AAO Broadens Definition of “Doing Business” for EB1(c), Multinational Executive or Manager Cases23 Apr 2015
The administrative appeals office (AAO) issued a precedent decision on April 9, 2015, that addresses a key requirement for the employment-based, first preference (EB1) immigrant visa (i.e. green card) category designed for multinational managers and executives. This favorable decision should make it easier for some companies to demonstrate that the ‘doing business’ requirement for this category has been met.
‘Doing Business’ Requirement for EB1(c)
EB1(c) is the subcategory of EB1 appropriate for multinational managers and executives being transferred from a foreign company to a related entity in the United States. One of the requirements to qualify for EB1(c) is that the petitioner must have been ‘doing business’ in the United States for at least one year prior to filing. ‘Doing business’ is defined in the applicable regulation as “providing goods and/or services in a regular, systematic, and continuous manner…” This decision by the AAO addresses the question of whether this requirement can be met if the goods and/or services provided by the petitioning company are exclusively for a foreign company related to the petitioner.
Facts of the Case
The Matter of Leacheng International, Inc. involved Leacheng International, a U.S. employer that was a wholly owned subsidiary of a foreign clothing manufacturer. Leacheng was responsible for providing marketing, sales, and shipping services in the United States for the parent company. This meant that the petitioner was responsible for coordinating and assisting with various sales activities between the foreign parent company and the U.S. customers, but that the petitioner did not actually provide any goods or services directly to the U.S. customers.
Leacheng filed an I-140 immigrant petition on behalf of the company’s deputy general manager, requesting that the case be approved under the EB1(c) designation. The U.S. Citizenship and Immigration Services (USCIS) denied the petition, noting that “…the petitioner was not doing business as required by the regulations … [because the petitioner was not] doing business with independent corporations or entities.” Leacheng appealed, arguing that the “regulatory definition of ‘doing business’ does not require that it be a…direct provider of goods and services to a United States customer.”
AAO Decision Provides Favorable Definition of ‘Doing Business’
The AAO agreed with the petitioner, finding that the ‘doing business’ requirement in the EB1(c) context can still be met even if the company is not providing goods or services to an unaffiliated third party. The AAO explained that the “…fact that a petitioner serves as an agent, representative, or liaison between a related foreign entity and its United States customers does not preclude a finding that it is doing business as defined in the regulations.”
This precedent decision is welcome news and should help some multinationals evidence that the ‘doing business’ requirement has been met for EB1(c) purposes. The Murthy Law Firm is available to assist company representatives and foreign national workers with questions about this AAO decision, the EB1(c) category in general, or other issues related to immigration law.
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