dismissed EB-1C Case: Furniture

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 'f ,( a ,J , ~',iikf 
WAC 00 263 52975 
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. $ 1 153(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. 
~obert P. Wiemann. Director 
dministrative Appeals Office 
DISCUSSION: The Director, California Service Center, initially approved the employment-based immigrant 
visa petition. Upon subsequent review the director issued a notice of intent to revoke, and ultimately revoked 
the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is a corporation that organized in the State of California in April 1999. Although it originally 
claimed to sell jewelry imported from its claimed overseas parent company, located in Xi'an City, China, the 
petitioner ultimately opened a furniture business. It 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. 9 1153(b)(l)(C), as a 
multinational executive or manager. 
The petitioner filed the petition on September 13, 2000 and it was approved in March 2001. Upon subsequent 
review of the record, including information obtained from interviews and in response to requests for evidence 
regarding the beneficiary's Form 1-485, Application to Register Permanent Resident or Adjust Status, and an 
investigator's report prepared by the U.S. Immigration and Customs Enforcement, the director issued a notice of 
intent to revoke approval on June 10, 2004. The petitioner submitted a rebuttal but the director ultimately 
determined that the petitioner had not established the beneficiary would be performing primarily managerial or 
executive tasks. 
On appeal, counsel for the petitioner asserts that: (1) a recent opinion, Firstland Int'l, Inc. v. Ashcroft, 377 
F.3d 127 (2d Cir. 2004), issued by the United States Court of Appeals for the Second Circuit on August 2, 
2004, is applicable to this matter and requires the director to issue a notice of intent to revoke an immigrant 
petition prior to the beneficiary's journey to the United States; (2) the regulation at 20 C.F.R. 3 656.3 is not 
applicable to immigrant visas filed under section 203(b)(l)(C) of the Act; and, (3) the beneficiary is a 
multinational executive or manager pursuant to section 203(b)(l)(C) 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 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. 
rage 3 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 that 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. See 8 C.F.R. 
5 204.5(j)(5). 
The AAO acknowledges that the regulatory definition of employment at 20 C.F.R. 656.3 is not directly 
applicable to immigrant visas filed under section 203(b)(l)(C) of the Act. Although the beneficiary's 
reportedly part-time employment undermines the beneficiary's claimed job duties, the regulations at 20 C.F.R. 
5 656 relate to the labor certification process. The director's reference and interpretation of the regulation at 
20 C.F.R. 5 656.3 is withdrawn. 
Further, as a preliminary matter, the AAO will address counsel's citation to the recent opinion, Firstland Int'l, 
Inc. v. Ashcroft, 377 F.3d 127 (2d Cir. 2004), issued by the United States Court of Appeals for the Second 
Circuit on August 2, 2004. In that opinion, the court in Firstland interpreted the third and fourth sentence of 
section 205 of the Act, 8 U.S.C. 3 1155 (2003), to render the revocation of an approved immigrant petition 
ineffective where the beneficiary of the petition did not receive notice of the revocation before beginning his 
journey to the United States. Firstland, 377 F.3d at 130. Counsel asserts that the reasoning of this opinion 
must be applied to the present matter and accordingly, Citizenship and Immigration Services (CIS) may not 
revoke the approval because the beneficiary did not receive notice of the revocation before departing for the 
United States, since she was already in the United States when the director issued the revocation.' 
According to the record of proceeding, the petitioner is located in California; thus, this matter did not arise in 
the Second Circuit. Firstland was never a binding precedent for this matter. Even as a merely persuasive 
precedent, moreover, Firstland is no longer good law. 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 (2004). Specifically relating to this matter, section 
5304(c) of Public Law 108-458 amends section 205 of the Act by striking "Attorney General" and inserting 
"Secretary of Homeland Security" and by striking the final two sentences. Section 205 of the Act now reads: 
' In the present matter, the beneficiary apparently entered the United States as a nonimmigrant in an L-IA 
intracompany transferee classification valid from July 15, 1999 to July 14, 2000 that has been extended three 
times and expires July 2006. See WAC 99 168 50535, WAC 00 263 52975, WAC 02 161 53822, and WAC 
04 166 50724. While in the United States as an intracompany transferee, the petitioner submitted the Form I- 
140 requesting classification as an employment-based manager or executive. Accordingly, it was physically 
impossible for CIS to have notified the beneficiary of the revocation before she departed for the United States. 
