dismissed H-1B Case: Finance

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
pveflt clwfy umamuttw 
inwsion of personal privacy 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 05 222 5 1 154 Office: NEBRASKA SERVICE CENTER Date: * 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l5)(H)(i)@) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b) 
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. 
Robert P. Wiemann, 
Administrative Appeal 
LIN05 222 51154 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals OMice (AAO) on appeal. The appeaI will be dismissed and 
the petition will be denied. 
The petitioner is a limited partnership initially regstered in the State of Delaware on August 22,2003 as a limited 
liability company and converted to a limited partnership on September 9, 2003. It seeks to employ the 
beneficiary as its Head of U.S. Trading and Lead U.S. Financial Engineer. Accordingly, the petitioner endeavors 
to classic the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section 
I0 l(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1 10 1 (a)(l S)(H)(i)(b). 
On September 12, 2005, the director denied the petition detamining that the record did not establish that the 
petitioner is a United States employer as defined at 8 C.F.R. $ 214.2(h)(4)(ii) or that the petitioner was a viable 
entity that would employ the beneficiary in a specialty occupation as of the filing date of the petition. 
On appeal, counsel for the petitioner asserts that it is a viable company and that the proffered position existed 
when the petition was filed. Counsel submits a brief and additional documentation. 
The issue in this matter is whether the petitioner was doing business when the petition was filed and thus had 
a specialty occupation position available for the proposed H-1B beneficiary when the petition was filed. 
The record includes: (1) the July 20, 2005 Form 1-129; (2) the director's July 22, 2005 request for Wer 
evidence (RFE); (3) counsel for the petitioner's August 29, 2005 response to the director's RFE; (4) the 
director's September 8, 2005 denial letter; and (5) counsel's brief and supporting documentation. The AAO 
considered the evidence in its entirety before rendering its decision. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(ii), United States employer means a person, firm, corporation, contractor, or 
other association, or organization in the United States which: 
(I) 
 Engages a person to work within the United States; 
(2) 
 Has an employer-employee relationship with respect to employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work 
of any such employee; and 
(3) 
 Has an Internal Revenue Service Tax identification number. 
In the July 1, 2005 letter appended to the petition, the petitioner indicated that it had been incorporated in 
2003 and was part of Mako Global Derivatives Executives LLC, an organization that employed 100 personnel 
and "enjoys an annual turnover in the region of approximately $98,000,000 in 2004." 
On July 22,2005 the director requested evidence of the petitioner's ongoing business, an organizational chart 
listing the petitioner's employees, and the petitioner's 2004 United States Income Tax Return (Form 1065) 
along with all supplemental pages. 
LIN 05 222 51 154 
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In an August 29, 2005 response, the petitioner attached the federal income tax return Form 1065 for the 2003 
year that had been filed by Mako Executive LLC, the petitioner's claimed parent company, as well as a draR 
2003 Form IL-1065 for the claimed parent company, both with Tax ID number 98-0349567. Counsel noted 
that the petitioner had yet to finalize the filing of its 2004 federal income tax return. 
The petitioner provided its agreement of limited partnership showing Mako Global Derivatives Executives 
LLC as the limited partner holding a 99.99 percent interest in the partnership and Pioneer Consulting 
Services, LLC as the limited partner holding a .O1 percent interest in the partnership. The petitioner also 
provided its certificate of limited partnership filed in the State of Delaware on September 9, 2003; the 
certificate of conversion showing the conversion of the limited liability company created August 22, 2003 to 
the limited partnership; a business checking account statement for October, November, and December 2003; a 
statement of trades for trades occurring through January 2004 for an account number U 80009 2381 180 and 
Tax ID number as 42-1608897; a daily statement for January 5,2004 for account number U 80009 23381 180 
and Tax LD number 20-01 75340; and a financial statement for the year ended December 3 1,2004 with report 
of independent auditor. The independent auditor noted that the partnership had temporarily ceased its 
business and trading activities and that "[tlhe operations of the partnership will be included in the taxable 
income of the partners and, accordingly, no provision for Federal state or local income taxes is recorded in the 
financial statements." 
