dismissed EB-1C Case: Trucking

U.S. Citizenship 
and Immigration 
Services 
In Re: 9822231 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 03, 2020 
Form 1-140, Immigrant Petition for Multinational Manager or Executive 
The Petitioner seeks to employ the Beneficiary as its president under the first-preference, immigrant 
classification for multinational managers or executives. See Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Texas Service Center denied the petition. The Director concluded that, contrary 
to Department of Homeland Security regulations, the Petitioner did not establish that it had been 
"doing business" for at least one year before the petition's filing . 
The Petitioner bears the burden of establishing 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. MULTINATIONAL MANAGERS AND EXECUTIVES 
A petitioner for a multinational manager or executive must demonstrate that, for at least one of the 
three years before a beneficiary's entry into the United States as a nonimmigrant, the petitioner, a 
subsidiary, or an affiliate employed him or her abroad in a managerial or executive capacity. 8 C.F.R. 
§§ 204.5U)(3)(i)(B), (C). A petitioner must also establish that it would employ the beneficiary in a 
managerial or executive role in the United States. 8 C.F.R. §§ 204.5U)(5). 
II. DOING BUSINESS FOR AT LEAST ONE YEAR 
In addition, a petitioner for a multinational manager or executive must demonstrate that it "has been 
doing business for at least one year." 8 C.F.R. § 204.5U)(3)(i)(D). The term "doing business" means 
"the regular, systematic, and continuous provision of goods or services by a firm, corporation, or other 
entity and does not include the mere presence of an agent or office." 8 C.F.R. § 204.5U)(2). 
A petitioner must demonstrate its eligibility for a requested benefit at the time of a petition's filing. 
8 C.F.R. § 103.2(b)(l) . The Petitioner here filed the petition on November 6, 2017. Thus, under 
8 C.F.R. § 204.5U)(2), the company must demonstrate that it has been doing business since at least 
November 6, 2016. 
The Petitioner submitted copies of six invoices it issued for its trucking services. The earliest invoice, 
for $250, bears the date of December 26, 2016. This date does not fall on or before November 6, 2016. 
The invoices therefore do not establish the Petitioner's provision of goods or services for at least one 
year before the petition's filing. Also, the Petitioner did not provide copies of any invoices for between 
December 26, 2016, and September 12, 2017, a substantial part of the one-year period before the 
petition's filing. The invoices therefore do not document the Petitioner's provision of goods or 
services before the petition's filing on a "regular, systematic, and continuous" basis. 
A copy of a federal income tax return for calendar year 2016 indicates the Petitioner's generation of 
about $100,000 in revenues. The return, however, does not indicate when the company began 
generating revenue that year. The return therefore also does not establish that the Petitioner began 
doing business at least one year before the petition's filing. 
On appeal, the Petitioner argues that an October 4, 2016, certificate of use demonstrates its business 
activities more than one year before the petition's filing. The certificate authorizes the Petitioner to 
use its property for business warehouse and office purposes. The certificate, however, does not 
indicate the company's provision of goods or services at the time of the document's issuance. The 
Petitioner also points to a copy of an insurance policy listing coverages for workers compensation and 
employer's liability, effective July 29, 2016. Like the business use certificate, however, the insurance 
certificate does not document the Petitioner's regular provision of goods or services at the time of the 
effective dates. Moreover, the certificate lists the insured party as a company other than the Petitioner. 
The record does not explain how the insurance certificate relates to the Petitioner's operations. See 
Matter of Ho, 19 l&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of 
record). 
The Petitioner submits additional evidence on appeal. The Director's written request for evidence, 
however, notified the Petitioner of its need to document its business activities as of November 6, 2016, 
and provided it with a reasonable opportunity to do so. We therefore decline to consider the 
Petitioner's evidence on appeal. See Matter of Soriano, 19 l&N Dec. 764, 766 (BIA 1988) (barring 
consideration of appellate evidence where a party received prior notice of the required materials and 
a reasonable opportunity to provide them). Even if we considered the evidence, it would not establish 
that the Petitioner has been "doing business" for the relevant period. The earliest sales invoice is dated 
November 14, 2016, less than one year before the petition's filing. As the Petitioner previously 
submitted other invoices, it is unclear why the company did not submit this invoice earlier. The 
Petitioner also submitted copies of its federal payroll taxes for the second, third, and fourth quarters 
of 2016. The returns show the Petitioner's employment of the Beneficiary in the second and third 
quarters, and, beginning in the fourth quarter, two additional employees. But the returns do not 
indicate when the Petitioner began providing goods or services to clients or customers. The evidence 
on appeal therefore would not establish that the Petitioner has been doing business for the required 
period. 
For the foregoing reasons, the Petitioner has not demonstrated that it has been "doing business" for at 
least one year before the petition's filing. We will therefore affirm the petition's denial. 
