remanded EB-1C Case: Wholesale And Retail Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-X&O, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 3, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a company engaged in the wholesale and retail trade.__ ________ ___., 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)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in a managerial or 
executive capacity. 
The Director of the Texas Service Center denied the petition, determining that the Petitioner did not 
establish, as required, that it had been doing business for at least one year at the time it filed the 
petition. 
On appeal, the Petitioner submits additional evidence and asserts that the Director improperly 
disregarded documentation that he had specifically requested in a request for evidence (RFE) to 
establish that company was doing business. The Petitioner farther asserts that the Director failed to 
apply the preponderance of the evidence standard to the facts presented. 
Upon de nova review, we will withdraw the Director's decision and remand the matter for issuance of 
a new RFE and entry of a new decision. 
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)(l)(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 
Matter of B-X&O, Inc. 
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(j)(3). 
II. DOING BUSINESS 
The Petitioner filed this petition on February 27, 2017, and therefore must establish that it has been 
doing business since on or before February 28, 2016. "Doing business" means the regular, systematic, 
and continuous provision of goods and/or services by a firm, corporation, or other entity and does not 
include the mere presence of an agent or office in the United States. 8 C.F.R. § 204.5(j)(2). 
At the time of filing, the Petitioner submitted: evidence that it was incorporated in January 2015; a 
copy of a lease agreement signed in February 2015; a local business tax receipt issued in March 2015; 
a "Permanent Certificate of Use" issued in 2015; copies of its uncertified federal tax returns for 2015 
and 2016; a copy of its IRS Form 941, Employer's Quarterly Federal Tax Return for the fourth quarter 
of 2016; copies of its bank statements for the months of December 2016 and May through August 
2015; copies of invoices for purchases made in the latter half of2016; a business plan dated December 
2016; screenshots of its website; and photographs of its retail store and showroom. 
In the RFE, the Director observed that the evidence was not sufficient to show that it had been doing 
business as defined in the regulations for at least one year at the time it filed the petition. The Director 
further advised the Petitioner that it could submit additional evidence, as follows, but did not indicate 
that any specific type of evidence was required: 
[Evidence that the Petitioner] [a] acquired and retain the necessary facilities, equipment, 
and staff to do business, such as copies of: 
• Invoices with evidence of payment from or to vendors for services or materials; 
• Sales contracts and evidence of services or good provided and payment for the 
services or goods; 
• Import/export license; and/or 
• Contracts or agreements with shipping and receiving companies 
• 2015 and 2016 Wage and Earning Statements (W-2) for all employees 
The Petitioner's response included: a copy of its 2017 tax return; copies ofIRS Forms 941 for all four 
quarters of 2016; the requested copies of IRS Forms W-2 and 1099 for 2016; U.S. Customs "Entry 
Summary" for goods imported in July 2017, March 2016, and November 2015; purchase orders dated 
in August 2016 and early 2017; copies of monthly sales and use tax returns filed with the Florida 
Department of Revenue in 2017; copies of "Florida Annual Resale Certificate for Sales Tax" issued 
in 2015, 2016, and 2017; and local business tax receipts for 2015, 2016, and 2017. 
In the denial decision, the Director found that the Form W-2s and quarterly tax returns show that the 
Petitioner paid salaries to employees "but do not establish 'doing business."' The Director further 
observed that the customs declarations show that the Petitioner imported goods, but did not 
demonstrate sales of goods, while documents such as the resale certificates and business tax receipts 
merely show the company's existence. The Director observed that most of the remaining evidence 
did not date back one year from the date the petition was filed, and emphasized that the Petitioner did 
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Matter of B-X&O, Inc. 
not provide "sufficient sales receipts, invoices and evidence of payment from customers or to vendors" 
in order to show that it was doing business. 
On appeal, the Petitioner emphasizes that it submitted evidence that the Director had specifically 
requested, or comparable evidence, and that the Director should not have requested evidence ( such as 
W-2s) only to reject the submitted evidence as irrelevant to the issue at hand. The Petitioner asserts 
that the evidence of record was sufficient to establish by a preponderance of the evidence that it meets 
the doing business requirement set forth in the regulations, and it supplements the record with copies 
of invoices and purchase orders dated in 2016. 
While we agree with the Director that the record contained insufficient evidence showing individual 
business transactions in 2016, the Petitioner's claim that the RFE was not sufficiently clear as to what 
types of evidence may establish eligibility also has merit. If the Director did not intend to consider 
import-export documentation and evidence of wages paid to employees as evidence of "doing 
business," then those items should not have been listed as suggested evidence in the RFE. 
The Petitioner has now submitted copies of invoices bearing dates from the appropriate time period; 
however, we have some question regarding the reliability of this new evidence. The invoices bear the 
following dates and numbers: 
Date Invoice No. 
03/01/2016 10001 
04/04/2016 13000 
04/30/2016 12999 
05/18/2016 12997 
06/14/2016 12996 
06/27/2016 12994 
07/14/2016 12992 
07/28/2016 12991 
08/17/2016 10006 
08/19/2016 10003 
08/29/2016 10005 
10/11/2016 2508 
11/21/2016 3013 
12/30/2016 3016 
The Petitioner correctly argues that it must establish that it meets each eligibility requirement of the 
benefit sought by a preponderance of the evidence. Matter ofChawathe, 25 I& N Dec. 369, 375-76 
(AAO 2010). In other words, a petitioner must show that what it claims is "more likely than not" or 
"probably" true. To determine whether a petitioner has met its burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
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Matter of B-X&O, Inc. 
Due to the irregularities in the sequencing of the invoices, we find that the evidence may lack 
credibility and additional corroborating evidence of the Petitioner's business activities in 2016 is 
necessary to verify the invoices' authenticity. Accordingly, we will withdraw the Director's decision 
and remand the matter so that the Director can issue a new RFE and allow the Petitioner an opportunity 
to submit a response. We note that evidence such as copies of monthly sales and use tax returns filed 
with the Florida Department of Revenue in 2016, evidence of checks or wire transfers received from 
wholesale customers as payment for the above-referenced invoices, copies of certified tax returns for 
2016, and copies of the Petitioner's monthly bank statements for 2016, may serve to corroborate the 
submitted invoices. 
Further, while the Director cited only one ground for denial, we find that the record as presently 
constituted does not contain sufficient evidence to establish that the Petitioner would employ the 
Beneficiary in a managerial or executive capacity as defined at section 10l(a)(44) of the Act, 8 U.S.C. 
§ 1101(a)(44). 
The Petitioner's description of the Beneficiary's proposed job duties as president contains a 
combination of overly broad duties and duties which suggest that the Beneficiary would be involved 
in operational aspects of the business. For example, the Petitioner initially stated that the Beneficiary 
would spend a significant portion of her time (45%) on: developing the business and coordinating 
contractual relationships with vendors and "high quantity purchasers"; reviewing "the design, 
marketing, promotion, and quality of products and services"; and collecting "information on current 
trends itj I" The Petitioner did not explain how these duties would qualify as managerial or 
executive in nature. The Petitioner listed these same proposed duties in a revised description provided 
in response to the RFE, but reduced the amount of time the Beneficiary would allocate to them to 30% 
without explaining the reason for this change. 
The record also lacks evidence corroborating the Petitioner's claimed staffing levels and structure at 
the time of filing or any time thereafter, as the most recent evidence of wages paid to employees was 
submitted for the last quarter of 2016. As the matter will be remanded to the Director for issuance of 
a new RFE, the Petitioner should be given the opportunity to further develop the record with respect 
to this issue. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter ofB-X&O, Inc., ID# 2062036 (AAO June 3, 2019) 
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