dismissed L-1A Case: Construction Management

U.S. Dcpartmet~t of Homeland Security 
20 Massachusetts Ave N W , Rm 3000 
Washington, DC 20529 
identifving data Mew to 
prevent dearly unwarranted 
 U. S. Citizenship 
kvdon of personal privacy 
 and Immigration 
Services 
PUBLIC COPY 
File: 
 WAC 05 007 50754 
 Office: CALIFORNIA SERVICE CENTER Date: JU[ 0 6 2006 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
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. 
I Administrative ~~~e<ls Office 
WAC 05 007 50754 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
officer for a three-year period.' 
The director denied the petition concluding that the petitioner had not established that the beneficiary has 
been employed by the foreign entity in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner claims that the director's decision 
"contained mere accusations and false presumptions" to support the determination that the beneficiary has not 
been employed in a qualifying capacity abroad. Counsel asserts that the petitioner submitted sufficient 
evidence to establish that the beneficiary has been employed by the foreign entity in an executive capacity 
since 2001. Counsel submits a brief and additional evidence in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. tj 1101(a)(lS)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. 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. tj 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, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
1 
The petitioner and counsel also refers to the beneficiary's proposed position as "Integration Specialist," and 
on appeal, counsel references the proposed position as "Architectural Consultant." 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). 
WAC 05 007 50754 
Page 3 
(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. 
(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. § 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office2 in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(1) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
2 
 The petitioner did not indicate on Form 1-129 that the beneficiary is coming to the United States in order to 
open a new office, and in fact initially stated that the U.S. company was established in 2002, and has 
established a "nationwide presence" with 45 employees. In response to the director's request for additional 
evidence, the petitioner stated that the purpose of the beneficiary's transfer is to open a new office in the 
United States. As discussed further below, there was clearly no established U.S. office at the time the petition 
was filed, and the AAO is left to question the validity of the petitioner's claims regarding the beneficiary's 
eligibility for this visa classification. Doubt cast on any aspect of the petitioner's proof may, of course, lead to 
a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
WAC 05 007 50754 
Page 4 
The issue raised by the director in this matter is whether the petitioner established that the beneficiary has 
been employed in a managerial or executive capacity with the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 
(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. 4 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 making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimrnigrant petition was filed on October 8, 2004. In a letter dated October 1, 2004, the petitioner 
stated that the beneficiary served as the president of the foreign entity for more than two years. The petitioner 
provided the following information regarding the positions the beneficiary has held with the foreign entity: 
In 2002, [the beneficiary] began his career with [the foreign entity] as the Operations 
Manager. In said capacity, he worked extensively with construction workers, clients, sales 
WAC 05 007 50754 
Page 5 
and marketing companies to further develop and stabilize the company. He also 
communicated with technical details to clients regarding the company's services. 
After a few months, [the beneficiary's] managerial responsibilities were further expanded 
when he was promoted to the position of Management Analyst. As such, he managed a team 
of individuals to develop the Operations Manual and Marketing Strategies for the company. 
He likewise managed and prepared the teams' project plans and goals. In managing his 
professional team, [the beneficiary] had authority to recruit, hire, train, promote and terminate 
his staff. 
With respect to all matters within his authority, [the beneficiary] exercised broad discretion 
over day to day operations in developing a database and interfaces that allow the company's 
system to interact with various customers' needs. 
Throughout his employment with [the foreign entity] in Portugal, as a key managerial 
employee with proprietary knowledge of our international operations and varied product 
lines, [the beneficiary] has demonstrated considerable skill in managing development and 
support functions. He utilized his expertise in designing and analyzing the technology to 
create a robust flexible, scalable and secure company specifically for the construction 
industry that gets customers and builds relationships with their worldwide supply chain 
partners. He also managed and delegated responsibility in preparing and maintaining the 
continual development of the smooth operational procedures of the company and helped 
sustain profitability throughout the years. 
In April 2004, [the beneficiary] was promoted and assumed the position of Software 
Implementation Manager. This department is one of the most critical functions of our 
company in terms of the gross sales and revenues it generates. In particular, he oversees three 
(3) essential departments of our company, i.e., the Product Management department, Product 
Development Department and the Quality Assurance Department. 
The petitioner did not address the organizational structure of the foreign entity, but noted that the company 
"ranks first or second in major segments of the construction industry," and "maintains a nationwide network 
of offices . . . performing work on over 1,500 projects each year." 
