dismissed L-1A Case: Commercial Cleaning & Recreation

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC 04 054 52458 Office: TEXAS SERVICE CENTER Date: NOV 2 8 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
\ i 
i ' 
SRC 04 054 52458 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonirnmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner is a corporation organized in the State of Kentucky 
that claims to operate a commercial cleaning franchise and seeks to operate an outdoor 4x4 sport recreation 
facility. The petitioner claims that it is the subsidiary of Berakah Advertures, located in South Afi-ica. The 
beneficiary was initially granted a one-year period of stay to open a new office in the United States and the 
petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that (1) the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity, and (2) the petitioner did not 
establish that it had been doing business for the previous year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the beneficiary's position 
involves significant authority over generalized policy of the organization, that primarily all of the 
beneficiary's duties are at the managerial or executive level, and that sufficient evidence is provided on appeal 
to establish that the company has been doing business for the previous year. The petitioner also states that it 
will correct prior insufficient documentation which resulted from a "lack of guidance" from its former 
representative. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
SRC 04 054 52458 
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(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hider to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. tj 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will 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. § 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; 
(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 
SRC 04 054 52458 
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(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 malung; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter submitted with the initial petition on December 15, 2003, a representative of the foreign entity 
stated that the beneficiary "will provide leadership, vision and direction to all aspects of the business and 
conduct business in an ethical manner." The letter included an organizational chart reflecting the beneficiary 
as president, a treasurer, a secretary, "emnployees cleaning," and a department labeled "4x4." The petitioner 
also submitted a "2003 Business Review" prepared by the beneficiary, which provides the following 
description of his job duties during the previous year: 
As President of [the petitioner] I provide leadership, vision, entrepreneurial innovation and 
direction to all aspects of business. I successfully manage the business and recruit personnel, 
train new employers [sic], do financial management and market products and services. 1 will 
continue to have these responsibilities if the extension petition is successful. 
The petitioner also submitted the beneficiary's resume which provides the following description of his duties 
in the United States: 
Client Satisfaction 
1. Client communication 
2. Assess client's needs 
3. Client Satisfaction 
4. Setting quality standards 
5. Form relevant business partners, linkages and associations 
6. Reaction Time. 
7. Specialist know how 
8. Sharing, directing know how 
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Profitability 
1. Visionary management and direction of the business 
2. Viscretionary [sic] authority over day to day operations 
3. Ongoing re-appraisal of existing contracts with staff. 
4. Controlling of budgets. 
5. Productivity. 
Sales and Revenue 
1. Generation of contractual and non-contractual revenue. 
2. New Business and the Retention of business. 
3. Advertisements and articles 
Human Resource Management 
1. Recruitment of qualified staff. 
2. Manpower development. 
3. Hiring and firing of personnel 
4. Performance evaluation of staff. 
5. Company policy and procedures. 
Image and Innovations 
1. Dress code and uniforms. 
2. Business documentation. 
3. First impressions 
4. Client friendly, transparent administrative procedures 
5. Creative client attractions ideas and methods 
The beneficiary's resume also mentions his efforts to "network and create a market for the 4x4 Off-road side 
of the business," and includes a summary of the petitioner's developments and planned activities in this 
business segment. 
On December 29, 2003, the director requested additional evidence, including, in part: (1) copies of the 
petitioner's state employer's quarterly tax returns for 2003; and (2) evidence of the petitioner's current 
staffing level, including position titles and duties of all employees, and the educational background of the 
professionals that are employed. 
In a response received on January 30, 2004, former counsel for the petitioner indicated that the beneficiary 
"was employed as President in 2003 with authority to: (I) oversee the petitioner's operations; (2) hire and fire 
employees; and (3) exercise discretion over the day-to-day operations of the company." The petitioner 
submitted a Kentucky Form UI-3, Employer's Quarterly Wage and Tax Report, for the third quarter of 2003. 
The report is incomplete and does not indicate the number of employees employed dwing each month of the 
quarter. The federal employer identification number on the form does not match the petitioner's number, and 
the employer name is indicated as "Adam Bester," the beneficiary. The petitioner also submitted a Fonn K-1, 
Kentucky Employer's Return of Income Tax Withheld. The form contains printed dates indicating it is for the 
SRC 04 054 52458 
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period beginning on February 16, 2003 and ending on March 3 1,2003. These dates have been crossed out by 
hand and the dates written in are October 1, 2003 to December 31, 2003. This form indicates "0" as the total 
number of employees during the period and total wages of $12,552.96. 
