dismissed L-1A Case: Garment Import/Export

identifying data ddeleteted to 
prevent clearly unwarranted 
invasion of personai privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofjce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 08 096 50350 OFFICE: CALIFORNIA SERVICE CENTER Date: 
APR 2 8 2009 
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 10 1 (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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Appeals Office 
WAC 08 096 50350 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a California corporation, states that it is operating as 
an importer and distributor of garments and stuffed toys. It claims to be a subsidiary of -1 
I., located in China. The beneficiary was initially granted one year in L-1A 
classification in order to open a new office in the United States and the petitioner now seeks to extend the 
beneficiary's status for two additional years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be 
employed in the United States 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 asserts that the director's 
determination that the beneficiary will not be employed in a managerial or executive capacity is "in error and 
contrary to established law." Counsel asserts that the petitioner now employs a total of 26 workers and 
requests that the petition be approved. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet 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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. fj 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. 
(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 himher to perform the intended 
WAC 08 096 50350 
Page 3 
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. fj 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 (l)(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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. fj 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, fwnction, 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 
WAC 08 096 50350 
Page 4 
(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. 9 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on February 15, 2008. In a letter 
dated February 13, 2008, the petitioner explained that its main business areas in the United States include 
obtaining and filling sample garment orders from local clothing factories, and importing ready-to-wear 
garments and handbags from China for wholesale to local wholesalers. The petitioner stated that it is also 
engaged in seeking customers for its parent company's garments and stuffed toys, collecting market 
information, and seeking out business partners for its parent company. 
The petitioner indicated that the beneficiary performs both executive and managerial duties in his capacity as 
president and general manager of the U.S. company. Specifically, the petitioner stated that the beneficiary 
performs the following executive duties: 
1. 
 Plans and directs all aspects of organization's business development, sales and marketing 
policies, objectives, and initiatives; 
2. 
 Establishes internal polices [sic], including but not limited to, reward and punishment 
policies, performance evaluation standards, employee benefits, etc.; 
3. 
 Determines the budgetary and personnel needs to achieve objectives; 
4. 
 Be responsible for developing new market initiatives, assessing new markets, and 
analyzing business opportunities; 
5. 
 Represents the company's interest in dealing with government agencies, customers, 
employees, business services providers, etc.; 
WAC 08 096 50350 
Page 5 
6. 
 Consults with CPA and legal counsel to familiarize with federal, state, and local 
government rules and regulations governing business practice in the U.S., including but 
not limited to business registration, tax reporting, labor relations, etc.; 
7. 
 Liaises with parent company to coordinate the U.S. operations with that of the parent 
company; and 
8. 
 Reports to the parent company regarding the U.S. subsidiary's business progress, 
financial situation, and new market trends in the U.S., and seeks financial support from 
the parent company to fund the expansion program[.] 
In addition, the petitioner stated that the beneficiary will perform the following duties in his capacity as 
general manager: 
Implements financial programs and hiring programs to support business and employee 
needs; 
Establishes responsibilities and procedures of essential functions, and directs and 
coordinates overall operation through subordinates; 
Provides training to subordinates and specifies job assignments; 
Supervises and controls the work of sales manager, finance manager, warehouse 
manager and technical support manager; 
Exercises total control over financial issues such as fund management, cash flow, 
extension of credit; 
Exercises personnel authorities such as hiring and firing, leave authorization, etc.; 
Conducts performance evaluation of subordinates according to established policies; and 
Reviews operating reports to determine business progress and take necessary actions to 
obtain business objectives. 
The petitioner stated that the company had four payroll employees at the time of filing, including the 
beneficiary, a manager, and two sewing workers. The petitioner stated that the manager works 30 hours per 
week at an hourly rate of $7.50 and is responsible for hiring training and supervising sewing workers, while 
the sewing workers work on a "piece work basis," and are responsible for sewing sample garments specified 
on order contracts. The petitioner stated that it uses the services of an accountant on an annual service fee 
basis, and indicated that the accountant is responsible for accounting and financial records, payroll and 
financial statements. Finally, the petitioner stated that it intends to hire a saleslmarketing manager, a sales 
person, a warehouse director, and a warehouse worker "in the next few months." 
