dismissed EB-1C Case: Software

U.S. Citizenship 
and Immigration 
Services 
In Re: 6044525 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 23, 2020 
Form I-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner, which states that it is engaged in the marketing and sale of software products, seeks to 
permanently employ the Beneficiary as its 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 initially approved the petition, but subsequently revoked 
that approval on multiple grounds, concluding that the record did not establish that: (1) the Petitioner 
has a qualifying relationship with the Beneficiary's foreign employer; (2) the Beneficiary was 
employed abroad, and would be employed in the United States, in a managerial or executive capacity; 
and (3) the Petitioner had been doing business for at least one year as of January 19, 2016, the date it 
filed this petition. 1 
On appeal, the Petitioner contends that the Director unreasonably discredited and ignored critical 
evidence and reached erroneous conclusions that are not supported by the record. 
In revocation 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; Matter of Cheung, 12 I&N Dec. 715 (BIA 
1968); and Matter of Estime, 19 I&N Dec. 450, 452, n.1 (BIA 1987). Upon de nova review, we 
conclude that the Petitioner did not establish that it was doing business as defined in the regulations 
for at least one year at the time it filed this petition; for this reason, we find that the approval of the 
petition was properly revoked and we will dismiss the appeal. Because of the dispositive effect of this 
determination, we will reserve the remaining grounds for revocation discussed in the Director's 
decision . 
1 The Director also raised a concern as to whether the Form 1-140, Immigrant Petition for Alien Worker, was properly 
filed, as the company representative who signed the petition did not appear on the Petitioner 's organizational chart, but 
rather appeared to work for the Petitioner 's parent company. We find sufficient evidence to establish that this individual 
was in fact an authorized signatory for the Petitioner and we will withdraw the Director 's finding to the contrary. The 
Director's decision also observed that the petition was "considered abandoned" based on a determination that the Petitioner 
submitted an untimely response to the notice of intent to revoke (NOIR). We note that there is no regulatory provision 
that allows for summary revocation for failure to timely respond to a NOIR. Nevertheless, the Director did not summarily 
revoke for abandonment , but rather issued a full decision on the merits which took into consideration the Petitioner's 
response to the NOIR. 
I. LEGAL FRAMEWORK 
A The Classification Sought 
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 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, 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(i)(3). 
B. Revocation of an Approved Petition 
Section 205 of the Act, 8 U.S.C. § 1155, states: "The Secretary of Homeland Security may, at any time, 
for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him 
under section 204. Such revocation shall be effective as of the date of approval of any such petition." 
Regarding the revocation of an immigrant petition under section 205 of the Act, the Board of Immigration 
Appeals has stated: 
In Matter of Es time ... , this Board stated that a notice of intention to revoke a visa petition 
is properly issued for "good and sufficient cause" where the evidence of record at the time 
the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa 
petition based upon the petitioner's failure to meet his burden of proof The decision to 
revoke will be sustained where the evidence of record at the time the decision is rendered, 
including any evidence or explanation submitted by the petitioner in rebuttal to the notice 
of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) ( quoting Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). 
II. DOING BUSINESS 
The sole issue we will address is whether the Petitioner established that it was doing business for at 
least one year as of January 2016, when it filed this petition. See 8 C.F.R. § 204.5(i)(3)(i)(D). 
The term doing business is defined as the regular, systematic, and continuous provision of goods 
and/or services and does not include the mere presence of an agent or office. 8 C.F.R. § 204.5(i)(2). 
In a supporting letter dated November 2015, the Petitioner explained that it was established in order 
to market and sell its Israeli affiliate's software security products in the United States market, 
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specifically targeting federal, state, and local law enforcement agencies. The Petitioner explained that 
it receives financial backing from its claimed parent company.I I while 
the software products and services are developed byl Is Israeli subsidiary, I • I I I On the Form 1-140, the Petitioner indicated that a gross income of was "0.00." 
The Petitioner stated in its letter that it "has several potential transactions, submitted formal proposals 
and is engaged in various stages of negotiations" with several law enforcement agencies in the United 
States and Canada. It also stated that it has "obtained all of the formal certifications in order to sell 
and participate in government contracting procedures" and "is now ready to participate directly" in 
government contracting. The Petitioner did not provide evidence of these "formal certifications" or 
indicate when they had obtained them. 
The Petitioner's initial evidence did not demonstrate that it had been engaged in the regular, 
systematic, and continuous provision of services since January 2015. This evidence included the 
following: 
• Copy of an invoice dated December 9, 2015, issued by the Petitioner to C=1 for "BizDev and 
Marketing Services" in the amount of $208,241. The invoice is numbered "2015-00 l ." 
