dismissed EB-1C Case: Finance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-F-, LP 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 4, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, claiming to operate as a retail operation, seeks to permanently employ the Beneficiary 
as its vice president of finance under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 
8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director, Texas Service Center, revoked the approval of the petition with a finding of fraud. 
The Director concluded that the Petitioner did not establish that: (1) the Beneficiary was employed 
abroad in a managerial or executive capacity; (2) the Beneficiary would be employed in the United 
States in a managerial or executive capacity; and (3) it has the ability to pay the Beneficiary's 
proffered wage. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that its prior counsel 
provided an inaccurate organizational chart, which resulted in the Director's adverse conclusion 
regarding the Beneficiary's employment abroad. The Petitioner states that it did not conceal any 
facts and therefore did not commit fraud in the filing of the instant petition. 
Upon de novo review, we will affirm the revocation and dismiss the appeal based on the finding that 
the Petitioner did not establish that the Beneficiary was employed abroad for one year during the 
three years that preceded this petition's filing in a managerial or executive capacity. We will 
withdraw the Director's finding of fraud. 
Notwithstanding our decision to affirm the revocation, we find that the Director violated the 
regulation at 8 C.F .R. § 205 .2(b ), which precludes the Director from revoking a petition's. approval 
based on grounds that were not specifically addressed in the Notice of Intent to Revoke (NOIR). 
The regulation states that the Director must provide each petitioner with an opportunity to offer 
evidence in support of the petition and in opposition to the grounds alleged for revocation of the 
approval. As the Director's final notice of revocation in this instance included two new grounds­
the Beneficiary's managerial or executive position in the United States and the Petitioner's ability to 
pay the Beneficiary's proffered wage- which the Director did not previously cite in the NOIR, the 
Director effectively denied the Petitioner the opportunity to provide evidence addressing the adverse 
findings pertaining to these two issues. As such, neither of the two additional issues can now serve 
Matter of V-F-, LP 
as a ground for revocation. However, given that the Beneficiary's qualifying employment in the 
United States and the Petitioner's ability to pay the proffered wage are both relevant to the overall 
question ofthe Petitioner's eligibility, we will address these issues separately for the record without 
including them as grounds for our decision. 
I. LEGAL FRAMEWORK 
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 the alien 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 Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.5G)(3) states: 
(3) Initial evidence-
(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: 
(A)If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by 
a firm or corporation, or other legal entity, or by an affiliate or subsidiary 
of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer 
or a subsidiary or affiliate of the firm or corporation, or other legal entity 
by which the alien was employed overseas, in the three years preceding 
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entry as a nonimmigrant, the alien was employed by the entity abroad for 
at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year, 
In addition, with regard to the revocation of a previously approved petition, section 205 of the Act, 
8 U.S.C. § 1155, states: "The Attorney General may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
II. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director revoked approval for the petition based, in part, on the finding that the Petitioner did 
not establish that the Beneficiary was employed abroad in a managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "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; 
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(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), defines the term "executive capacity" 
as "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; 
(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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. Evidence of Record 
The record shows that the Petitioner filed its Form I-140 on May 22, 2009. In a cover letter, 
submitted in support of the petition, the Petitioner identified the Beneficiary's foreign employer as 
a Pakistani entity. The Petitioner stated that the Beneficiary assumed the 
position of finance manager in April 2000 and played a "key role in [the foreign entity's] success 
and notoriety." The Petitioner provided the following description of the Beneficiary's employment 
abroad: 
[The Beneficiary] developed, implemented and consistently applied business-related 
policies to optimize the quality of the organization and employees. [He] also 
negotiated contracts and promoted sale of products and services, and was responsible 
for the recruitment, hiring, promotion, discipline, and discharge of the personnel. In 
addition, [he] developed and implemented marketing strategies using current market 
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information, competitive and economic conditions, and innovative programs. 
Further, [the Beneficiary] developed pricing strategies, and responded to internal and 
external customer inquiry. [He] also met with the appropriate officials to propose 
transactions, negotiate confidentiality and service agreements, coordinate the due 
diligence process with in-house counsel and outside auditors, and directed the 
preparation and completion of sale contracts and other related documents. 
On July 8, 2009, the Director issued a notice of intent to deny (NOID), instructing the Petitioner to 
provide additional evidence to establish, in part, that the Beneficiary was employed abroad in a 
managerial or executive capacity. The Director found that the Petitioner did not provide a detailed 
job description with a percentage breakdown indicting how the Beneficiary allocated his time, an 
organizational chart illustrating the foreign entity's staffing structure, or job descriptions and 
educational levels of the Beneficiary's subordinates during his employment with the foreign entity. 
