dismissed EB-1C Case: Retail Trade

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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: 
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 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Texas that is 
engaged in retail trade and investments. The petitioner seeks to employ the beneficiary as its president-chief 
executive officer.' 
The director denied the petition concluding that the petitioner had failed to demonstrate that: (1) the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity; or 
(2) at the time the priority date was established, the petitioner had the ability to pay the beneficiary his 
proffered annual salary of $28,000. 
On appeal, counsel for the petitioner claims that Citizenship and Immigration Services (CIS) considered only 
the petitioner's staffing levels in its denial of the petition, and did not take into account the petitioner's 
reasonable needs. Counsel further contends that the beneficiary would be employed as a function manager of 
the United States entity. Counsel also states that the petitioner demonstrated its ability to pay the beneficiary's 
proffered wage through financial documentation related to a 
company partially owned by the petitioning entity which runs the food mart operated by the petitioner. 
Counsel states that "it is legally and factually proper to expect that the Petitioner's resources reach to those of 
its owned and controlled subsidiaries." Counsel submits a brief in support of the claims on appeal. 
Section 203(b) of the Act states, in pertinent part: 
(1) Pnority 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 
1 
 The AAO notes that on September 23, 2005 an 1-140 immigrant petition was filed by a separate petitioner 
requesting employment of the beneficiary herein as a skilled worker under Section 203(b)(3)(A)(i) of the Act. 
Despite certification under the penalty of perjury, the information provided by the petitioner in Part Four of 
Form 1-140 indicates that the beneficiary had not previously had an immigrant visa petition filed on his 
behalf. The petitioner, in the subsequent 1-140 petition filing, was represented by the instant petitioner's 
counsel. A third Form 1-140 immigrant petition was filed on behalf of the beneficiary on December 9, 2005 
and is pending adjudication. 
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 or 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, 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 beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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; 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-malung; and 
(iv) 
 Receives only general supervision or direction fiom higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the instant immigrant petition on August 20, 2004 noting that the beneficiary would be 
employed as the president-chief executive officer of its five-person staff. In an appended letter, dated August 
10, 2004, the petitioner provided an outline of the job duties to be performed by the beneficiary in the 
proposed position. The specific job duties will be addressed later, as the petitioner subsequently provided an 
allocation of the amount of time the beneficiary would spend on each. In the same letter, the petitioner stated: 
Although the volume of [the petitioning entity's] business is substantially large, the nature of 
the business is such that it does not require a substantially large staff. The nature of the 
business is such that one or two cashiers can man the relatively small floor layout and take 
orders from clients. Delivery contractors make delivery of stock and place it onto shelves. 
The Manager supervises the staff and delivery contractors. Thus, the President is free to 
devote his time to executive duties like pursuing future expansions. 
The petitioner also provided the company's organizational chart identifying four subordinate workers of the 
beneficiary, employed in the positions of vice-president, manager and two cashiers. 
In a request for evidence, dated March 24, 2005, the director asked that the petitioner provide a statement 
addressing the following issues related to the beneficiary's proposed employment capacity: (1) his position 
title and related job duties; (2) the percentage of time the beneficiary would spend on each task; (3) the 
managers, supervisors, and employees that report directly to the beneficiary; (4) the Ievel of authority held by 
the beneficiary in his proposed position; and (5) whether the beneficiary functions at a senior level within the 
petitioning organization. The director also requested that the petitioner provide a brief statement of the job 
duties performed by each of the petitioner's workers, the qualifications required for each position, and an 
explanation of which employees provide the services offered by the petitioner. 
