dismissed L-1A Case: Commercial Cleaning / Recreation

1J.S. Department uf Homeland Security 
20 Massachuseth Ave , N W , Rnl A3042 
\Vasli~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: SRC 04 054 52458 Office: TEXAS SERVICE CENTER Date: QOV % 8 ?\* 
IN RE: Petitloner: 
Beneficiary: 
Petition: Petrtion for a Nonimmigrant 1 Worker Pursuant to Section 101 (a)(l5)(L) of the Immigration 
and Nahonal~ty Act, 8 U.S.C. 5 1101 (a)(15)(1,) 
IN BEHALF OF PETITIONER. 
SELF-REPRESENTED 
Th~s is the decislon of the Adm~nlstratlve Appeals Office in your case. All dociiments have been returned to 
thc office that orig~nally decided your case. Any further inquiry m~~st be made to that officc 
, / ,\ /-------;- 
doben P. ~~ernann.,dreG& 
-; Admlnlstratlve Appeals Officc 
i w 
SRC 04 054 52458 
Page 2 
DISCUSSION: The Director, Texas Service Centcr. denied the pctit~on for a nonlmmlgrant vlsa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The pet~t~oner filed this nonimm~grant petltlon seeklng to extend the employment of its president as an 1,-1A 
nonlmmigrant lntracompany transferee pursuant to section 10 l(a)(l S)(I,) of the Imrnlgrat~on and Nationality 
Act (the Act), 8 U.S.C § 1101(a)(15)(L). The petlt~oner 1s a corporat~on organized m the State of Kentucky 
that clalms to operate a commerc~al cleaning franch~se and seeks to operate an outdoor 4x4 sport recreat~on 
facility. The petitioner claims that it 1s the subsidiary of located m South Ahca. The 
beneficlary was inltlally granted a one-year penod of stay to open a new office in the Unlted States and the 
petitioner now seeks to extend the beneficiary's stay. 
The dlrector denied the pet~tion conclud~ng that (1) the petltloner did not establish that the beneficlary will be 
employcd m the Unlted States m a prlrnar~ly managerial or executlve capacity, and (2) the pet~tloncr did not 
establlsh that it had been doing bus~ness for the previous year. 
The petitioner subsequently filed an appeal. The director dccllned to treat the appeal as a motlon and 
forwarded the appeal to the AAO for revlew. On appeal, the petitioner asserts that the beneficraly's poslt~on 
involves significant authority over generalized pol~cy of the organization, that primarily all of the 
beneficiary's dunes are at the managerial or executlve level, and that sufficient ev~dcnce 1s provlded on appeal 
to establlsh that the company has been do~ng business for the previous year. The petlt~oner also states that it 
wlll correct prlor Insufficient documentation wh~ch resulted from a "lack of guidance" from its former 
representative 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must mect the criteria 
outlined in section 101(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. I11 addition, the beneficiary must seek to cnter the United States temporarily to continue renderinghis 
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. 9: 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 (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, o~ specialized 
knowledge capacity, including a detailed description of the services to be performed. 
n 
(iii) Evidence that the alien has at least one continuous year of full time employlnent 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
SRC 04 054 52458 
Page 3 
(IV) Evidence that the ahen's pnor year of employment abroad was In a posltion that was 
nranagcnal, executive or lnvolved speclahzed knowledge and that the allen's prior 
education, trainmg, and employrncnt qualifies hidher to perform the intended 
servlces m the Unlted States; howevcr, the work in the United States need not be the 
same work whlch the allen performed abroad. 
The regulation at 8 C.F.K. tj 214,2(1)(14)(ii) also provides that a vlsa pet~tion, which involved the opening of a 
new office, may be extended by filmg a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities arc still qual~fying organizations 
as defined in paragraph (1)(1)(11)(G) of this section; 
(B) Evidence that the Unlted States entlty has been doing business as defined in 
paragraph (l)(l)(n)(H) of this section for the previous year; 
(C) A statement of the dut~es performed by the benefic~ary for the preilious year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, includ~ng the number of 
en~ployees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capaclty; and 
(E) Evidencc of the financial status of the United States operation. 
