitioner stated that the Beneficiary supervised "one director, two managers, 
and 5 additional employees." 
The Petitioner submitted conflicting evidence regarding the claimed foreign organizational structure 
supervised by the Beneficiary leaving question as to whether he supervised subordinate managers and 
acted within a complex organizational hierarchy as asserted. First, it is noteworthy that the Petitioner 
continually states that the Beneficiary acted as the company's "head executive official;" however, his 
title is that of deputy general manager and the initial organizational chart reflected that he acted at the 
same level with several other subordinate managers, including a chief operating officer, a chief 
technology officer, a chief financial officer, and another deputy general manager. Meanwhile, one 
submitted organizational chart reflects that the Beneficiary directly oversaw two departments 
consisting of a total of eight employees, with no apparent managers, while a later foreign 
organizational chart depicted a total of seven employees with two directors and five subordinates. On 
appeal, the Petitioner refers to "one director, two managers, and 5 additional employees." The 
Petitioner provides no explanation for these apparent inconsistencies and discrepancies. The Petitioner 
must resolve inconsistencies and discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In addition, the Petitioner submits little supporting documentation to substantiate the Beneficiary 
acting within a complex organizational hierarchy abroad. For instance, the Petitioner did not submit 
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Matter of 5-U- Corp 
duty descriptions for any of the Beneficiary's asserted subordinates abroad to substantiate their roles, 
as requested by the Director. The record also includes almost no supporting evidence to demonstrate 
the Beneficiary's supervision of subordinate managers and other subordinates abroad. For instance, 
despite providing examples of the Beneficiary's claimed activities abroad, such as him handling the 
foreign parent's listing on the New York Stock Exchange (NYSE), it provided no evidence of him 
directing subordinates in this effort and provided only one email of him directly coordinating this 
activity. Beyond this, the Petitioner only submitted foreign entity contracts it claims the Beneficiary 
was responsible for initiating and negotiating; however, there is no credible evidence of him actually 
doing this or directing subordinates within a complex organizational hierarchy in accomplishing these 
initiatives. 
In conclusion, the Petitioner has not established that the Beneficiary acted in an executive capacity 
abroad. The Beneficiary's duty description is overly vague and the record includes little documentary 
evidence indicating that that he acted in an elevated position within a complex organizational hierarchy 
and that he was primarily tasked with directing the management and establishing the goals and policies 
of his foreign employer, consistent with the statutory definition of an executive. 
IV. U.S EMPLOYMENT IN AN EXECUTIVE CAPACITY 
Because of the dispositive effect of the above findings of ineligibility, we will only briefly address 
whether the Petitioner established that the Beneficiary would be employed in an executive capacity in 
the United States. 
Similar to the Beneficiary's employment in the United States, the Petitioner did not submit a 
sufficiently detailed U.S. duty description describing the Beneficiary's day-to-day executive-level 
duties to support that he would devote his time primarily to qualifying tasks. The Beneficiary's U.S. 
duty description also includes several generic duties that could apply to any executive acting in any 
business or industry and they do not provide insight into the actual nature of his role. The Petitioner 
provided insufficient examples and little supporting documentation to demonstrate the Beneficiary's 
performance of qualifying duties, such as how he increased management effectiveness, values, 
strategies, and objectives he set, accountabilities he assigned, incentives he developed, strategic plans 
he developed, or plans and budgets he implemented. 
Likewise, it did not detail or document mid-course corrections the Beneficiary ordered, internal 
systems he created, or strategies for "cultural construction" he established. In fact, despite asserting 
that the Beneficiary oversees approximately six subordinate managers and a total of eleven employees 
in his role with the Petitioner, there is no evidence on the record of him delegating duties from an 
executive level position to these subordinates. This lack of evidence is particularly notable 
considering that the Petitioner asserts that the Beneficiary has been acting in an executive capacity in 
the United States since December 2014. Again, specifics are clearly an important indication of 
whether a beneficiary's foreign duties are primarily executive in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, at 
724 F. Supp. 1103, 1108). 
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Matter of 5-U- Corp 
To the extent the Petitioner provides evidence of the Beneficiary's activities in the United States, this 
reflects his performance of non-qualifying operational tasks related to investigating potential clients 
and investment and conducting marketing research. For instance, the Petitioner provides emails and 
chat sessions the Beneficiary conducted with potential clients and related confidentiality agreements 
he executed with them; however, there is no evidence of him overseeing the claimed sales manager 
and sales employee in these activities. Similarly, the Petitioner contends that it employs a brand and 
marketing manager, brand and product promotion employees, and a public relations coordinator; but 
there is no supporting documentation to substantiate these employees acting in their roles and it 
submitted only vague duty descriptions for these positions. In fact, as we have discussed, the 
Petitioner's 2016 and 2017 IRS Forms 1120 show no expenses for product, marketing, brand, or public 
relations activities and it provides no supporting documentation that it has these functions in the United 
States to support its claimed employees. Indeed, as mentioned, the record only includes evidence of 
the Beneficiary's investigation of opportunities in the United States on behalf of the foreign parent 
and little indication that he acts at the head of a complex organizational hierarchy and that he is 
delegating tasks to subordinate managers as asserted. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would act in an 
executive capacity in the United States. 
V. REMAINING ISSUE 
As noted, the Petitioner also denied the petition concluding that the Petitioner had not provided a bona 
fide job offer to the Beneficiary. However, because of the dispositive effect of the above findings of 
ineligibility; we decline to address this additional issue raised by the Director. 
VI. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of 5-U- Corp, ID# 5562498 (AAO Sept. 20, 2019) 
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