dismissed L-1A Case: Import/Export

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 04 800 28392 Office: TEXAS SERVICE CENTER Date: AUG 3 0 200t 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(lS)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 
 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. 
Administrative Appeals Office 
SRC 04 800 28392 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, a Texas corporation, claims to be an affiliate of J.P. Import-Export, located in India. The 
petitioner states that it is engaged in the import, export and wholesale of hand tools. Accordingly, the 
United States entity petitioned CIS to classify the beneficiary as a nonimmigrant intracompany transferee 
(L-IA) pursuant to section 101(a)(15)(L) of the Act as an executive or manager for three years. The 
beneficiary was initially granted a one-year period of stay to open a new office in the United States and 
the petitioner now seeks to extend the beneficiary's stay in order to continue to fill the position of 
presidentlowner. 
The director denied the petition concluding that the record contains insufficient evidence to demonstrate: 
(1) that the beneficiary will be employed in a managerial or executive capacity; and (2) that the U.S. 
company is doing business on a continuous and systematic basis. 
On appeal, counsel for the petitioner states that the beneficiary and the petitioner are eligible for L-1 
classification since the evidence presented is sufficient to establish the statutory requirements. In 
addition, counsel for the petitioner asserts that the AAO has previously approved cases that are similar to 
this case and thus should approve the instant petition. Counsel submits a brief in support of the appeal. 
Upon review, and for the reasons discussed herein, the AAO concurs with the director's decision and 
affirms the denial of the petition. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. 
 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ 
the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this 
section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services 
to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing 
of the petition. 
SRC 04 800 28392 
Page 3 
(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 hirnlher 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. 9 214.2(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 first issue to be addressed in this proceeding is whether the petitioner has established that the 
beneficiary will be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(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, 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 with the organizational hierarchy or with respect to the function managed; and 
SRC 04 800 28392 
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(iv) 
 exercises discretion over the day-to-day operations of the activity or hnction 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 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment withn an organization in which the employee 
primarily- 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The nonimrnigrant petition was filed electronically on July 6,2004. On August 27,2004, the director advised 
the petitioner that she was unable to locate the supporting documentation for the e-filed 1-129. The director 
requested evidence that the beneficiary will be employed primarily in an executive/managerial role, 
including: an organizational chart showing the beneficiary and other employees with their titles and duties; 
the current number of employees at the company and copies of IRS Form 941 for the last four quarters; and 
evidence that the beneficiary is primarily acting in an executive/rnanagerial capacity. The petitioner 
submitted additional evidence on November 29, 2004, but failed to address most of the director's specific 
requests. 
In the attachment to Form 1-129, the petitioner described the beneficiary's job duties as the president as 
follows: 
In the U.S., the Petitioner will employ [the beneficiary] on an Executive/Managerial position 
as the President for three additional years at an annual salary of $20,000.00. [The 
beneficiary] is the sole owner of this corporation. As the owner, he is the only person 
responsible for administering the corporation. He is the decision-maker, formulates policies 
and goals for the Petitioner, he hires contractors, oversees nonprofessional staff, as well as 
hire and train new employees, negotiate contracts, manage inventory and purchasing, and 
direct expansion. He will be responsible for running day-to-day operations of the 
Corporation. He will be in charge of procuring import-export contracts and develop 
business relations by supplying the goods imported from the foreign affiliate. The 
Beneficiary will also be in charge of hiring outside contractors to perform such functions as 
distribution and supply of goods, unloading from the ports, getting customs clearances etc. 
He will oversee the preparation of inventory reports, review financial reports, and revenue 
and expenditure reports. 
SRC 04 800 28392 
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The beneficiary holds wide decision-making discretion. 
 This is his most important 
attribute as the ExecutiveIManager level employee. Being the PresidentIOwner of the 
corporation, the Beneficiary directs essential functions at the topmost level. These 
responsibilities include control of financial matters, establishing goals and policies, 
signing check and contracts, etc. There are independent contractors who will actually 
execute the secondary tasks for him. [The beneficiary] is entrusted with decision making 
authority over essential functions, involving large sums of money such as negotiating 
import contracts. 
The response submitted by the petitioner failed to indicate the number of employees currently worlung for the 
company and did not include copies of Form 941 for the last two quarters of 2003 and the first and second 
quarter of 2004. In addition, the petitioner did not submit an organizational chart showing the beneficiary and 
indicating all other employees of the U.S. company as requested by the director. The petitioner noted that the 
beneficiary "contacts the manufacturers in India" to arrange shipment of goods and hires contract workers 
"for specific jobs only." 