The director issued a request for additional evidence (RFE) on February 21, 2008, instructing the petitioner to 
submit the following: (1) a detailed organizational chart clearly identifying the beneficiary's subordinates by 
name and job title; (2) descriptions of job duties, educational level, immigration status, annual salarieslwages 
and source of remuneration for all employees under the beneficiary's supervision; (3) a list of specific goals 
and policies the beneficiary has established over the last six months; (4) a list of specific discretionary 
decisions made by the beneficiary; (5) a specific day-to-day description of the beneficiary's duties over the 
previous six months; and (6) evidence that the beneficiary will supervise and control the work of other 
supervisory, professional or managerial employees or manage an essential function within the U.S. company. 
WAC 08 096 50350 
Page 6 
Former counsel for the petitioner submitted a response dated March 14, 2008. In response to the director's 
request for a specific day-to-day description of the beneficiary's duties, counsel re-iterated the position 
description from the petitioner's letter of February 13, 2008. Counsel indicated that the beneficiary has been 
in charge of determining the company's direction, adjusting hiring, finance and budget strategies, and 
equipment purchases. Counsel noted that the petitioner established a workshop for production of sample 
garments in June 2007, but suffered a setback in November 2007, when nine sewing machines were stolen 
from the petitioner's workshop. Counsel stated that in the beginning of 2008, the beneficiary decided to 
adjust the company's strategies from garment sample processing to importing ready-to-wear garments from 
the parent company. Counsel further indicated that the petitioner recruited a saleslmarketing manager, sales 
person, a warehouse director and an office clerk to perform job duties related to the import and wholesale 
operations. Counsel concluded by stating that the beneficiary manages the company's sales, production, 
shipping, receiving and storage functions through direction and supervision of subordinate managers and 
supervisors, and manages the accountant and finance function through contracted employees. 
The petitioner's new organizational chart showed a total of eight payroll employees, including the beneficiary, 
a warehouse director, a sales manager, a workshop manager, an office clerk, a sales person, and two sewing 
workers, as well as two contracted accountants. The petitioner indicated that the warehouse director, office 
clerk and sales manager all have college degrees. 
The petitioner stated that all four new employees were hired on February 18, 2008 and work on a full-time 
basis. The petitioner provided copies of Forms 1-9, Employment Eligibility Verification for the four new 
employees, and a copy of checks issued to each employee for the pay period ended on February 29,2008. 
The director denied the petition on March 3 1, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
In denying the petition, the director emphasized that USCIS would consider the petitioner's staffing levels as 
of the date of filing, at which time the company employed only the beneficiary, the workshop manager and 
two sewing workers. The director determined that the petitioner failed to establish that the beneficiary would 
be supervising and controlling the work of managerial, supervisory or professional workers who would 
relieve him from primarily performing the services of the company. The director concluded that the petitioner 
had not grown to the point where it could support the beneficiary in a primarily managerial or executive 
capacity. 
On appeal, counsel for the petitioner asserts that the director's findings were "in error and contrary to 
established law." Counsel asserts that, as of May 2008, the petitioner employs a total of 25 employees, 
including six college graduates, and has moved to a 6,000 square foot facility. Counsel indicates that the 
petitioner has started manufacturing garments in the United States in addition to importing goods from 
overseas and has adopted a new fictitious name. Counsel emphasizes that the beneficiary's wide latitude in 
determining the direction of the business and expanding the business is consistent with "executive" duties. In 
support of the appeal, the petitioner submits a new organizational chart depicting the beneficiary as president, 
a general manager, a shipping warehouse manager, a quality controller, a production manager, and 20 
"workers." None of the employees identified on the original organizational chart appear on the latest chart, 
with the exception of the beneficiary. 
WAC 08 096 50350 
Page 7 
Comparing the new organizational chart to the organizational chart submitted in response to the RFE, the 
AAO notes that all four of the employees claimed to be hired in February 2008 appear on the latest chart. 
These employees, an were previously identified as 
holding the positions of Warehouse Director, Sales Manager, Office Clerk, and Sales Person, respectively, 
and the petitioner previously stated that three of these individuals completed a college education. The 
petitioner now identifies these four employees as "workers" who have completed only a primary school 
education. 
The petitioner submits copies of Forms W-4 and 1-9 for all additional employees claimed to be hired in April 
and May 2008, as well as copies of its new lease agreement, fictitious name certificate, and evidence of recent 
business activities. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity under the extended petition. 