The director issued a request for additional evidence on October 18, 2004, in part instructing the petitioner to 
submit the following evidence to establish that the beneficiary has been employed in a managerial or 
executive capacity with the foreign company: (1) a copy of the foreign company's organizational chart 
including the names of all executives, managers, supervisors, the number of employees within each 
department, and brief job descriptions, educational level and annual salaries for all employees under the 
beneficiary's supervision; and (2) the total number of employees working at the location where the 
beneficiary is employed. The director also requested that the petitioner specify when the beneficiary was hired 
by the foreign entity, the positions he has held, and why he was selected for the position with the U.S. entity. 
WAC 05 007 50754 
Page 6 
In a response dated November 16, 2004, counsel for the petitioner noted that the foreign entity was 
established in 2002 and since then "has engaged three (3) full time employees and several on site workers 
depending on the scale of the project." The petitioner submitted an undated letter on the foreign entity's 
letterhead, which states that the beneficiary has served as chief executive officer of the foreign entity since 
January 2002. The letter indicates that the foreign entity employs seven people on a full-time basis and lists 
their job titles as technical manager, warehouse manager, site teams manager, administration secretary, 
accounts department, and marketing manager. 
The petitioner also submitted an organizational chart which depicts a total of twelve positions within the 
company. The chart depicts a chief executive officer supervising five departments, including marketing, 
technical, site projects, factory warehouse and accounts and administration. The positions identified on the 
chart are marketing manager, sales consultant, technical project manager, architect designer, site projects 
manager, site projects team leader, construction team, factory warehouse manager, warehouse laborers, 
accounts administrator and secretary. 
The director denied the petition on December 1, 2004, concluding that the petitioner had not established that 
the beneficiary has been employed in a primarily managerial or executive capacity with the foreign entity. 
The director found that "a preponderance of the beneficiary's duties have been directly providing the services 
of the foreign organization and supervising two . . . non-professional employees." The director further 
determined that the record did not establish that the beneficiary was primarily supervising a subordinate staff 
of professional, managerial or supervisory personnel who relieve him from performing non-qualifymg duties, 
or that the beneficiary primarily manages an essential function of the organization. 
On appeal, counsel for the petitioner asserts that the director relied on "mere accusations and false 
assumptions" to support his reasons for denying the petition. Counsel asserts that the beneficiary has been 
employed as the chief executive officer of the foreign entity since 2001, and also refers to the beneficiary as 
the ''Owner/President" of the foreign entity. Counsel further describes the beneficiary's duties as follows: 
His main duties include directing the management of the organization and establishing the 
goals and the policies of [the foreign entity]. He also is burdened with high profile decision 
making slulls in terms of managing the entire operation of the company and other supervisory 
or managerial employees who reports [sic] directly to him. [The beneficiary] also has the 
authority to hire, fire or recommend certain employees that has [sic] the right qualification, 
personal actions or is due for promotion. Lastly, [the beneficiary] takes charge of the overall 
supervision of the day to day operations of the company. 
In support of the appeal, the petitioner submits un-translated copies of the foreign entity's payroll records, 
documents identified as "social security declarations," and educational and training documents for the 
beneficiary. 
Upon review, counsel's argument is not persuasive. Although the director's conclusion that the beneficiary 
has not been employed in a primarily managerial or executive position will be affirmed, the AAO notes that 
when denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this 
duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 
WAC 05 007 50754 
Page 7 
291 of the Act, 8 U.S.C. 3 1361. See 8 C.F.R. 3 103.3(a)(l)(i). Upon review of the director's decision, the 
AAO agrees that the reasons given for the denial are conclusory with few specific references to the evidence 
entered into the record. As the AAO's review is conducted on a de novo basis the AAO will herein address 
the petitioner's evidence & eligibility. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the 
AAO reviews appeals on a de novo basis). 
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). 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. 
Preliminarily, the AAO notes that the petitioner has failed to provide a consistent job title for the beneficiary's 
current position with the foreign entity. The petitioner initially stated in its October 1, 2004 letter that the 
beneficiary had joined the company in 2002 and had served in the positions of operations manager, 
management analyst and, most recently, software implementation manager. In the same letter, the petitioner 
stated that the beneficiary had served as president of the foreign entity for more than two years. In response 
to the director's request for evidence, the petitioner submitted a statement on the foreign entity's letterhead 
indicating that the beneficiary has been employed by the foreign entity as its chief executive officer since 
January 2002. Although this was the first time the petitioner made this claim, the petitioner did not provide a 
position description for the role of chief executive officer, nor did it clarify why it previously provided 
different job titles for the beneficiary's various roles with the foreign entity. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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. 5 82, 59 1-92 (BIA 1988). 
