dismissed EB-1C Case: Business Machines Export

(b)(6)
DATE: OCT 2 9 2013i OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusett s Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion 
to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 
days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See 
also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
L;L_ 
~Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center ("the director"), denied the preference visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a limited liability company organized in the State of New Jersey on April 30, 2008. 
The petitioner states on the Form I-140, Immigrant Petition for Alien Worker, that its type of business 
is ' and that it employs six personnel. The petitioner reported a gross 
annual income of $940,779 and a net annual income of $61,246 when the petition was filed. It seeks 
to employ the beneficiary as its president and chief executive manager. Accordingly, the petitioner 
endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a 
multinational executive or manager. 
On December 6, 2012, the director denied the petition based on a determination that the petitioner 
failed to establish that it had been doing business. Consequently, the director found that the 
beneficiary is ineligible to be classified as a multinational executive or manager. The director also 
denied the visa petition with a finding of fraud. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, the petitioner asserted that the director failed to 
provide proper notice of derogatory information and used that derogatory information to deny the 
petition. To provide the petitioner the opportunity to rebut the derogatory information, the AAO 
issued 
a Notice of Derogatory Information (NDI). On September 11, 2013, the AAO received the 
petitioner's response. 
The petitioner claims that the derogatory information, which consisted of false evidence of business 
transactions, was generated by its employees for their gain and without the knowledge of the 
petitioner or the beneficiary. The petitioner asserts that the director's basis for denial of the petition 
was erroneous and contends that the evidence of record is sufficient to establish eligibility. 
I. The Law 
To establish eligibility for the employment-based immigrant visa classification, the petitioner must 
meet the criteria outlined in section 203(b) of the Act. Section 203(b) of the Act states in pertinent 
part: 
(1) 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 
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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. 
A United States employer may file a petition on Form I-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by 
the alien. The language of the statute is specific in limiting this provision to only those 
executives and managers who have previously worked for a firm, corporation or other legal entity, or 
an affiliate or subsidiary of that entity, and who are coming to the United States to work for the same 
entity, or its affiliate or subsidiary. 
II. Procedural History 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on July 19, 2010. In a 
letter submitted in support of the petition, the petitioner stated that the beneficiary had been employed 
by since 2001. The petitioner noted 
that the foreign entity engaged in document processing, photocopying, design, drawing and related 
business services and that the beneficiary was the company's proprietor and chief executive officer. 
The petitioner provided a certified statement signed by an Indian notary certifying that the beneficiary 
was the sole proprietor of the foreign entity and managed the foreign entity and 13 subordinate 
employees. The initial record also included a translated copy of a "Certificate of Registration of 
Shop" signed by the dated April19, 2001. 
The petitioner also provided its certificate of formation in New Jersey showing that it was established 
on September 8, 2008, as well as showing that the beneficiary, a proprietor of the foreign entity, is the 
sole member of the petitioner's limited liability company with a capital contribution of $10,000. The 
record also included a ledger showing that the beneficiary, as the foreign entity proprietor, 
contributed an additional $229,838 to the petitioner between November 2008 and January 2009. The 
petitioner claimed that its principal business includes dealing in marketing and export of pre-owned 
and new photocopiers and related business machines from the United States to India and other Asian 
countries. 
On the petitioner's certificate of formation in New Jersey, the petitioner identified its main business 
address as 1 With respect to the 
petitioner's business location(s), the record included evidence related to the following: purchase of a 
1 The Form I-140 identified the petitioner and the beneficiary's address as the subleased premises in 
Maryland. The petitioner eriodically refers to its registered address as 
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Housing and Urban Development (HUD) single family home in Buffalo, New York in March 2010; 
purchase of a HUD single family home in New York in February 2010; lease of premises 
located in New Jersey, beginning April 1, 2010; and sublease of premises in __ 
Maryland, also beginning on April 1, 2010. As the director noted, the lease and sub-lease are written 
in the same font and contain 
identical terms and conditions, save for the designation of one as a lease 
and one as a sub-lease. The petitioner also provided its business plan for 2009 to 2011. 
The petitioner's organizational chart depicted the beneficiary as the president/chief operating manager 
directly over the vice-president position. The vice-president is depicted as supervising a marketing 
manager and an engineering manager. The organizational chart shows that the vice-president, 
marketing manager, and engineering manager also supervise contractors, professionals, consultants, 
dealers, and distributors. It appears from the structure of the organizational chart that a financial/legal 
officer and an assistant officer also report to the vice-president. The petitioner also provided an 
overview of the duties of the claimed subordinate employees. The petitioner submitted photocopies 
of its Internal Revenue Service (IRS) Forms 941, Employer's Quarterly Federal Tax Return, for the 
first and second quarters of 2010. Each Form 941 showed the petitioner employing six individuals 
and the taxable wages reported as $6,578 and $6,570, for each quarter respectively. 
The petitioner further included a photocopy of an uncertified IRS Form 1065, U.S. Return of 
Partnership Income, for the 2009 year which showed that the petitioner had gross receipts or sales of 
$940,779 and had paid salaries and wages (other than to partners) in the amount of $3,050. The IRS 
Form 1065 also shows that the petitioner paid $22,620 in rent for the 2009 year. 
The director, in a request for evidence (RFE), notified the petitioner that the initial evidence presented 
did not provide sufficient probative 
evidence to demonstrate eligibility for this visa classification. 
The director requested, among other things, that the petitioner clarify its business address and provide 
documents demonstrating the petitioner's premises were zoned for commercial use. The director also 
requested that the petitioner submit evidence establishing that it had been doing business for at least 
one year. _The director asked that the petitioner provide documentary evidence establishing it had 
paid contractors and documentary evidence of the compensation paid to its employees. The director 
further requested evidence of the beneficiary's pay and income. 
In response, the retitioner indicated that its administrative and controlling office is located in an 
apartment at _ Maryland and provided a copy of its sub-lease 
for the premises .2 The petitioner stated that its "selling office" is located in a house at 
New York. The petitioner attached a photocopy of an April 6, 2011 letter 
purportedly from the Licensing Office confirming that a business license or variance 
was not required for the business activities that the petitioner conducted on the premises. The first 
paragraph of the letter addressed to the petitioner reads: 
Please be advised that currently the Office of Licenses does not 
license business of marketing used office equipments [sic] as stated in the letter of [the 
2 This is the address on the Form 1-140 filed July 19, 2010. 
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petitioner] who are doing business there at, also variance of purpose from the city is 
not needed for this usage by them .... 