Page 4 
The Secretary of Homeland Security 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 1 154 of 
this title. Such revocation shall be effective as of the date of approval of any such petition. 
Furthermore, section 5304(d) of Public Law 108-458 provides that the amendment made by section 5304(c) 
took effect on the date of enactment and that the amended version of section 205 applies to revocations under 
section 205 of the Act made before, on, or after such date. Accordingly, the amended statute specifically 
applies to the present matter and counsel's Firstland argument no longer has merit. 
The primary issue in the revocation decision is whether the petitioner established that the beneficiary's 
position for the United States entity would be in a managerial or executive capacity when the petition was 
filed and continuing until the beneficiary applied for adjustment of status. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 l (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; 
. . 
11. 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; 
... 
111. 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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
Page 5 
I. directs the management of the organization or a major component or function 
of the organization; 
. . 
I establishes the goals and policies of the organization, component, or 
function; 
. . . 
111. 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. 
On the Form 1-140, Immigrant Petition for Alien Worker, the petitioner indicated it employed eight 
individuals and that the beneficiary would "perform executive duties." The record also contained an April 1 1, 
1999 letter of appointment, appointing the beneficiary president of the petitioner for a term of five years; a 
hiring plan indicating the president is "in charge of company's overall operation and management;" and, a 
proposed organizational chart. 
On December 30, 2000, the director requested further evidence on several issues including the beneficiary's 
managerial or executive capacity for the petitioner. The director requested: (I) a more detailed description of 
the beneficiary's duties in the United States, including the percentage of time spent on the listed duties; (2) a 
copy of the petitioner's organizational chart describing its managerial hierarchy and staffing levels including 
the names of all executives, managers, supervisors, and number of employees within each department or 
subdivision; (3) a list of all of the petitioner's employees including names, job titles, beginning and ending 
date of employment and wages per week; and, (4) the petitioner's California Forms DE-6, Quarterly Wage 
Reports, for the last four quarters. 
In a February 27,2001 response, the petitioner indicated the beneficiary would be employed in the capacity of 
president in charge of the day-to-day operation and management of the company. The petitioner listed the 
beneficiary's duties as: 
[Flormulate and enforce general policies, develop and implement operational, financial, and 
personnel management system, recruit, train, direct, and supervise employees, set up 
company business objective and business plan, direct and coordinate different departments' 
activities, report the company's progress and financial position to the parent company on 
regular basis. 
As the President, the beneficiary will exercise discretionary authority over company's 
financial matters such as budget, operational cost, fund management, etc. She will also be 
vested with power to handle personnel matters such as hiring and firing, evaluation, 
promotion, etc. The beneficiary will be the chief executive officer of the company stationed 
in the U.S., accountable only to the board of directors of the U.S. and the parent company. 
Page 6 
In her position of President, [the beneficiary] will have wide latitude and discretionary 
decision-making authority in determining the most advantageous courses of action to take 
throughout the upcoming period of company expansion and development. 
The petitioner provided its third quarter California Form DE-6, for the year 2000 evidencing the employment 
of seven individuals. However, the petitioner only listed five employees, in addition to the beneficiary, with 
employment dates beginning prior to the petition being filed. The positions for the five listed employees 
included three salespersons, a warehouse supervisor, and an accountant. 
The director approved the petition based on this general information regarding the beneficiary's proposed 
duties for the petitioner and the conflicting information regarding the petitioner's staff. 
The record contains a January 16, 2004 response to a request for evidence in conjunction with the 
beneficiary's Form 1-485 application. In the response the petitioner describes the beneficiary's duties in the 
United States as: 
[The beneficiary's] duties included planning, developing and establishing policies and 
objectives of business in accordance with Board directives emphasizing long-term strategy; 
reviewing activity reports and financial statements to determine progress and status in 
attaining objectives and plans; and evaluating performance of managers (45%); delegating 
and assigning all duties to ensure that all corporate goals for productivity, quality, 
profitability and overall working environment are continually met (30%); overseeing 
accounting and marketing, assuming ultimate responsibility for increase in Revenue and 
Profit for the entire business unit and participation in the formulation and execution of 
company policy (25%). 