The first issue m the present matter is whether the benefic~ary w~ll be employed by thc Unlted States entity in 
a pnmanly managerial or exccutlve capaclty. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A). defines the terrn "managerla1 capac~ty" as an 
asslgninent with111 an organizat~on In whlch the employee pnmarily: 
(1) manages the organ~zatlon, or a department, subdiv~sion, function. or component of 
the organlzat~on; 
(11) supervises and controls the work of other supervisory, profcssional, or managerial 
employees, or manages an essent~al function wlthin 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 
SKC 04 054 52458 
Page 4 
(IV) exerclscs discretion over the day to day operations of the activ~ty or function for 
which the cmployee has authonty. A first line supenlsor 1s not considered to be 
actlng In a managerlal capaclty merely by virtue of the supervisor's superv~sory 
duties unless the employees supervised are professional. 
Sect~on lOl(a)(44)(B) of the Act. 8 U.S.C. 5 1 101(a)(44)(B), defines the term "executive capac~ty" as an 
ass~gnment wlthin an organization m which the employee primarily: 
(i) dlrects the management of the organi~ation or a major component or function of the 
organlzatlon; 
(il) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(IV) recelves only general supervls~on or direction from higher level executives, thc board 
of directors, or stockholders of the organ~zatlon. 
. . 
In a letter submitted with the initial petition on December IS, 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 secretaly, "employees clean in^," and a department labeled "4x4." The petitioner 
also submitted a "2003 Business Review7' prepared by the beneficiary, ivhrch provides the following 
description of his job duties during the previous year: 
As President of [the petitioner] I provlde leadership, vlslon, entrepreneurial innovation and 
direction to all aspects of buslness. 1 successfully manage the business and recru~t personnel, 
tram new employers [SIC], do financial management and market products and scrvlccs. I wlll 
contlnue to have these responsib~l~tles if the extens~on petlt~on IS successfil. 
The petitioner also submitted the beneticiary's rcsume whlch prov~des the following description of hls dilt~es 
111 the Unlted States: 
Client Satisfaction 
1. Cllent communlcat~on 
2. Assess client's needs * 
3. Cllent Satisfaction 
4. Sett~ng qual~ty standards 
5. Form relevant busmess partners, linkages and associations 
6. Reaction T~me. 
7. Speclalist know how 
8. Shar~ng, d~recting know how 
SRC 04 054 52458 
Page 5 
Profitability 
1. Vlslonary management and direction of the bus~ness 
2. Vlscret~onary [SIC] authonty over day to day operatlons 
3. Ongoing re-appra~sal of ex~stlng contracts with staff. 
4. Controlling of budgets. 
5. Product~vity . 
Sales and Revenue 
1 . Generation of contractual and non-contractual revenue. 
2. New Bus~ness and the Retention of business. 
3. Advertisements and articles 
Human Resource Management 
1. Rccru~tment 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. Cllent filendly, transparent administrative procedures 
5. Creatlve client attract~ons ideas and methods 
The beneficiary's resume also mentions h~s efforts to "network and create a market for the 4x4 Off-road slde 
of the business," and Includes a summary of the petitioner's developments and planned activities In thls 
business segment. 
On December 29, 2003, the dlrector requested addltlonal evidence, including, in part: (1) coplcs of the 
pet~tloner's state employer's quarterly tax returns for 2003; and (2) ev~dence of the pctltioner's current 
staffing level. including posit~on titles and duties of all employees, and the educat~onal background of the 
professloilals that are employed. 
In a response received on January 30, 2004, former counsel for the pet~t~oner Indicated that the beneficiary 
"was employcd as President in 2003 with authority to. (1) oversee the pet~t~oner's operatlons; (2) hire and fire 
employees; and (3) exercise dlscret~on over the day-to-day opcratlons of the con~pany." The petrt~oner 
submitted a Kentucky Form UI-3, Employer's Quarterly Wage and Tax Report, for the third quarter of 2003. 