The letter is signed by Office of Licenses. The petitioner stated that it currently 
employed three individuals at the New York office and three individuals at the 
Maryland office. The petitioner claimed that the employees "may be kept rotated, according to need 
of the hours" and that all the employees are full-time and permanent. 
The petitioner also submitted two invoices: (1) a March 14, 2011 invoice from a 
Pennsylvania company, addressed to the petitioner at the Maryland address which billed 
the petitioner $53,125 for 125 assorted co iers; and (2) a March 11, 2011 invoice from the petitioner 
for the sale of 90 copiers to in New York for $46,950. The record also 
included an April 3, 2011 letter signed by the president of claiming that it regularly 
purchased equipment from the petitioner, noting that it had purchased $112,134 worth of equipment 
in 2011. 
The petitioner's photocopy of an uncertified IRS Form 1065, U.S. Return of Partnership Income, for 
the 2010 year showed the company had gross receipts or sales of $1,618,022 and had paid salaries 
and wages (other than to partners) in the amount of $32,866 and rent in the amount of $26;325. The 
petitioner also provided an IRS Form 1099, Miscellaneous Income, issued by the petitioner to 
4 
a company located in Pennsylvania, for $11,256. The petitioner provided copies of its 
IRS Forms W-2, Wage and Tax Statement for 2010. The Forms W-2 were issued to: (1) the 
beneficiary in the amount of $14,560 at the Maryland address; (2) the individual in the 
position of accountant in the amount of $2,260 at the Maryland address; (3) the 
individual in the position titled marketing manager in the amount of $2,490 at a different address in 
Maryland; ( 4) the individual in the position titled finance/legal officer in the amount of 
$2,450 at a Maryland address; (5) the individual in the position labeled superintending 
engineer in the amount of $2,390 at a Maryland address; and (6) the individual in the 
position labeled vice-president in the amount of $2,138 at an address in New Jersey. The 
wages paid for the 2010 year as reflected on the Forms W-2 totaled $26,288 ; or $11,728 excluding 
the wage paid to the beneficiary as a member of the company. 
On December 5, 2011, the director issued a Notice of Intent to Deny (NOID) the petition . Among 
other things, the director advised the petitioner that it is unclear how the petitioner conducted 
business out of the residential addresses, given its need for the accommodation and storage of new 
and used office equipment. The director questioned the validity of the petitioner's lease agreements 
as the forms were identical in format even though the documents were for locations in different states. 
The director also noted that the petitioner's six employees earned the majority of their 2010 income in 
the month of June and that the wage compensation detailed did not support the petitioner's staffing 
levels as described. The director noted further that the petitioner had not provided evidence 
explaining the miscellaneous income payment to Supreme, Inc. as denoted on the IRS Form 1099. 
The director requested certified tax records as well as evidence establishing the petitioner's actual 
staffing level, utilization of contractors, professionals, consultants, dealers and distributors. The 
director requested probative evidence to establish that the petitioner is conducting business and had 
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been conducting business for at least one year prior to filing the instant petition on July 19, 2010. 
The director advised the petitioner that failure to rebut the derogatory information in the file could 
result in a finding of fraud or misrepresentation . 
In response to the NOID, the petitioner stated that it used the services of , an inventory 
management firm, so it did not require a large space to store or process the inventory it purchases and 
sells. The petitioner provided a diagram of how it purchased and sold inventory with explanatory 
steps of how it conducted business. The petitioner provided a copy of its May 27, 2010 contract with 
wherein as the service provider included its scope of services to the - -
petitioner. The scope of services included inspecting used copiers and similar business machines, 
ascertaining cost of refurbishing and repairing the inventory identified for purchase by the client, 
providing expert personnel to carry out the refurbishing and repair with full supervision, safekeeping 
the inventory, providing transportation services, providing unskilled workers to carry out refurbishing 
and repair with full supervision, providing expert opinions on purchase transactions, and providing 
parts for refurbishing and repair. 
The petitioner explained that it had offices in various geographical locations to reduce inventory 
acquisition cost and provide better customer service. The petitioner reiterated that its business 
premises were used to manage or administer the business rather than for storing inventory. The 
petitioner provided Excel printouts for its claimed sales and purchases for the 2009 and 2010 years, 
and for the first 11 months of the 2011 year. The petitioner also provided a list of companies from 
which it purchased used copiers and to which it sold used copiers in 2010 and 2011. 
The petitioner provided documentary evidence of only one completed transaction to support its claim 
that it purchased and sold inventory. The documentary evidence of this transaction included 
correspondence among the petitioner, and 
The 
purchased 90 copiers from 
petitioner's behalf; and the 90 copiers were resold to 
included: a March 2, 2011 letter from of 
corr-espondence showed: that the petitioner 
inspected and shipped the 90 copiers on the 
In the correspondence the petitioner 
thanking the 
petitioner for its inquiry regarding used copiers which had an attached list of inventory; a 
March 4, 2011 letter addressed to from the petitioner's engineering manager requesting 
that let its agent inspect inventories and once a final inspection report from 
. is received confirm the order; a March 7, 2011 letter from the petitioner to 
agreeing to purchase 90 copiers; and an invoice from to the petitioner for the sale of the 
copiers. According to this documentation, charged the petitioner a total of $10,465 for 
refurbishing services and service fees, and an additional $4,410 as reimbursement for shipping 
charges. It is noted that the payment requested by for its services related to this single sales 
transaction exceeded the total payments the petitioner made to in 2010. 
In addition, the petitioner submitted two ledgers which summarized the petitioner's purchase 
transactions with in 2010 and 2011. According to these ledgers, the petition made 12 
purchases from in 2010, totaling $222,231, and made eight purchases through November 
2011, totaling $166,
374. 
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The petitioner's response to the NOID inciuded a similar description of the beneficiary's duties adding 
the allocation of time to each of the individual duties. The petitioner indicated that the beneficiary 
supervised five employees, three of whom are managerial or supervisory employees . The petitioner 
provided notarized copies of its IRS Forms 1065 for the 2009 and 2010 years and explained that 
although it had 
requested and paid for certified copies of these returns from the IRS, the IRS had not 
yet provided them. 
Upon review of the petitioner's rebuttal to the NOID, the director determined that the petitioner failed 
to resolve the discrepancies in the record. The director concluded that the petitioner's use of an 
apartment and single family residences for its business operations was not supported in the record. 
