dismissed EB-1C Case: Construction

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. A3042 
Washington. DC 20529 L 
U. S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER Date: JUN u 7 2005 
423 
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. 5 1 1 53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner appears to be engaged in some fonn of building and construction. The petition does not indicate 
when the petitioner was established or how many employees it had at the time the petition was filed. The 
petitioner seeks to employ the beneficiary as its president. 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. 5 1153(b)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner had failed to establish that it had been doing business in the United States for one 
year prior to filing this petition. 
On appeal, counsel disputes the director's findings and submits additional evidence in support of the petitioner's 
initial claim. 
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 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. 
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. 
A United States employer may file a petition on Form 1-140 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 issue in this proceeding is whether the petitioner had been doing business for at least one year prior to the 
date it filed the petition. 
Pursuant to the regulation at 8 C.F.R. tj 204.5(j)(3)(i)(D), the petitioner is required to submit evidence that the 
prospective United States employer has been doing business for at least one year. 
The regulation at 8 C.F.R. tj 204.50)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods andlor services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." 
On December 24, 2003, the petitioner filed a petition to classify the beneficiary as a multinational manager or 
executive. Based on the petition's filing date and 8 C.F.R. 3 204.56)(3)(i)(D), the petitioner must establish that it 
had been doing business since December 24,2002 in order to meet the regulatory requirement. 
In the instant matter, the petitioner failed to submit any information to supplement the petition. Accordingly, on 
March 30, 2004, the director issued a request for additional evidence (RFE) instructing the petitioner to submit a 
variety of additional information, including the petitioner's two most recent tax returns. 
The petitioner's response included its 2003 partnership return Form 1065. Although the petitioner has indicated 
that its business is building cabinets, no evidence was submitted to show how the petitioner's income was 
generated. Rather, the petitioner submitted a letter, dated June 17, 2004, indicating that the petitioner has a 
marketing representative whose main task is to market the petitioner's cabinetry products to the target clientele. 
The record was not, however, supplemented with documentary evidence that the petitioner's products were being 
sold on a regular, systematic, and continuous basis. See 8 C.F.R. 5 204.56)(2). 
On August 16, 2004, the director denied the petition concluding that the petitioner failed to establish that it had 
been doing business for one year prior to filing the petition. 
On appeal, counsel explains that the petitioner is a carpentry and home remodeling company that has been doing 
business since January 2003. Thus, by counsel's own admission, the petition was filed no more than 11 months 
after the petitioner commenced doing business and does not meet the regulatory requirement described in 
8 C.F.R. 5 204.56)(3)(i)(D). While the petitioner submits a number of letters from purported clients, such letters 
are mere third party claims that are no different from the petitioner's own claim. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. M~rtter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Claims of the petitioner's clientele must be corroborated 
with documentary evidence much like the petitioner's claim; otherwise, meeting the burden of proof would 
merely be a matter of having unknown individuals make uncorroborated statements that are favorable to the 
petitioner's case. 
Although the record also contains checks from a purported client, all are written out to the beneficiary, not to 
the petitioner, and reflect services that were apparently rendered in 2004. It is noted that a petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter ofkirtigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). Additionally, the petitioner submitted a number of receipts showing purchases made at the Home 
Depcit store. However, the receipts have no probative value in this case for a number of reasons. One, the 
AAO cannot determine who made the purchases, as such information is not contained within a regular store 
purchase receipt; two, there is no indication that the purchases were made for business purposes, as opposed 
to personal use; and three, even if the first two factors were established in a light that is most favorable to the 
petitioner, none of the receipts establish that the petitioner conducted business starting in December of 2002. 
Overall, the evidence of record fails to establish that the petitioner had been doing business since December 
of 2002, one year prior to the filing of the petition. For this reason, the petition cannot be approved. 
Beyond the decision of the director, the record does not contain a letter from an authorized official of the 
petitioner demonstrating that the beneficiary was employed abroad for the requisite time in a managerial or 
executive capacity as required by 8 C.F.R. § 204.5(j)(3)(i)(B). The undated letter submitted in support of the 
petition and composed on the letterhead of the foreign entity does not indicate when or how long the beneficiary 
was employed by the foreign entity. As such, the AAO cannot conclude that the beneficiary was employed 
abroad for the requisite period of time. Nor does the record establish that the U.S. petitioner would employ the 
beneficiary in a qualifying managerial or executive capacity. Although instructed in the RFE to submit additional 
evidence regarding the beneficiary's duties abroad and his prospective duties in the United States, the petitioner 
failed to do so. When examining the executive or managerial capacity of the beneficiary, the AAO will look 
first to the petitioner's description of the job duties. See 8 C.F.R. 9 204.5(j)(5). It is noted that failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 5 103.2(b)(14). 
In addition, the record lacks sufficient documentation to establish that the petitioner has a qualifying 
relationship with the beneficiary's foreign employer as required by 8 C.F.R. § 204.56)(3)(iXC). See also 
8 C.F.R. 9 204.5(i)(2). According to the undated letter fiom an official of the foreign entity, the petitioner was set 
up as a wholly-owned subsidiary of Comex SA, the beneficiary's foreign employer. However, the petitioner's 
operating agreement, entered into on October 3, 2003, indicates that the foreign entity and the beneficiary 
each own 50% of the U.S. petitioner. 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). In the instant matter, the petitioner has neither acknowledged nor 
submitted evidence to reconcile this considerable inconsistency regarding its ownership. Therefore, the 
petitioner has failed to establish that it has a qualifying relationship with the beneficiary's foreign employer. 
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), uffd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grou~ds discussed above, this petition cannot 
be approved. 
Finally, in the denial, the director noted that the petition states that the business was started on July 3, 2003. 
However, a review of the petitioner's Form 1-140 suggests that the director's observation was inaccurate. Part 
5, Item 2, which instructs the petitioner to enter the date when it was established, was left blank. Although 
the petitioner's 2003 tax return indicates that the petitioner was established on July 3, 2003, as noted by the 
director, this information was not included in the petition. As such, the director's erroneous comment is 
hereby withdrawn. Nevertheless, based on the issues addressed in this decision, the petition cannot be 
approved. 
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. 5 1361. The petitioner has not sustained that burden. 
Page 5 
ORDER: The appeal is dismissed.