The petitioner also submitted an organizational chart depicting the beneficiary as president, a secretary, "4x4" 
division and "employees cleaning." The chart indicates that the beneficiary operates the 4x4 division, and 
that "cleaning tasks are performed by cleaning personnel." The petitioner submitted a job description for the 
beneficiary that is nearly identical to the description included in his resume, already quoted above. The 
petitioner provided a detailed description of the secretary's duties, which include supplier relationships, stock 
control, contract monitoring, preparation of business documentation, controlling and maintaining the payroll 
system, personnel records, and assisting with staff recruitment, selection and training. Finally, the petitioner 
submitted a year-end payroll summary for 2003, which depicts earnings by sixteen individuals, ranging from 
$70 to $6,03 1 per employee, and totaling $23,249.54 for the year. The petitioner did not identify the job titles 
held by the individuals, but the AAO assumes that they represent the petitioner's cleaning personnel. The 
payroll summary does not include the beneficiary's spouse, who is purportedly the petitioner's secretary. 
On February 13; 2004, the director denied the petition concluding that the petitioner had not established that 
the beneficiary was functioning primarily as a manager or executive. The director noted the insufficient 
evidence submitted regarding the petitioner's staffing levels, and noted that there was no documentary 
evidence to establish that the beneficiary's primary function would be to "plan, direct and manage the 
company's major function through other supervisors/managers or professionals." 
On appeal, the petitioner disputes the decision and asserts that "primarily all of the beneficiary's duties at 
present are at the managerial or executive level, and that there is a great need for an executive and managerial 
employee now that the organization has become operational." The petitioner states that it is submitting 
additional evidence on "recent and future developments" and to correct "prior insufficient documentation, due 
to lack of guidance by our previous representative." The petitioner submits extensive documentation in 
support of its assertions, including job descriptions for three positions which were not previously included on 
the petitioner's organizational chart, additional payroll documentation, documentation evidencing the 
beneficiary's role in recruitment and training of employees, copies of training and policy manuals developed 
by the beneficiary, and a statement from the petitioner's tax preparer regarding its payroll records. 
Upon review of the petition and supporting evidence, the petitioner has not established that the beneficiary 
will be employed in a managerial or executive capacity under the extended petition. 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. 3 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are either in an 
executive or managerial capacity. Id. A beneficiary may not claim 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 that the beneficiary is both an executive and a manager. 
SRC 04 054 52458 
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Rather than providing the required description of the duties the beneficiary has been performing during the 
first year of operations and will be performing under the extended petition, the petitioner has provided a 
vague and nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary 
does on a day-to-day basis. The description of the beneficiary's duties largely consists of ambiguous phrases, 
such as "client communication," "client satisfaction," "specialist know-how," "reaction time," 
"advertisements and articles," "first impressions" and "business documentation." These phrases convey little 
understanding regarding his actual tasks, such that the AAO could determine whether such tasks are 
managerial or executive in nature. 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. 158, 165 
(Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Other 
duties described by the petitioner, such as "exercising discretion over the day to day operations," 
"management and direction of the organization," and responsibility for "policies and procedures" generally 
paraphrase the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. 9 
1101(a)(44)(A). However, conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient to meet the petitioner's burden of proof. Merely repeating the language of the statute or regulations 
does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at "5 
(S.D.N.Y.). The actual duties themselves reveal the true nature of the employment. Id. 
In addition, the petitioner described the beneficiary as being solely responsible for generating contractual and 
non-contractual revenue related to the petitioner's cleaning business, and training the cleaning staff, as well as 
performing all market research and networking duties related to the petitioner's start-up off-road 4x4 
recreation business. Since the beneficiary actually markets and sells the petitioner's services and negotiates 
routine sales contracts, he is performing tasks necessary to provide a service or product. An employee who 
primarily perfoms 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). Although the petitioner indicates on appeal that it employs an operations manager 
who performs the sales duties formerly attributed to the beneficiary, and even claims that this person was 
hired on January 1, 2003, prior to the beneficiary's initial L-1A petition approval, the record is devoid of any 
evidence that the petitioner in fact employed anyone in such position at the time the petition was filed. Again, 
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. at 165. The petitioner must establish 
that the position offered to the beneficiary when the petition was filed merits classification as a managerial or 
executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to CIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). 
Whether the beneficiary is a managerial lor executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on them. This failure of documentation is important because, as discussed above, several 
SRC 04 054 52458 
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of the beneficiary's daily tasks, such as market research and networking related to the petitioner's 4x4 
business, sales duties, and training and supervision of the petitioner's non-professional cleaning staff, do not 
fall directly under traditional managerial duties as defined in the statute. The petitioner's description of the 
beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial in nature, 
and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. 