Counsel responded in a letter dated June 14, 2005, addressing the beneficiary's proposed employment as a 
function manager, in which, counsel stated, he would "[manage] the essential function of Presidency at the 
organization." Counsel stated that the beneficiary would qualify for this classification as he would: (1) 
manage an essential function of the company; (2) "function at a senior level within the organization or with 
respect to the function managed"; and (3) exercise discretion over the daily activity of the function. In an 
attached statement, the petitioner noted the following job duties of the beneficiary: 
In consultation with the management and the parent company in India develop long-range 
goals and objectives of [the petitioning entity] in retail trade and investments [lo%]; 
Develop and evaluate expansion opportunities, such as retail and hospitality ventures 
[lo%]; 
Directs and coordinates activities of the retail trade and convenience store businesses, 
formulates and administers [the petitioner's] investment policies [lo%]; 
Page 5 
Directs and coordinates activities relating to corporate planning, general administration, 
marketing-sales, and purchasing, activities for the subsidiary [lo%]; 
Reviews activity reports and financial statement of the operation to determine progress 
and status in attaining objectives and revise objectives and plans in accordance with 
current conditions [5%]; 
Discusses with the retail store manager and employees to review achievements and 
discusses required changes in goals and objectives of [the petitioning entity] [5%]; 
Directs and coordinates marketing and business development activities of the retail trade 
and investment activities [lo%]; 
Oversees new investment activities, including reviewing proposals and exploring other 
retail and convenience store businesses [lo%]; 
Oversees the financial and accounting activities of the subsidiary, including budgeting, 
tax and regulatory matters [lo%]; 
Reviews and analyzes activities, costs, operations, and forecast data to determine 
progress toward stated goals and objectives [5%]; 
Approves public relation policies for the convenience store businesses [5%]; 
Approves hiring of professional services [5%]; 
Evaluates performance of retail store managers and financial manager for compliance 
with established policies and objectives of [the petitioning entity] and contributions to 
attaining objectives [5%]. 
The petitioner also provided a brief description of the job duties performed by each of the beneficiary's five 
subordinates. 
In a decision dated July 12, 2005, the director concluded that the petitioner had not demonstrated that the 
beneficiary would be employed in the United States in a primarily managerial or executive capacity. The 
director, acknowledging that the beneficiary "evidently exercises discretion over the day-to-day operations of 
the activity," concluded that the beneficiary would also perform some of the daily operations of the 
petitioner's business. The director noted that the beneficiary's "primary assignment" would not be "directing 
the management of the organization" nor would the beneficiary direct a subordinate staff of professional, 
managerial or supervisory personnel. The director further concluded that the petitioner's staff would not 
relieve the beneficiary from performing the non-qualifying functions of the business, and stated that the 
petitioning entity "does not need a full[-]time executive to manage four [employees] and to make decisions 
regarding the company." Consequently, the director denied the petition. 
Counsel for the petitioner filed an appeal on August 11, 2005. In a subsequently submitted appellate brief, 
counsel contends that in its analysis of the beneficiary's employment capacity, CIS disregarded the concept of 
"functional management" and focused solely on the petitioner's staffing levels. Counsel states that the statute 
and case law require CIS to consider the petitioner's reasonable needs in light of its stage of development if 
the petitioner's staffing levels are taken into account. Counsel claims that CIS failed to satisfy this statutory 
requirement, instead basing its denial on the petitioner's five-person staff and the fact that some appear to be 
employed on a part-time basis. Counsel states that while in its "early states of operations," the petitioner does 
not require many employees, and claims that "[c]ommensurate with the growth of the Petitioner, the number 
of employees and their wages will increase." 
Page 6 
Counsel further claims that the beneficiary's employment would satisfy the three elements of a function 
manager. Counsel states, "[ilndeed, the beneficiary functions at a senior level of the organization (as is 
indicated in the organizational chart), manages the essential function of finance, and as corroborated by [his] 
pay, the Beneficiary exercises discretion over the day-to-day operations of the financial activities." Counsel 
further states that the beneficiary is needed by the petitioning entity to manage "the presidency function," 
rather than managing the employees, as assumed by the director. Counsel further maintains that the 
beneficiary would be employed as a function manager, stating that "the nature of retail business in the United 
States is shifting most of the labor intensive tasks to technological components . . . and suppliers have 
delivery personnel stock the merchandize [sic] directly onto the retailer's shelves, thereby reducing the payroll 
costs of the individual retailers like the Petitioner." Counsel contends that the petitioner's staff of five 
workers, as well as its status as a relatively new company, should not be considered negatively by CIS in its 
analysis of the beneficiary's employment capacity. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
The petitioner does not clarify whether the beneficiary would be primarily engaged in managerial duties 
under section 10l(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of the Act. 