• Copies of the Petitioner's bank statements for the months of June 2015 through December 
2015. The bank statements reflect that the Petitioner had a balance of $100 as ofJune 1, 2015, 
received a wire transfer in the amount of $860,000 fromC::Jon June 19, 2015, and had no 
other deposits or credits to its account during this six-month time period other than what 
appears to be a refund or credit from a car rental company. 
• A letter fromO dated December 10, 2015, indicating that it has transferred approximately 
$860,000 to the Petitioner in 2015 and intends "to continue to fond [the Petitioner's] operations 
in the United States until such time as its own sales activities generate sufficient revenue for it 
to fond itself." 
• Copy of the Petitioner's 2014 federal tax return (for the period July 22, 2014 through December 
31, 2014), which showed that the company reported no assets, income, or expenses for the 
year. D 
• A December 2015 letter from stating that the Petitioner has been a private office client 
of its I I Maryland location since April 2014, along with copies ofrecent invoices from 
the last few months of 2015. 
This evidence reflected that the Petitioner had no business activities in 2014 and that it did not receive 
its initial fonding from its parent company until June 2015. While the Petitioner annotated its bank 
statements to identify business related expenses related to payroll, rent, wireless communications, and 
technology purchases in the months following its receipt of fonding, it is unclear how the company 
would have been able to engage in any regular or systematic business activities prior to that date. In 
addition, although the submitted letter fro~ 0 I indicates that the company first leased an office in 
Maryland in 2014, we note that there are no rent expenses reported on the company's 2014 tax return. 
Further, the single invoice the Petitioner issued to its parent company for services rendered is 
insufficient to establish that the Petitioner was engagefl-in--.fhe provision of services for the entire 
calendar year, nor does the record contain evidence that L_jpaid the amount stated on the invoice. 
3 
In addition to the evidence noted above, the Petitioner's evidence reflected that it retained a 
commissioned "legal counsel and consultant" and "sales representative" in June and August 2015, 
respectively, as well as a payroll company (also in August 2015), and a recruiter (in December 2015), 
but this evidence is insufficient to support the Petitioner's claim that it was doing business for the 
entire 2015 calendar year. The Petitioner has not provided evidence of payments made to 
commissioned or contract employees in 2015, and the submitted payroll evidence does not establish 
that the company was staffed for the entire year. The Beneficiary appears to have been the first 
employee on the Petitioner's payroll and it consistently indicates that he did not formally undertake 
his duties as CEO until May 2015. 
Finally, we acknowledge that the Petitioner submitted evidence intended to demonstrate that it was 
engaged in marketing and pre-sales activities related to its affiliate's software product prior to 2015. 
This evidence included: 
• A price proposal dated November 2014, prepared for l I Illinois." 
• An undated price proposal prepared for the I !Sheriff: Michigan which mentions 
that the offer proposed would remain valid until October 15, 2014. 
• An unsigned field test proposal, dated August 11, 2014, prepared for thel I I ._ __ ___. 
As noted above, the Petitioner reported no business-related income, assets, or expenses on its 2014 tax 
return, which raises questions as to whether these proposals and any meetings and expenses associated 
with their preparation can be attributed to the Petitioner. We also observe that although two of the 
referenced proposals identify 1 I Vice President of Sales" as the individual representing 
the Petitioner in the offer, the record reflects that the Petitioner eventually filed an H-lB petition on 
behalf ofl I there is no evidence that the Petitioner employed him in any capacity in 2014 
as the company paid no wages or and made no payments to contractors that year. In addition, we 
acknowledge that the Petitioner submitted copies of a few email communications betweed I 
the Beneficiary and potential law enforcement clients dated in 2014; however, the record does not 
establish that any of them were acting in the capacity of an employee or contractor of the Petitioner 
during that year. 2 
Based on the foregoing, the initial evidence did not meet the Petitioner's burden to establish that it had 
been doing business for at least one year prior to filing the petition. Nevertheless, the petition was 
approved in May 2017. 
In April 2018, the Director issued a notice of intent to revoke (NOIR) the approval of the petition on 
the grounds that the Petitioner did not establish that it had been doing business for at least one year at 
the time the petition was filed. Specifically, the Director acknowledged the submitted evidence, but 
noted that the Petitioner "failed to provide credible evidence of actual business transactions covering 
2 We note that the foreign entity.I l had its own representative agreement with a U.S. 
~ny doing business as I I 
1
he af,reement was signed in February 2014, and apP,ointed 
L__J as D's represenrarive t~r the promotion and sale ot 's software products. USCTS records reflect thatc=J 
filed an H-IB petition on l•s behalf in 2014. 
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the relevant period, such as invoices, sales contracts, etc."3 The Director provided the Petitioner with 
an opportunity to submit additional evidence in support of the petition in and in rebuttal to the 
revocation. 