Furthermore, 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. 103.2(b)(8). When responding to a request 
for evidence, 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 its associated job responsibilities. 
On appeal, the petitioner and counsel again fail to clarify why the petitioner initially stated that the 
beneficiary had served as an operations manager, management analyst and software implementation manager 
with the foreign entity. Instead, counsel asserts that the beneficiary has served as chief executive officer and 
"owner/president" of the foreign entity since 2001. However, the evidence in the record shows that the 
foreign company was established in 2002. Counsel also provides a brief job description for the chief 
executive officer position on appeal that merely paraphrases the statutory definitions of managerial and 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $3 1101(a)(44)(A) and (B). For 
example, counsel states that the beneficiary's duties include "directing the management of the organization," 
"establishing the goals and policies" of the foreign entity, hiring and firing employees and recommending 
personnel actions, and the "overall supervision of the day to day operations of the company." Conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language 
WAC 05 007 50754 
Page 8 
of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Furthermore, the unsupported statements of counsel on appeal 
or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 
U.S. 183, 188-89 n.6 (1984); Matter ofRamirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
The position description provided on appeal bears no resemblance to the job descriptions initially provided 
for the beneficiary's position. 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 lzummi, 22 I&N Dec. 169, 176 (Assoc. Comrn. 
1998). The petitioner has failed to provide a detailed or consistent account of the beneficiary's role with the 
foreign entity. Due to these inconsistencies, the petitioner has not persuasively demonstrated that the 
beneficiary was employed as the foreign entity's chief executive officer as of the date the petition was filed. 
Accordingly, the AAO will rely on the job descriptions submitted with the initial petition filing to determine 
whether the petitioner established that the beneficiary's foreign employment has been in a primarily 
managerial or executive capacity. The petitioner stated that the beneficiary currently serves as a software 
development manager with responsibility for overseeing the foreign entity's product management, product 
development and quality assurance departments. However, these three departments do not appear on the 
petitioner's organizational chart, nor does the company appear to employ any workers engaged in product 
management, product development or quality assurance activities. Again, doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Accordingly, the record does not establish that the beneficiary "oversees" product development and quality 
assurance tasks. Rather, based on the minimal evidence in the record, it appears that the beneficiary would be 
responsible for directly performing the non-managerial duties associated with these functions. An employee 
who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to 
be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the 
Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter 
of Church Scientology Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner indicated that the beneficiary previously served as a management analyst responsible for 
"managing a team of individuals to develop the Operations manual and Marketing Strategies for the 
company." The petitioner further referenced the beneficiary's responsibility for exercising discretion over the 
development of a database, his role in designing and analyzing technology, and his skill in "managing 
development and support functions." The petitioner did not provide an organizational chart depicting this 
position, and based on the organizational chart submitted in response to the request for evidence, the foreign 
entity's organizational structure does not include a management analyst position. Absent evidence that the 
foreign entity has employees who performed the day-to-day work of developing databases and performing 
operational tasks associated with designing and analyzing technology and performing market research, the 
AAO cannot determine that the beneficiary's claimed role as a "management analyst" involved primarily 
managerial or executive duties. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on a 
WAC 05 007 50754 
Page 9 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Overall, the petitioner has presented vague, conflicting and incomplete evidence regarding the nature of the 
beneficiary's employment with the foreign entity. The AAO is therefore unable to determine the beneficiary's 
actual job title, actual duties, or his level of authority within the foreign entity's organizational hierarchy. 
Without this information, it is impossible to determine that he performs primarily managerial or executive 
duties for the foreign entity. The AAO recognizes that the beneficiary appears to be one of three owners of 
the foreign entity. However, the discretion the beneficiary may exercise as a partial owner of the business is 
insufficient to establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of sections 101(a)(44)(A) and (B) of the Act. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties related to operational or policy management, not to the 
supervision of lower level employees, performance of the duties of another type of position, or other 
involvement in the operational activities of the company. 