The director denied the petition on December 15, 2004, determining that the petitioner had not submitted 
sufficient evidence to establish that the beneficiary will be employed primarily in a managerial or 
executive capacity. The director went on to observe that since the company has a small number of 
employees, "it may be questionable whether the operator of the business, will be engaged primarily in 
managerial or executive duties." The director suggested that the beneficiary would be performing more 
day-to-day non-managerial duties than qualifying managerial or executive duties. 
On appeal, counsel for the petitioner asserts that "[tlhe Texas Service Center denied the 1-129 Petition in 
error and against the evidence and explanation provided. The decision was based on an incorrect 
interpretation of the statute." Counsel for the petitioner cites unpublished decisions in which the AAO 
determined that beneficiaries who supervised very small staffs were found to qualify for L-1A status due 
to their wide decision-making discretion. Counsel reiterates the beneficiary's job duties, claims that 
independent contractors perform the secondary tasks and states: 
The size of the company does not matter as long as the Beneficiary meets the important 
aspects of the statute such as managing a major function of the business and beneficiary's 
wide latitude in discretionary decision malung, including the hiring and firing of 
employees and the formation of the petitioner's policies and goals. The USCISIAAO has 
in the past approved cases where the size of the company was not very large. The sums 
involved in the transactions, experience needed, and judgment exercised are all criteria 
that are implicit rather than stated in the definition. The Beneficiary meets qualifies [sic] 
as an L-1 A ExecutiveManager based on these qualifications. 
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not 
established that the beneficiary would be employed in a managerial or executive capacity. 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 
SRC 04 800 28392 
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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 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 prove 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 not only that a person has 
the requisite authority, but that a majority of his or her duties are related to operational policy 
management, not to the supervision of lower-level employees or the performance of the duties of another 
type of non-managerial or non-executive position. 
The beneficiary's position description is too general and broad to establish that the preponderance of his 
duties is managerial or executive in nature. The beneficiary's job description includes vague and non- 
qualifying duties such as the beneficiary "will be in charge of procuring import-export contracts and 
develop business relations by supplying the goods imported from the foreign entity," and the beneficiary will 
have "control of financial matters, establishmg the goals and policies, signing checks and contracts." 
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 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. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, as discussed below, it appears that the beneficiary will be providing the services of the business 
rather then directing such activities through subordinate employees. According to the attachment to the Form 
I-129L, the petitioner indicated that the beneficiary "will also be in charge of hiring outside contractors to 
perform such functions as distribution and supply of goods, unloading &om the ports, getting customs 
clearances, etc." However, there is no evidence that the U.S. company has hed employees to perform the 
marketing, promotion, purchasing, finances, human resources and sales tasks that are necessary to produce or 
provide services. According to the record, it appears that the beneficiary will perform several non-qualifymg 
duties. An employee who "primarily" performs the tasks necessary to produce a product or provide a service 
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 International, 19 I & N Dec. 593, 604 (Cornrn. 
1988). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties 
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non- 
managerial administrative or operational duties. The petitioner's description of the beneficiary's job 
duties does not establish what proportion of the beneficiary's duties are managerial in nature, and what 
proportion are actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 
1991). 
Counsel for the petitioner states on appeal that the petitioner utilizes contractual employees to perform 
specific jobs. Specifically, counsel for the petitioner asserts "there are independent contractors who will 
SRC 04 800 28392 
Page 7 
actually execute the secondary tasks for [the beneficiary]." However, the petitioner has neither presented 
evidence to document the existence of these employees nor identified the specific services these 
individuals provide. Additionally, the petitioner has not explained how the services of the contracted 
employees obviate the need for the beneficiary to primarily perform non-qualifying duties associated with 
the petitioner's marketing function. Without documentary evidence to support its statements, the 
petitioner does not meet its burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1 998). 
Furthermore, as noted above, the director specifically requested that the petitioner submit an 
organizational chart showing the beneficiary and other employees, indicating the current number of 
employees at the U.S. company, and copies of Form 941 for part of 2003 and 2004. In response, the 
petitioner failed to submit the requested information. 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). 
