dismissed EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 17537611 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 21, 2022 
Form 1-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner, a software development company, seeks to permanently employ the Beneficiary as its 
chief executive officer under the first preference immigrant classification for multinational managers 
or executives . Immigration and Nationality Act (the Act) section 203(b)(l)(C) , 8 U.S .C. 
§ 1153(b )(1 )(C). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary was employed abroad, and will be employed in the United 
States, in a managerial or executive capacity. The Petitioner filed a combined motion to reopen and 
reconsider. The Director granted the motion and affirmed the denial of the petition . 
We dismissed the Petitioner's appeal from that decision, and two further combined motions to reopen and 
reconsider. In those decisions, we focused on the issue of the Beneficiary's U.S . employment, concluding 
that the Petitioner did not establish the Beneficiary would be employed in the U.S. in a managerial or 
executive capacity. We reserved the issue of his employment abroad because that discussion was not 
necessary in order to reach a dismissal or determine the outcome of each decision. In dismissing the 
second motion before us, we also determined that the Petitioner had not established that it has a qualifying 
relationship with the Beneficiary's former employer abroad. The matter is now before us on a third 
combined motion to reopen and reconsider. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the combined motion. 
I. LAW 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as, 
for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l) . A motion to 
reopen is based on factual grounds and must state the new facts to be provided in the reopened 
proceeding , and be supported by affidavits or other documentary evidence . 8 C.F.R . § 103.5(a)(2) . A 
motion to reconsider must establish that we based our decision on an incorrect application of law or 
policy and that the decision was incorrect based on the evidence in the record of proceeding at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements 
and demonstrates eligibility for the requested immigration benefit. A motion that does not meet all 
the requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). 
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 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). 
The petitioning U.S. employer must show that the beneficiary's duties abroad, and his proposed duties 
in the United States, are primarily managerial or executive as the regulation at 8 C.F.R. § 204.5(i)(2) 
defines those terms. The petitioning employer must also establish that it has a qualifying relationship, 
through shared ownership and control, with the entity that previously employed the beneficiary outside 
the United States. See 8 C.F.R. § 204.5(i)(3)(C). 
II. ANALYSIS 
The issues in dispute throughout this proceeding have involved the Beneficiary's duties in the United 
States, the Petitioner's staffing, and the ownership of the petitioning entity. Several rounds of motions 
(and one appeal) have increasingly narrowed the focus of our decisions, to the point that eight pages 
of the Petitioner's latest eleven-page brief concerns the interpretation of the phrase "helps and directs." 
These decisions have tended to address the various issues in isolation, but the greatest concerns arise 
when we consider these issues in the aggregate, and how they relate to one another. 
The nature of a given employer's products or services will determine the type of work performed there 
and, therefore, the nature and extent of managerial or executive oversight required to run the company. 
Therefore, to have a foll understanding of the Petitioner's managerial needs, and whether the 
Beneficiary qualifies as a manager or executive, we must first establish what products or services the 
~y provides. In its initial filing in July 2017, the Petitioner stated that it "is working on the 
L___Jmixed reality head mount display and cloud based platform, which will revolutionize the area 
of Mixed Reality and is expected to create a big business." Apart from the Petitioner's plans regarding 
I I the record offers only a vague idea of the services that the Petitioner actively provides to 
clients. The Petitioner asserts that it "is a global provider of hardware and software development and 
design services & production," but provides few documented details. 1 The Petitioner's income tax 
returns describe the company's business as "consulting." 
1 Letters from the Petitioner describe "Software development and design Services," but the Petitioner has not documented 
the extent of its work in this area or shown how the responsibilities for that work are distributed among its staff. The 
2 
The "Product" section of the Petitioner's business plan only discusses onlyl I The plan does not 
indicate that the Petitioner has actually developed the software or hardware. One of the company's 
future goals is to "[ C ]reate the firstl proof r concept of the.__ _______ __, product," and 
materials in the record indicate that will require tens of millions of dollars to develop and 
implement. The record describes various efforts to raise this capital, but does not document funds 
raised beyond a $50,000 appeal on a web-based crowdfunding platform. Further rounds of fundraising 
would be "based on the proof of concept." 