The report 1s incomplete and does not indlcate the number of employees employed d~mng each month of the 
quarter. The federal employer identification number on the form does not match the petittoner's number, and 
the employer name 1s lnd~cated as "" the beneficiary. The petitloner also subrnltted a Form K-1, 
Kentucky Employer's Return of Income Tax Withheld. The form contalns pr~nted dates mdicatmg ~t is for the 
SRC 04 054 52458 
Page 6 
period beginning on February 16,2003 and ending on March 3 1,2003. These dates have been crossed out by 
hand and the dates bvntten in are October 1, 2003 to December 31, 2003. Th~s form ind~cates "0" as the total 
number or 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 thc 
beneficiary that is nearly ident~cal to the description includcd 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, tlie 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 ldcritify 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 petit~on concluding that the petitloner had not establ~shed that 
the beneficiary was funct~onlng primanly as a manager or execut~ve. The dlrector noted the insufficient 
evidence submitted regarding the petitloner's staffing levels, and noted that the~e was no documentary 
evidence to cstabhsh that the beneficiary's pnmary functlon would be to "plan, direct and manage the 
company's major function througl~ other supervlsorsimanagers or professionals " 
On appeal, the petitioner disputes the decision and asserts that ''primarily all of the beneficiaryls 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 organizatioi 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 shbrnits eitensive documentation in 
support of its assertions, including job descriptions for three positions which were not previously includcd 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'de~elo~ed 
by the beneficiary, and a statement from the petitioner's tax preparer regarding its payroll records. 
Upon review of thc petition and supporting evidence, the petitioner has not established that the beneficiary 
will be employed in a managerial or executive capacity under the extendcd 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. $ 214,2(1)(3)(ii). 'I'he petitioner's description of the job du6es"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 statuto j definitions. A petitioner must establish 
that a beneficiary meets each of the four criteria set forth in the statutory definition for executive and thc 
statutory definition for manager if it is, representing that the beneficiary is both an executive and a manager. 
SRC 04 054 52458 
Page 7 
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 phras'es, 
. , 
such as "client communication," "client satisfaction,',' "specialist know-how," "reaction time," 
"advertisements and articles," "first impressions" 'and "business documentatio'n." '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 qf Soj,,ci, 22 I&N Dec. ,158, 165 
(Comm. 1998) (citing Matter qf Treasttre Cvafi of Californicl, 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"'general1y 
paraphrase the statutory definition of executive capacity. &e section 101(a)(44)(A) of the Act, 8 U.S.C. 3 
1101(a)(44)(A). However, conclusory assertions regarding the beneficiary's employment capacity. are not 
sufficient to meet tEie petit'ioner's burden of proof. Merely repeating the language of the statute or regulations 
does not satisfy the petitioner's burden of proof. Fedin ~ros. Co., .Ltd. v. Sava, 724 F: Supp. 11 03, 1 108 
(E.D.N.Y. 1989), aff'd, 90.5 F. 2d 41 '(2d. Cir. 1990); Avyr Associates Irzc. 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 gcnerating 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 serviccs and negotiates 
routine sales contracts, he is performing tasks necessary to provide a service or product. An employce who 
primarily perfornls the tasks necessary to produce a product or to provide services is not considered to be 
employcd in a managerial or executive capacity. Matter of Clzurclz Scientology hternutior?ai3 19 I&N Dec. 
593, 604 (Comm. 1988). Although the petitioner indicates on appeal that it emnploys 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-IA 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 Soffici, 22 I&N Dec. at '165. The pctitioner must establish 
that the position offered to the beneficiary when the petition was filed merits classification as a managerial or 
executive position. Matter of Mzcheliiz Tire Corp., 17'I&N Dec. 248, 249 (Reg. Comm. 197s). A petitioner 
may not make material changes to a petition in an effort to make a deficieyt petition conform to CIS 
requirements. See Matter of Izunzrni, 22 I&N Dec. 169, 176 (Assoc. Con&. 1998). ' . 
Whether the beneficiary is a managerial or 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. Hcre, 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 man'agerinl and administrative or operational tasks, but fails to the time the 
beneficiary spends on them. This failure of documentation is important because, as discussed above, several 
SRC 04 054 52458 
Page 8 
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 Trunskei 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 ofa 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. 3 214.2(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 perfonning 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 infornlation that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. $3 103.2(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 nurgbcr, 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 thc 
time of filing and provided evidence of wages paid to the employees, evidence which is required by thc 
regulations. Thc purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the bencfit 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. $ 
103.2(b)(14). Although the petitioner's contracted tax prepaim 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. 
5 103.2(b)(2)(i). 