The record also contains an investigative report prepared by a Special Agent of U.S. Immigration and 
Customs Enforcement (ICE) and dated June 7, 2004, detailing the investigator's visit to the petitioner's 
premises on June 1, 2004.~ The investigator stated that he interviewed the beneficiary's sister and a 
salesperson. The beneficiary's sister stated that the beneficiary did not have a desk on the petitioner's 
premises and had been in Canada the previous six months. The beneficiary's sister also indicated that the 
petitioner was primarily engaged in selling furniture, rather than jewelry, a fact confirmed by the salesperson. 
The salesperson indicated that the beneficiary spent most of her time in Canada and not in the United States 
but confirmed that the beneficiary made final decisions on who was hired and how much the employees were 
paid. The investigator stated that he also interviewed the beneficiary and the beneficiary indicated that: (1) 
she spent only four to five hours a week at the business and maintained contact via telephone and facsimile; 
(2) sat at the desk the beneficiary's sister had previously identified as the beneficiary's sister's desk (3) she had 
other responsibilities but could not explain those responsibilities, (4) her goal for the petitioner was to become 
the most famous furniture store in the area; and, (5) the jewelry business did not make a profit but the 
furniture business made $70,000 for the month of April 2004. 
' The investigator states that his interviews were conducted in English and that consent was given by the 
interviewees to conduct the interviews in English and without the assistance of counsel. 
The director, based in part on the investigator's report, issued a notice of intent to revoke on June 10, 2004. 
The director observed that the beneficiary: indicated that she worked only four to five hours a week at the 
business; had been unable to explain her duties and responsibilities for the remainder of the week; showed up 
at the business mainly to open and close the business; that her sister used her desk during the day (when the 
beneficiary was not there); and, maintained contact via telephone and facsimile. Based on the investigator's 
report, the director determined that the beneficiary could not explain her duties and responsibilities for the 
petitioner and could not account for her whereabouts during the day, and did not have a working knowledge 
of the petitioner's business. The director also determined that the beneficiary's job description in the record 
was general and did not convey an understanding of what the beneficiary did on a daily basis. The director 
observed that the record did not show the goals and policies the beneficiary established or the discretionary 
decisions exercised by the beneficiary in the six months since her entry into the United States. 
In a July 6, 2004 letter submitted in rebuttal to the notice of intent to revoke, the beneficiary stated that: (I) 
the notice of intent to revoke was issued in retaliation for a complaint filed in federal district court challenging 
the Los Angeles District Director's decision to deny her adjustment application; (2) the investigator 
misinterpreted the desk arrangement at the petitioner's premises and that the beneficiary and her sister each 
had their own desks; (3) the investigator insisted that she could answer his questions in English, despite her 
indication that her English was not very good; (4) she had told the investigator the business had transitioned 
from jewelry to furniture; (5) she had explained her duties and responsibilities as the president of the 
company; (6) she had never said that she worked only four to five hours a week at the business and had never 
said that she only showed up at the company to open and close the business; and, (7) she was interviewed 
again in the investigator's office on June 3, 2004 with her attorney present, and that she was asked questions 
about the amount of paper her company used, the petitioner's employee recruitment practices, and the 
petitioner's sales and transition from a jewelry business to a furniture business. The beneficiary also 
disagreed with the director's determination that the job description for her position was not detailed, noting 
that her classification as an L-1A intracompany transferee had been approved four times based on the same 
job description. 
On July 2 1, 2004, the director revoked approval of the petition, repeating the observations and determinations 
listed in the notice of intent to revoke and also observing that the evidence did not show that the beneficiary 
was a "hands on" executive clearly overseeing the petitioner. 
On appeal, counsel for the petitioner references the previous descriptions provided for the beneficiary's 
position and claims that the descriptions meet the definitions of both managerial and executive capacity. 