Thus, even if the petitioner does utilize the services of independently contracted employees, the record 
does not reflect that the employees are professional, maintain supervisory positions, work on a full-time 
basis, or that they take direction from the beneficiary in performing their duties. There is no evidence of 
formal agreements or contracts entered into by the petitioner that explains the usage of outside sources. 
The petitioner has failed to submit job descriptions or duties performed by the independent contractors. 
There is no evidence on record to show that the claimed independent contractors would engage in the 
day-to-day operations of the business or that they would relieve the beneficiary from performing other 
routine, non-qualifying tasks associated with the business' daily marketing, sales, purchasing, 
administrative, clerical and financial functions. 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)). 
In addition, counsel for the petitioner states on the appeal that the "beneficiary holds wide decision- 
making discretion. This is his most important attribute as the Executivemanager level employee. Being 
the President/Owner of the corporation, the Beneficiary directs essential functions at the topmost level." 
The term "function manager" applies generally when a beneficiary does not supervise or control the work 
of a subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of 
the beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than 
performs the duties related to the function. An employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be employed in a managerial or executive 
capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of 
Church Scientology International, 19 I&N Dec. 593, 604 (Cornm. 1988)). In this matter, the petitioner 
has not provided evidence that the beneficiary manages an essential function. Counsel's unsupported 
assertion that the beneficiary manages "all essential functions," as the owner of the company, is 
SRC 04 800 28392 
Page 8 
insufficient to meet the petitioner's burden of proof. The fact that the beneficiary owns and manages a 
business does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial or executive capacity within the meanings of sections lOl(a)(lS)(L) of the Act. See 52 Fed. 
Reg. 5738.5739 (Feb. 27, 1987). The record must establish that the majority of the beneficiary's actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co. Ltd. v.. Suva 724 F. Supp. at 
1108. 
Beyond the required description of the job duties, CIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to 
relieve the beneficiary from performing operations duties, the nature of the petitioner's business, and any 
other factors that will contribute to a complete understanding of a beneficiary's actual duties and role in a 
business. In the case of a function manager, where no subordinates are directly supervised, these other 
factors may include the beneficiary's position with in the organizational hierarchy, the depth of the 
petitioner's operations, the indirect supervising of employees within the scope of the function managed, 
and the value of the budgets, products, or services that the beneficiary manages. 
As discussed above, the beneficiary's job description included non-qualifying duties associated with the 
petitioner's day-to-day functions, and the petitioner has not identified any other employees within the 
petitioner's organization, subordinate to the beneficiary, who would relieve the beneficiary from 
performing routine duties inherent to this function. The fact that the beneficiary has been given a 
managerial job title is insufficient to elevate his position to that of a "function manager" as contemplated 
by the governing statute and regulations. 
In addition, on appeal, the counsel for petitioner asserts "the USCISIAAO has in the past approved cases 
where the size of the company was not very large. The sums involved in the transactions, experience 
needed, and judgment exercised are all criteria that are implicit rather than stated in the definition." 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 9 1101(a)(44)(C), if staffing levels are used as a 
factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. 
 In the present matter, however, 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. 9 214.2(1)(14)(ii)(D). The 
regulation at 8 C.F.R. 9 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of 
approval of the petition to support an executive or managerial position. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and administrative 
tasks, the petitioner is inelipble by regulation for an extension. In the instant matter, the petitioner has 
not reached the point that it can employ the beneficiary in a predominantly managerial or executive 
position. 
Furthermore, counsel for the petitioner discusses prior cases approved by the AAO where the AAO held 
that a small staff does not justify a denial where the beneficiary holds wide decision-malung discretion. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met 
the requirements of serving in a managerial and executive capacity for L-1 classification even though he 
SRC 04 800 28392 
Page 9 
was the sole employee. Counsel has furnished no evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decision. While 8 C.F.R. 9 103.3(c) provides that AAO 
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
Based upon evidence submitted, it is evident that the beneficiary has been and will be performing the 
services of the U.S. entity rather than performing primarily managerial or executive duties as its president 
and general manager. 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 has not demonstrated that the beneficiary will be functioning at a senior 
level within an organizational hierarchy other than in position title. Accordingly, the petitioner has failed 
to demonstrate that the beneficiary has been or will be employed primarily in a qualifying managerial or 
executive capacity. For this reason, the appeal will be dismissed. 
The second issue in this proceeding is whether the United States entity is doing business as defined in the 
regulations. 
