dismissed EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 10, 2024 In Re: 29228048 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a software development and consulting business, seeks to permanently employ the 
Beneficiary as its chief executive officer (CEO) under the first preference immigrant classification for 
multinational executives of 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 Texas Service Center denied the petition, concluding the record did not establish 
that the Petitioner had been doing business for at least one year at the time of filing and that it had the 
ability to pay the Beneficiary's proffered wage. The Director further determined that the Petitioner 
did not establish that the Beneficiary had been employed abroad, and would be employed in the United 
States, in a managerial or executive capacity. Finally, the Director concluded that the Petitioner and 
Beneficiary had willfully misrepresented facts that are material to eligibility for the requested 
classification. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 53 7, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203 (b)( 1 )( C) of the Act makes an immigrant visa 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. 
The Form 1-140, Immigrant Petition for Alien Workers, 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). In addition, a petition for a 
multinational manager or executive must be accompanied by evidence that the prospective United 
States employer has the ability to pay the proffered wage from the time the petition is filed and 
continuing through adjudication. See 8 C.F.R. § 204.5(g)(2). 
II. ANALYSIS 
As noted, the Director denied the petition on multiple independent and alternative grounds, and 
further 
concluded that the Petitioner and Beneficiary had willfully misrepresented facts that are material to 
eligibility for the requested benefit. For the reasons provided below, the Petitioner has not established 
that it meets all eligibility requirements for the requested classification and the appeal will be 
dismissed. However, we will withdraw the Director's finding of willful misrepresentation. 
A. Doing Business 
To establish eligibility for this classification, the Petitioner must demonstrate that the prospective 
United States employer has been doing business for at least one year at the time of filing. 8 C.F.R. 
§ 204.5(j)(3)(i)(D). Doing business means the regular, systematic, and continuous provision of goods 
and/or services and does not include the mere presence of an agent or office. See 8 C.F.R. 
§ 204.5(j)(2). 
The Petitioner filed the Form I-140 in June 2021 and therefore must demonstrate that it had been doing 
business as defined in the regulations since June 2020. The Petitioner provided a copy of its Certificate 
of Incorporation filed with the Delaware Secretary of State inc=] 2017, as well as a certificate from 
that office, dated May 26, 2021, indicating that the company "is in good standing and has a legal 
corporate existence." 1 The Petitioner stated on the Form I-140 that it had one employee at the time of 
filing, but did not state its gross and net annual income at Part 5 of the form. At Part 11, Additional 
Information, the Petitioner provided the following explanation regarding its annual income: "We went 
for zero filing last year. We started our operations and Indian company was bearing all e penses but 
due to COVID we could not generate any revenue, but this year we have partnership with 1 1 [W]e 
also have couple of contracts in pipeline, in couple of months we will be able to generate income[.]" 
The Petitioner's initial evidence include an internally prepared balance sheet dated June 16, 2021, 
indicating the company had total assets of $147,663 (including two computers, $20,300 in cash, and 
$125,936 in cryptocurrency) and $0 in liabilities. As evidence of its claimed "partnership withe=]" 
the Petitioner provided a document titled .________ __, Agreement - International: Basic 
General Terms." This document does not name the Petitioner as a partner or party to the agreement, 
is not dated, and does not bear any signatures showing that it has been executed. 
In a request for evidence (RFE) issued in March 2022, the Director advised the Petitioner that its initial 
evidence was insufficient to show that it had been doing business for at least one year at the time it 
filed the petition. The RFE provided a list of suggested evidence the Petitioner could submit in support 
1 The Petitioner indicates that its operations are in Texas but did not provide evidence that it is registered with the Texas 
Secretary of State. 
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of this regulatory requirement, such as copies of state and local business licenses, a certificate of good 
standing, a lease, federal income tax returns, quarterly federal tax returns, payroll records, invoices, 
purchase agreements and sales contracts. 
In response, the Petitioner submitted copies of its federal income tax returns for the years 2018, 2019 
and 2021. The 2018 and 2019 tax returns reflect no income, expenses, or any other business or 
financial activity. On its 2021 tax return, the Petitioner reported $133,226 in total assets, total income 
of $2,788,2 and deductions for expenses including wages, rents, taxes and licenses, and various office 
expenses. The Petitioner also submitted a letter from the Beneficiary, who stated that the company 
has been doing business and "had a contract of $2 million in 2021." 