In response, the Petitioner provided a statement containing the following job description: 
Financial Oversight 20% 
• Directed and coordinated overall financial activities of the retail business in 
Pakistan. 1 0% 
• Conferred with the management to determine its assets, liabilities, cash flow, 
insurance coverage, tax status, and financial objectives. 10% 
Financial Planning 25% 
• Developed and implemented financial plans for the organization utilizing 
knowledge in accounting and financing. 15% 
• Analyzed financial status of the company and developed financial plans based on 
analysis of data, and discussed financial options with the management. 10% 
Financial Analysis 20% 
• Prepared and submitted documents to implement plans selected by management, 
revised plans based on modified needs of the company or the changes in the 
investment market. 1 0% 
• Prepared proposals and performed ±1nancial analysis for new business 
development projects. 10% 
Financial Management 35% 
• Directed activities of the managers and employees in the retail business for which 
responsibility was delegated for further attainment of goals and objectives. 15% 
• Discussed with management and employees to review achievements and discuss 
required changes in projects and overall financial strategies of the company. 10% 
• Approved hiring, supervising, and firing managerial and professional personnel. 
10% 
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The Petitioner added that the Beneficiary was "a top-level executive or manager of the foreign 
entity" and further stated that the Beneficiary headed the finance department "by controlling and 
directing the work of other professional employees," including the foreign entity's chief accountant 
and its purchase manager, The Petitioner offered an organizational chart, which depicted the 
Beneficiary and the director/sales manager as the two direct subordinates of the company's owner, 
The chart shows the Beneficiary as overseeing an accountant, whose direct subordinate was an 
assistant account, and a purchase manager, whose direct subordinate was a purchase agent The 
chart indicates that the director/sales manager had one subordinate- a sales manager- who oversaw 
the work of three stockers and three sales clerks. 
Following the approval of the petition, the Director issued a NOIR on October 3, 2012, informing 
the Petitioner that the record lacked sufficient credible evidence establishing that an approval of the 
petition was warranted. The Director reviewed the history of the Beneficiary's nonimmigrant status 
in the United States since April 30, 2003, and informed the Petitioner that an outside investigation 
had been conducted resulting in adverse findings regarding the credibility of the Petitioner's claims. 
Specifically, pursuant to a comparison of the evidence submitted in support of the Petitioner's 
previously filed Form I-140 1 with evidence submitted in support of the current Form I-140, the 
Director observed inconsistencies with regard to the foreign entity's organizational structure. The 
Director also questioned the validity of description of the Beneficiary's employment 
abroad given departure from his position with the foreign entity in the year 2000, 
when he left his post to come to the United States. The Director questioned whether 
realistically had first-hand knowledge of the Beneficiary's job duties in light of his absence from the 
organization during the time period of the Beneficiary's employment abroad. The Director also 
observed that the Beneficiary has been employed in the United States by entities claimed to be the 
Petitioner's U.S. subsidiaries, thus questioning whether the Petitioner itself would actually employ 
the Beneficiary. Lastly, the Director informed the Petitioner of the possibility that approval of the 
petition may be revoked with a finding of fraud if the Petitioner does not provide sufficient evidence 
to overcome the adverse findings. 
In response, the Petitioner provided a statement addressing some of the issues discussed in the 
NOIR. The Petitioner contended that it did not provide 
organizational charts pertaining to the 
Beneficiary's employer abroad and thus questioned why the Director issued an adverse finding that 
was based, in part, on documents that the Petitioner claimed had not been submitted. The Petitioner 
further asserted that the Beneficiary's position abroad "is universally regarded as a Management 
position" and offered statements from a third party - - to support this 
assertion. The Petitioner did not address the Director's doubt as to whether was 
qualified to provide reliable information describing the Beneficiary's employment abroad. 
On March 18, 2013, the Director issued a final notice of revocation with a finding of fraud. The 
Director pointed out that the Petitioner submitted an organizational chart on two separate occasions -
1 
The record shows that the Petitioner initially filed a Fonn 1-140 (with receipt no. 
The Director, Nebraska Service Center, denied that petition on June 22, 2008. 
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on March 21, 2007. 