The director also noted that the record did not support the petitioner's employment of full-time staff 
as claimed. 
The director also informed the petitioner that confirmed to United States Citizenship and 
Immigration Services (USCIS) the following information: that it did not have a business relationship 
with the petitioner; that the letter from is not written on its company's letterhead and the 
signature does not belong to thus the letter was fabricated; and that the invoice allegedly 
prepared by is not in a format used by The director determined that the 
petitioner, accordingly, had submitted fraudulent evidence to show that it had been conducting 
business. The director determined that the petitioner had not submitted evidence establishing that the 
beneficiary is eligible to be classified as a multinational executive or manager. The director also 
found that the petitioner had filed a petition and submitted falsified documents in order to obtain a 
benefit under the Act through fraud and misrepresentation of a material fact. The director denied the 
petition with a finding of fraud. 
On appeal, the petitioner asserted that the director failed to give it proper notice of derogatory 
information and used that derogatory information to deny the petition. The petitioner contended that 
the director "jumped on to the alleged conclusion" without considering the other evidence in the 
record, such as: the fact that the purchased material from was handled by a third party; the 
reported transactions in the petitioner's certified/notarized tax returns; and the banking transactions. 
The petitioner also provided its response to the derogatory information regarding the 
transaction. The petitioner submitted "its finding and results of investigation into the purchase 
transaction with " The petitioner stated that it had "purchased inventories in question 
from said through intervention of an intermediary who sourced the goods for us, taken the 
delivery from the on [its] behalf and the [sic] delivered the so purchased inventory 
directly to [its] customers." The petitioner alleged that its initial investigation revealed that the 
intermediate broker, an independent contractor, purchased the goods from various sources cheaper 
than what was invoiced to the petitioner through "impugned" invoice, passing on a higher 
purchase price to the petitioner. The petitioner averred that it did not establish "personal contact with 
said " The petitioner also contended that no other invoices or purchase or sales 
transactions were found to be false, fabricated, or fraudulent. 
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The petitioner further asserted that the director ened in law and fact in denying the petition with a 
finding of fraud. The petitioner asserted that the record includes corr-esponding reported sales of the 
same inventory; banking transactions for the purchase and corresponding sales documents proving 
handling of purchase inventories and delivery of goods by a third party directly to the petitioner's 
customers and money received from the customers; sales and purchase registers; financial statements; 
income tax statements; and books of accounts. The petitioner did not submit further documentation 
but rather asserted that the cunent record is sufficient to establish eligibility. 
As the director did not issue a second NOID informing the petitioner of the derogatory information 
USCIS had received from its contact with the representative, the AAO issued an NDI in 
accordance with the regulation at 8 C.F.R. § 103.2(b)(16)(i). The AAO repeated the information the 
director had obtained from the representative regarding the letters allegedly sent by 
to the petitioner. 
In a rebuttal, dated September 9, 2013, the petitioner claims that it "was defrauded by couple of its 
employees by colluding with other independent service provider i.e. ' The petitioner 
asserts that two of its employees purchased inventories from sources other than at a lower 
price and then reported that the inventories had been purchased from at a higher price and 
doctored the invoice allegedly from The petitioner states that the checks drawn in favor 
of "were found to have discounted by these duo and new instruments have used to pay the 
actual vendors." The petitioner attached a "Special Investigations Report" allegedly prepared by 
dated September 4, 2013. The report is not on 
letterhead, is not signed, and does not identify the names of the fraud investigators or provide their 
contact information. The petitioner did not provide a copy of an agreement employing did not 
provide invoices received from for its services, and did not provide evidence that it had paid 
for its services. 
The petitioner asserts that based on the Special Investigations Report: (1) it cannot be concluded that 
the petitioner had not actually received and sold the used copiers covered by the Southwest invoice; 
(2) the fabricated invoice "does not distort the purchases of the said copiers but only 
revealed the fraud by [the petitioner's] employees"; (3) the financial statements and balance sheets 
still reflect the conect and submitted position; (4) the certified tax returns have not been proven false 
or otherwise incorrect; and (5) banking records show the stated payments for the "impugned 
purchases" have been made by the petitioner. 
III. The Issues on Appeal 
A. Doing Business 
The first issue is whether the petitioner has provided sufficient evidence that it was doing business for 
one full year prior to filing the instant petition. 
Section 204.5U)(3) requires as initial evidence in pertinent part: 
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(i) Required evidence. A petition for a multinational executive or manager must be 
accompanied by a statement from an authorized official of the petitioning United 
States employer which demonstrates that: 
* * * 
(D) The prospective United States employer has been doing business for at least 
one year. 
Section 204.5(j)(2) defines doing business as "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." 
The petition in this matter was filed July 19, 2010; accordingly, the petitioner must establish that it 
has been doing business for at least one year or since July 19, 2009. Despite the director's request in 
the RFE and in the NOID for the petitioner to establish it had been doing business for one year prior 
to filing the Form I-140 petition, the petitioner provided no probative evidence, other than its 
uncertified, self-prepared IRS Form 1065 tax return for 2009 to establish this fact. The petitioner 
stated in response to the NOID that it had requested certified copies of its Forms 1065 from the IRS 
in December 2011, but failed to provide certified tax returns with its appeal filed in December 2012, 
over one year later. The non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. 8 C.P.R. § 103.2(b)(2)(i). Where a record does not exist, the petitioner 
must submit an original written statement from the relevant government or other authority 
establishing this as fact. The statement must indicate the reason the record does not exist and indicate 
whether similar records for the time and place are available. 8 C.P.R. § 103.2(b)(2)(ii). The 
petitioner's lack of certified tax returns from the IRS creates a presumption of ineligibility. The only 
other information in the record regarding the last half of the 2009 year is the petitioner's self-prepared 
Excel statement. Said statement is not supported with any documentary evidence. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The petitioner's response to the RFE included evidence that the petitioner had sub-leased premises in 
an apartment complex in Maryland for its administrative offices on April 1, 2010. The 
response also indicated that the petitioner had purchased a HUD single family residence on March 10, 
2010 for its "selling office." The petitioner does not provide any evidence of the properties it 
allegedly rented for $22,620 for the 2009 year as denoted on its uncertified IRS Form 1065.3 The 
3 The petitioner's initial claimed place of business, New Jersey, 
appears to be an a location that provides shipping and mailbox services for FedEx and 
UPS. This same address is listed on the petitioner's IRS Forms 1065 for the 2009 and the 2010 year. See 
---·.-···--.......... - , See also 
https://maps.google.com. As noted earlier, the petitioner also sometimes refers to its place of business as 
New Jersey. 
