sustained EB-1C Case: Clothing Manufacturing

(b)(6)
DATE: MAR 2 7 2014 
lNRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION : Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a 
non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
Thank you, 
l4--
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
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DISCUSSION: The petitioner is a U.S. subsidiary of a Chinese clothing manufacturing company that filed 
an Immigrant Petition for Alien Worker (Form I-140) to classify the beneficiary as a multinational manager 
or executive pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(C) (2012). The petitioner seeks to employ the beneficiary in the position of Deputy General 
Manager. The Director, Texas Service Center, denied the petition, finding that the petitioner failed to 
establish that it had been doing business for at least one year as of the date the petition was filed. The 
petitioner's appeal to the Administrative Appeals Office (AAO) will be sustained. 
I. THELAW 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
Pursuant to section 8 C.F.R. § 204.5(j)(3)(i)(D), the petitioner must establish that it has been doing business 
for at least one year. In turn, section 8 C.F.R . § 204.50)(2) provides that "[d]oing 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." 
II. FACTUAL BACKGROUND 
The subsidiary-petitioner is an affiliate of the beneficiary's former Hong Kong employer, which is also owned 
by the petitioner's Chinese parent company. Established in New York in 2008, the petitioner imports and 
sells the parent company's products to U.S. customers , primarily major clothing retailers. The petitioner 
directly performed these sales activities through 2011. However, beginning on or about January 2012, it has 
provided marketing, sales, and shipping services in the United States pursuant to a service agreement with its 
Hong Kong affiliate. 
The petitioner submitted a service agreement with its affiliate, which indicates that the petitioner "accepts 
commissions from [the Hong Kong affiliate] on the basis of full investigation of the overseas market" and 
provides services which include: performing marketing research to support the affiliate's marketing strategies; 
(b)(6)
NON-PRECEDENT DECISION 
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assisting in the expansion of its U.S. customer base; supporting customer relations ; assisting with after-sales 
services; facilitating import customs clearance for foreign-manufactured products and arranging storage and 
logistics issues in the United States; and assisting in the collection of payments . 
For these services , the Hong Kong affiliate pays a service fee ("payment quota multiplied by 3.5%") and 
compensates the petitioner for labor and other expenses (rent, mailing fees, and travel). The petitioner 
submitted copies of monthly service fee invoices issued to its Hong Kong affiliate in amounts ranging from 
approximately $300,000 to $590,000, along with evidence of payments received. The petitioner also 
provided extensive evidence of its correspondence with U.S. customers and other evidence of its performance 
of the services outlined in the service agreement. Finally, the petitioner submitted copies of commercial sales 
invoices issued by the Hong Kong affiliate to U.S. customers and copies of bills of lading as evidence of the 
import and sales activities. Finally, the record establishes that the petitioner maintains service contracts with 
several shipping carriers to fulfill its obligations under the service agreement. 
The director concluded that the petitioner was not doing business as required by the regulations , reasoning 
that the petitioner's evidence "do[es] not indicate 'doing business' with independent corporations or entities" · 
for a full year preceding the filing of the petition, but rather "only demonstrate[s] the shipment of goods from 
the foreign company to the U.S. company." Specifically, the director found that the petitioner, as a clothing 
importer, should have provided invoices or evidence of payment of invoices from the customers that 
purchased the clothing for the year preceding the filing of the petition . 
On appeal, the petitioner asserts that the director erred and that existing case law and regulatory history 
support a conclusion that the petitioner Is doing business in a regular, systematic , and continuous fashion 
despite the fact that it is not a named party to contracts with U.S. buyers . The petitioner states that the 
evidence establishes it acts as an intermediary between its Hong Kong affiliate and the U.S. buyers and 
suppliers, by locating 
customers and finalizing the details of sales contracts for the benefit of the Hong Kong 
affiliate . In a letter submitted on appeal, the petitioner further explains that while its affiliate is named on 
customer contracts, the record shows the petitioner "continues to secure these sales contracts by marketing, 
designing , corresponding and finalizing the terms of every U.S. sales contract" and by receiving all 
shipments of imported goods for U.S. customers at its New York location. The petitioner contends that the 
regulatory definition of "doing business" does not require that it be a direct party to contracts or a direct 
provider of goods and services to a U.S. customer . 