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first in response to a request for evidence (RFE), which was issued after the Petitioner filed its first 
Form I-140, and later in response to the NOID that was issued subsequent to the filing ofthe instant 
petition. In comparing the two charts, the Director observed that, with the exception of the fact that 
both charts depicted the Beneficiary in a position that is second from the top-most tier of the entity, 
the two charts were inconsistent in their respective illustrations of the foreign entity's organizational 
constitution. The Director also concluded that the Petitioner provided a vague description of the 
Beneficiary's employment abroad and did not establish that the Beneficiary managed the work of 
professional or managerial subordinate employees. 
On appeal, the Petitioner submits a brief claiming 
that prior counsel was responsible for the 
evidentiary discrepancies described in the Director's decision. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary was employed 
abroad in a managerial or executive capacity. 
While we generally tum our attention first to a review of the Beneficiary's job description with the 
entity in question, we find that the circumstances presented in the matter at hand call for a different 
approach where we first evaluate the Petitioner's credibility. Specifically, a review of the two 
organizational charts that were submitted in support of the Form I-140 filed in 2007 and in support of 
the instant Form I-140 show multiple significant discrepancies. 
The first organizational chart, which was submitted as part of Exhibit 15 of the Petitioner's response to 
the July 22, 2007, RFE issued in connection with the first Form I-140, illustrates a multi-tiered 
management structure with the owner of the company, at the top of the hierarchy as 
the foreign entity's president. The same chart depicts the Beneficiary at the second tier of the hierarchy, 
followed by as his direct subordinate in the position of business development 
manager, who was shown as overseeing an accounts department comprised of an accountant and an 
assistant accountant, two sales managers comprising a sales department, and four loaders comprising a 
warehouse department. 
The second organizational chart- submitted as part of Exhibit A of the NOID response for this I-140 
petition- shows an entirely different staffing arrangement and depicts positions that were not included 
in the first chart, despite the fact that both charts were submitted for the singular purpose of illustrating 
the foreign entity's organizational hierarchy and staffing composition during the time of the 
Beneficiary's employment abroad from April2000 to November 2002. While both charts depict 
at the top of the hierarchy with the Beneficiary as his immediate subordinate, the second chart 
includes a second managerial position -that of director/sales manager- whose placement within the 
hierarchy is identical to the Beneficiary's in that both individuals are depicted as the president's two 
direct subordinates. 
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The charts also differ in their depiction of the Beneficiary's subordinates. While the first chart showed 
a business development manager as the Beneficiary's immediate subordinate, the second chart indicates 
that the Beneficiary had two subordinates - an accountant and a purchase manager. We note that the 
prior organizational chart, while also depicting an accountant as part of the organization, indicated that 
the business development manager, rather than the Beneficiary, was the accountant's direct superior. 
The first chart also did not include a purchase manager or a purchase assistant; rather, it indicated that 
the sales department was comprised of two sales managers. The more recently submitted chart includes 
a director/sales manager overseeing a single sales manager, who is depicted as overseeing three sales 
clerks and three stockers. We note that neither sales clerks nor stockers were included in the prior 
organizational chart, which instead depicted four loaders at the bottom tier of the foreign entity's 
organizational hierarchy. In addition, the first chart, which provided names for all of the foreign entity's 
claimed employees, did not include who was depicted as the foreign entity's 
director/sales manager in the more recent chart. 
In sum, the only two characteristics that are common to both charts are the owner of the company at the 
top-most tier of the hierarchy and the Beneficiary as his immediate subordinate. Otherwise, the two 
charts depict two seemingly separate and distinct staffing structures during the common time period of 
the Beneficiary's employment abroad. The Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
Doubt cast on any aspect of a petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Id. at 591. 
On appeal, the Petitioner claims that its prior counsel "failed to properly prepare [an] organizational 
chart and in fact omitted hierarchical positions," thus indicating that the inconsistencies between the 
two organizational charts were the fault of defective counsel. However, the Petitioner does not 
acknowledge the Director's doubts concerning its credibility. Furthermore, any appeal or motion 
based upon a claim of ineffective assistance of counsel requires: (1) that the claim be supported by 
an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was 
entered into with counsel with respect to the actions to be taken and what representations counsel did 
or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is 
being impugned be informed of the allegations leveled against him and be given an opportunity to 
respond, and (3) that the appeal or motion reflect whether a complaint has been filed with 
appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal 
responsibilities, and if not, why not. Matter of Lozada, 19 l&N Dec. 63 7 (BIA 1988), aff'd, 857 
F.2d 10 (1st Cir. 1988). As the record contains no evidence that the Petitioner met these criteria, its 
argument is flawed and will not succeed in overcoming the Director's doubts regarding the 
credibility of the information offered in the Petitioner's two competing organizational charts. 