In response to the NOIR, the Petitioner submitted additional evidence, including declarations from the 
Beneficiary and the company president, and copies of its federal income tax returns for 2015 and 2016. 
In a letter accompanying its response to the NOIR, the Petitioner maintained that the evidence 
demonstrates that the company was "well-fonded, beginning in 2014 and onward," that it has 
maintained physical office space since 2014, that it generated substantial income in 2015, and paid 
federal and state taxes. 
The Petitioner's president, ~-----~ explains in his declaration that "the nature of [the 
Petitioner's] business means that results must be developed over time. Ties with federal and state law 
enforcement agencies can take years to folly develop." Nevertheless, he stated that the company "has 
already signed lucrative contracts valued over $1 million" with this success "largely stemming from 
[the Beneficiary's] early efforts." The Beneficiary farther elaborates on those early efforts in his own 
declaration, noting that in 2014, he was placed in charge of directing! b efforts to market its 
cybersecurity software products in the U.S. market. He states that the Petitioner has "been in the 
business of regularly provided goods and services in the United States" since 2014 by marketing the 
cybersecurity products developed by D 
The Beneficiary farther explains that, while he remained onc::J's payroll through April 2015, he 
regularly entered the United States for business meetings in order to "carry out the process of 
understanding the government-based security market in the United States in order to carry out [the 
Petitioner's] mission" of providing products for that market. He also emphasizes the complexity of 
the endeavor, noting the need for: learning and understanding the statutory and regulatory framework 
for the procurement and use of the company's technologies; learning about Congress' involvement in 
the oversight of the use and procurement of cybersecurity products; understanding the budget process 
used by targeted agencies; learning about the security clearance process; analyzing and addressing 
the differing requirements of intelligence customers and law enforcement customers; and analyzing 
the capacities and strategies of the competition. The Beneficiary notes that this process of learning 
what is required to enter the U.S. cybersecurity market is "the essence of the Petitioner's business" 
and "was going on vigorously in this country (and [the Petitioner] was therefore doing business) 
throughout late 2014 and 2015 and since." The Beneficiary went on to explain that as a result of his 
early efforts, he was able to develop customer ties by mid-2015, and "had reached the stage of our 
business reaching out directly to particular customers." 
3 The Director also advised the Petitioner that public records showed that the Petitioner (a Delaware corporation established 
in02014) registered as a foreign corporation in Maryland inC] 2016, after the filing of the petition. As a result the 
Director questioned whether it was "legally authorized to conduct business in Maryland" at the time of filing. The 
Petitioner responded by noting that the State of Maryland specifically allows a company that is already doing business in 
Maryland to pay a small penalty fee for a late registration, emphasizing that the registration is a "corporate formality and 
facially does not prevent a business from conducting actual operations before its filing." We find that the Petitioner 
adequately addressed the Director's concern regarding its Maryland business registration and note that this point is 
tangential to the issue of whether the Petitioner's activities in calendar year 2015 satisfy the definition of"doing business" 
at 8 C.F.R. § 204.5(j)(3). 
5 
As noted, the Petitioner submitted a copy of its 2015 income tax return in support of its claim that it 
was doing business throughout that calendar year and for a foll year leading up to the filing of this 
petition in January 2016. The tax return shows that the Petitioner reported $443,253 in gross receipts 
or sales, as well as expenses for rent, payroll, taxes and licenses, accounting, conferences, legal fees, 
office expenses, office supplies, travel expenses, and other expenses. While the tax return suggests 
that the Petitioner was engaged in business activities in 2015, it is insufficient to establish that the 
company was doing business as defined in the regulations beginning as early as January 2015. For 
example, comparing the reported year-end rent expenses of $16,316 to the Petitioner's rent invoices 
froml I (which reflect a monthly base fee of approximately $2560), it appears that the Petitioner 
paid rent for only six months out of the year. In addition, the evidence does not reflect that the 
Petitioner had employees or contractors available to carry out its business functions for the entire 
calendar year. 
Further, although the Director's NOIR specifically noted the lack of documentation relating to actual 
business transactions (such as sales contracts or invoices), the Petitioner's response did not include 
additional evidence reflecting how it earned the reported gross receipts of $443,253. The gross 
receipts figure alone does not establish that the Petitioner engaged in the regular, systematic and 
continuous provision of services throughout the year. As noted, the record contains only one invoice 
issued by the Petitioner in December 2015, which was for less than half of the amount reflected on the 
tax return. Given that the invoice was numbered "001," it is reasonable to assume that it represented 
the company's first invoice of the calendar year. 
The Director revoked the approval of the petition after reviewing the Petitioner's response, finding the 
evidence insufficient to overcome the concerns raised in the NOIR. The Director determined that the 
Petitioner had not submitted sufficient objective evidence of its business activities for the year prior 
to the filing of the petition, particularly in light of evidence in the record indicating that the company 
has relied on and would continue to rely on fonding from its parent company until it can achieve 
sufficient sales of its own. 
