dismissed L-1A Case: International Trade

prevent d-ally onnuranted 
invasion of personal pllvary 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: Office: VERMONT SERVICE CENTER Date: NAR 1 5 2005 
Petition: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN 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. 
dministrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonirnmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section lOl(a)(lS)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(L). The petitioner is a corporation organized in the Commonwealth of 
Virginia that claims to be ennaged in the import/export and international trade of steel, commodities, - - - 
industrial raw materials, and industrial products. The petitioner claims that it is the subsidiary o- 
The beneficiary was initially granted a one-year period of stay to open a 
new office in the United States and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish: (1) that the United States 
entity had a qualifying relationship with the foreign entity; (2) that the beneficiary was continuously 
employed by a related foreign entity for one year within the three years preceding the time of his application 
for admission into the United States; and (3) that the beneficiary will be employed in a qualifying managerial 
or executive capacity under the extended petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner disputes the director's 
findings and asserts that the petitioner submitted sufficient information to establish a qualifying relationship 
between the foreign entity and the petitioner. Counsel also asserts that the beneficiary will serve in a 
managerial or executive capacity, and notes that the petitioner intends to hire additional staff in the future. In 
support of these assertions, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(lS)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
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 himlher 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. 5 214.2(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 (I)(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 management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the petitioner has established that the United States entity has a 
qualifying relationship with a foreign entity. 
On Form 1-129, the petitioner indicated that the United States entity is a wholly-owned subsidiary of the 
beneficiary's former Pakistani employer. The petitioner's articles of incorporation indicate that the United 
States entity is authorized to issue 1,000 shares of stock, and the petitioner submitted its stock certificate 
indicating that 1,000 shares were issued to the foreign entity. The record establishes that the beneficiary is the 
' 
sole proprietor of the foreign entity. 
On January 29, 2004, the director requested additional evidence, included copies of wire transfers to 
document the transfer of funds to and from the foreign entity since December 1, 2003. The director also 
requested that the petitioner submit its 2002 and 2003 Forms 1120, U.S. Corporation Income Tax Return, 
with all schedules and attachments, or its audited financial statements for the same period. 
Page 4 
In response, the petitioner submitted copies of its 2002 and 2003 U.S. Corporation Income Tax Returns. As 
noted by the director, Schedules E and K indicate that 100 percent of the petitioner's stock is owned by the 
beneficiary, rather than by the foreign entity. The director concluded that, in light of the discrepancy in the 
record, it is not apparent who in fact owns the U.S. entity. Therefore, the director determined that the 
petitioner had not established a qualifying relationship with the claimed foreign parent company. 
On appeal, counsel asserts that the beneficiary clearly owns and controls the foreign entity as its sole 
proprietor, and that his ownership of the foreign entity, which in turn owns 100 percent of the petitioner's 
stock, "falls squarely within the definition of a subsidiary as set forth in the regulations." 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(G) defines "qualifying organization" as a United States or foreign 
firm, corporation, or other legal entity which: 
(I) 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 though 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 101(a)(15)(L) of the Act. 
Further, the regulation at 8 C.F.R. 5 214.2(1)(l)(ii) provides, in pertinent part, the following definitions to be 
used in determining whether a qualifying relationship exists between two entities: 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) Subsidiary means a firm, corporation or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity [.I 
(L) Aflliate means (1) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual[.] 
Upon review of the petition and the evidence on record, the petitioner has not established a qualifying 
relationship between the United States entity and the foreign entity. Although the petitioner has submitted de 
minimis evidence of the claimed foreign ownership, the petitioner has not submitted evidence to establish that 
the petitioner continues to maintain a qualifying relationship with the overseas entity. 8 C.F.R. 
3 214.2(1)(14)(ii)(A). Specifically, the director requested evidence of the funds transfers or transactions with 
the foreign company. The petitioner submitted two wire transfer statements for funds received from unrelated 
parties, but failed to demonstrate that it had any transactions with the foreign entity since the date that the 
beneficiary entered the United States as a nonimmigrant. Although the petitioner could have explained the 
lack of evidence and submitted alternate evidence, the petitioner failed to submit an explanation. A 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). 
It is further noted that the petitioner has not submitted any evidence to establish that the foreign sole 
proprietorship continues to do business, as required at 8 C.F.R. § 214.2(1)(l)(ii)(G)(2). Unlike a corporation, 
a sole proprietorship does not exist as an entity apart from the individual owner. Matter of United Investment 
Group, 19 I&N Dec. 248 (Comm. 1984). A sole proprietorship is a business in which one person owns all of 
the assets and operates the business in his or her personal capacity. Black's Law Dictionary 1398 (7th 
Edition). As the beneficiary claims to be the owner and sole proprietor of the foreign business, the presence 
of the beneficiary in the United States raises the question of whether the foreign business continues to do 
business abroad. The lack of current evidence leads the AAO to conclude that the foreign sole proprietorship 
is no longer doing business and therefore, no qualifying relationship exists. 