The Petitioner also contends that there is no "additional or new information" that warrants a 
revocation and further states that it has not been provided with copies of any derogatory information. 
However, there is no statute or case law precedent to support the Petitioner's expectation that USCIS 
must provide the Petitioner with the documentation that served as the basis for the adverse decision. 
While the petitioner may seek to review the documentation in the instant record of proceeding by 
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filing a Freedom of Information Act request, users is under no legal obligation to do anything more 
than inform the Petitioner of the intended revocation, and the ground(s) therefore, by properly 
issuing a notice of such intent. See 8 e.F .R. § 205 .2(b ). 
Here, the record shows that the Director issued an NOIR in which he provided a detailed account of 
the inconsistencies between the foreign entity's two organizational charts. As such, we find that the 
Director complied with the regulatory provision that requires USeiS to provide the Petitioner with 
an opportunity to offer evidence in support of the petition and in opposition to the grounds alleged 
for revoking the approval. The Petitioner's assertion that the record lacks "any derogatory additional 
or new information" is contradicted by the very existence of the two inconsistent documents, both of 
which were submitted by the Petitioner, thus indicating that the Petitioner effectively had notice of 
their existence and the contents therein. 
As previously stated, a determination of whether a beneficiary's former or proposed employment can 
be deemed as being in a managerial or executive capacity starts with our examination of the 
beneficiary's job duties with the entity in question, as the actual duties themselves reveal the true 
nature ofthe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d 41 (2d. eir. 1990). However, a review of the job duties is normally conducted within 
the context of the employing entity's organizational chart, which is expected to illustrate the 
company's staffing and management structures as well as the Beneficiary's placement with respect 
to others within the company's hierarchy. Given the unreliable evidence provided in the matter at 
hand, we cannot verify any of the claims being made in the job descriptions submitted. As the 
record shows sufficient cause to question the Petitioner's credibility, any claim the Petitioner has 
made to establish eligibility, including the job description of the Beneficiary's position abroad, may 
now be called into question. See Matter of Ho, 19 I&N Dec. at 591. 
The validity of the job description is further called into question because it was provided by 
who, while depicted as the Beneficiary's superior in the foreign entity's organizational 
charts, was not physically present at the foreign entity during the Beneficiary's employment abroad 
and thus may not be qualified to provide an accurate description of the job duties the Beneficiary 
performed during the time of his absence. The Petitioner did not address this issue in its NOIR 
response, despite the Director's NOIR findings, which expressly questioned ability to 
accurately provide the requested information. 
Lastly, as the Director indicated with regard to prior nonimmigrant petitions filed by this Petitioner 
on behalf of the same Beneficiary, each nonimmigrant and immigrant petition is a separate record. In 
making a determination of statutory eligibility, users is limited to the information contained in that 
individual record of proceeding. See 8 e.F .R. § 103 .2(b )(16)(ii). That said, if the previous 
nonimmigrant petitions were approved based on the same unsupported and contradictory assertions 
that are contained in the current record, the approvals would constitute material error on the part of 
the Director. We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter of 
Church Scientology Int 'l, 19 I&N Dec. at 597. USeiS is not required to treat acknowledged errors 
as binding precedent. Sussex Eng 'g. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th eir. 
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1987). Furthermore, we are not bound to follow a contradictory decision of a service center. See La. 
Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
In light of the inconsistent documentation contained in the instant record of proceedings, we are 
precluded from conducting a proper assessment of the foreign entity's organizational composition or 
the job duties the Beneficiary performed during his employment abroad. Accordingly, we find that 
the Petitioner has not provided sufficient credible evidence to establish that the Beneficiary was 
employed abroad in a managerial or executive capacity. 
III. ADDITIONAL DEROGATORY FINDINGS 
While we are precluded from dismissing the appeal on the basis of any grounds that the Director did 
not previously address in the NOIR, we will nevertheless discuss additional issues that are relevant 
to the overall issue of the Petitioner's eligibility and would serve as grounds for revocation in a new 
decision if the Petitioner were able to successfully overcome the single ground for revocation that 
we addressed in the above discussion. 
A. Doing Business in the United States 
First, the instant record lacks sufficient evidence to establish that the Petitioner had been doing 
business for at least one year prior to the date of filing the petition. The regulations at 8 C.F.R. 
