remanded EB-1C Case: Construction

MATTER OF BXC- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 7, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a home construction contractor, seeks to permanently employ the Beneficiary as its 
president 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 )(1 )(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 Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner has been doing business for at least one year prior to the 
petition's filing date. The Director also cited apparent discrepancies in the Petitioner's tax 
documentation. 
On appeal, the Petitioner asserts that the Director did not advise the Petitioner of derogatory 
evidence, as required by the regulation at 8 C.F.R. § 103.2(b)(16)(i). That regulation, however, 
requires advance notification if a denial will be based on derogatory information of which the 
petitioner is unaware. In this instance, however, the Director did not rely on information from 
outside the record. Instead, the Director found what appeared to be inconsistencies in the evidence 
that the Petitioner had submitted. 
The Petitioner also states that the Director misinterpreted evidence in the record. The record 
provides better support for this assertion. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for the entry 
of a new decision consistent with the following analysis. 
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. 
Matter of BXC- LLC 
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. § 204.5G)(3). 
II. DOING BUSINESS 
The Petitioner must establish that it has been doing business for at least one year prior to the date of 
filing the petition. See 8 C.F.R. § 204.5(j)(3)(i)(D). Doing business means the regular, systematic, 
and continuous provision of goods, services, or both, and does not include the mere presence of an 
agent or office. See 8 C.F.R. § 204.5G)(2). 
The Director concluded that the Petitioner has not established that it has been doing business. To 
support this finding, the Director noted that the Petitioner reported gross income of less than 
$100,000 per year in 2015 and 2016, and stated: 
An established quintessential bonafide U.S. multinational corporation engaged in 
doing business typically has billions, or millions, and in some cases at the low end of 
the spectrum, hundreds of thousands of dollars in revenue annually. Your income 
data is indicative of the levels of revenue generated by hobbyists, or start-up firms 
that are unable to meet the regulatory requirements concerning "doing business." 
On appeal, the Petitioner asserts that the law established no minimum revenue threshold. We agree. 
The Director cited no statute, regulation, or case law to support the apparently arbitrary assertion that 
an employer must make "billions, or millions" of dollars to qualify as "[a]n established 
quintessential bonafide U.S. multinational corporation." We withdraw this finding. 
The more relevant question is whether the Petitioner has regularly, systematically, and continuously 
provided goods, services, or both, for at least a year before the petition's April 2016 filing date. The 
record shows that the Petitioner was incurring business-related costs in 2014, and the Petitioner 
reported sales income on its 2015 and 2016 income tax returns, but the record does not clarify when 
in 2015 the Petitioner began engaging in income-generating activity. 
The record documents construction activity, but it is not evident whether specific buyers 
commissioned the houses (in which case the Petitioner was doing business with those buyers) or the 
Petitioner was building the houses on speculation, with the expectation of placing them on the 
market during or after construction (in which case the construction laid the groundwork for future 
business activity, but did not provide goods or services to any actual customers). 
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Matter of BXC- LLC 
III. THE PETITIONER'S TAX DOCUMENTS 
A. Perceived Discrepancies 
The Petitioner filed the petition in April 2016, and supplemented the record after the Director issued 
a request for evidence in June 2017. The Petitioner's 2016 income tax return included these figures: 
Gross receipts or sales 
Total [net] income 
Compensation of officers 
Salaries and wages 
Other current assets 
Work in progress 
IRS Forms W-2, Wage and Tax Statements, indicate that the Petitioner paid an aggregate total of 
$294,665 to 12 employees in 2016. 
The Director found "serious discrepancies" in the tax documents, because of the divergent figures 
relating to employee compensation in 2016. On appeal, the Petitioner persuasively demonstrates 
that the tax reporting of expenses associated with a given construction project includes amounts 
designated "work in progress" under current assets, until the completion of the project when the 
expenses are reported in the usual manner. We do not claim sufficient expertise in tax law to 
determine whether the returns were properly prepared, but the Petitioner does not appear to have 
intentionally misstated compensation amounts on its various tax documents. 
Based on the evidence of record, including new information provided on appeal, we withdraw the 
finding that the salary information on the Petitioner's tax documents is contradictory and 
inconsistent. Our conclusion, however, does not preclude the Director from requesting additional 
evidence and clarification regarding employee compensation and other elements of tax reporting, 
including evidence that the amount deferred as "work in progress" has been ( or will be) reported on 
later tax returns. 