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petitioner does not provide any evidence of where or how it conducted business prior to March or 
April of 2010. 
The petitioner's claim that it employed five individuals, other than the beneficiary, is supported only 
by IRS Forms 941 for the first and second quarter of 2010 and IRS W-2s for 2010. These forms do 
not establish that the individuals were employed prior to 2010 or full-time for the 2010 year.4 
Moreover, the wage and salary information reported on the petitioner's 2010 IRS Forms W-2, Forms 
941, and Form 1065 is inconsistent. It is incumbent upon the petitioner to resolve any inconsistencies 
in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The petitioner submitted photocopies of its Internal Revenue Service (IRS) Forms 941, Employer's 
Quarterly Federal Tax Return, for the first and second quarters of 2010. Each Form 941 showed the 
petitioner employing six individuals and the taxable wages reported as $6,578 and $6,570, for each 
quarter respectively. 5 Accordingly, the total in salaries and wages paid the first and second quarters 
of 2010 is $13,148; however, the Forms W-2s submitted for 2010 show the petitioner paid a total of 
$11,728 in salaries and wages excluding the income paid to the beneficiary as a partner of the limited 
liability company. Further, the uncertified Form 1065 for the 2010 year shows $32,866 was paid in 
salaries and wages (other than to partners). The record does not include consistent, probative 
evidence that the petitioner employed individuals to cany out the petitioner's business in the six 
months immediately preceding the filing of the petition. The petitioner's claim that it used 
contractors is supported only by an IRS Form 1099 for 2010 in the amount of $11,256 and a contract 
entered into with the recipient of the Form 1099 on May 27,2010, approximately two months prior to 
filing the petition. The record does not include probative evidence that the petitioner utilized the 
services of other contractors prior to May 27, 2010. 
The petitioner has submitted no invoices or other documentary evidence to establish that it conducted 
business by regularly, systematically, and continuously providing goods and/or services in the latter 
half of 2009. The limited information provided to establish that the petitioner had been doing 
business in 2010 prior to filing the petition 
does not establish that the petitioner's conduct of business 
was regular, systematic, and continuous. The Excel printouts for the petitioner's claimed sales and 
purchases for the 2009 and 2010 years are not supported by probative documentary evidence. 
Without supporting documentary evidence, the petitioner has not met its burden of proof. Matter of 
Soffici, supra. The petitioner's "business plan" covering the years 2009 - 2011 is insufficient to 
establish that the petitioner's plan came into fruition. Accordingly, the record in this matter does not 
include sufficient probative evidence to establish that the petitioner conducted business, as that term 
4 The petitioner's uncertified IRS Form 1065 for 2009 showed the petitioner had paid salaries and wages (other 
than to partners in the amount of $3,050. However, the petitioner does not provide a copy of a certified Form 
1065 showing it was actually filed with the IRS and does not provide copies of W-2s or other probative 
evidence establishing that these salaries and wages were actually paid and to whom they were paid. 
5 The Forms 941 do not identify the employees paid by name. 
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is defined in the regulations, for one year prior to filing the petition. The record is simply deficient in 
this regard. For this reason, the petition may not be approved. 
Moreover, we observe that the director provided the petitioner opportunity on two occasions (in the 
RFE and in the NOID) to provide evidence that it had been conducting business for one full year 
prior to filing the petition. The petitioner failed on both occasions to provide probative evidence of 
its conduct of business in the year prior to filing the petition. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(14). We also find that the director emphasized the petitioner's failure to provide probative 
evidence that it was doing business and denied the petition based on those stated reasons. 
B. Finding of Fraud/Willful Misrepresentation 
The second issue in this proceeding is whether the director properly entered a finding of fraud. 
The director's decision gave notice of derogatory information found regarding the petitioner's conduct 
of business in 2011, specifically, the documentation purported! y memorializing its business dealings 
with which was submitted for the first time in response to the NOID. As discussed above, 
the petitioner's response to the NOID failed to adequately rebut the director's initial findings that the 
petitioner was not doing business for one year at the time the petition was filed, and the director had 
sufficient grounds to deny the petition on that basis alone. 
However, the petitioner correctly asserts that the director should have issued a third notice to the 
petitioner advising of the derogatory information that came to light when USCIS attempted to verify 
the validity of the claimed transaction between the petitioner and prior to entering a 
finding of fraud. See 8 C.F.R. § 103.2(b)(l6)(i). Also as noted above, the AAO remedied the 
director's error by issuing an NDI, repeating the information the director had obtained from the 
representative regarding the letters allegedly sent by to the petitioner. The 
AAO also attached copies of the documentary evidence the petitioner had submitted in response to 
the NOID regarding the claimed transaction for the petitioner's review. 
The petitioner submitted a rebuttal to the AAO claiming that it was a victim of fraud perpetrated by 
two of its employees and a third party contractor, The petitioner attached a Special 
Investigations Report allegedly prepared by 
dated September 4, 2013 to support its claim that the petitioner and the beneficiary were 
unaware that the petitioner's employees had not purchased merchandise from and that the 
invoice and letter from were not legitimate. The petitioner asserts that as it was unaware 
of its employees' duplicitous actions, it cannot be proven that it did not receive and sell used copiers 
that are listed on the doctored inyoice. The petitioner also contends that the "certified tax 
returns" have not been proven false or otherwise incorrect. Accordingly, the petitioner contends that 
the derogatory information has been rebutted. 
Upon review of the director's decision, we find that the director erred when determining that the 
petitioner's submission of fabricated documentation provided sufficient grounds for a finding of 
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fraud. A finding of fraud requires a determination that the alien made a false representation of a 
material fact with knowledge of its falsity and with the intent to deceive an immigration officer. 
Furthermore, the false representation must have been believed and acted upon by the officer. See 
Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). The terms "fraud" and "misrepresentation" are not 
interchangeable. Unlike a finding of fraud, a finding of material misrepresentation does not require 
intent to deceive or that the officer believes and acts upon the false representation. See Matter of Kai 
Ring Hui, 15 I&N Dec. 288 (BIA 1975). Beyond the adjudication of the visa petition, a 
misrepresentation may lead users to enter a finding that an individual alien sought to procure a visa 
or other documentation by willful misrepresentation of a material fact. This finding of fact may lead 
users to determine, in a future proceeding, that the alien is inadmissible to the United States based 
on the past misrepresentation. 