§ 204.5(j)(3)(i)(D) explicitly require that "[t]he prospective United States employer has been doing 
business for at least one year." Therefore, the Petitioner, as the prospective U.S. employer, must 
establish that it has been doing business for the prior year. The regulation at 8 C.F.R. § 204.5(j)(2) 
contains the following definition: 
Doing business means the regular, systematic, and continuous provision of goods 
and/or services by a firm, corporation, or other entity and does not include the mere 
presence of an agent or office. 
The Petitioner has provided numerous tax returns showing that it generates no income and pays no 
employee salaries. Several supporting statements also repeatedly refer to the Petitioner as a holding 
company of two U.S. corporations that operate at various retail locations. However, even if the 
Petitioner provided sufficient credible evidence showing that it has an ownership interest in entities 
that are doing business in the United States, the fact that the Petitioner itself carries on no business 
activity of its own is sufficient to indicate that it does not provide goods or services of any kind and 
thus cannot be deemed as an entity that is doing business. While the Petitioner provided evidence to 
overcome the NOIR's finding that the Petitioner forfeited its right to do business in the State of 
Texas, the Petitioner did not address, nor does the evidence of record show, that the Petitioner has 
and would continue to do business. We note that maintaining a corporate existence is not sufficient 
to establish that the Petitioner provided and would continue to provide goods and/or services on a 
continuous, systematic, and regular basis to qualify as entity that is doing business. See id. 
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B. Ability to Pay 
The next derogatory finding we will address concerns the issue of the Petitioner's ability to pay the 
Beneficiary's proffered wage. Given the determination that the Petitioner does not conduct business 
in the United States and 
thus earns no revenue, the next logical question that arises is whether the 
Petitioner meets the ability to pay requirement. The regulation at 8 C.F.R. § 204.5(g)(2) states, in 
pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and 
continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
As previously noted, all of the Petitioner's tax returns show that the Petitioner has not conducted 
business in the United States and 
thus has no earnings. The Petitioner has not submitted alternate 
evidence, such as annual reports or audited financial statements, to demonstrate its ability to pay. 
Here again, the Petitioner must establish that it, as the prospective U.S. employer, has the ability to 
pay the proffered wage. The Petitioner cannot rely on the income of related companies to meet its 
burden. Therefore, the Petitioner has not established its ability to pay the Beneficiary's proffered 
wage. 
C. Proposed U.S. Employment 
Next, while not previously addressed in the NOIR, the record does not indicate that the Petitioner 
has the ability to extend the Beneficiary a valid offer of employment for a position that is in a 
managerial or executive capacity. Although the Director originally addressed the Beneficiary's 
proposed U.S. employment in the July 2009 NOID, there was no follow-up discussion and the 
petition was approved, leaving this issue unresolved. Despite numerous claims in which the 
Petitioner asserted that the Beneficiary has assumed the 
lead role in heading the Petitioner's financial 
development, a role in which he would seek the assistance of subordinate managers, this claim is not 
corroborated by the evidence of record. Rather, the evidence indicates that the Beneficiary has 
received monetary compensation from and and 
does not expressly address the Beneficiary's proposed employment with the petitioning entity. 
Despite any claims of common ownership between the Petitioner and the two entities where the 
Beneficiary was, and may still be, employed, the record contains no evidence to show that the 
Petitioner itself would employ the Beneficiary and 
have the organizational complexity to support the 
Beneficiary in a managerial or executive nature. In other words, the Petitioner has not provided 
evidence to demonstrate that there is a bona fide offer to employ the Beneficiary. The record lacks 
sufficient evidence establishing critical factors, including the scope of the Beneficiary's proposed 
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employment, a discussion of the Petitioner's operational and administrative tasks and the availability 
of a support staff to carry out those tasks, or an adequate description of the Petitioner's 
organizational hierarchy to establish where the Beneficiary would be placed with respect to his 
subordinates and other support personneL Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
ofSojjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter a/Treasure Craft ofCal(fornia, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Without sufficient information about the Petitioner's business 
purpose and a business context within which it plans to employ the Beneficiary, we cannot conclude 
that the Petitioner has the ability to employ the Beneficiary in a managerial or executive capacity. 
