dismissed L-1A Case: Online Gaming

MATTER OF 5-USA CORP 
APPEAL OF VERMONT SERVICE CENTER D~CISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 31, 2018 
PETITION: FORM 1-129, PETlTION FOR A NONIMMIGRANT WORKER 
The Petitioner, claiming to be an online gaming and software development company, seeks to 
continue the Beneficiary's employment as a brand/marketing manager under the L-IA nonimmigrant 
classification for intracompany transferees: See Immigration and Nationality Act (the Act) section 
10 I ( a)( 15)(L ), 8 U .S.C. § 1101 ( a)(l 5)(L ). The L-1 A classification allows a corporation or other legal 
entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States 
to work temporarily in a managerial or executive capacity. 
The Director of the Vermont Service Center revoked approval of the petition, concluding that the 
Petitioner did not establish, as required, that is been doing business and that it will employ the 
Beneficiary in a managerial or executive capacity. 
On appeal, the· Petitioner asserts that it will employ the Beneficiary in an executive capacity, 
contending that it has been doing business, despite not having provided goods or services to third 
parties. The Petitioner also argues that the Director placed undue emphasis on a site visit to the 
exclusion of "well-documented employment history" showing that the company is adequately 
staffed with employees who are capable of relieving the Beneficiary _from having to perfonn 
primarily non-executive Job duties. 
Upof!. de nova review, we find that the Petitione-r has not established that it is or has been doing 
business and we will therefore affirm the Director's conclusion on this issue. In contrast, we find 
that the Director did not provide an adequate analysis of the evidence to support her adverse 
conclusion regarding the Beneficiary's executive capacity in her proposed U.S. position. Therefore, 
despite the lack of sufficient evidence showing that the Beneficiary would be employed in an 
executive capacity, we will withdraw the Director's conclusion on this issue. Regardless, we will 
dis"miss the appeal, as the Petitioner has not established that· it is and has been doing business. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States .. Section 101(a)(l5)(L) of the Act. In addition, the beneficiary 
Maller of 5-USA Corp 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidjary or affiliate thereof in a managerial or executive capacity. Id. · The 
petitioner must also establish that _the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Under U.S. Citizenship and Immigration Services (USCIS) regulations, the approval of an L-IA 
petition may be revoked on notice under six specific circumstances. 8 C.F .R. § 214.2(1)(9)(iii)(A). 
To properly revoke the approval of a petition, a director must issue a notice of intent to revoke that 
contains a detailed statement of the grounds for the revocation and the time period all_owed for 
rebuttal. 8 C.F.R. § 214.2(1)(9)(iii)(B). 
11. DOING BUSINESS 
The primary issue to be addressed in this decision is whether the Petitioner has been and is currently 
doing business. The regulations define a qualifying organization as one doing business as an 
employer in the United States. See 8 C.F.R. § 214.2(1)(l)(ii)(2). 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. § 214.2(1)( 1 )(ii)(H). 
In support of the petition, the Petitioner provided its 2014 tax return,.2015 Form W-2s, quarterly tax 
returns for 2015 and the first quarter of 2016, and bank statements for January through December of 
20 I 5 and for January through April 20 I 6. 
In a notice of intent to revoke (NOIR), the Director informed the Petitioner that USCIS attempted, 
but was unable, to execute an administrative site· visit in August 2018 and that as a result, it could 
not verify that the Petitioner is doing business. Therefore, the Petiti~ner was instructed to provide 
additional evidence to show that it is actively engaged in providing goods or ~ervices. In an effort to 
assist the Petitioner with the response, the Director provided with a list of acceptable documents that 
would establish whether an entity is doing business pursuant to the regulatory definition. 
In response, the Petitioner provided its 2015 tax return, 2016 Form W-2s, quarterly tax returns for 
2016 and the first quarter of 2017, an internally generated monthly report and general ledger for 
January 2017, bank statements from June 2016 to February 2017, utility bills, two confidentiality 
agreements listing the Petitioner as a party to a "Business Discussion," and a lease and photographs 
of the Petitioner's new office location. 
The Director reviewed the Petitioner's response and determined that the submissions did not 
establish that the Petitioner has been and continues to do business. Aside from noting the 
observations made during-the attempted site visit, the Director found thatthe Petitioner's tax returns 
and financial statements lack evidence of any gross receipts or sales. The Director: further noted that 
the Petitioner's bank statements do not show regular deposits and are therefore insuflicient to show 
that the Petitioner received payments in exchange for providing goods or services. 
2 
.
Matter of 5-USA Corp 
On appeal, the Petitioner disputes the Director's findings, asserting that its bank statements and lack 
of gross receipts in its tax returns "are not a valid basis to determine" that it has not been doing 
business. The Petitioner explains that its "main product is an online sports lottery service that is 
mainly developed and administered by its parent company as well as other companies under the 
umbrella"; it claims that it carries out primarily marketing and investment activities "to 
establish brand recognition and user base, building partnerships with related U[.]S[.] tech companies, 
and expanding potential _service offerings." In support of this claim, the Petitioner references .Malter 
ofleacheng , 26 l&N Dec: 532 (AAO 2015), in which we found that being a party to contracts with 
unaffiliated entities is not a prerequisite for establishing that the petitioning entity is doing business. 
We find, however, that the Petitioner has not adequately established that the facts of this petition are 
analogous to those in the published decision . In leacheng, the petitioner provided evidence of a 
contractual agreement, which described the specific services it would provide and outlined the 
commission-based fee structure pursuant to which the foreign affiliate would compensate the 
petitioner in return for providing those services . Id. Unlike in leacheng, the Petitioner in this matter 
has neither defined the specific seryices it claims to provide nor has it submitted documentation to 
corroborate that it is actually carrying out the broadly stated "marketing and investment" services on 
behalf of its related foreign entities . Although the Petitioner does not have to be a party to contracts 
with unaffiliated entities, it is reasonable to expect some evidence as to the types of activities in 
which the Petitioner engages in the U.S.' market along with evidence showing that the Petitioner is 
being compensated for carrying out these activities . · The Petitioner must_ support its assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 
2010) . Providing evidence of incurred payroll expenses is not sufficient to establish that the 
Petitioner has been and would continue to be engaged in activities that are consistent with "doing 
business." Further, although the Petitioner provided two non-disclosure agreements in response to 
the NOIR, only one of those agreements lists the Petitioner as a party, while the other identifies 
Limited, the Petitioner's foreign affiliate, rather than the Petitioner itself, as a party to the 
agreement. Regardless, neither agreement describes any services that the Petitioner would provide 
either to its foreign affiliate(s) or to a third party and therefore does not establish that the Petitioner 
was doing business. · 
Furthermore, the Petitioner's claim on appeal _: that it does not generate revenue because it provides 
services to an affiliated entity - is inconsistent with the Beneficiary's job duty description in which 
the Petitioner made references to its "profit margins," "net profit," an "revenue/gross profit targets," 
all of which ·indicate that the Petitioner anticipated doing business that would result in generating 
some revenue . It is unclear why the Petitioner made these references i_n the Beneficiary's job 
description, but did not provide tax returns that are consistent with those references. 
3 
Matter qf 5-USA .Corp 
Ill. CONCLUSION 
For the reasons discussed above, we find that the Petitioner is not a qualifying organization because 
it has. not established that it has been doing and cont~nues to do business. The revocation of the 
approval is therefore affirmed. 
ORDER: The appeal is dismissed. 
Cite as Malter of5-USA Corp, ID# 1812553 (AAO Dec. 31; 2018) 
\ 
4