dismissed EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 17440605 
Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE23, 2021 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, a software and website developer, seeks to permanently employ the Beneficiary as its 
chief executive officer under the first preference immigrant classification for multinational executives 
or managers . See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ 1153(b )(1 )(C). This classification allows a U.S. employer to permanently transfera qualified foreign 
employee to the United States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center revoked approval of the petition concluding that the 
Petitioner did not establish, as required, that it had been doing business for one year as of the date this 
petition was filed. 1 The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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 )(1 )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or 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 ). 
1 Under U.S. Citizenship and Immigration Services regulations , the approval of an immigrant petition may be revoked on 
any ground, so long as the petitioner is provided with a written notification explaining the specific reasons for the 
revocation . 8 C.F.R . §§ 205.2(a) and (c). 
II. DOING BUSINESS 
The issue to be addressed is whether the Petitioner had been doing business as of November 2016, 2 
one year prior to the date this petition was filed. 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(j)(2). 
In support of the petition, the Petitioner provided a business plan stating that one of its key objectives 
was to "develop MLM software products for global customers." Although the Petitioner claimed 12 
employees in 201 7 when this petition was filed, the Petitioner's 2016 tax return shows that it paid no 
employee salaries or wages and earned no income in 2016. 
The Director reviewed the supp01iing documentation and issued a notice of intent to revoke informing 
the Petitioner that the information in its 2016 tax return showed that it paid no employee salaries, made 
no sales, earned no income, and incurred no cost of goods. The Director, therefore concluded that the 
evidence indicated that the Petitioner had not been doing business as of November 2016. The 
Petitioner was allowed an opportunity to address this evidentiary deficiency. 
In response, the Petitioner stated that it commenced business operations in August 2016, when it 
entered into a "cooperation agreement" with its U.S. affiliate,! I I ~' to assist in "setting up [ the Petitioner's] operations," which included providing the Petitioner 
with staff and payroll services, while wrapping up the operations of and eventually dissolving the 
affiliate entity. The Petitioner stated that by January 201 7 its U.S. affiliate had "emptied its payroll'' 
and transfe1red four of its employees to the Petitioner. 
The Petitioner provided evidence, including the cooperation agreement mentioned above, 2016 and 
2017 payroll records, Form W-2, Wage and Tax Statements, it issued in 2016, and a 2017 tax return 
forl I According to Exhibit A of the cooperation agreement, the Petitioner was to start 
paying rent and utilities and "take over and continue to pay all service fees and costs of technical 
developers, consultants, or vendors" starting in January 201 7, thereby indicating that it was not yet 
incurring these business expenses in November 2016. 
The Petitioner also provided a July 2016 board resolution in whichl I resolved to transfer 
three of its employees to the Petitioner between August and October 2016 (with a fourth transfer 
planned for December 2016). However, the Petitioner provided no evidence showing that it paid any 
employee salaries or wages in 2016. In factJ ~s 2016 fourth quarterly tax return shows 
that it, rather than the Petitioner, paid wages to employees. Moreover, item no. 2 of the cooperative 
agreement, titled "Staffing Agreement," stipulates that employees will be transferred to the Petitioner 
"provided that such employees meet [the Petitioner]'s requirements and enter a new labor contract 
with [the Petitioner]." However, the Petitioner did not provide evidenceshowingthatthese conditions 
were met, nor did it specify its employee requirements or provide evidence that labor contracts were 
executed between the Petitioner and the employees who are claimed to have been transferred from its 
U.S. affiliate. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. SeeMatterofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
2 The petition was filed on November 8, 2017. 
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The Petitioner also Trovided a statement of work (SOW) from 2016 discussing work that was to have 
been performed by I with the objective of building an iOS and Android application for 
the Petitioner, which was identified as the client. Because the Petitioner was a service recipient, rather 
than a service provider, the SOW does not demonstrate that the Petitioner was providing goods or 
services and therefore it does not establish that the Petitioner was doing business as of November 
2016. Likewise, invoices issued to the Petitioner for internet and communications services similarly 
demonstrate that the Petitioner purchased a service and do not show that it was providing goods or 
services. See 8 C.F.R. § 204.5(j)(2). Although the Petitioner explained that in 2016 it was "in its early 
stage of operation" and was focused on research and development, this undermines the claim that the 
Petitioner was providing services as a software developer. Despite offering a plausible reason for 
choosing to focus on research and development in 2016, the Petitioner is not relieved from the burden 
of having to meet applicable eligibility criteria, which requires evidence showing that it had been doing 
business for one year prior to filing this petition. See 8 C.F.R. § 204.5(j)(3 )(i)(D). 