In a brief dated February 2019, the Petitioner stated that the "company is at an earlier stage of 
development and all its resources have been placed towards the launching of its I I product, an 
Screen captures from the crowdfunding campaign show 
an estimated delivery date of March 2020 forl I devices, but subsequent filings do not show that 
this delivery has occurred. Other materials in the record indicate that the Petitioner sought to raise 
$20 million in "equity financing" in 2019. The record documents the Petitioner's engagement of a 
public relations firm to gamer publicity for the project, rerlting T various articles and social media 
posts in early 2019. But the record does not show that the devices ever went into production 
or that the software and hardware exist, even as prototypes. Other materials in the record suggest that 
thd I project has been abandoned. For example, in March 2019, the Petitioner established a 
separate Colorado corporation which filed documents with the Securities and Exchange Commission, 
but later filed a 2019 income tax return showing no income and no expenses, and labeled "final return." 
After the initial round of press releases about the I I project in early 2019, the record does not 
show any follow-up publicity either to update potential customers on the project's progress or to 
explain why the project did not meet its previously stated timeline. The record identifies al I 
website, I I but web searches in January 2022 have produced no evidence of an 
active site at that address. 
The assertion in 2019 that the "company is at an earlier stage of development" is of some concern, 
given that the company had existed in the United States for over seven years by that point. These 
concerns are only compounded by the lack of evidence tha~ !products actually exist. We cannot 
ignore that a central argument in the Petitioner's 2019 appeal was that the Beneficiary's involvement 
is crucial in raising ~r I I and developing the software for the project. The apparent 
abandonment of theL___Jproject as noted by the evidence above presumably would result in a 
significant shift in the Beneficiary's responsibilities and duties. 
The record further indicates that the Beneficiary is "involved in the creation of Intellectual Property" 
and "bears the responsibility of zealously guarding Petitioner's product's technology, even amongst 
other employees within Petitioner's comp
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any." lhis language suggests that the Beneficiary is (or has 
been) involved in attempting to create the technology himself: rather than delegating that non­
executive work to others at the company. The regulation at 8 C.F.R. § 204.5(j)(4)(ii) requires us to 
business plan in the record indicates that the Petitioner "has acquired 3 large clients." The Petitioner submits consulting 
agreements dated 2015 and 2016, indicating that the clients may present projects to the Petitioner "from time to time," 
rather than on an ongoing basis. The Petitioner submits a statement of work for one three-month project that ended in 
August 2016, and copies of invoices relating to various projects. Three of these invoices date from 2017, reflecting $28,400 
billed for 284 hours of work between April and June 2017. Other invoices from 2017 were billed to an advisor to the 
petitioning company and to the Petitioner's own director of technical partnerships. 
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take an employer's "stage of development" into account when considering the size of its staff: but 
there is no comparable requirement that increases the permissible amount of non-qualifying executive 
or managerial duties that a beneficiary may perform. The assertion that the "company is at an early 
stage of development" is particularly questionable when the company had already been active for 
several years. 
The Petitioner contends that the Beneficiary has worked, and will continue to work, in an executive 
capacity. The Petitioner's initial description of the Beneficiary's duties in the United States consisted 
largely of vague responsibilities such as "[ s ]upervising a team of top management personnel" and 
"[p]roviding key strategic technology and project management directives." Some responsibilities, 
such as "[ c ]reation of Personnel and Human Resources development policies" and "[h ]iring a new 
team of project managers, technical support and service managers" appear to be one-time, short-term 
tasks rather than ongoing duties that would continue to take up a significant portion of the 
Beneficiary's working time. Our prior decisions discussed the job description in more detail. 
What is significant here is that the duties, as described, presume the presence of an intermediate layer 
of management and sufficient lower-level staff to perform the work of the company. It is the 
Petitioner's burden to show that the work of the company requires an organizational structure that is 
sufficiently complex to warrant executive leadership. The evidence ofrecord does not such a structure 
here. Simply having discretionary control over a company is not enough to show that one's duties are 
primarily executive as the statute and regulations require. 
Regarding staffing discrepancies, we acknowledge the Petitioner's submission of payroll records 
showing ten employees on the payroll as of the petition's July 2017 filing date. This evidence has 
greater weight than the reference to six employees on the P,etition form itself. But we cannot ignore a 
document in the record, from circa 2018, which states: I I was founded on Jan 1, 2017 and 
currently has 6 employees, 4 interns & a few part-time consultants. During the technology 
development phase there were 11 employees." Corporate filings in the record show that the Petitioner 
was founded in 2011, not 2017, and its 2016 tax return quotes figures from earlier returns for 2014 
and 2015. The separate Colorado entity mentioned above was not yet registered at the time the 
Petitioner submitted this document in February 2019, and therefore it does not appear to bethel I 
described in that document. Any company "founded on Jan[uary] 1, 2017" cannot have been doing 
business in the United States for a year, as required, as of the petition's filing date in July 2017. See 