On appeal, the petitioner submits coples of fifteen Forms W-2 issucd by the petitloner m 2003, and provtdes a 
llst of ~ts active employees, wlth job titles and dates of h~re. The llst shows seven "cleanmg assistants," two 
"cleaning assistantlsuperv~sors," a "cleanmg assistantltralning supervisor," a "h-ainmg supervlsor/manager," a 
SKC 04 054 52458 
Page 9 
"manager," a treasurer and a secretary. Based on the dates provlded by the petlhoncr. all four "supervisory" 
positions were created subsequent to the petitioner's response to the request for evldence. apparently as a 
result of promotions granted to cleanlng 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 substantlate the pet~tioner's 
claim that: lt has ever employed thls lnd~vidual. The petitloner also indicates that the company hlred the 
beneficlary's spouse as ~ts secretary on October 1, 2002, three months before the beneficiary was granted L- 
1A status. As noted above, the petitloner attributes many operational duties, ~ncluding responsibil~ty for 
personnel and payroll records, some trainlng functions, Inventory and supply management, recruitment and 
selection, and contract monitoring to the beneficlary's spouse m her claimed role as secretary. 'The petltloner 
has estabhshed she was authorized to work m the United States as of July 22, 2003, but she does not appear 
on the petitioner's payroll statements for 2003, nor d~d she recelve a Form W-2 m 2003. Llkewlse, there IS no 
evidence that the pet~tioner has ever paid wages to the employee identified as the "treasurer," whovthe 
petitioner clalms was hlred m October 2002 and performs all financial control functions. Aga~n, golng on 
record w~thout supporting documentary evldence IS not sufficient for purposes of lneetlng the burden of proof 
in these proceedings Matter of Soffiz, 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 futurc date after the petitioner or beneficiary becomes eligible under a 
new set of facts. Matter ofMichelin Tire COT?., 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 cmployee training, 
are now attributed to the newly created supervisor and manager positions. However, on appeal, a petitioner 
cannot offer a new posltion 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 ~iclzelh Tire Corp., 17 l&N Dec. 248, 249 (Keg. Comrn. 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition 'conform to CIS 
requirements. See Mutter of Izw~zmi, 22 T&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 e5pansion 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 of filighak, 14 I&N Dec. 45,49 (Comm. 1971). 
Consequently, based on the evidence submitted, the petitioner has established that, at thc 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, arid has not been proven otherwise, that all other operational' duties 
inherent in the petitioner's two businesses were being 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 
SRC 04 054 52458 
Page 10 
of filmg. Rather, it is evident that the majonty of his time would necessarily be devoted to perfoimlng non- 
qualifying dutles necessary to keep two businesses operational. If the business does not have sufficient 
staffing after one year to relleve the beneficiary from primarily performing operational and admin~stratlve 
tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitloner has not 
reached the polnt that it can employ the benefic~ary In a pr~marily managerlal or executive capacity. For this 
reason, the appeal will be dismissed. 
The second issue in th~s proceeding is whether the petitioner has established that it was dolng business for the 
previous year. 
At the time the petitloner seeks an extension of the new office petition, the regulatlon at 8 C.F.R 
3 214.2(1)(14)(ii)(B) requires ihe petitloner to demonstrate that ~t has been doing business for the prevlous 
year. The term "doing busmess" 1s defined in the regulations as "the regular, systematic, and continuous 
provision of goods andlor services by a qualifying organlzation and does not include the mere presence of an 
agent or office of the qualifying organnation in the Un~ted States and abroad." 8 C.F.R. 3 214.2(1)(1)(ii)(Ii) 
In the instant matter the beneficiary was granted a one-year period of stay to open a new office In the Un~ted 
States which was valid from January 14. 2003 to January 14, 2004. Thc petitioner is required by regulatlon to 
* 
estiblish that it has been doing business fo~: the entire first year of operat~ons. The pet~tioner concedcs that ~t 
is st111 in the market research phase of establ~shing a business in the off-road 4x4 recreat~onal sector, but 
clalms that ~t has been operating a commercial cleaning services franchise slnce January 2003. 
In support of the initial petition, the petrtloncr submitted a three-page financial statement show~ng gross 
income of $24,376.43 for the first ten months of 2003; an undated priclng agreement for weekly cleaniiig 
services, signed by a customer representative and by the beneficlary as "Franchisee" for- a letter dated 
August 25, 2003 addressed to the same customer, slgned by the beneficlary for -of  ent tuck^; an April 
28, 2003 letter to another customer from Presldent of of Kentucky which refers to 
the beneliciary as "our franchisee cleanlng company"; and a December 14,2001 letter to a customer from Mr 
-whlch makes no reference to the petltioner or beneficlary. In addition, the petltioner submitted a letter 
from Mr. dated September 19, 2003, which states "[The beneficl&y] has been in good stand~ng as an 
actwe franchisee slnce January 16, 2003." 'l'he letter lists twelve cleanlng clients and the monthly 
revenue provlded by each. The letter does not refer to the petltionlng company. 