Counsel asserts that the beneficiary plans and directs the management of the petitioner through its own 
employees, and the use of an outside accountant. Counsel contends that the evidence demonstrates that the 
beneficiary is the primary individual responsible for developing and establishing the petitioner's policies and 
objectives and that she oversees accounting, marketing, and assumes the responsibility for increases in 
revenue and profit, which include the sales and marketing of furniture and jewelry. Counsel references the 
previous approvals of the beneficiary's classification as an L-1A intracompany transferee, as well as, the 
initial approval of the Fonn 1-140 petition as evidence that the beneficiary's job descriptions were sufficient. 
Counsel notes the director's reliance on the investigator's report and the beneficiary's denial of the 
Page 8 
circumstances and conclusions made by the investigator. Counsel submits: (1) the beneficiary's May 10,2003 
report to the petitioner's board member to show that the beneficiary is in charge of and aware of the 
petitioner's business; (2) a May 28, 2004 advertisement showing the beneficiary has authority to hire and fire 
subordinates of the company; and, (3) an application and agreement for commercial letter of credit signed by 
the beneficiary on behalf of the petitioner. 
Counsel's assertions and claims are not persuasive. 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. 
8 204.5(j)(5). The petitioner does not clarify whether the beneficiary would be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
101(a)(44)(B) of the Act. A petitioner may not claim that a beneficiary is to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. A petitioner must establish 
that a beneficiary meets each of the four criteria set forth in the statutory definition for executive and the 
statutory definition for manager if it is representing the beneficiary is both an executive and a manager. 
Moreover, the petitioner's description of the beneficiary's duties is vague. The petitioner paraphrases and 
borrows liberally from the definitions of both managerial and executive capacity, rather than conveying an 
understanding of the beneficiary's actual daily duties. For example, the petitioner indicated that the 
beneficiary formulates and enforces general policies, and spends 45 percent of her time planning, developing 
and establishing policies and objectives, emphasizing long-term strategy, reviewing activity reports and 
financial statements to determine progress, and evaluating performance of managers. See section 
lOl(a)(44)(B)(ii) of the Act. In addition, the petitioner indicated that the beneficiary exercised discretionary 
authority over financial matters and had responsibility for personnel matters. See section 101(a)(44) (A) (iii) 
and section 101(a)(44)(B)(iii) of the Act. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affh: 905 F. 2d 41 (2d. Cir. 1990); Avyr Associutes, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
In addition, when the petition was filed, the petitioner substantiated the employment of three salespersons, an 
"accountant," and a warehouse supervisor in positions directly subordinate to the beneficiary. Although the 
beneficiary is not required to supervise personnel, if it is claimed that her duties involve supervising 
employees, the petitioner must establish that the subordinate employees are supervisory, professional, or 
managerial. See tj 101(a)(44)(A)(ii) of the Act. The record does not provide evidence that the position of 
"accountant" required an individual with professional credentials, rather than an individual skilled in the 
clerical process of keeping accounts. The record does not provide evidence that the salespersons or the 
warehouse supervisor were professional positions. Moreover the record does not substantiate that the 
beneficiary's subordinates held supervisory or managerial positions. As observed above, the petitioner did not 
provide evidence that it employed individuals subordinate to the positions of salesperson, "accountant," or 
warehouse supervisor. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici. 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 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. See section 101(a)(44)(A)(iv) of the 
Act. 
The petitioner's statements appear to corroborate the beneficiary's role as a supervisor. Specifically the 
petitioner stated that the beneficiary spent 30 percent of her time delegating and assigning duties to ensure 
that corporate goals were met; and, 25 percent of her time overseeing accounting and marketing. Moreover, 
the petitioner does not provide evidence that it employed an individual to market the petitioner's product, 
whether it was jewelry or furniture, when the petition was filed. The record, thus does not demonstrate who 
performed the petitioner's marketing tasks when the petition was filed, other than the beneficiary. An 
employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology International, 
19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner's general description of the beneficiary's duties when the petition was filed and in response to 
the director's request for evidence, as well as the petitioner's substantiated organizational structure, are not 
sufficient to establish the beneficiary's eligibility for this visa classification at the time the petition was filed. 