On September 8, 2005, the director denied the petition determining: that the petitioner had failed to submit 
evidence demonstrating that it was an active business entity in the State of Illinojs and had authority from the 
State of Illinois to conduct business operations when the petition was filed; that the petitioner had not 
established it was an employer as defined at 8 C.F.R. 3 214.2@)(4)(ii) and thus could not maintain an 
employer-employee relationship with the beneficiary; that the petitioner had provided a statement in regard to 
its 2004 federal tax return that was inconsistent with the independent auditor's statement; and that the 2003 
Form 1065 appeared to be for a related entity and not for the petitioner. The director, upon review of the 
totality of the record, determined that the petitioner was not a viable entity in a position to offer employment 
to the beneficiary. 
On appeal, counsel for the petitioner asserts that the proffered position is a specialty occupation, that the 
position existed at the time the petition was filed, and that the petitioner was a viable entity when the petition 
was filed. Counsel submits the minutes of the petitioner's executive management meeting on March 18,2005 
wherein the Global Chief Operating Officer, the Global Chief Finance Officer, and the Global Chief 
Executive Officer "confmed that the Board would reverse an earlier decision to wind down and cease the 
business operation of [the petitioner];" and "that trading activity would recommence, including the use of 
managed account set-ups, through [the petitioner] immediately, beginning with the set up of Thor Capital 
Management LLC." Counsel also submits a one page profit & loss -August 2005 year-to-date statement that 
identifies the petitioner by name at the top of the page. Counsel further submits an October 7, 2005 letter 
from the director of ABN AMRO Incorporated, a registered broker/dealer and fbtures commission merchant 
that indicates it provides clearing and execution senices to the petitioner and that the petitioner is a client in 
good standing. Counsel asserts that the petitioner continues to confer with the State of Illinois to ensure that 
the petitioner is fully compliant with registration requirements. Counsel concludes that because the proffered 
position is a specialty occupation, because the petitioner was viable when the petition was filed and continues 
I 
LIN 05 222 51 154 
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to be an ongoing concern, and because the position was and continues to be a bona fide job opportunity, the 
petition should be approved. 
The AAO finds that the petitioner has presented confusing and inconsistent evidence regarding the ongoing 
nature of its business when the petition was filed in July 2005. First, a visa petition may not be approved 
based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new 
set of facts. See Matter of MicheZin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 
14 I&N Dec. 45, 49 (Comm. 1971). 
 Second, 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 suff'ice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of No, 19 I&N Dec. 582, 591-92 (BIA 1988). The AAO does not find consistent 
evidence of the petitioner's Internal Revenue Service Tax identification number when the petition was filed. 
The AAO also finds that the petitioner has not presented documentary evidence of its relationship with 
entities that may or may not be filing federal and state tax returns on the petitioner's behalf. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofjcici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The AAO specifically finds that the three documents submitted on appeal are insufficient to establish that the 
petitioner would be the beneficiary's employer for the purposes of filing the Form 1-129, Petition for a 
Nonimrnigrant Worker. First, the March 18,2005 minutes of the petitioner's executive management meeting 
were not provided in response to the director's RFE but were provided only afier the director's note of the 
independent auditor's statement regarding the cessation of the petitioner's operations. A late submitted 
document such as this raises questions of credibility. Second, the record does not contain independent 
evidence that the individuals meeting had authority to recommence the petitioner's business operations. 
Third, the one page profit and loss statement is without context and thus is insufficient to establish the 
petitioner's operations. Likewise, the October 7, 2005 letter from the director of ABN AMRO Incorporated 
does not provide the detail necessary to establish the petitioner is in a position to offer a position to the 
beneficiary. Again, going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. at 165. 
The petitioner was provided notice of the director's concerns on this issue in the director's July 22,2005 RFE; 
however, the petitioner failed to adequately explain the inconsistencies and failed to provide evidence 
establishing that the petitioner was a viable entity that would employ the beneficiary in a specialty occupation 
when the petition was filed. The regulation states that the petitioner shall submit additional evidence as the 
director, in his or her discretion, my deem necessary. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established, as of the time 
the petition is filed. See 8 C.F.R. 53 103.2(b)(8) and (12). The 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). 
The AAO will not address whether the petitioner has provided sufficient evidence to establish that the 
proffered position satisfies any of the criteria at 8 C.F.R. 5 224.2(h)(4)(iii)(A) as the petitioner has not 
established it will employ the beneficiary as a U.S. employer as of the filing date of the petition. 
LIN 05 222 51 154 
Page 5 
The burden of proof in these proceedings rests solely with the petitioner. 
5 1361. The petitioner has not sustained that burden. 
ORDER. 
 The appeal is dismissed. The petition is denied. 
Section 291 of the Act, 8 U.S.C.