The regulations at 8 C.F.R. fj 214.2(1)(l)(ii)(G) state: 
Qualifiing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one 
other country directly or through a parent, branch, affiliate, or 
subsidiary for the duration of the alien's stay in the United States as 
an intracompany transferee; and 
(3) 
 Otherwise meets the requirements of section 10 1 (a)(15)(L) of the 
Act. 
The regulations at 8 C.F.R. fj 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent 
or office of the qualifying organization in the United States and abroad. 
As noted above, the petition was filed electronically, without supporting evidence, on July 6, 2004. On 
August 27, 2004 the director requested (1) a copy of the petitioner's corporate tax returns for 2003; (2) 
SRC 04 800 28392 
Page 10 
copies of customs forms filed in conjunction with imports/exports; (3) a detailed description of the 
company's business activities or the past year; (4) a copy of the company's current business license, lease 
and evidence or rent payments; (5) copies of telephone statements for the first six months of 2004; and (6) 
evidence of business conducted for all months of 2004, including five documents for each month. 
In a response dated November 26, 2004, the petitioner submitted the following: IRS Form 1120, U.S. 
Corporation Income Tax Return for 2003; a lease agreement signed on March 15, 2004, for "two rooms" 
to be used for "commercial purpose;" copies of two invoices dated June 7, 2004 and January 15, 2004; 
copy of Bills of Lading dated March 16, 2004 and June 16, 2004; copy of certificate of deposit from 
Compass Bank under the name of the beneficiary; two bank statements from Prosperity Bank under the 
name of the beneficiary; eight bank statements from an unknown bank (the bank logo is not on the 
photocopy); and one electric bill and one phone bill under the name of the beneficiary. 
The petitioner failed to submit evidence that the company paid rent for the past year, copies of phone 
statements for the period of January through June 2004, and evidence of business conducted for all 
months of 2004. Again, failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
The director denied the petition determining that the petitioner had not submitted sufficient evidence to 
establish that the U.S. entity was doing business, in that it continuously and systematically engaged in the 
provision of goods and services. 
On appeal, the petitioner asserts that the petitioner "is engaged in the Export-Import business by 
importing wide range of superior quality hand tools from India while it intends to export quality 
equipment to India and other parts of the world from the United States where the Beneficiary has 
developed good working relationship in the same field.. ." 
On review, the evidence submitted is insufficient to establish that the U.S. entity has been or is engaged in 
the regular, systematic, and continuous provision of goods and/or services as a qualifying organization. 
The petitioner's compliance with inquires made by the director in the request for additional evidence is 
marginal, at best. The petitioner was given ample opportunity to produce the required initial evidence and 
other business records to substantiate its claim of doing business as a viable entity in the United States. 
Only two invoices were submitted for 2004 and thus this documentation did not adequately demonstrate 
that the U.S. entity was doing business. The non-existence or unavailability of required evidence creates 
a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
Furthermore, the Form 1120 gross receipts and sales figure in the amount of $48,400.00 for 2003 is not 
substantiated by any independent documentary evidence in the record. The record as presently 
constituted is not persuasive in demonstrating that the U.S. entity, at the time of filing the petition, was 
doing business. For this reason, the appeal will be dismissed. 
In addition, the petitioner submitted several bank statements from a bank account under the name of the 
beneficiary. The bank statements are not under the petitioner's name, and it is unclear if the financial 
transactions are of personal nature rather then financial transactions of the business. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt 
SRC 04 800 28392 
Page 11 
to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Furthermore, beyond the decision of the director, the petition indicates that the beneficiary own 100 
percent of the foreign entity, and thereby of the petitioning company. The regulation at 8 C.F.R. 9 
214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of the company, the petition 
must be accompanied by evidence that the beneficiary's services are to be used for a temporary period and 
that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary 
services in the United States. In this matter, the petitioner has not furnished evidence that the 
beneficiary's services are for a temporary period and that the beneficiary will be transferred abroad upon 
completion of the assignment. In addition, the fact that the owner of the original foreign corporation 
resides in the United States raises the question of whether the parent organization is still doing business so 
that a qualifying relationship exists pursuant to 8 C.F.R. § 2 14.2(1)(l)(ii)(G). For these additional 
reasons, the appeal will be dismissed and the petition denied. 
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 Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
affd. 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). 
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. tj 1361. Here, that burden has 
not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.