A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after 
the petitioner becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). At most, the beneficiary was a first-line supervisor of salespersons, an undefined position of 
accountant, and a warehouse employee. The petitioner did not provide evidence sufficient to substantiate that 
the beneficiary would be relieved of performing many of the operational, marketing, and first-line supervisory 
duties of a retail jewelry business. 
While the AAO does not find it necessary to rely on the investigator's report in this matter, the petitioner has 
not submitted sufficient independent and objective evidence to overcome the ICE investigative report. The 
investigative report raises serious doubts regarding the beneficiary's claimed managerial roll in the petitioner's 
organization. According to the investigative report, the beneficiary could not explain her responsibilities, 
duties, or the operational details of the business, and reported that she worked at the business for four to five 
hours a week. This information is sufficient to cause the director to re-examine her original decision, which 
led to the conclusion that it had been approved in error. 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, 59 1-92 (BIA 1988). 
I11 this instance, the descriptions of the beneficiary's duties and the petitioner's organizational structure fail to 
demonstrate the beneficiary's eligibility when the petition was filed. The director's initial approval was 
clearly a matter of gross error. The director properly issued a notice of intent to revoke based on the 
deficiencies in the record. The record does not contain adequate rebuttal or explanation to the director's 
notice of intent to revoke. The director's decision to revoke approval will be affirmed. 
Regarding counsel's reference to past approvals of the beneficiary in an L-IA classification, the prior 
nonimmigrant approvals do not preclude CIS from denying an extension or a separate immigrant petition. 
See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The AAO 
Page I0 
acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of 
managerial and executive capacity. See ## 10 l(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 101(a)(44). 
Although the statutory definitions for managerial and executive capacity are the same, the question of overall 
eligibility requires a comprehensive review of all of the provisions. not just the definitions of managerial and 
executive capacity. There are significant differences between the nonimmigrant visa classification, which 
allows an alien to enter the United States temporarily for no more than seven years, and an immigrant 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. CJ: 5s 204 and 2 14 of the Act, 8 U.S.C. $5 1 154 
and 1184; see also 316 of the Act, 8 U.S.C. 5 1427. 
Each nonimmigrant and immigrant petition is a separate record of proceeding with a separate burden of proof; 
each petition must stand on its own individual merits. The approval of a nonimmigrant petition in no way 
guarantees that CIS will approve an immigrant petition filed on behalf of the same beneficiary. Many 1-140 
immigrant petitions are denied after CIS approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA USv. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, the regulations allow for the approval of an L-1 extension without any supporting evidence and 
CIS accords the petitions a less substantial review. See 8 C.F.R. 5 214.2(1)(14)(i) (requiring no supporting 
documentation to file a petition to extend an L-1A petition's validity). Because CIS spends less time 
reviewing Form 1-129 nonimmigrant petitions than Form 1-140 immigrant petitions, some nonimmigrant Ll- 
A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30 
(recognizing that CIS approves some petitions in error). 
Moreover, the AAO is not bound or estopped by the previous decisions of the service center director. The 
AAO's authority over the service centers is comparable to the relationship between a court of appeals and a 
district court. Even if a service center director had approved the nonimmigrant petitions on behalf of the 
beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. Louisiana 
Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. 
denied, 122 S.Ct. 5 1 (2001). 
Beyond the decision of the director, the petitioner has not established the necessary qualifying relationship 
between the petitioner and the beneficiary's contrary to 8 C.F.R. 
5 204.5Cj)(3)(i)(C). The petitioner claims that the owns 80 percent of the U.S. 
company, with the beneficiary owning the remaining YI"""' 
It is noted that the ICE investigator reported thathe furniture sales manager foe 
-., stated that he was the owner of 18 percent of the petitioning company. Although this critical 
information directly contradicts the claimed ownership structure and undermines the petitioner's claimed 
qualifying relationship, the director failed to provide the petitioner with notice of this contradiction in her 
notice of intent to revoke. Pursuant to 8 C.F.R. 5 103.2(b)(16)(i), should the petitioner file a motion or the 
director otherwise have the opportunity, the director should provide the petitioner with the opportunity to 
explain this contradictory statement. 