8 C.F.R. § 204.5(j)(3)(i)(D). 
When the Petitioner filed the petition in 201 7, it stated: "we have hired 10 employees and intend to 
hire [an] additional 25-50 employees within [the] next 2 years." The record does not establish that 
growth. Quarterly tax returns from 201 7 and 2018 show between six and ten employees, and more 
recent materials in the record are consistent with a significant reduction in the Petitioner's staffing 
after 2018. Income tax returns in the record indicate that the Petitioner paid $49,642 in non-officer 
salaries in 2018. In 2019, that amount dropped to $19,000, which is substantially less than the $12 
per hour minimum wage for one foll-time, year-round employee in California. 2 The Petitioner's only 
other paid employees in 2019 were the Beneficiary and his spouse. When the Petitioner submitted 
those returns to us in August 2020, the Petitioner's accompanying brief did not explain who performs 
2 See https://www.dol.gov/agencies/whd/state/minimum-wage/history. 
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the company's operational tasks in the face of this substantial reduction in staff to free the Beneficiary 
to perform in a managerial or executive capacity. We are not obliged to presume that the Beneficiary 
delegated that work to contractors, or to employees of any claimed foreign affiliate; the burden is on 
the Petitioner to submit corroborating documentation such as contracts and statements of work. The 
Petitioner cites Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). That decision 
states that we must take into consideration the overseas employees of a multinational organization, but 
it does not establish that the mere existence of those employees is sufficient to prove that a beneficiary 
working in the United States works in a primarily managerial or executive capacity. 
With respect to the qualifying relationship between the Petitioner and the Beneficiary's foreign 
employer, the Petitioner asserts that the two companies are affiliates because they have the same 
shareholders who own approximately the same proportion of shares of each company. See 8 C.F.R. 
§ 204.5(j)(2). Asked to establish that this affiliate relationship continues to exist, the Petitioner has 
submitted letters from accountants and attorneys. But the record also shows that, when asked to 
explain the very low compensation paid to individuals holding high-level titles in the petitioning 
organization, the Petitioner has asserted that these individuals have agreed to receive token payments, 
plus the promise of future shares in the company, in lieu of salary. The awarding of corporate shares 
in this manner would disrupt the affiliate relationship between the U.S. and foreign employers. 
Likewise, a "public securities offering," described in documents in the record from early 2019, would 
sever the affiliate relationship between the Petitioner and the Beneficiary's foreign employer. An 
undated "White Paper" submitted in early 2019 indicates that the Petitioner "will sell part of its business 
in the form of a digital equity token ... in exchange for money. This is the process of raising funds where 
people give small investments in order to create a larger investment in the [Petitioner's] business." The 
white paper indicates that the Petitioner plans, ultimately, to sell 60% of the companrs "digral equity" 
to "Token Holders." 3 A proposal in the record, submitted in February 2019, states' is offering 
30% equity ownership for investments of $10M." 
The Petitioner must meet all eligibility requirements at the time of filing the petition, and must 
continue to meet those requirements throughout the period of adjudication. See 8 C.F .R. § 103 .2(b )(1 ). 
The changes described above in the company's size and focus raise serious questions in this regard. 
The petition, with its initial description of the Beneficiary's purportedly executive job duties, was filed 
on behalf of a company described as being on the verge of securing tens of millions of dollars in capital 
to support the imminent unveiling of technology described as revolutionary. Several years into this 
proceeding, these predictions have not borne fruit. 
The inconsistencies and questions described above prevent us from concluding that the Petitioner has 
established eligibility for the benefit sought in this proceeding, and has not established that the 
Beneficiary will perform in a primarily managerial or executive capacity. The Petitioner's motion 
addresses focused details of the Beneficiary's job description, such as the phrase "helps and directs," 
but the Petitioner has not overcome the broader issue that many of the described duties are either 
vague, inherently non-qualifying, or pertain to specific projects that appear to have ended, or changed 
3 The offer of equity shares to employees, and the public securities offering, both appear to be contingent on the progress 
of thd !project. If that project has not advanced as proposed, then the qualifying relationship may remain intact, but 
instead there are significant questions about the Petitioner's present and future business activity in the absence of what the 
Petitioner had previously described as its flagship product and virtually the reason for the company's existence. 
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in scale considerably and consequently would alter the anticipated job duties. The Petitioner has not 
shown proper cause for reopening or reconsideration and has not overcome the grounds for dismissal 
of its appeal. The motion to reopen and motion to reconsider will be denied for the above stated 
reasons. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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