In its August 10, 2004 letter, the petitioner outlined the beneficiary's proposed "executive" job duties, yet 
subsequently referenced his "managerial assignment." Counsel also cited in his June 14, 2005 letter the 
beneficiary's qualification as an "executive," and conversely, his proposed employment as a "functional 
manager." Counsel reiterates on appeal the beneficiary's employment as a function manager. It is unclear in 
which capacity the petitioner is claiming to employ the beneficiary. Rather, it appears that the terms 
"executive capacity" and "managerial capacity" are being used interchangeably to describe the nature of the 
beneficiary's job duties. The petitioner must clearly describe the duties to be performed by the beneficiary 
and indicate whether such duties are either in an executive or managerial capacity. If the petitioner chooses to 
represent the beneficiary as both an executive and a manager, it must establish that the beneficiary meets each 
of the four criteria set forth in the statutory definition for executive and the statutory definition for manager. 
As will be discussed below, the petitioner has not satisfied this requirement. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
petitioner's description of the job duties. See 8 C.F.R. 9 204.50)(5). While the petitioner provided a list of the 
beneficiary's job responsibilities, the limited statements do not specify the associated managerial or executive 
tasks. For example, the petitioner stated that the beneficiary would "coordinate[ ] activities of the retail trade 
and convenience store businesses," administer the petitioner's investment policies, "coordinate[ ] activities 
relating to corporate planning, general administration, marketing-sales, and purchasing," and direct 
"marketing and business development activities." In each claimed responsibility, the petitioner failed to 
define the associated "activities" to be performed by the beneficiary. This information is relevant to 
determining what specific managerial or executive job duties the beneficiary would primarily perform on a 
daily basis. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Suva, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, a comparison of the beneficiary's job duties with those of his subordinates demonstrates that the 
beneficiary would not be primarily performing managerial or executive tasks. The petitioner's claims that the 
beneficiary would direct and coordinate activities related to the petitioner's operations imply that subordinate 
employees of the beneficiary would perform its general administration, marketing, sales, purchasing, 
Page 7 
finances, accounting and investments. However, based on the lower-level employees' job descriptions, none 
of them are performing the non-qualifying functions purportedly directed and coordinated by the beneficiary. 
In particular, the petitioner has not accounted for the performance of any tasks related to the petitioner's 
marketing, sales, and public relations, or to the maintenance of its personnel records and general 
administrative work. Absent this information, it is reasonable to assume that these essential functions of the 
business are personally performed by the beneficiary, rather than managed or directed as required by the 
statute. See $9 101 (a)(44)(A) and 101(a)(44)(B) of the Act. 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 (Cornrn. 1988). 
Counsel correctly observes that 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 4 101(a)(44)(C) of the Act, 8 U.S.C. 8 1 101(a)(44)(C). However, it is appropriate for CIS 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. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
At the time of filing, the petitioner was a one-year old company that claimed to employ the beneficiary and 
four additional employees in the positions of vice-president, manager, and cashier. However, based on the 
record, as well as the lack of documentation pertaining specifically to the petitioning entity, the petitioner 
does not employ any workers who would perform the functions specifically related to its business purpose, 
i.e. to obtain retail trade and investment 
 ntified as employees of the 
petitioner are employed by the company 
 ' a company established in 
July 2000 that is doing business as a gas 
 o these representations, the 
petitioner does not employ a staff to perform any of the non-managerial and non-executive tasks related to its 
administrative operations as a retail trade and investment firm, or to its sales, marketing, and finances. 