Upon review, the petitioner failed to adequately document the claimed parent company's ownership of the 
U.S. company. As ownership is a critical element of this visa classification, the director may reasonably 
inquire beyond the issuance of paper stock certificates into the means by which stock ownership was 
acquired. 8 C.F.R. 5 204.5Cj)(3)(ii). As requested by the director, evidence of this nature should include 
documentation of monies, property, or other consideration furnished to the entity in exchange for stock 
ownership. Additional supporting evidence would include stock purchase agreements, subscription 
agreements, corporate by-laws, minutes of relevant shareholder meetings, or other legal documents governing 
the acquisition of the ownership interest. 
The AAO observes that in this matter, the petitioner claims that the foreign entity transferred funds to a third 
party in Hong Kong who subsequently wire transferred funds to the petitioner in return for the issuance of the 
petitioner's stock to the foreign entity. In response to the director's request, the petitioner submitted a copy of 
a wire transfer attributing the third party, with the notation: "The money is paid for 
shares which is authorized by ." The petitioner did not submit any evidence to show 
how the funds were transferre company to the third party in Hong Kong. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998). 
The petitioner contends that this convoluted transfer of monies to fund the petitioner was necessary to avoid 
the stringent requirements exercised by the People's Republic of China regarding the transfer of currency. 
However, the petitioner's indication that the wire transfers from the foreign entity were effected through an 
"accommodator" in Hong Kong so that the company could circumvent the currency transfer laws of the 
People's Republic of China does not enhance the petitioner's credibility. Although a petitioner may submit 
secondary evidence if the required documents do not exist or cannot be obtained, the AAO will not accept a 
petitioner's illicit activity as an excuse for the unavailable records. See 8 C.F.R. $ 103.2(b)(2)(i). The 
petitioner cannot hide financial transactions from its home country and then expect the AAO to accept the 
activity as an excuse for the lack of evidence. The non-existence or unavailability of required evidence 
creates a presumption of ineligibility. Id. 
Because the petitioner has failed to demonstrate that the claimed overseas company transferred the claimed 
capital in exchange for the ownership interest, the petitioner has not demonstrated that there is the required 
relationship between the petitioner and the claimed parent company. See 8 C.F.R. §$ 204.5Cj)(3)(i)(C) and 
(j)(3)(ii). 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). 
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 Stutes, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ufd. 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). For this additional reason, the petition should not have been approved and the 
appeal will be dismissed. 
Page 12 
Generally, a director's decision to revoke the approval of a petition will be affirmed, notwithstanding the 
submission of evidence on appeal, where a petitioner fails to offer a timely explanation or rebuttal to a 
properly issued notice of intention to revoke. See Matter of Arias, 19 I&N Dec. 568, 569 (BIA 1988). 
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 Estirne, . . . 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. at 590. 
CIS regulations affirmatively require an alien to establish eligibility for an immigrant visa at the time an 
application for adjustment of status is filed. See 8 C.F.R. 5 245.1(a). If the beneficiary of an approved visa 
petition is no longer eligible for the classification sought, the director may seek to revoke his approval of the 
petition pursuant to section 205 of the Act, 8 U.S.C. 5 1 155, for "good and sufficient cause." Notwithstanding 
the CIS burden to show "good and sufficient cause" in proceedings to revoke the approval of a visa petition, 
the petitioner bears the ultimate burden of establishing eligibility for the benefit sought. The petitioner's 
burden is not discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldnzun, 
736 F.2d 1305 (9th Cir. 1984). 
In the present matter, the director had good and sufficient cause to issue the notice of intent to revoke and the 
petitioner has not submitted sufficient independent and objective evidence to meet its burden of proof. The 
revocation will be affirmed. 
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. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The director shall review the beneficiary's previously approved L-1A nonimmigrant 
petitions for possible revocation, pursuant to 8 C.F.R. 5s 214.2(1)(9)(i) and (iii), and take appropriate action.