D. Qualifying Relationship 
Finally, the record contains inconsistent and conflicting evidence with regard to the ownership 
scheme of the Petitioner and the entities it claims to own in its alleged position as a holding 
company. First, the Petitioner's ownership has been portrayed in a variety of ways. In a 2000 
Agreement of Partnership was shown as owner of 98% of the Petitioner. In a 2006 
was listed as the Petitioner's sole partner, while the 
Petitoner's tax return for 2007 showed that held a 48% interest, 
held a 50% interest, and held a 2% interest in the petitioning entity. The latter 
ownership was altered in· the Petitioner's response statement to the September 11, 2007 RFE, where 
the Petitioner indicated that the Petitioner's prior ownership consisted of owning 98% 
and owning 2%, but was later changed to owning 48% and 
owning 50%. The Petitioner later claimed yet another ownership scheme in a 
May 5, 2009 letter, which indicates that the Petitioner is 100% owned by only 
to change its claim once again in 
its August 2009 NOID response, which goes back to an earlier 
claim indicating that owns 48% of the Petitioner while owns 
50%. Lastly, in its 2010 and 2011 tax returns, the Petitioner returns to another old claim, indicating 
that owns 98% and owns 2%. While any one of these 
ownership schemes would suffice for the purpose of establishing the existence of a qualifying 
relationship, we cannot overlook the fact that the Petitioner has continued to make inconsistent 
claims with regard to its ownership without providing evidence to establish that changes to its 
ownership actually occurred. As noted earlier in this decision, doubt cast on any aspect of the 
petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. 
Further, in its initial supporting statement, dated March 5, 2009, the Petitioner indicated that it was 
established for the primary purpose of"owning and operating retail chain of outlets," which included 
the establishment of and both of which the 
Petitioner claimed as its subsidiaries. Questions about the Petitioner's ownership and control 
initially arose following the filing ofthe first Form I-140 petition, when the Director issued an RFE 
asking the Petitioner for further evidence to corroborate its claims. The Petitioner's response 
included barely legible stock certificates showing that owned 850 and that 
owned 150 of a total one million authorized shares of While the 
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(b)(6)
Matter of V-F-, LP 
Petitioner provided no further documentation to establish whether issued 
additional shares beyond the total 1,000 shares issued to and there is no 
evidence that the Petitioner was issued any shares such that it could be deemed as the parent entity. 
At the very least, the ownership documents pertaining to show an inconsistency 
with the Petitioner's original claim regarding its position as a holding company. Despite the fact that 
ownership pertaining to a third party entity is not material to the Petitioner's ownership and thus has 
no bearing on the issue of a qualifying relationship between the Petitioner and the Beneficiary's 
employer abroad, the existence of this discrepancy, when considered in light of the numerous other 
discrepancies discussed above, would give cause to further question the Petitioner's credibility and 
the validity of its claims. 
IV. FINDING OF FRAUD 
The last issue to be addressed in this decision is the Director's finding of fraud. Although the 
Director noted a number of evidentiary anomalies and inconsistencies, the Director's finding of 
fraud was unsupported. The Director did not define what constitutes fraud or explain which facts or 
evidence in the present matter support a finding a fraud. Instead, the Director determined that the 
Petitioner "submitted falsified documents" without specifying which documents he deemed to be 
falsified. In other words, despite his finding of fraud, the Director did not articulate a basis for his 
finding by listing the elements of fraud and applying those elements to the specific facts and 
evidence presented in the record. 
That said, anytime a petition includes numerous errors and discrepancies, and the petitioner does not 
to resolve those errors and discrepancies after USCIS provides an opportunity to do so, those 
inconsistencies will raise serious concerns about the veracity of the Petitioner's assertions. As 
previously indicated, doubt cast on any aspect of the petitioner's proof may undermine the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 
I&N Dec. at 591. While the Director did not establish that the discrepancies and errors catalogued 
above rise to the level of fraud, they nonetheless lead us to conclude that the evidence of the 
Beneficiary's eligibility is not credible. Notwithstanding our finding regarding the Petitioner's 
eligibility and the quality of the evidence submitted in support thereof, the Director did not 
substantiate the finding of fraud with the evidence of record and the finding is hereby withdrawn. 
V. CONCLUSION 
The approval of the petition will remain revoked and the appeal dismissed based on the lack of 
sufficient credible evidence establishing that the Beneficiary was employed abroad during the 
statutorily requisite time period in a managerial or executive capacity. The Director's finding of 
fraud will be withdrawn. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter 
ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not been met. 
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Matter of V-F-, LP 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-F- LP, 10#10668 (AAO Aug. 4, 2016) 
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