Preliminarily, the AAO emphasizes that the petitioner must establish eligibility at the time it files the 
nonimmigrant petition. A visa petition may not be approved based on speculation of future eligibility or after 
the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
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. 
The definitions of executive and managerial capacity each 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). While the AAO does not doubt that the beneficiary 
exercises discretion over the petitioner's business as president and apparently its only full-time employee at 
the time the petition was filed, the totality of the evidence submitted does not demonstrate that the 
beneficiary's actual duties would be primarily managerial or executive in nature. 
The position description the petitioner provided, while lengthy, was overly general and failed to identify the 
specific duties the beneficiary would perform on a day-to-day basis that would qualify as managerial or 
executive in nature. Much of the position description simply paraphrases the statutory definitions of 
managerial and executive capacity. See sections 101(a)(44)(A) and (B) of the Act. For example, the petitioner 
stated that the beneficiary "plans and directs all aspects of organization's business development, sales and 
marketing policies, objectives and initiatives," "establishes internal polices [sic]," "exercises personnel 
authorities such as hiring and firing"; "directs and coordinates overall operation through subordinates"; and 
"supervises and controls" the work of managerial employees. While such duties are vaguely indicative of the 
WAC 08 096 50350 
Page 8 
beneficiary's level of authority, specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), am 905 F.2d 
41 (2d. Cir.1990). Therefore, 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 failed to provide any detail or explanation of the beneficiary's activities in the course of his 
daily routine. The actual duties themselves will reveal the true nature of the employment. Id. at 1108. 
Furthermore, some of the duties in the beneficiary's position description are not clearly managerial in nature, 
such as "developing new market initiatives assessing new markets and analyzing business opportunities," and 
representing the company's interest in dealing with customers. While the petitioner indicates that the 
beneficiary "plans and directs" all aspects of sales and marketing, the petitioner had no sales and marketing 
staff at the time of filing. As such it appears that the beneficiary himself was directly performing the sales and 
marketing function himself, including all non-managerial duties associated with these functions. Moreover, 
the petitioner's claim that the beneficiary's duties at the time of filing included supervising a sales manager, a 
finance manager, a warehouse manager and a technical support manager is not supported by the evidence of 
record. Two of these positions were not even proposed on the petitioner's organizational chart, and none of 
these positions were filled at the time of filing. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Overall, the petitioner's initial description of the beneficiary's duties was excessively vague, and not credible 
given the staffing of the company at the time the petition was filed, which consisted of a part-time workshop 
manager and two sewing workers, none of whom were engaged in any sales, marketing, order processing, 
import, or administrative functions. Accordingly, the director reasonably requested a specific day-to-day 
description of the duties the beneficiary has performed. In response, the petitioner re-submitted the same 
position description which was already deemed by the director to be insufficient to establish the beneficiary's 
employment in a primarily managerial or executive capacity. 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). 
As stated in the statute, the beneficiary must be primarily performing duties that are managerial or executive. 
See sections 10 1 (a)(44)(A) and (B) of the Act. Furthermore, the petitioner bears the burden of documenting 
what portion of the beneficiary's duties will be managerial or executive and what proportion will be non- 
managerial or non-executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the 
lack of a detailed description of the beneficiary's duties and the amount of time he will devote to qualifying 
duties on a day-to-day basis, the record does not demonstrate that the beneficiary will be employed in a 
primarily managerial or executive capacity. 
Such a conclusion is supported by a review of the totality of the evidence in this matter. A company's size 
alone, without taking into account the reasonable needs of the organization, may not be the determining factor 
in denying a visa to a multinational manager or executive. See $ 101(a)(44)(C) of the Act, 8 U.S.C. 
$ 1 10 1 (a)(44)(C). In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require USCIS to examine the organizational structure and 
WAC 08 096 50350 
Page 9 
staffing levels of the petitioner. 
 See 8 C.F.R. 5 214.2(1)(14)(ii)(D). 
 The regulation at 8 C.F.R. $ 
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. 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. 