Section 212(a)(6)(e) of the Act, 8 U.S.C. § 1182(a)(6)(e), provides: 
Misrepresentation. - (i) In general. - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure (or has sought to procure or has 
procured) a visa, other documentation, or admission into the United States or 
other benefit provided under this Act is inadmissible. 
As outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that the 
alien willfully make a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. Matter of Kai Ring Hui, 15 I&N Dec. 288, 289-90 
(BIA 1975). The term "willfully" means knowing and intentionally, as distinguished from accidentally, 
inadvertently, or in an honest belief that the facts are otherwise. See Matter of Healy and Goodchild, 17 
I&N Dec. 22, 28 (BIA 1979). To be considered material, the misrepresentation must be one which 
"tends to shut off a line of inquiry which is relevant to the alien's eligibility, and which might well have 
resulted in a proper determination that he be excluded." Matter of Ng, 17 I&N Dec. 536, 537 (BIA 
1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, he or she must determine: 1) that the petitioner or beneficiary made a false 
representation to an authorized official of the United States government; 2) that the misrepresentation 
was willfully made; and 3) that the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 
149 (BIA 1954); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961); Matter of Kai Ring Hui, 15 I&N Dec. t 
288. 
An immigration officer will deny a visa petition if the petitioner submits evidence which contains 
false information. In general, a few errors or minor discrepancies are not reason to question the 
credibility of an alien or an employer seeking immigration benefits. See Spencer Enterprises Inc. v. 
U.S. , 345 F.3d 683, 694 (9th Cir., 2003). However, if a petition includes serious errors and 
discrepancies, and the petitioner fails to resolve those errors and discrepancies after an officer 
provides an opportunity to rebut or explain, then the inconsistencies will lead users to conclude that 
the facts stated in the petition are not true. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
(b)(6)
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Page 13 
The director determined that the petitioner had submitted fraudulent evidence that it had been 
conducting business. First, as previously discussed, the petitioner submitted a letter and an invoice 
from an independent company, which were confirmed to be patently false. A misrepresentation can 
be made to a government official in an oral interview, on the face of a written application or petition , 
or by submitting evidence containing false information. INS Genco Op. No. 91-39, 1991 WL 
1185150 (April 30, 1991). Here, the submission of fabricated letters in support of an I-140 visa 
petition constitutes a false representation to a government official. 
As noted above, the petitioner, in its initial response to the director's decision, indicated that it had 
investigated the purchase transaction with and found that an independent 
contractor, had falsified the invoice and had passed on a higher purchase price. The 
petitioner stated that it did not have personal contact with but instead had relied on its 
intermediary, the independent contractor. The petitioner also complained that the director had not 
provided the documentation upon which he had relied when finding that the petitioner had submitted 
falsified documents. 
When informed by the AAO that the letters the petitioner itself had submitted showed the petitioner 
had contact with the petitioner changed its claim and placed blame for the preparation of 
the fabricated letters on two of its alleged employees. As observed above, the petitioner provided a 
Special Investigation Report allegedly prepared by an independent firm, 
to establish that it had been the victim of fraud. However, the report 
is not on the investigative firm's letterhead and does not include any signatures. The report does not 
identify the fraud investigators by name or provide their contact information. Moreover, the 
petitioner did not provide a copy of any agreement establishing that it hired for its services. The 
petitioner did not provide invoices received frolll( for its services and did not provide evidence 
that it had paid for its services. Accordingly, the record does not include evidence substantiating 
the independence of the report. Without documentary evidence supporting the independence of the 
report, the report is not probative in establishing that the petitioner was a victim of fraud by two of its 
employees and a third party intermediary. Matter of Soffici, supra. 
The record does not include documentary evidence substantiating that the two claimed employees 
who allegedly concocted the fraudulent scheme were employed by the petitioner when the fabricated 
letters to were prepared. Furthermore, the petitioner has provided no evidence that it 
reported the alleged fraudulent scheme to the appropriate authorities. The petitioner has not provided 
probative independent evidence that it was a victim of fraud perpetrated by two of its employees. 
The burden of proof remains with the petitioner and beneficiary to show by a preponderance of the 
evidence that a material misrepresentation was not committed in these proceedings. See Matter of 
Ho, 19 I&N Dec. at 589. The petitioner has not met that burden. 
Accordingly, the AAO finds that the petitioner willfully made the misrepresentation. The fabricated 
letters were prepared and submitted by the petitioner as evidence in support of the petition. By 
signing the petition, the petitioner certified under penalty of perjury that the petition and all evidence 
submitted with it either initially or thereafter is true and correct. See the regulation at 8 C.F.R. 
§ 103.2(a)(2), which states the following: 
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NON-PRECEDENT DECISION 
An applicant or petitioner must sign his or her benefit request. However, a parent or 
legal guardian may sign for a person who is less than 14 years old. A legal guardian 
may sign for a mentally incompetent person. By signing the benefit request, the 
applicant or petitioner, or parent or guardian certifies under penalty of perjury that the 
benefit request, and all evidence submitted with it, either at the time of filing or 
thereafter, is true and correct. Unless otherwise specified in this chapter, an 
acceptable signature on a benefit request that is being filed with the USCIS is one that 
is either handwritten or, for benefit requests filed electronically as permitted by the 
instructions to the form, in electronic format. 
The petitioner's claim on appeal that it did not have personal contact with is contradicted 
by the very letters the petitioner submitted to show that it conducted business with The 
petitioner submitted letters on its letterhead signed by its em lo ees in order to establish that it 
conducted business with but when informed repudiated the authenticity of the 
letters, claimed that it did not have any personal interaction with but that the contact was 
only through a third party contractor. Thus, when given the opportunity to address the director's 
findings, pursuant to 8 C.F.R. § 103.2(b)(16)(i), the petitioner denied the existence of letters 
addressed to directly from the petitioner and the invoice and letter from 
addressed directly to the petitioner despite the fact that these documents were already in the record. 
In response to the AAO's NDI, the petitioner does not provide further probative evidence addressing 
the falsity of the letters, other than to name additional perpetrators of the alleged misrepresentation. 
The petitioner's willful and material misrepresentation that it purchased inventory from has 
not been rebutted as the petitioner has provided inconsistent information on appeal and in response to 
the AAO's NDI. 