With respect to its business premises, the Petitioner submitted a copy of a "Virtual Office Agreement" 
dated May 25, 2021, which provided for "mailbox plus" services at a business center in I I 
Texas. The Petitioner's response to the RFE also included an "Office Service Agreement," signed in 
December 2021, which provides for the use of a one-person office at the same location. 
In addition, the Petitioner submitted a "Digital Collectables License Agreement" term sheet dated June 
25, 2021, which indicated the Petitioner, as licensee, would develop, market, and sell digital 
collectable cards on behalf of the licensor, a public figure. Under the terms of the agreement, the 
Petitioner would be entitled to a 30% share of the royalties. The stated estimated value of the 
collectables is $2 million. 
Finally, the Petitioner provided evidence that it paid $8204.58 in wages in the third quarter of 2021 
and $144.23 in wages in the fourth quarter of 2021. All wages were paid to the individual identified 
in the record as the company's marketing specialist. 
In the decision denying the petition, the Director determined that the evidence submitted in response 
to the RFE did not establish that the Petitioner had been doing business for at least one year when it 
filed the petition in June 2021. The Director emphasized the lack of revenue reported on the 
Petitioner's tax returns and noted that the company had only a "virtual office" at the time of filing. 
The Director also observed that the Petitioner's response to the RFE was mailed from the Beneficiary's 
home address, noting that this fact raised questions as to whether the company maintains physical 
premises for the operation of its business. 
On appeal, the Petitioner asserts that it "has been doing business" and "has sales and NFT development 
contracts." It notes that its accountant incorrectly classified its 2021 sales revenue as "other income" 
and submits an amended 2021 federal tax return with proof of filing with the IRS. The Petitioner also 
emphasizes that it maintains an office lease agreement, noting that the Beneficiary mailed the 
company's RFE response from her residential address "due to urgency and sensitivity of 
correspondence and also due to the then COVID situation." 
The Petitioner's amended tax return shows $2,600 in "gross receipts or sales" for 2021 rather than 
reporting the company's total income of $2,788 as "other income." The Petitioner also resubmits the 
2 A supporting statement attached to the tax return indicates that this "other income" figure included $2,600 from "sale of 
collectables" and $187 in "other revenue." 
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above-referenced "Digital Collectables License Agreement," which was signed one week after the 
petition was filed, and a copy of the previously submitted office lease agreement signed in December 
2021, which had an end date of December 2022. 
Although the Petitioner claims on appeal that it "has been doing business" it has not provided evidence 
to establish that it has been engaged in the regular, systematic, and continuous provisions of goods 
and/or services since June 2020, one year prior to the instant petition's date of filing. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 
25 I&N Dec. at 376. 
The Petitioner has offered evidence demonstrating its continued corporate existence since 2017, but 
this evidence is insufficient to show that it has been doing business as defined in the regulations. 
Despite being established in 2017, the submitted evidence suggests that the company began doing 
business during 2021, when it signed an office agreement, hired its first employee, signed at least one 
license agreement, and reported $2,600 in sales revenue. In fact, the record reflects that most of these 
activities occurred after the filing of the petition in June 2021. The Petitioner did not provide a copy 
of its 2020 federal tax return, or any other evidence of business activities conducted in 2020, and 
therefore it did not meet its burden to establish that it has been doing business since at least June 2020. 
Further, as noted above, the Petitioner stated on the Form 1-140 that it "went for zero filing last year," 
implying that it reported no revenue for the 2020 tax year. The Petitioner expressly stated on the 
petition that it had not generated any revenue to date but expected to do so in a "couple of months." 
While the Petitioner's statement on the Form 1-140 suggests that it started operations earlier and had 
to pause due to the Covid-19 pandemic, the company's 2018 and 2019 tax returns do not document 
any business activity prior to 2020. 
To meet the eligibility requirements for this classification, the Petitioner must establish that it was 
doing business as defined in the regulations for at least one year at the time of filing the Form 1-140. 