In the instant matter, the petitioner has failed to show that non-qualifying duties will not constitute the 
majority of the beneficiary's time. The provided job descriptions do not allow the AAO to determine the 
actual tasks that the beneficiary will perform such that they can be classified as managerial or executive in 
nature. 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather the 
AAO must determine based on a totality of the record whether the description of the beneficiary's duties 
represents a credible perspective of the beneficiary's role within the organizational hierarchy. The petitioner 
has not provided a consistent description of the foreign entity's organizational structure. The petitioner 
initially implied that the foreign entity was a fairly large organization operating "a nationwide network of 
offices" and sufficient staff to work on "over 1,500 projects each year." In response to the director's request 
for additional evidence regarding the staffing of the foreign entity, counsel asserted that the foreign entity has 
three full-time employees, the petitioner claimed that the company employs seven full-time employees, and 
the petitioner submitted an organizational chart depicting a total of twelve positions. 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). Due to these unresolved discrepancies, the AAO cannot 
determine the number or type of employees employed by the foreign entity or supervised by the beneficiary, 
and thus cannot conclude that the foreign entity employs a staff sufficient to relieve the beneficiary from 
performing non-managerial and non-executive tasks. Nor can the AAO find that the beneficiary operates at a 
senior level within the foreign entity's organizational hierarchy, or that he will primarily manage an essential 
function or a staff of supervisory, professional, or managerial employees. 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. 
WAC 05 007 50754 
Page 10 
The petitioner has not submitted evidence on appeal to overcome the director's determination on this issue. 
For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the foreign entity and the proposed 
U.S. employer are qualifying organizations, as required by 8 C.F.R. 9 214.2(1)(3)(1), and as defined at 8 
C.F.R. 9 214.2(1)(l)(ii)(G). The petitioner indicated on Form 1-129 that the U.S. entity is a branch office, and 
in its October 1, 2004 letter, referred to the U.S. entity as both a parent and subsidiary of the foreign entity. As 
noted above, the petitioner stated that the petitioner was established in 2002 and had 45 employees and an 
annual income of $250,000. The petitioner submitted no supporting documentation regarding the ownership 
and control of the U.S. company. Accordingly, the director requested that the petitioner submit evidence of a 
qualifying relationship including the petitioner's articles of incorporation, stock certificates, stock transfer 
ledger, proof of stock purchase, and if applicable, evidence that the U.S. company is authorized to operate as a 
branch office. 
In response, counsel for the petitioner stated that the beneficiary had established a "home office" and will be 
responsible for "starting the United States branch," noting that the company's articles of incorporation and 
other documents would be provided "as soon as [the beneficiary] arrives in the United States." The petitioner 
provided no explanation for its initial statements indicating that the U.S. employer is a two-year old entity 
with 45 employees. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 
19 I&N Dec. at 591. 
The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
4 103.2(b)(2)(i). Therefore, it is reasonable to assume, and it has not been shown to be otherwise, that there 
was no formally organized legal entity to serve as the beneficiary's U.S. employer as of the date of filing. As 
a matter of law, the beneficiary is ineligible for the classification sought. It is fundamental to this 
nonimrnigrant classification that there be a United States entity to employ the beneficiary. In order to meet 
the definition of "qualifying organization," there must be a United States employer. See 8 C.F.R. 
214.2(1)(1)(ii)(G)(2). As in the present matter, if there is no authorized branch office of the foreign employer 
or separate legal entity in the United States, there is no U.S. entity to employ the beneficiary and therefore no 
qualifying organization. For this additional reason, the petition will not be approved. 
Although not explicitly addressed in the director's decision, the record contains insufficient documentation to 
persuade the AAO that the beneficiary would be employed in the United States in a managerial or executive 
capacity as defined at section 101(a)(44) of the Act, 8 U.S.C. 5 1101(a)(44), or that the petitioner would 
support such a position within one year of approval of the petition, as required by 8 C.F.R. 9 214.2 (1)(3)(v). 
In addition, the petitioner failed to establish that it has secured sufficient physical premises to house the new 
office, the proposed nature of the office, the scope of the entity, its organizational structure, the size of the 
United States investment, the financial ability of the foreign entity to remunerate the beneficiary, and the 
financial ability to commence doing business in the United States. For these additional reasons, the petition 
cannot be approved. 
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 
WAC 05 007 50754 
Page 11 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 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). 
Finally, the AAO notes that a few errors or minor discrepancies are not reason to question the credibility of an 
alien or an employer seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. US., 345 F.3d 683, 
694 (9th Cir., 2003). However, anytime a petition includes numerous errors and discrepancies, and the 
petitioner fails to resolve those errors and discrepancies after CIS provides an opportunity to do so, those 
inconsistencies will raise serious concerns about the veracity of the petitioner's assertions. Doubt cast on any 
aspect of the petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. In this case, the discrepancies and 
omissions catalogued above lead the AAO to conclude that the evidence of the beneficiary's eligibility is not 
credible. Accordingly, the petitioner has not established the beneficiary's eligibility for the requested 
nonimmigrant visa classification. 
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 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.