For example, the petitioner's claimed business transactions with are not limited to this 
single March 2011 purchase. The petitioner submitted a ledger indicating that it purchased copiers 
from on a monthly basis between January 2010 and July 2011, with one additional 
transaction in October 2011, for a total of $388,000 in purchases. The earliest transactions predate 
the petitioner's claimed relationship with , one of the alleged perpetrators of fraud 
against the petitioner, by four months. Moreover, the total amount the petitioner paid to 
in 2010 was less than the amount charged for the single transaction in March 
2011. The suggestion that was involved in a long-term fraud scheme against the petitioner is 
simply not supported by the record. 
Moreover, the employees implicated in the alleged fraud scheme against the petitioner earned only 
$2,260 and $2,390 in wages in 2010, thus raising serious doubts that they were actually employed for 
the entire year during which these older claimed transactions with took place. The 
petitioner submitted paystubs for its employees for the months of June and July 2010. The paystubs 
indicate that the employees were 
paid very low "basic pay" (less than $200 per month), but receive 
additional payments for health benefits, dependent care assistance, meals, educational assistance and 
business expenses. However, the paystubs, while signed by an officer of the petitioner, also bear the 
company name ' ' with an address in Texas. The record does not 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
support a finding that the two implicated employees were actually employed by the petitioner 
between January 2010 and October 2011, during which time the petitioner claimed to have made 20 
purchase transactions from 
The petitioner on appeal also references its certified/notarized tax returns as evidence to show that it 
purchased and sold inventory even if did not purchase the equipment from The petitioner 
contends that USCIS has not proven that the tax returns are false or incorrect. The record in this 
matter, however, does not include tax returns certified by 
the IRS as filed. Moreover, the burden to 
establish eligibility is the petitioner's. Tax returns not certified as filed with the IRS are insufficient 
to satisfy the petitioner's burden of proof. Further, as observed above, the petitioner has submitted 
IRS Forms 1065, W-2, and 941 that contain inconsistent information, casting further doubt on the 
legitimacy of the documentation submitted. The petitioner also contends that no other invoices or 
purchase or sales transactions were found to be false, fabricated, or fraudulent. A review of the 
totality of the record shows only one other invoice submitted by the Qetitioner that is unrelated to the 
transaction, an invoice dated March 14, 2011 from The petitioner does 
not provide the underlying correspondence or evidence of the transfer of inventory that would 
substantiate the validity of the invoice. Further, the validity or invalidity of this invoice is not 
relevant to the petitioner's false representations regarding business with for the purpose of 
establishing eligibility for this immigration benefit. While the petitioner claims to have generated a 
total of over $2.5 million in sales and made more than $2.1 million in purchases in 2009 and 2010, 
the only complete purchase and sales transaction documented in the record is supported solely by 
fabricated evidence. 
The petitioner's assertion that USCIS cannot prove that it did not actually purchase, receive and sell 
the used copiers that are identified on the false invoice is misguided. It is not whether the 
petitioner purchased, received, and sold equipment that requires a finding that the petitioner has 
knowingly made a material misrepresentation; rather it is the manufacturing of evidence which is 
then submitted to USCIS to procure an immigration benefit that requires such a determination. 
The derogatory information, although not material to the issue of the petitioner's conduct of business 
in the one year prior to filing the petition, is material to the petitioner's claim of continued conduct of 
business.6 The use of fabricated documentation to establish that the petitioner is doing business is 
material to the adjudication of this visa petition. The petitioner's claim in its initial brief on appeal 
6 Not only must the petitioner establish that it has been conducting business by providing goods and/or services 
regularly, systematically, and continuously for one year prior to filing the Form I-140 petition, the petitioner 
must also establish that it continues to conduct business. Otherwise, the approval of a Form I -140 petition 
under section 204 of the Act would be subject to automatic revocation. The regulation at 8 C.P.R. § 205.1 
provides a list of reasons for automatic revocation including termination of the employer's business in an 
employment-based preference case under section 203(b)(l)(C). See 8 C.P.R.§ Sec. 205.l(a)(3)(iii)(D). 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
that it had not had personal contact with and that its business dealings had only been 
through an intermediary, ~ contradicted the information in the letters regarding the 
transaction, letters that the petitioner had provided for the record. That is, the petitioner submitted 
two letters on its letterhead, signed by its employees that were addressed directly to and 
Mr. The petitioner also appeared to have received an invoice directly from 
accordingly the petitioner's claim that it did not establish "personal contact with said " 
conflicted with the evidence the petitioner provided. The petitioner prepared its response to the 
NOID and thus knew that the letters it submitted were on its letterhead, signed by its representatives 
and were submitted to establish it was conducting business. Only when informed by the AAO that 
the letters the petitioner submitted established that the petitioner, through its representatives, had 
personal contact with did the petitioner change its claim by alleging that the employees 
who signed the two letters did so for their own gain and as part of a fraudulent scheme. As set out 
above, the petitioner failed to rebut the derogatory evidence when provided the opportunity to do so 
in the NDI issued by the AAO. 
The petitioner's submission of falsified documentation in support of the petitiOn is a material 
misrepresentation knowingly made. The beneficiary signed the visa petition as the corporate officer 
of the petitioning company, certifying under penalty of perjury that the visa petition and the 
submitted evidence are all true and correct. See section 287(b) of the Act, 8 U.S.C. § 1357(b); see 
also 8 C.F.R. § 103.2(a)(2). The signatureportion of the Form I-140, at part 8, requires the petitioner 
to make the following affirmation: "I certify, under penalty of perjury under the laws of the United 
States of America, that this petition and the evidence submitted with it is all true and correct." On the 
basis of this affirmation, made under 
penalty of perjury, the AAO finds that the petitioner willfully 
and knowingly made the misrepresentation. 
The falsified evidence is material to the beneficiary's eligibility. To be considered material, a false 
statement must be shown to have been predictably capable of affecting the decision of the decision­
making body. Kungys v. U.S., 485 U.S. 759 (1988). In the context of a visa petition, a 
misrepresented fact is material if the misrepresentation cuts off a line of inquiry which is relevant to 
the eligibility criteria and that inquiry might well have resulted in the denial of the visa petition. See 
Matter of Ng, 17 I&N Dec. at 537. The misrepresentation in this matter cut off a potential line of 
inquiry regarding the petitioner's ongoing business activities. The petitioner submitted fabricated 
evidence that it was doing business in 2011. This fact is directly material to the beneficiary's 
eligibility under the definition of "doing business" at 8 C.F.R. §§ 204.5U)(2) and (3). The AAO 
concludes that the petitioner's misrepresentations were material to the beneficiary's eligibility. 