Cir. 1991). For this reason, the AAO cannot determine whether the beneficiary is primarily performing the 
duties of a manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. The regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year 
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
As noted by the director, the petitioner has not provided the required evidence regarding the company's 
organizational structure and staffing levels, or sufficient and credible evidence of wages paid to employees. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may 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. $5 103.2(b)(8) and (12). In the request for evidence, the director requested that the petitioner submit 
its state quarterly tax returns for all four quarters of 2003. The petitioner failed to submit this document in 
response, and instead submitted a single incomplete form that identified the beneficiary as the employer, 
reflected a different employer tax identification number, and did not include the number of employees. The 
requested evidence is critical as it would have established the number of employees the petitioner had at the 
time of filing and provided evidence of wages paid to the employees, evidence which is required by the 
regulations. The purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). 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). Although the petitioner's contracted tax preparer provides a letter on appeal explaining that the 
company "utilized the payroll services of its franchiser until the third quarter of 2003" the petitioner has not 
submitted a sufficient explanation for the unavailability of the requested quarterly wage reports. The non- 
existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
$ 103.2(b)(2)(i). 
On appeal, the petitioner submits copies of fifteen Forms W-2 issued by the petitioner in 2003, and provides a 
list of its active employees, with job titles and dates of hire. The list shows seven "cleaning assistants," two 
"cleaning assistantlsupervisors," a "cleaning assistantltraining supervisor," a "training supervisor/manager," a 
SRC 04 054 52458 
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"manager," a treasurer and a secretary. Based on the dates provided by the petitioner, all four "supervisory" 
positions were created subsequent to the petitioner's response to the request for evidence, apparently as a 
result of promotions granted to cleaning staff. The petitioner claims that the "manager" position was filled on 
January 1, 2003, but as already noted above, there is no documentary evidence to substantiate the petitioner's 
claim that it has ever employed this individual. The petitioner also indicates that the company hired the 
beneficiary's spouse as its secretary on October 1, 2002, three months before the beneficiary was granted L- 
IA status. As noted above, the petitioner attributes many operational duties, including responsibility for 
personnel and payroll records, some training functions, inventory and supply management, recruitment and 
selection, and contract monitoring to the beneficiary's spouse in her claimed role as secretary. The petitioner 
has established she was authorized to work in the United States as of July 22, 2003, but she does not appear 
on the petitioner's payroll statements for 2003, nor did she receive a Form W-2 in 2003. Likewise, there is no 
evidence that the petitioner has ever paid wages to the employee identified as the "treasurer," who the 
petitioner claims was hired in October 2002 and performs all financial control functions. Again, 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. at 165. 
As noted above, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A 
visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set of facts. Matter ofMichelin Tive Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The petitioner may 
not create artificial tiers of supervisory or managerial employees on appeal to suggest that an organization is 
sufficiently complex to support an executive or manager; instead the petitioner must substantiate that the 
duties of a beneficiary's subordinates correspond to their placement in an organization's structural hierarchy. 
The AAO further notes that many of the beneficiary's operational duties, such as sales and employee training, 
are now attributed to the newly created supervisor and manager positions. However, on appeal, a petitioner 
cannot offer a new position to the beneficiary, or materially change a position's title, its level of authority 
within the organizational hierarchy, or the associated job responsibilities. The petitioner must establish that 
the position offered to the beneficiary when the petition was filed merits classification as a managerial or 
executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Cornrn. 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to CIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The petitioner also 
provides evidence that it is expanding into a new business area and claims that such expansion will require a 
larger staff and more complex organizational structure. Yet, a visa petition may not be approved based on 
speculation of future eligibility or after the petitioner becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. at 248; Matter ofKutigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Consequently, based on the evidence submitted, the petitioner has established that, at the time of filing, it 
employed the beneficiary as president, and an undetermined number of part-time cleaning staff whose source 
of remuneration is uncertain. While the AAO is satisfied that the beneficiary does not personally provide 
cleaning services, it must be assumed, and has not been proven otherwise, that all other operational duties 
inherent in the petitioner's two businesses were being performed by the beneficiary at the end of the first year 
of operations, including sales, marketing, employee training, and routine client communications. The 
beneficiary undoubtedly manages and exercises discretion over the petitioner's operations, but the petitioner 
has not established that the preponderance of the beneficiary's duties were managerial or executive at the time 
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of filing. Rather, it is evident that the majority of his time would necessarily be devoted to performing non- 
qualifying duties necessary to keep two businesses operational. If the business does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and administrative 
tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not 
reached the point that it can employ the beneficiary in a primarily managerial or executive capacity. For this 
reason, the appeal will be dismissed. 
The second issue in this proceeding is whether the petitioner has established that it was doing business for the 
previous year. 
At the time the petitioner seeks an extension of the new office petition, the regulation at 8 C.F.R. 
9 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business for the previous 
year. The term "doing business" is defined in the regulations as "the regular, systematic, and continuous 
provision of goods and/or services by a qualifying organization and does not include the mere presence of an 
agent or office of the qualifying organization in the United States and abroad." 8 C.F.R. 9 214.2(1)(l)(ii)(H). 