B. Compensation of Subordinates 
Also citing the compensation figures on the tax return, the Director concluded that the Petitioner 
does not appear to pay its employees "at annual rates commensurate with fulltime professionals/ 
managers." As noted above, the figures on the tax returns do not represent the full amount of 
salaries paid. The IRS Forms W-2 show that most of the employees who worked for the Petitioner 
throughout 2016 earned over $24,000, which, although not a high rate of pay, is consistent with full­
time employment. (Other employees earned less, but were employed for only part of the year.) The 
only year-round employee whose salary was not consistent with full-time employment at minimum 
wage or higher was the manager of the cost and quality control department (who is also the 
Beneficiary's spouse). 
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Matter of BXC- LLC 
The comparatively low pay of individuals whom the Petitioner identified as managers and 
department heads is of some concern, but does not by itself warrant the conclusion that the 
individuals do not have responsibilities consistent with their titles. Because the Director cited no 
other basis for the conclusion that the Beneficiary's subordinates are not professionals or managers, 
that conclusion cannot stand without further consideration of the evidence of record. 
For the reasons stated above, we withdraw the Director's finding that the Beneficiary is not 
employed in an executive capacity. This remand order does not preclude such a finding, based on a 
fuller examination of the evidence, but the finding cannot stand based only on what appears to be a 
misinterpretation of the Petitioner's financial documents. 
IV. FOREIGNEMPLOYMENT 
Because we have withdrawn the stated grounds for denial of the petition, the Director's decision 
cannot stand. Nevertheless, the petition cannot properly be approved unless, and until, the Petitioner 
overcomes another major discrepancy. 
Additional evidence has come to light during review of government records for the purpose of 
routine verification of the Petitioner's claims. This information derives from outside the record of 
proceeding, but our description of this information, below, satisfies the requirement at 8 C.F.R. 
§ 103 .2(b )(l 6)(i) that the Petitioner receive notification of derogatory information before the 
issuance of a final decision. 
The Beneficiary's past employment abroad is material to the petition because of the requirement that 
he worked for the Petitioner, or a related entity, for at least one year during the three years preceding 
his relevant entry into the United States. See 8 C.F.R. § 204.5(3)(i)(B). 1 The petition cannot be 
approved without a determination that the facts stated in the petition are true. See section 204(b) of 
the Act, 8 U.S.C. § 1154(b). 
The Beneficiary's first entry into the United States as an L-lA intercompany manager or executive 
occurred on March 31, 2014. The Petitioner claims a qualifying relationship with 
, and a letter from that company stated that the Beneficiary "founded our 
company and worked as president/general manager/legal representative since March 2001." 
Government records call this claim of foreign employment into question. On four occasions 
between 2011 and 2017, the Beneficiary appeared at the U.S. Embassy in China, to apply 
for nonimmigrant visas. When the Beneficiary sought a B-1/B-2 visitor's visa in August 2011 and 
again in December 2012, he identified his then-current employer as 
located in The 
Beneficiary identified his occupation as "museum designer and construction team leader." 
1 For additional discussion of this issue, see Matter ofS-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018). 
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Matter of BXC- LLC 
When the Beneficiary sought an employment-based L-lA nonimmigrant visa in March 2014, he 
identified his then-current employer as Asked "were you previously 
employed?," the Beneficiary answered "no." In October 2017, the Beneficiary identified the 
Petitioner as his current employer, and stated that he previously worked for from 2001 to 
2013. Neither of the L-1 A visa applications mentioned 
The evidence of the Beneficiary's claimed foreign employment with . included translated 
copies of applications for funding. The documents indicated that the Beneficiary approved three of 
these applications in August 2013, but government records show that the Beneficiary was already in 
the United States at the time. The submitted evidence also included purported payroll records, 
indicating that the Beneficiary continued to receive a salary from until December 2013, 
several months after the Beneficiary had begun working in the United States. 
The Petitioner also submitted copies of purported appointment letters, signed by the Beneficiary in 
his claimed capacity as general manager of dated January 2011 and June 2012. 
The Beneficiary's employment claims in 2014 and 2017, when he sought immigration benefits 
through the petitioning entity, are not consistent with earlier claims he made in 2011 and 2012. 
Therefore, it appears that the Beneficiary changed this employment history in order to create the 
appearance of eligibility for immigration benefits through the petitioning U.S. employer. The 
Petitioner must credibly and thoroughly resolve this major issue before the petition can be approved. 
When addressing the issue, contemporaneous, verifiable third-party documentation will have 
substantially greater weight than new statements (whether sworn or unswom). 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter of BXC- LLC, ID# 1437314 (AAO Aug. 7, 2018) 
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