Further, the Petitioner provided 2016 email communications from individuals the it claimed to have 
employed; as noted earlier; however, there is no evidence that the Petitioner paid wages or salaries 
during the time in question. In addition, the record lacks evidence adequately clarifying certain te1ms 
of the cooperation agreement between the Petitioner and its affiliate. Namely, the agreement states 
that in addition to transferring its office lease and certain employees,! I will also provide 
the Petitioner with "financial assistance ... whereas [sic] necessary" and that in exchange for these 
benefits, the Petitioner would "take over certain obligations and assume certain ~jabj)jtjes" of1he 
affiliate. However, the Petitioner has not specified the type of "financial assistance'.__ ___ ___. was 
to provide beyondpayingrentand staffing costs in2016, nor did the Petitioner list specific obligations 
or liabilities it would assume in exchange for these benefits. 
On appeal, the Petitioner contends that research and development as well as "other preparatory work" 
constitute doing business. However, the case law the Petitioner cites in support of this contention 
involves interpretation of provisions in the Internal Revenue Code, which is not relevant for the 
purpose of determining whether an entity meets the regulatory definition of "doing business" within 
the context of this immigrant petition. 
The Petitioner also claims that in addition to conducting research and development in 2016, it was 
doing business by "provid[ing] a variety of services" for the benefit of its foreign parent entity, citing 
Matter of Leacheng, 26 I&N Dec. 532 (AAO 2015), in support of this argument. In that precedent 
decision, the petitioner provided the service agreement it had with its foreign affiliate along with 
"substantial evidence" showing that it billed the foreign entity over $4.1 million for the services it 
provided and paid $2.5 million in employee wages. We determined that the petitioner met the "doing 
business" criteria because it demonstrated that it was providing goods and/or services in a regular, 
systematic, and continuous manner and that providing services to an affiliated company does not 
preclude a petitioner from demonstrating that it has been doing business. Given that the precedent 
decision involved considerable evidence showing that the petitioner was actually providing a service, 
it can be readily distinguished from the facts in the current case, which is not supported by evidence 
showing that the Petitioner engaged in business transactions to provide services to its client, in this 
instance its parent entity. Instead, the Petitioner provided evidence showing that various other 
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companies, rather than the Petitioner itself, were providing IT services and that the Petitioner, rather 
than the foreign entity, was actually the recipient of those services. Because the Petitioner has not 
provided evidence showing it had a contractual obligation to provide services to its foreign parent 
entity, we are unable to verify the claim that the foreign parent entity was the Petitioner's client as of 
November 2016. 
The Petitioner also provided emails documenting communications between the Beneficiary and 
various service providers, and between parties whose relationship to the Petitioner was not clearly 
described. However, the Petitioner did not establish that such communications pertained to services 
that it was to provide as of November 2016 or that such services were to be provided to the foreign 
entity, as claimed. Although one of the emails referred to a "partnership and cooperation" between 
the Petitioner and I I a service provider, not only was the corresponding Master 
Services Areement between the two patties executed in December 2016, but that agreement, like the 
SOW with t' indicates that the Petitioner was the purchaser, rather than the provider, of 
an IT service. As such, the December 2016 agreement does not establish that the Petitioner was doing 
business in November 2016, as required. Despite providing emails that documented communications 
dated prior to December 2016, such emails do not clarify or describe the terms of business transactions 
that involved a client to whom the Petitioner provided software development services. 
Finally, the Petitioner contends that it "borrowed staff" from its U.S. affiliate, arguing that the 
circumstances in this matter are similar to those in Matter of Z-A-, Inc., Adopted Decision 2016-02 
(AAO Apr. 14, 2016), where the petitioner had only two employees in the United States and relied on 
eight employees at the parent company's headquarters in Japan to support the beneficiary's position 
in the United States. However, there are key distinctions between this Petitioner and the petitioner in 
the cited case. Namely, the petitioner in Matter ofZ-A-provided sufficient evidence establishing that 
it operated an essential function of a broader organization and that in managing that function in the 
United States, the beneficiary relied on two U.S.-based employees, outside professional service 
providers, and eight members of the foreign staff who were "dedicated exclusively" to carrying out 
the underlying duties of the function that the beneficiary managed. Id. The facts and circumstances 
in the matter at hand involve a petitioning entity that claims to have relied on the staff of a U.S. affiliate 
which was awaiting dissolution and would ultimately be replaced by, rather than continue to work 
with, the Petitioner. The Petitioner contends that during the wrap-up stage leading up to the U.S. 
affiliate's dissolution, the affiliate was lending its employees to the Petitioner and continuing to pay 
those employees pending their transfer to the Petitioner upon the affiliate's dissolution. We note, 
however, that the dissolution had not yet taken place as of November 2016 and the staff that the 
Petitioner claims it "borrowed" were still considered to be employees of a separate functioning entity. 
Given these considerable distinctions, the Petitioner has not established that the findings in the cited 
case are applicable to the matter at hand. 
For the reasons discussed above, the Petitioner has not established that it had been doing business for 
one year as of the date this petition was filed. 
ORDER: The appeal is dismissed. 
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