By filing the instant petition and falsely claiming it was doing business and had been doing business 
for the past year the petitioner has sought to procure a benefit provided under the Act through the 
willful misrepresentation of a material fact. The AAO will enter a finding that the petitioner and the 
beneficiary, as the corporate officer who signed the petition under penalty of perjury, made a willful 
material misrepresentation. This finding of willful material misrepresentation shall be considered in 
any future proceeding where admissibility is an issue. 
(b)(6)
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Page 17 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
C. Managerial or Executive Capacity for the Petitioner 
Although not explicitly addressed in the director's decision , the record in this matter does not 
establish that the petitioner will employ the beneficiary in a managerial or executive capacity as those 
terms are defined at sections 101(a)(44)(A) and (B) of the Act. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision , function , or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by virtue 
of the supervisor's supervisory duties unless the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or 
function of the organization; 
(b)(6)
Page 18 
NON-PRECEDENT DECISION 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In examining the executive or managerial capacity of the beneficiary, users will look first to the 
description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly supports the 
pivotal role of a clearly defined job description, as the actual duties themselves reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajfd, 
905 F.2d 41 (2d. Cir. 1990); see also 8 C.P.R. § 204.50)(5). That being said, however, USCIS 
reviews the totality of the record, which includes not only the beneficiary's job description, but also 
takes into account the nature of the business, the employment and remuneration of employees, as well 
as the job descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a 
complete understanding of a beneficiary's actual role within a given entity. 
The petitioner provided a description of the beneficiary's duties for the petitioner as follows: 
• [The beneficiary] heads the entire organization of the Corporation and thereby 
make[s] or reverse[s] the business decision[s], decide[s] on the scope of the 
business entity and corporation at a large [sic], decide[s] the quantum of business 
investment and take[s] appropriate steps to raise the resources; 
• Establishes the policies, procedures and goals for the entire organizations, which 
includes establishment of policies such as buying and selling policies e.g. whether 
to buy through open tender or through negotiated contracts, from institutional 
suppliers or from private organization. The goals formation includes decision as to 
targeted return on investment, gross margin, net margin, break-even and margin of 
safety, sales volume, target market and market share etc.; 
• [The beneficiary] has filled in/would be filling up entire initial personnel 
requirements for the corporation and then continuously filling the vacancies [that] 
arise from time to time, he fired/would fire deserving employees and would take 
all necessary personnel actions, such as promotion, rotation of duties, demotion, 
sanction of leave etc. for the employees reporting directly to him; 
• Directing the supervisory and managerial employee under him to ensure 
achievement of the targets and goals for the organization; 
• He acts as a coordinator between the corporation and its Indian parent company; 
• He is receiving reports from the current head of the Indian organization through 
quarterly reports and interprets it [sic] and directs them with proper instructions in 
congruence with USA entity's goal; 
• Approves the purchase and sales contract with major suppliers and buyers; 
• Approves the financial statements and tax and other returns for the corporation; 
• Approves the business and marketing plan and all the budgets for the corporation; 
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NON-PRECEDENT DECISION 
• Sanction[s] the purchase of all the fixed assets and real properties including two 
business properties situated in upstate New York; 
• Direct[s] and implement[s] quality assurance system for the corporation; 
• Approves accounts and its components; 
• Appoint[s] professionals and independent contractors and approve[s] the terms and 
conditions for that [sic] appointment; 
• Lead[s] the team of subordinates keeping in mind the management culture ethos of 
the Indian parent company and act[s] as a bridge between local U.S. staff and 
Indian promoters; 
• Explore[s] new business opportunities for the corporation; 
• Ensure[s] compliance of the applicable laws; and 
• Secure[s] recognitions and licenses for the business of the corporation. 
The petitioner asserted that the proffered position satisfies the statutory definitions of both managerial 
capacity and executive capacity. 
As stated above, the petitioner's organizational chart depicted the beneficiary as the president/chief 
operating manager directly over the vice-president position. The vice-president is depicted as 
supervising a marketing manager and an engineering manager and shows that the vice-president, 
marketing manager, and engineering manager also supervise contractors, professionals, consultants, 
dealers, and distributors . It appears from the structure of the organizational chart that a financial/legal 
officer and an assistant officer also report to the vice-president. The petitioner also provided an 
overview of the duties of the claimed subordinate employees. The petitioner submitted photocopies 
of its Internal Revenue Service (IRS) Forms 941, Employer's Quarterly Federal Tax Return, for the 
first and second quarters of 2010. Each Form 941 showed the petitioner employing six individuals 
and the 
taxable wages reported as $6,578 and $6,570, for each quarter respectively. The IRS Forms 
941 do not identify the employees by name. In 
response to the director's RFE, the petitioner provided 
copies of the IRS Forms W-2 for the 2010 year. The W-2 forms showed the petitioner had employed 
five individuals in addition to the beneficiary and that the Forms W-2 were issued to individuals in 
the positions of vice-president, accountant, marketing manager, finance/legal officer, and 
superintending engineer. As specifically set out above, the petitioner paid the subordinate employees 
a total of $11,728 for the entire 2010 year.7 As the director noted, when comparing the IRS Forms 
941 for the first and second quarter of 2010 and the 2010 Forms W-2 issued to the petitioner's 
employees, the petitioner's employees were employed and paid during the first two quarters of 2010 
but not the remainder of the year. The record also included one IRS Form 1099, Miscellaneous 
Income, issued by the petitioner to , a company located in Pennsylvania, for $11,256. 
7 
The petitioner's Form 1065 for the 2010 year indicates that the petitioner paid salaries in the amount of 
$32,866 for the year. As this document is not certified by the IRS it is not possible to conclude that it was 
actually filed with the IRS. Moreover, the significant discrepancy between the salaries reported on the Form 
1065 and the Forms W-2 issued casts doubt on the petitioner's proof and raises questions regarding the 
reliability of the evidence submitted. 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
In the NOID, the director also noted that the petitioner's six employees earned the majority of their 
2010 income in the month of June and that the wage compensation detailed did not support the 
petitioner's staffing levels as described . 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary performs the high-level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). As the 
petitioner asserts that the beneficiary's duties and responsibilities satisfy both the definition of an 
executive and of a manager, we review the proffered position under both definitions. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or function s of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 
8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of managerial employees for the beneficiary to direct 
and the beneficiary must primarily focus on the broad goals and policies of the organization rather 
than the day-to-day operations of the enterprise. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). 