On December 29. 2003, the director requested additional evidence of business conducted by the petlt~oner 
during the past year, including, but not lim~ted 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 petitloner submitted an updated letter from President 0- 
Cleaning Systems of Kentucky, advlsing the beneficiary of his current customer revenue list with-a 
May 28, 2003 agreement between a customer and Cleanlng Systems of Kentucky, Identifying the 
- 
beneficiary as "franchisee" and "franchlse owner;" a November 24, 2003 amendment to the saine agreement 
between the customer andllof  ent tuck^, signed by the beneficiary as "franchise owner:" a September 
3, 2003 cleanlng contract agreement between a customer and igned by the bcneficla~y as 
"franchisee"; a May 8, 2003 cleaning contract agreement between a customer and YL^____ which does not 
SRC 04 054 52458 
Page 11 
reference the petltloner or the beneficmy; and a January 15, 2003 letter to a customer from 
President omof Kentucky; whlch does not mention the beneficiary or the petitloner F e pet~tioner 
also submltted copies of three December 1, 2003 lnvolces issued to customers by '. dbaof 
Kentucky." In add~tion the petitioner submltted tts year-end financial statement for 2003, bank statements for 
July through December 2003, and the two quarterly reports discussed earller in thls decision, one of which 
reflects the beneficiary's name as the employer, and a different tax identlficat~on number, and one ~hich 
re tlects no employees. 
The dlrector denled the petltlon on February 13, 2004, concluding that the petitioner had not submltted 
sufficient evldence to establish thatblt had been dolng busmess for the previous year. On appeal, the petitioner 
asserts that it has been dolng buslness for the previous year and submlts addltlonal evidence, including a lcttcr 
from the pres~dent of-cleaning Servlces of Kentucky, wh~ch discusses the benefic~ary's history w~th 
the fi-anchlse: 
On the 16'~ of January, 2003, [the beneficiary] purchased his franchise in the 
commercial cleaning industry. By February 4, 2003, [the beneficlary] increased his 
Investment in and wanted to grow as fast as possible. In June, 2003, [the beneficlary] 
sold hls first cleaning chent contract with our assistance, further evldence that his talents 
lnclude salesmanship; he sold his second client in September, 2003. Another expansion 
occurred on August 28,2003. 
On rcview, the petltloner has not established that ~t was dolng business for the entire first year of operat~ons as 
requlred by 8 C.F.R. § 214.2(1)(14)(u)(B). Although the pet~tioner clalms that it began operating as a 
commercial cleaning franchise m January 2003, most of the documentation submitted Identifies the 
beneficiary, not the pet~tioner, as the franchisee The pet~tloner has not submitted copies of invoices Issued or 
payments recelved for clcaning servlces rendered: m fact, the only involces provided appear to have been 
issued by the franchiser. It IS incumbent upon the petltioner to resolve any inconslstencles in the record by 
Independent objective evldence. Any attempt to explain or reconcile such inconslstencles will not suffice 
unless the pet~tioner submits competent objective evidence polntlng to where the truth 11es. Mutler- of No, 19 
I&N Dec. 582, 591-92 (BIA 1988). W~thout a copy of the fi-anchlse agreement, the AAO cannot determ~ne ~f 
the petitioner IS m fact dolng business as a clcaning services company. The quarterly tax report ident~fymg 
the beneficiary as an employer, and Indicating a dlffcrent tax ldentlficatlon number than that asslgned to thc 
petitloner, raiscs add~tional questions as to whether the beneficlary, and not the pet~tloner IS, In fact, the 
franchisee. 
Regardless, the petitioner has not subm~tted 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 1s no evidence that 
the petitioner was doing buslness from January through May of 2003. For thls additional reason the appeal 
w~ll be dismissed. 
In visa pet~tlon proceedings, the burden of provlng eligibility for the benefit sought remains entirely wlth the 
petitloner. Sectlon 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. Accordingly, the 
director's dec~slon will be affirmed and the petition wlll be denled. 
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ORDER: The appeal is dismissed.