Even if the AAO were to consider the petitioner as doing business as a gasoline and convenience store, the 
record does not support the claim that the petitioner's reasonable needs would be met through the employment 
of its five-person staff. The AAO notes that according to the Internal Revenue Service (IRS) Forms W-2, 
Wage and Tax Statements. submitted bv the ~etitioner for 2004. the vice- resident and manager were 
- 0 " 
employed byon a part-time basis. The petitioner did not submit 
documentation identifying the wages paid to the four lower-level employees in July 2005, the period during 
which the instant petition was filed. Regardless, based on the job descriptions for the subordinate employees, 
none would relieve the beneficiary from the non-qualifying tasks related to the above-stated business 
functions. The manager and cashiers would perform tasks specifically related to maintaining and selling the 
products offered in the gasoline and convenience store. As the job description of the vice-president is 
especially limited, it is unclear what tasks he would assume in order to support the beneficiary in a primarily 
managerial or executive capacity.3 Additionally, despite the petitioner's claim of utilizing delivery contractors 
The record contains documentation in the form of a stock certificate identifying the petitioner as the owner 
of 5 1 percent of ~- 
' The petitioner describes the vice-president as providing support and receiving tasks from the "General 
Manager." The AAO notes that none of the employees are identified as occupying the position of general 
Page 8 
to stock the store's merchandise, there is no evidence in the record that compensation was paid for outside 
labor. As a result, despite the petitioner's "early stages of development," the AAO cannot conclude that its 
reasonable needs are met through the purported employment of the beneficiary and four lower-level workers. 
Counsel claims on appeal that the beneficiary would be employed as the function manager of the petitioner's 
"presidency" function. 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. 3 1 101 (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, 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. 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. 
It is not clear what managerial job duties are associated with the beneficiary's management of the presidency 
function. Counsel's limited claim on appeal fails to specifically identify the "presidency" function or its 
essential nature and related job duties as required by the regulations. See id. Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). The AAO also notes inconsistent claims made by counsel on appeal, in which he stated both 
that the beneficiary would manage "the essential function of finance" and "the presidency function." Again, 
the petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). As a result of the limited record, the AAO is 
unable to conclude that the beneficiary would be employed as a function manager. 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
The AAO will next consider the issue of whether at the time the priority date was established the petitioner 
demonstrated its ability to pay the beneficiary's proffered annual salary of $28,000. 
The regulation at 8 C.F.R. 3 204.5(g)(2) states that "an employment-based immigrant [petition] which 
requires an offer of employment must be accompanied by evidence 
employer has the ability to pay the proffered wage." Here, the company 
named on Form 1-140 as the petitioner and prospective employer. 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In 
the present matter, the petitioner did not establish that it had previously employed the beneficiary. The IRS 
manager. The petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and 
objective evidence. Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Form W-2 and canceled checks submitted by the petitioner as evidence of the beneficiary's prior employment 
identified the company ." as the beneficiary's employer and as the payor 
of the beneficiary's compensation. The AAO further notes that the beneficiary was paid $7,500 in 2004, 
$20,500 less than the beneficiary's proposed salary of $28,000. 
proposition that the "ability to pay" analysis for classification as a multinational manager or executive is not 
as significant as the analysis in immigrant petitions requiring a labor certification. Counsel further contends 
that because the Act does not require the petitioner to demonstrate its ability to pay, CIS should not institute a 
"hyper analytical" analysis. Rather, counsel claims, the petitioner is required to merely demonstrate its status 
as a bona fide company. 
U~on review. counsel's ~ro~osition that the ~etitioner's abilitv to Dav has been established through financial 
, .a " ----- ----- - 
ddcumentatioi of 
 its claimed subsidiary. is misplaced. The regulations 
specifically require that the petitioner, who in the present case is named on Form 1-140 as 
Investments, Inc., demonstrate its ability to pay the beneficiary's proposed salary. A critical review of the 
beneficiary's proffered position, which addresses job duties associated with the petitioner's business as a retail 
investment and trade company and not to the operations of a gasoline and convenience store, supports the 
view that the petitioner and not a related company should be required to demonstrate its ability to pay the 
beneficiary for the execution of job duties relevant to its business purpose. If the beneficiary is represented as 
furthering the business interests of the petitioning entity in the United States, it is reasonable to expect that the 
petitioner would be responsible for demonstrating its ability to pay the beneficiary's proffered salary. 