On appeal, the Petitioner maintains that it provided "extensive evidence" demonstrating that it had 
been taking "a variety of the natural steps an enterprise would take in launching its software marketing 
business." On appeal, the Petitioner submits additional evidence in the form of "emails showing that 
the beneficiary and others were reaching out to potential customers and were otherwise conducting 
the company's regular business in 2015." The submitted email communications summarize meetings 
with consultants, potential consultants, an
1 
poteTial clients that occurred in the first severµ.l...nll2pths 
of 2015, and which involved employees of (which as noted above, was contracted byl__J not 
the Petitioner), who reported to the Beneficiary. 
Upon review, we find that the Petitioner has not established that it was doing business as defined in 
the regulations for at least one year prior to the filing of this petition in January 2016. 
Here, the fact remains that the Petitioner has not sufficiently documented its regular, systematic and 
continuous provision of goods and services throughout 2015. Rather, the evidence indicates that the 
Petitioner remained in an early stage of development and was still preparing to do business in its 
targeted market for a good portion of that year by holding meetings intended to help them understand 
the needs of the market and the obstacles they may face. The evidence does not support a finding that 
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these exploratory research and analysis activities amounted to the provision of goods or services. 
While the Petitioner ultimately billed its parent company for marketing and business development 
services at the end of 2015, the single invoice submitted is insufficient to show that it was engaged in 
these activities, either independently or on behalf of another company in its corporate organization, 
for the entire year. 
For example, one of the meeting summaries the Petitioner submitted on appeal indicates that as 
recently as May 2015, an employee ofi ILJ's representative in the United States) met with a 
I !University law professor "to show him our presentation and product demo, and hear his 
opinions regarding the potential legal challenges" the group's cybersecurity product may face in the 
U.S. law enforcement agency market. The professor identified several features of the product which 
would likely present legal hurdles at the state or federal level and would need to be addressed. Another 
meeting summary between! !employees and two industry professionals raised concerns regarding 
"potential red flags" regarding export controls, out of country research and development and support, 
and foreign technology. The industry professionals recommended that such issues must be "cleared 
out and taken care of prior to reaching out to clients" and noted the "potential liability and potential 
political landfalls" that would also be of concern to potential users. Based on this evidence, it is 
unclear when or if the cybersecurity products the Petitioner is seeking to market and sell in the U.S. 
market became compliant with the market's legal requirements regarding cybersecurity technologies 
and imported technology. The record does not contain evidence of any sales completed as a result of 
the Petitioner's sales and marketing efforts as of the date of the appeal. 
On a related note, it is also unclear when the Petitioner actually obtained "all of the formal certificates 
in order to sell and participate in government contracting procedures." The Petitioner stated in its 
initial letter that it "obtained a CAGE Code from the American system Award Management (SAM)" 
but it did not submit corroborating documentation. Given that the Petitioner describes itself as a sales 
and marketing company, it is reasonable to expect the Petitioner to establish that it was actually 
qualified to conduct sales in its intended market for a full year prior to filing the petition, even if its 
marketing efforts did not always result in a finalized sales contract. 
Further, as discussed above, we note that despite the Petitioner's claim that it has been doing business 
since 2014, we cannot overlook the fact that it reported no business activity of any type in its 2014 
federal tax return. Given that this petition was filed on January 19, 2016, it is the Petitioner's burden 
to show that it went from having $0 in income, assets, and expenses in 2014 to being fully operational 
and engaged in the regular and continuous provision of services by the third week of 2015. The 
Petitioner has not met that burden. Again, the record reflects that the Petitioner received substantial 
funding from its parent company in June 2015, at a time when it had no documented employees or 
contractors and only $100 in its bank account. While it appears that the company's business related 
expenses ramped up after receipt of that funding, it is unclear how it operated prior to June 2015 
without funds available to pay employees, contractors, or other expenses. 
In addition, if the Petitioner was in fact engaged in activities consistent with the definition of "doing 
business" in the first half of 2015, it is reasonable to expect that the Petitioner would have something 
other than email communications to reflect those activities. The emails reflect that Beneficiary was 
engaged in business meetings with potential U.S. clients and consultants while remaining on the 
7 
foreign entity's payroll, but are insufficient to establish that his activities rose to the level of providing 
regular, systematic, and continuous services on behalf of the Petitioner. 
The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter 
of Chawathe, 25 I&N Dec. 369,376 (AAO 2010). We acknowledge the Petitioner's claim that it has 
been doing business since 2014; however, it has not provided sufficient evidence to support this claim. 
Therefore, we find that the approval of the petition was properly revoked. 
III. CONCLUSION 
The revocation of the previously approved petition is affirmed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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