Personnel managers are required to primarily supervise and control the work of other supervisory, 
professional, or managerial employees. Contrary to the common understanding of the word 
"manager," the statute plainly states that a "first line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees 
supervised are professional." Section 101(a)(44)(A)(iv) of the Act. If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. Section 101(a)(44)(A)(iii) 
of the Act. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The 
term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that 
clearly describes the duties to be performed in managing the essential function, i.e. identify the 
function with specificity , articulate the essential nature of the function , and establish the proportion of 
the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 204.5(j)(5). 
In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the 
beneficiary manages the function rather than performs the duties related to the function. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is 
not considered to be "primarily" employed in a managerial or executive capacity. See sections 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988)). 
In this matter, the petitioner noted that the beneficiary heads the entire organization and establishes 
the policies, procedures and goals for the entire organization. The petitioner indicates that the 
beneficiary makes or reverses business decisions, decides on the scope of the business entity, decides 
on business investment, takes steps to raise resources, and establishes buying and selling policies as 
well as petitioner's margin for a return on investment. The petitioner stated that the beneficiary 
directs the supervisory and managerial employees under him. However, these broadly-cast business 
objectives fail to inform as to the beneficiary's actual duties within the organization. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial 
in nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The few tasks actually described by the petitioner suggest that the beneficiary is actively participating 
in the performance of non-qualifying duties. Duties such as implementing the quality assurance 
system for the corporation, exploring business opportunities, ensuring compliance of the applicable 
laws, and securing licenses for the business of the corporation are duties of an individual performing 
the basic functions of the organization. Duties such as approving the purchase and sales contracts, 
the financial statements and tax returns, the business and marketing plans, and the budgets are tasks 
that relate to the duties of a first-line supervisor over non-professional employees. The petitioner has 
not provided probative evidence that it employs professional employees. The record in this matter 
also fails to support the petitioner's claim that it employs individuals in managerial or supervisory 
roles. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Upon review of the Forms W-2 issued by the petitioner and the 
Forms 941, the petitioner has not 
established that it employs a subordinate level of managerial or supervisory employees for the 
beneficiary to direct. The remuneration of the petitioner's employees does not correspond to their 
claimed managerial and supervisory status. The petitioner has not established that it employs 
sufficient personnel to allow the beneficiary to focus primarily on the broad goals and policies of the 
organization rather than the day-to-day operations of the business. Similarly, the record does not 
demonstrate that the beneficiary will primarily supervise and control the work of supervisory, 
professional, or managerial employees. The petitioner has not established with probative evidence 
that it employs personnel to perform the day-to-day operations of the business. The petitioner's 
payment to a third party to inspect and store merchandise purchased does not relieve the beneficiary 
from the day-to-day operations of the business. The record, when reviewed in its totality, does not 
include sufficient probative evidence to establish that the beneficiary primarily performs in the 
capacity of an executive or of a personnel manager as those terms are defined in the statute. The 
beneficiary's business acumen in performing the essential tasks to operate the business, while 
undoubtedly valuable to the company, is not synonymous with an individual managing an essential 
function. 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
A company's size alone, without taking into account the reasonable needs of the organization, may 
not be the determining factor in denying a visa to a multinational manager or executive. See section 
101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However , it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or 
non-executive operations of the company, or a "shell company" that does not conduct business in a 
regular and continuous manner. See, e.g. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Upon review of the totality of the record including the petitioner's organizational structure, the duties 
of the beneficiary's subordinate employees, the remuneration and presence of other employees to 
relieve the beneficiary from performing operational duties, and the nature of the petitioner's business, 
the petitioner has not established that the beneficiary's actual duties incorporate primarily executive or 
managerial functions. Although the petitioner may have plans to expand its business, the record 
before the director failed to establish that the company currently has a reasonable need for the 
beneficiary to perform duties that are primarily in a managerial or executive capacity as those terms 
are defined in the statute. A visa petition may not be approved based on speculation of future 
eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts . See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Comm'r 1971). 
Again an application or petition that fails to comply with the technical requirements of the law may 
be denied by the AAO even if the service center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
D. Previously Approved Nonimmigrant Petition 
The AAO acknowledges that USCIS previously approved an L-1A nonimmigrant petition filed on 
behalf of the beneficiary, a classification which also requires the petitioner to establish the 
beneficiary's duties comprise primarily managerial or executive tasks. It must be noted, however, that 
many I-140 immigrant petitions are denied after USCIS approves prior nonimmigrant I-129 L-1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. 
US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, supra. 
Examining the consequences of an approved petition, there is a significant difference between a 
nonimmigrant L-1A visa classification, which allows an alien to enter the United States temporarily, 
and an immigrant E-13 visa petition, which permits an alien to apply for permanent residence in the 
United States and, if granted, ultimately apply for naturalization as a United States citizen. Cf §§ 204 
and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also§ 316 of the Act, 8 U.S.C. § 1427. Because 
USCIS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, 
some nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d at 29-30; see also 8 C.F.R. § 214.2(1)(14)(i)(requiring no supporting documentation to 
file a petition to extend an L-1A petition's validity). 
(b)(6)
NON-PRECEDENT DECISION 
Page 23 
Moreover, in making a determination of statutory eligibility, USCIS is limited to the information 
contained in that individual record of proceeding. See 8 C.P.R. § 103.2(b)(16)(ii). In the present 
matter, the director reviewed the record of proceeding and concluded that the petitioner had not 
established the beneficiary would be employed in a primarily managerial or executive position. In 
both the request for evidence and the final denial, the director articulated the objective statutory and 
regulatory requirements and applied them to the case at hand. If the previous nonimmigrant 
petition(s) was approved based on the same evidence as submitted in this matter, the previous 
approval(s) would constitute gross error on the part of the director. Despite any number of previously 
approved petitions, USCIS does not have any authority to confer an immigration benefit when the 
petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act. 
IV. Conclusion 
The pet1t10n will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. § 13611361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that 
burden has not been met. According! y, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The AAO finds that the petitioner and the beneficiary, as the corporate officer 
who signed the petition under penalty of perjury, knowingly submitted documents containing false 
statements in an effort to mislead USCIS on an element material to the beneficiary's eligibility for a 
benefit sought under the immigration laws of the United States.