The AAO acknowledges counsel's claim that the beneficiary is the sole proprietor of the foreign company, 
which in turn owns the United States entity, and that the director erred by finding that they companies do not 
have a qualifying relationship. The AAO concurs that such an ownership structure, if established by probative 
evidence, would indicate that the companies had an affiliate relationship at the time the United States entity 
was incorporated. However, as discussed above, the petitioner has not established that the two entities 
continued to have a qualifying relationship at the time the instant petition was filed, and therefore, the petition 
may not be approved. 
In response to counsel's claim that the director erred in his reasoning with respect to the ownership and 
control of the two companies, the AAO notes for the record that the director's reliance on the ownership 
information contained in the petitioner's income tax return was misplaced in this case. The petitioner's stock 
certificate was issued in the name of the beneficiary's foreign sole proprietorship. Again, a sole proprietorship 
is a b.usiness in which one person operates the business in his or her personal capacity. Id. Unlike a 
corporation, a sole proprietorship does not exist as an entity apart from the individual owner. See Matter of 
United Investment Group, 19 I&N Dec. at 248. Therefore, the fact that the petitioner's tax return shows the 
beneficiary's name, rather than the fictitious name of the beneficiary's sole proprietorship, as the sole owner 
of the United States entity does not present an inconsistency. However, such evidence is insufficient to 
establish a continuing qualifying relationship with the foreign entity. 
The second issue cited by the director is whether the petitioner has established that the beneficiary was 
continuously employed for one year within the three years preceding the time of his application for admission 
into the United States by a firm or corporation or other legal entity, or an affiliate or subsidiary of the United 
States entity. The AAO notes that pursuant to the regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(A), the petitioner is 
required to submit evidence to establish that the United States and foreign entities are still qualifying 
organizations at the time the request for an extension of status is requested. The issue cited by the director 
refers to whether there was a qualifying relationship between the two organizations at the time the beneficiary 
was initially granted L-1A status and is based on the perceived inconsistency regarding the petitioner's 
ownership as reflected in the petitioner's U.S. income tax returns. As noted above, the petitioner has not made 
inconsistent statements with respect to the ownership and control of the United States entity, nor did the 
director request additional documentation to establish the relationship between the two entities at the time of 
the beneficiary's transfer. The petitioner's failure to submit specific evidence that was never requested by the 
director cannot be used to discredit a petitioner's otherwise consistent claim. The AAO therefore finds 
insufficient documentation in the record to affirm or withdraw the director's decision on this issue. 
The final issue in this matter is whether the petitioner has established that the beneficiary will be employed in 
a managerial or executive capacity under the extended petition. 
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. 3 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. 
Page 7 
In a November 28, 2003 letter appended to the initial petition, the petitioner described the beneficiary's job 
duties as follows: 
The Directorpresident is primarily responsible for overseeing and developing importing and 
exporting business and representing manufactures [sic] and suppliers worldwide for the sale 
of machinery, industrial raw materials and a multitude of products. He will also be consulting 
with and recommending new marketing strategies to [the parent company]. In particular, the 
duties of the position include: 
To manage, direct and conduct the business of [the petitioner]; 
To negotiate and sign contracts and binding agreements on behalf of [the petitioner]; 
To recommend and oversee the implementation of new systems, policies and strategies for 
[the petitioner]; 
To manaacture, construct, buy, sell, lease and deal in and with goods, wares, merchandise, 
personal property and real property of every kind and nature and description; 
To perform services: 
To engage in business of consulting and services in business; 
To import and or export and offer for sale at retail or wholesale sale of. . . 
To hold company for the purpose of making investment opportunities in other companies; 
[the beneficiary] also has board executive and managerial authority to conduct the business of 
said Corporation. 
The petitioner indicated on Form 1-129 it had two employees as of November 28, 2003. The petitioner's 
Virginia Employer's Quarterly Payroll Report indicates that the petitioner had two payroll employees, 
including the beneficiary, as of September 2003. 
On January 9, 2004, the director requested additional evidence to establish that the beneficiary has been and 
will be employed in a primarily executive or managerial capacity in the United States firm. Specifically, the 
director requested: (1) a complete position description for the beneficiary and all current employees in the 
United States, including a breakdown of the number of hours devoted to each job duty on a weekly basis; (2) 
a copy of the petitioner's Form 941, Employer's Quarterly Tax Return, for the fourth quarter of 2003; (3) 
evidence of wages paid to any contractors whose services were utilized, along with a description of duties 
performed, if applicable; and (4) copies of fully executed Forms 1-9 for all employees. 