8 C.F.R. § 204.5(j)(3)(i)(D). Here, for the reasons discussed above, the Petitioner did not establish 
that it met this requirement. Accordingly, the appeal will be dismissed. 
B. Willful Misrepresentation 
The remaining issue to be addressed is the Director's determination that the Petitioner and Beneficiary 
willfully misrepresented information regarding the Beneficiary's proposed U.S. employment which is 
material to eligibility for the benefit sought. For the reasons discussed below, we will withdraw this 
determination. 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully makes a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. Matter ofKai Hing Hui, 15 I&N Dec. 288, 289-90 
(BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from 
accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of Tijam, 22 
I&N Dec. 408,425 (BIA 1998); Matter ofHealy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). To 
be considered material, the misrepresentation must be one which "tends to shut off a line of inquiry 
which is relevant to the alien's eligibility, and which might well have resulted m a proper 
determination that he be excluded." Matter ofNg, 17 I&N Dec. 536, 537 (BIA 1980). 
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Accordingly, for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, they must determine: (1) that the petitioner or beneficiary made a false representation to 
an authorized official of the United States government; (2) that the misrepresentation was willfully 
made; and (3) that the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 
1954); Matter ofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter ofKai Hing Hui, 15 I&N Dec. at 288. 
The Director emphasized that the Beneficiary, by signing the Form I-140 on behalf of the Petitioner, 
certified under penalty of perjury that the petition and the evidence submitted in support of the petition 
is all true and correct. The Director further stated: 
However, the company organizational chart only shows one employee who is a 
Marketing Specialist and the other position[ s] listed are not [filled]. As the CEO is not 
one acting in a managerial or executive position because there are no managers for her 
to supervise. A [title] by itself cannot designate the [Beneficiary] as an executive or 
manager. 
By claiming Qualifying Managerial Capacity - United States, the petitioner willfully 
made a false representation, and it is material to whether the beneficiary is eligible for 
the requested benefit. 
USCIS will enter a finding of willful misrepresentation of a material fact against the 
petitioner. 
On appeal, the Petitioner asserts that its claim that the Beneficiary is eligible to be classified as a 
multinational manager or executive based on her proposed role as CEO "does not involve any false 
representation." The Petitioner emphasizes that the submitted organizational chart accurately 
represents the company's structure and the Beneficiary's proposed role within the company. 
We agree with the Director that the Beneficiary's CEO job title alone does not establish her eligibility 
to be classified as a multinational executive or manager under the statutory definitions at sections 
10l(a)(44)(A) and (B) of the Act, 8 U.S.C. § l 10l(a)(44)(A) and (B). However, the record does not 
support the Director's determination that the Petitioner willfully misrepresented facts that are material 
to the eligibility requirements for this classification. 
While the Director emphasized that the Petitioner's organizational chart showed only one subordinate 
position currently filled (a marketing specialist), we note that the Petitioner stated on the Form I-140 
that it has only one current employee, provided evidence of wages paid to that employee, and indicated 
that other, lower-level employees, to be hired at a later date, would report to the marketing specialist. 
The Director did not explain how the Petitioner made a "false representation" by claiming to have one 
employee when it did, in fact, have one employee. While the company's current organizational 
structure, when considered with other relevant factors, may not be sufficient to support the Petitioner's 
claim that the Beneficiary would be employed in a managerial or executive capacity, the record does 
not reflect that the Petitioner willfully misrepresented material facts related to the proposed U.S. 
employment. Accordingly, the Director's finding of willful misrepresentation is withdrawn. 
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C. Reserved Issues 
As discussed above, the Petitioner did not establish that it had been doing business for at least one 
year at the time it filed this petition, as required by 8 C.F.R. § 204.5(j)(3)(i)(D). As this issue is 
dispositive of the appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding the remaining grounds for denial raised by the Director, specifically, whether the record 
establishes the Petitioner's ability to pay the Beneficiary's proffered wage, and whether the Petitioner 
demonstrated that the Beneficiary was employed abroad, and would be employed in the United States, 
in a managerial or executive capacity. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not demonstrated that it had been doing business for at least one 
year when it filed 
the petition. Therefore, the record does not establish eligibility for the requested classification, and 
the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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