III. ANALYSIS 
The director's finding -- that the petitioner did not submit evidence of doing business with "independent 
corporations or entities" -- implies a requirement that a petitioner must transact directly with an unaffiliated 
third party. However , the definition of "doing business" at 8 C .F.R. § 204.50)(2) contains no requirement 
that a petitioner for a multinational manager or executive must provide goods and/or services to an 
unaffiliated third party. Neither the plain language nor the regulatory history of the "doing business" 
provision supports such a requirement. 
(b)(6)
NON-PRECEDENTDEC~ION 
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The regulatory definitions of "doing business" applicable to immigrant multinational manager and executive 
petitions and to nonimmigrant intracompany transferee petitions are nearly identical. Compare 8 C.P.R. § 
204.50)(2) (immigrant multinational) with 8 C.P.R. § 214.2(l)(l)(ii)(H) (L-1 nonimmigrant intracompany 
transferee). The former Immigration and Naturalization Service (INS) proposed the current definition of 
"doing business" in the nonimmigrant L-1 context in a 1986 Proposed Rule. See 51 Fed. Reg 18591 (May 
21, 1986) ("'Doing business' means the regular, systematic and continuous provision of goods and/or services 
by a qualifying organization and shall not include the mere presence of an agent or office of the qualifying 
organization in the United States or abroad."). 
Responding to public commenters' concern that the proposed definition might disqualify liaison office 
arrangements from L-1 classification, the INS explained in the preamble to its final rule that "[t]he Service 
recognizes that company representatives and liaison offices provide services in the United States, even if the 
services are to a company outside the United States. Such services are included in the doing business 
definition .... " 52 Fed. Reg. 5738, 5741 (Feb. 26, 1987). In its 1991 Final Rule promulgating the current 
"doing business" definition in the immigrant context at 8 C.P.R. § 204.50)(2), the INS indicated, "[t]his 
requirement is similar to one pertaining to intra-company transferees under the L-1 nonimmigrant 
classification." 56 Fed. Reg. 60897, 60899 (Nov. 29, 1991). As such, we interpret the two "doing business" 
provisions similarly and decline to read a third party or non-affiliation requirement into these regulations. 1 
Accordingly, for a petitioner to establish that it is "doing business," it need only demonstrate that it provides 
goods and/or services regularly, systematically, and continuously. To determine whether a petitioner has met 
its burden, we consider the totality of the record, including relevant documentation to substantiate the 
petitioner's business activities. 
That a petitioner serves as an agent, representative office, or liaison office that serves as an intermediary 
between a related foreign entity and its U.S. customers does not preclude a finding that it is doing business as 
defined in the regulations. A petitioner that is a representative or liaison office may provide services in a 
regular, systematic, and continuous manner, even if the services are provided to related companies within its 
multinational organization. On the other hand, a company whose existence is limited to "the mere presence" 
of an office would not be able to provide evidence of its regular, systematic, and continuous provision of 
goods or services. 8 C.F.R. § 204 .5(j)(2). 
Here, the petitioner established that it provides services to its foreign affiliate by marketing the foreign 
entity's products, locating buyers, maintaining relationships with U.S. customers, and facilitating the 
completion of sales contracts and shipping arrangements in the United States. It provided a copy of its 
service agreement with the foreign affiliate and substantial evidence that it is in fact performing the services 
specified in the contract on a regular, systematic, and continuous basis. The petitioner billed the foreign 
entity for over $4.1 million in service fees in 2012 and paid $2.5 million in wages to its U.S. employees . 
Our regulatory interpretation also advances the legislative purpose of facilitating the exchange of 
managerial and executive personnel within multinational companies. See, e.g., H.R. Rep. 101 -723(1) (1990), 
reprinted in 1990 U.S.C.C.A.N. 6710, 6740, 1990 WL 200418 (Leg. Hist.); H.R. Rep. No. 91-851 (1970), 
reprinted in 1970 U.S.C.C.A.N. 2750,2754, 1970 WL 5815 (Leg. Hist .). 
(b)(6)
NON-PRECEDENT DECISION 
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The petitioner has established that it is doing business based on its regular , systematic, and continuous 
provision of services in the United States , and it has demonstrated that its operation does not constitute the 
"mere presence" of an office. 8 C.F.R. § 204 .5(j)(2). Accordingly , the director's decision will be withdrawn . 
IV. CONCLUSION 
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; Matter of Otiende, 26 l&N Dec. 127, 128 (BIA 2013). 
Here, the petitioner has sustained that burden. Accordingly, the director's decision dated April 23, 20 13 is 
withdrawn. 
ORDER: The appeal is sustained and the petition is approved.