2 
Ill. THE NATURE OF THE PROPOSED EMPLOYMENT 
Although unaddressed by the Director, the record also does not establish the Petitioner's proposed 
employment of the Beneficiary in the claimed executive capacity. The term "executive capacity" 
means employment that would primarily involve: 1) directing the management of an organization or 
a major component or function of it; 2) establishing goals and policies of the organization, component, 
or function; 3) exercising wide latitude in discretionary decision-making; and 4) receiving only general 
supervision or direction from higher-level executives, directors, or stockholders of an organization. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B); 8 C.F.R. § 204.50)(2). 
The Petitioner must show that the Beneficiary's proposed employment meets all four elements of the 
definition of the term "executive capacity." The Petitioner must also demonstrate that the Beneficiary 
would primarily engage in executive duties, as opposed to ordinary operational activities. See Family 
Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining the executive nature of proposed 
employment, we consider: a petitioner's description of the job duties; the company's organizational 
structure and the nature of its business; the presence of other employees to relieve the beneficiary from 
performing operational duties; the duties of a beneficiary's subordinate employees, and other factors 
affecting a beneficiary's business role. 
Here, the Petitioner proposes to continue employing the Beneficiary as president of the trucking 
company, directing its transportation of materials such as mulch, straw, grass, waste, and debris. The 
Petitioner's organizational chart shows the Beneficiary at the top of a six-person organization. The 
chart reflects the Beneficiary's direct supervision of a business operations manager and an outsourced 
accountant. The business operations manager supervises a logistics manager, who in turn purportedly 
oversees three drivers. 
The Petitioner states that the business operations manager prepares reports for the Beneficiary's 
review, and reviews and coordinates financial matters, legal affairs, and government obligations. The 
business operations manager also purportedly manages daily sales and marketing operations. The 
logistics manager, the Beneficiary's spouse, oversees logistics of trucking services, manages drivers, 
and provides customer service to clients and vendors. 
The record does not establish the Petitioner's ability to support the Beneficiary in an executive-level 
capacity at the time of the petition's filing in November 2017. See 8 C.F.R. § 103.2(b)(1). The 
Petitioner claims to employ six people, including the Beneficiary. But copies of a federal payroll tax 
return for the third quarter of 2017 and IRS Forms W-2, Wage and Tax Statements, for 2017 - the 
most recent of record - indicate the company's employment of only four people: the Beneficiary; the 
business operations manager; the Beneficiary's spouse; and one driver. See Matter of Ho, 19 l&N 
Dec. at 591 (requiring a petitioner to resolve inconsistencies of record). Also, the wage amounts on 
the Forms W-2 cast doubt on whether the Beneficiary's subordinates work on full-time bases. The 
Forms W-2 indicate that, in 2017, the business operations manager received $19,900; the Beneficiary's 
spouse $17,158.30; and the driver $8,050. At that time, the minimum wage at the Petitioner's location 
in Florida was $8.10 an hour, or $16,848 a year for a 40-hour, work week. See U.S. Dept. of Labor, 
"State Minimum Wage Laws," https://www.dol.gov/agencies/whd/ minimum-wage/state (last visited 
Aug. 25, 2020). The record therefore indicates that at least one of the Petitioner's four employees did 
not work on a full-time basis. 
3 
The term "executive capacity" describes an elevated position in an organizational hierarchy. Under 
Section 101(a)(44)(B) of the Act, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of an organization or a major component or function of it. A 
petitioner must demonstrate that a beneficiary would primarily focus on broad goals and policies, 
rather than day-to-day operations. Here, the small number of employees and the part-time nature of 
at least one of their positions cast doubts on the sufficiency of the Petitioner's resources to relieve the 
Beneficiary from primarily performing operational duties. The record therefore does not establish the 
Petitioner's proposed employment of the Beneficiary in an executive capacity.1 
In any future filings in this matter, the Petitioner must explain the inconsistencies of record and submit 
independent, objective evidence that the Beneficiary would work in the claimed executive capacity. 
IV. CONCLUSION 
The Petitioner has not demonstrated that it has been "doing business" for at least one year before the 
petition's filing. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
1 In determining the executive nature of a position, USCIS cannot rely solely on the number of employees directed. Section 
101(a)(44)(C) of the Act. But USCIS may consider a company's size in conjunction with other relevant factors. See, e.g., 
Family Inc. v. USCIS, 469 F.3d at 1316. Here, we considered not only the Petitioner's number of employees, but also the 
job duties of the Beneficiary's subordinates and the existence of workers to relieve him from performing operational duties. 
Pursuant to section 101(a)(44)(C) of the Act, we therefore did not rely solely on the Petitioner's size. 
4