The record is devoid of evidence documenting the petitioner's financial status at the time the priority date was 
established. The petitioner's May and June 2004 bank statements are not sufficient to demonstrate the 
petitioner's ability to pay a salary of $28,000 at the time of the priority date, which is more than one year after 
the date of the statements. The remaining evidence offered by the petitioner, includin tax return 
statements, IRS Forms W-2, and additional financial documentation pertain to 
s the record contains limited evidence with regard to the petitioner's m inancia posi ion, 
AAO cannot conclude that the petitioner satisfied its regulatory obligation to establish its ability to pay the 
beneficiary's proffered salary. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. at 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, an additional issue is whether the petitioner demonstrated the existence of 
a qualifying relationship between the foreign and United States companies. The petitioner stated in its August 
10, 2004 letter that the United States com an is a subsidiary of the beneficiary's foreign employer, "Hotel 
Heritage." The petitioner explained that b was, in turn, operated by the corporation "Hotel 
As evidence of the purported ownershi 
 the petitioner submitted a stock 
certificate dated May 18, 2004, naming 
 s the owner of 10,000 shares of the 
petitioner's common stock. However, in a "Projection Report'' prepared for the petitioner on August 10,2004, 
the beneficiary is named "the 100% shareholder" of the petitioning entity as a result of his cumulative 
investment of approximately $405,000. The AAO notes that the beneficiary is not identified on the foreign 
entity's 2004 Annual Return as a stockholder of the foreign organization. The record contains conflicting 
evidence as to the ownership of the petitioning entity. As a result of these discrepancies, the petitioner has 
failed to demonstrate the claimed affiliate relationship, or that the two entities share a qualifying relationship 
as defined in the regulation at 8 C.F.R. 9 204.56)(2). Accordingly, the petition will be denied for this 
additional reason. 
Another issue not addressed by the director is whether the petitioner had been doing business in the United 
States as required by 8 C.F.R. 9 204.5(j)(3)(i)(D). The petitioner in this matter was incorporated on May 17, 
2004, approximately three months prior to the filing of the instant petition. The petitioner claims that it meets 
the reauirement of doing business for the ~revious vear because it acauired a maioritv interest in an existing 
2 d u 
united States company, a ~exaQ corporation established 
to the filing of the instant etition. There is sufficient evidence in the record to establish that 
d been doing business for more than one year prior to the filing of 
however, the petitioner has not established that it is the parent company of the claimed subsidiary. 
As evidence of its ownership and control of ., the petitioner submitted a 
copy of stock certificate number three, undated, issuing 5,100 shares to the petitioner. - 
stock transfer led er indicates that three stock certificates had been issued: stock certificate number one 
issued t n July 3,2000 for 10,000 shares, and subsequently transferred on July 28,2004 
with the resulting ownership being 4,900 shares owned by and 5,100 shares owned by the 
petitioning entity. The stock transfer ledger does not include the amount paid by the petitioning entity in 
exchange for the 5,100 shares of stock. The record contains years 2002 and 2003 IRS Form 1120, U.S. 
corporation Income Tax Return, for., however, they do n 
ownership interests in the company. Schedule E of Form 1120 for the year 2002 indicates that 
owned 100 percent of 
 Fom 1120 for the year 2003 indicates at 
Schedule E, Line 1, that the company had two equal shareholders: 
 and 
  he 
fact that is not named as a shareholder on - stock transfer ledger raises serious 
questions regarding the validity of that document. 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). 
 Given these inconsistencies the 
ufficient evidence to establish that it is in fact the parent company o 
ccordingly, the petitioner's assertion that it has been doing business in 
 e ni e 
reason, the petition cannot be approved. 
mB 
States for at least one year through a subsidiary is not supported by evidence in the record. For this additional 
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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
Page 11 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.