Furthermore, in reviewing the relevance of the number of employees a petitioner has, federal courts have 
generally agreed that USCIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and 
Immigration Services 469 F. 3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 
923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990)(per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for 
USCIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or non- 
executive operations of the company, or a "shell company" that does not conduct business in a regular and 
continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
At the time of filing, the petitioner was a one-year-old company engaged in taking orders for garment samples 
from U.S. companies, producing garment samples from customer designs, coordinating manufacture of 
garments from approved designs, importing garments, collecting market data, and promoting its parent 
company's products to potential U.S. business partners and customers. If the petitioner was in fact engaged 
in the business activities described, the petitioner has a reasonable need for staff to contact potential buyers, 
take orders, produce garment samples using a sewing machine, coordinate customer orders with the parent 
company, coordinate import and delivery of garments, collect market data, market the petitioner's services 
and parent company's goods, and perform the day-to-day administrative and bookkeeping duties associated 
with operating a business. At the time of filing, the petitioner employed a full-time president, a workshop 
supervisor who worked 30 hours per week, and two sewing machine operators who worked on a "piece work" 
basis. The petitioner also claimed to employ an accountant on a contract basis, but the nature and scope of her 
services have not been defined and are not mentioned in the independent contractor agreement signed. The 
petitioner did not have any employees to perform any of the daily functions of the company beyond sewing 
sample garments based on customer designs. 
Therefore, it is reasonable to conclude that the beneficiary himself performed all other functions within the 
company, rather than overseeing subordinate employees in the performance of such activities as taking 
customer orders, coordinating orders with the parent company, collecting marketing information, and 
promoting the parent company's products in the United States, as well .as performing the company's day-to- 
day administrative functions. It is also evident that such duties would reasonably require the majority of the 
beneficiary's time. 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 10 l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter ofChurch Scientology Int'l, 19 I&N Dec. 593, 604 (Comm. 1988). 
The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" 
employed in a managerial or executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) 
WAC 08 096 50350 
Page 10 
of the Act, 8 U.S.C. 5 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who 
allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 90 percent, but those needs 
will not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties. A review of 
the totality of the record fails to establish that the petitioner has a reasonable need for the beneficiary to 
perform primarily managerial or executive duties at its current stage of development. 
Even though the enterprise is in a preliminary stage of organizational development and anticipates additional 
growth, the petitioner is not relieved from meeting the statutory requirements. A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant matter, the petitioner has not reached the point 
that it can employ the beneficiary in a predominantly managerial or executive position. For this reason, the 
appeal will be dismissed. 
The AAO acknowledges former counsel's claim that the petitioner suffered a setback in November 2007, and 
that the loss of nine sewing machines caused the petitioner to change its business strategy to place its primary 
focus on importing goods from China. Had the petitioner documented the claimed business loss and loss of 
employees due to theft of property, the AAO might be willing to consider the petitioner's hiring of additional 
employees immediately following the filing of the petition in determining whether the beneficiary would be 
employed in a primarily managerial or executive capacity. However, the petitioner has not made a persuasive 
claim. Counsel indicated that the petitioner opened a sewing workshop in June 2007 and suffered the loss of 
equipment and employees in November 2007. There is no evidence that the petitioner ever employed nine 
employees to operate the nine sewing machines that were allegedly stolen. The petitioner's quarterly wage 
reports show that it did not hire any sewing machine operators until the last quarter of 2007. The petitioner 
has not submitted evidence to corroborate the claimed loss, and the AAO can find no evidence of such loss 
reported on the petitioner's Form 1120, U.S. Corporation Income Tax Return, for 2007. 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 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Moreover, the petitioner's claim that it hired four additional employees, including two managers and three 
college graduates, five days after the petition was filed, is not persuasive. In its letter dated February 13, 
2008, the petitioner indicated that it intended to hire a warehouse director, sales manager, sales person and 
warehouse worker in a "few months." In response to the RFE, the petitioner indicated that such employees 
were hired on February 18, 2008. There was no evidence or indication in the initial filing to suggest that the 
petitioner was actively recruiting the warehouse and sales staff. Moreover, the evidence submitted on appeal 
indicates that the four employees allegedly hired in February 2008 are not managers or professionals as 
claimed by the petitioner, but rather individuals with a primary school education who operate sewing 
machines. Again, 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. at 591 -92. 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. Id. at 591. 
WAC 08 096 50350 
Page 11 
On appeal, counsel for the petitioner requests that the AAO consider the petitioner's growth and operational 
status as of May 2008. Again, 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The 
evidence submitted on appeal has no bearing on a determination as to whether the beneficiary would be 
employed in a primarily managerial or executive capacity as of February 15, 2008, the date on which the 
petition was filed, and therefore has not been considered in this proceeding. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.