In the instant matter the beneficiary was granted a one-year period of stay to open a new office in the United 
States which was valid from January 14, 2003 to January 14, 2004. The petitioner is required by regulation to 
estiblish that it has been doing business for the entire first year of operations. The petitioner concedes that it 
is still in the market research phase of establishing a business in the off-road 4x4 recreational sector, but 
claims that it has been operating a commercial cleaning services franchise since January 2003. 
In support of the initial petition, the petitioner submitted a three-page financial statement showing gross 
income of $24,376.43 for the first ten months of 2003; an undated pricing agreement for weekly cleaning 
services, signed by a customer representative and by the beneficiary as "Franchisee" for a letter dated 
August 25, 2003 addressed to the same customer, signed by the beneficiary for of Kentucky; an April 
28, 2003 letter to another customer from President of * of Kentucky which refers to 
the beneficiary as "our franchisee cleaning company"; and a December 14,2001 letter to a customer fiom Mr. 
which makes no reference to the petitioner or beneficiary. ln addition, the petitioner submitted a letter 
from Mr. dated September 19, 2003, which states "[The beneficiary] has been in good standing as an 
active franchisee since January 16, 2003." The letter lists twelve cleaning clients and the monthly 
revenue provided by each. The letter does not refer to the petitioning company. 
On December 29, 2003, the director requested additional evidence of business conducted by the petitioner 
during the past year, including, but not limited to, sales contracts, invoices, receipts, orders, bank statements 
and paid sales taxes. The director also requested copies of the petitioner's state quarterly income tax returns 
for 2003. In response, the petitioner submitted an updated letter from President om 
Cleaning Systems of Kentucky, advising the beneficiary of his current customer revenue list witha 
May 28, 2003 agreement between a customer and Cleaning Systems of Kentucky, identifying the 
beneficiary as "franchisee" and "franchise owner;" a November 24, 2003 amendment to the same agreement 
between the customer an-of Kentucky, signed by the beneficiary as "franchise owner;" a September 
3, 2003 cleaning contract agreement between a customer and -igned by the beneficiary as 
"franchisee7'; a May 8, 2003 cleaning contract agreement between a customer and m which does not 
SRC 04 054 52458 
Page 11 
reference the petitioner or the beneficiary; and a January 15, 2003 letter to a customer from 
President oof Kentucky; which does not ment~on the beneficiary or the petitioner p e petitioner 
also submitted copies of three December 1, 2003 invoices issued to customers by '. dbaof 
Kentucky." In addition the petitioner submitted its year-end financial statement for 2003, bank statements for 
July through December 2003, and the two quarterly reports discussed earlier in this decision, one of which 
reflects the beneficiary's name as the employer, and a different tax identification number, and one which 
reflects no employees. 
The director denied the petition on February 13, 2004, concluding that the petitioner had not submitted 
sufficient evidence to establish thatbit had been doing business for the previous year. On appeal, the petitioner 
asserts that it has been doing business for the previous year and submits additional evidence, including a letter 
from the president of-cleaning Services of Kentucky; which discusses the beneficiary's history with 
the franchise: 
On the 16~~ of January, 2003, [the beneficiary] purchased his Jan-Pro franchise in the 
commercial cleaning industry. By February 4, 2003, [the beneficiary] increased his 
investment in Jan-Pro and wanted to grow as fast as possible. In June, 2003, [the beneficiary] 
sold his first cleaning client contract with our assistance, further evidence that his talents 
include salesmanship; he sold his second client in September, 2003. Another expansion 
occurred on August 28,2003. 
On review, the petitioner has not established that it was doing business for the entire first year of operations as 
required by 8 C.F.R. fj 214.2(1)(14)(ii)(B). Although the petitioner claims that it began operating as a 
commercial cleaning franchise in January 2003, most of the documentation submitted identifies the 
beneficiary, not the petitioner, as the franchisee. The petitioner has not submitted copies of invoices issued or 
payments received for cleaning services rendered; in fact, the only invoices provided appear to have been 
issued by the franchiser. 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). Without a copy of the franchise agreement, the AAO cannot determine if 
the petitioner is in fact doing business as a cleaning services company. The quarterly tax report identifying 
the beneficiary as an employer, and indicating a different tax identification number than that assigned to the 
petitioner, raises additional questions as to whether the beneficiary, and not the petitioner is, in fact, the 
fi-anchisee. 
Regardless, the petitioner has not submitted any evidence that it was doing business prior to May or June 
2003, when the first cleaning contract was purportedly acquired. In the instant case, there is no evidence that 
the petitioner was doing business fi-om January through May of 2003. For this additional reason the appeal 
will be dismissed. 
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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
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Page 12 
ORDER: The appeal is dismissed.