In response, the petitioner submitted a letter dated April 20, 2004, which included the following description of 
the beneficiary's duties: 
[The beneficiary] manages, directs and conducts the businesses of [the petitioner]. He 
negotiates and sign[s] contracts and binding agreements on behalf of [the petitioner] and 
recommends and oversees the implementation of new systems, policies and strategies for [the 
petitioner]. He trains, hires, fires and supervises and sets personnel policy. He manages, 
administers, controls and plan[s] activities for the company and directs and divides duties 
according to the skills competences and functions of the staff. He has been authorized by the 
parent company to direct the overall operations of the subsidiary company. The duties of [the 
beneficiary] could be best described towards the research, development and finalization of 
major businesses related to the Steel, Machinery and Commodities which generate greater 
revenues for the company which is the most essential function of the entity. . . . 
The petitioner indicated that its employees include the beneficiary, a vice president who is not active in the 
company, a marketing assistant and an office assistant. The petitioner provided the requested breakdown of 
time allocated to various job duties for the marketing assistant and the office assistant, but not for the 
beneficiary's position. The petitioner also submitted its Virginia Employer's Quarterly Tax Report and Form 
941, Employer's Quarterly Federal Tax Return, for the fourth quarter of 2003, confirming employment of the 
beneficiary and the individuals identified as the marketing assistant and office assistant. 
On June 29, 2004, the director denied the petition concluding that the petitioner had not established that the 
beneficiary is or would be predominantly engaged in executive or managerial duties. The director noted that 
the petitioner had provided only a vague description of the beneficiary's duties and had failed to provide an 
hourly breakdown of the duties performed by the beneficiary on a weekly basis. The director also noted that 
the documentation provided by the petitioner indicates the beneficiary is the company's sales contact for all 
business transactions. The director concluded that the beneficiary is primarily performing non-qualifying 
sales duties, and that the United States entity had not grown to a point where the services of a bona fide 
manager or executive would be required. 
On appeal, counsel for the petitioner asserts that, as the manager of a new business, the beneficiary is 
"permitted to engage in the mundane tasks of creating the start up company." Counsel asserts the beneficiary 
will perform executive and managerial duties "during this upcoming year," including initiating business 
ventures and hiring additional personnel who will oversee contracts, contract performance, and the viability of 
upcoming ventures. Counsel states that the beneficiary has hired a full-time secretary and sales associate, and 
expects to hire a sales manager, assistant supervisor, products and marketing manager, accountant, office 
assistant and administrative personnel "during the coming year." 
Upon review, counsel's assertions are not persuasive. 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. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
Page 9 
beneficiary's duties include "managing, directing and conducting business," "representing manufacturers and 
suppliers," "overseeing implementation of systems, policies and strategies," "performing services," and 
"engaging the in the business of consulting and services in business," and "researching, developing and 
finalizing major business." The petitioner did not, however, define the clarify what types of consulting and 
"services" the beneficiary performs, define or describe the beneficiary's policies and strategies, or explain the 
specific day-to-day tasks entailed by "researching and developing" business or "representing" manufacturers 
and suppliers. 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 daily basis? 
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), aff'd, 905 F.2d 41 (2d. Cir. 1990)." 
In the request for evidence, the director requested that the petitioner submit a comprehensive position 
description for the beneficiary, including a breakdown of the number of hours devoted to his job duties on a 
weekly basis. The petitioner failed to submit this information in response. This evidence is critical as it 
would have established whether the beneficiary is engaged predominantly in managerial or executive tasks. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying a petition. 8 C.F.R. 5 103.2(b)(14). 
In addition, as noted by the director, all of the sales contracts, correspondence and invoices provided as 
evidence of the petitioner's business activities indicate the beneficiary as the point of contact for these sales 
transactions. Thus, the AAO concurs with the director's conclusion that the beneficiary is actively involved in 
all of the routine activities required to generate sales contracts for the petitioner, including making inquiries to 
potential clients and suppliers, placing and following up orders, arranging shipping and logistics, providing 
customer service. Since the beneficiary actually markets and sells the petitioner's services, he is performing a 
task necessary to provide a service or product and these duties will not be considered managerial or executive 
in nature. 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. Matter of Church 
Scientology International, 19 I&N Dec. 593,604 (Cornm. 1988). 
Although the petitioner employed two other individuals at the time of filing, the petitioner has not established 
that these employees would relieve the beneficiary from primarily providing the services of the organization. 
In addition, although the petitioner asserts that the beneficiary is managing two subordinate employees, the 
- -record does not establish that the subordinate staff is composed of supervisory, professional, or managerial 
employees. See section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be 
acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees 
supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
It is noted that, on appeal, counsel does not dispute the director's finding that the beneficiary has been 
engaged in mundane duties related to generating sales. Counsel merely states that the company is growing 
and the beneficiary expects to hire sales and marketing managers, an accountant, a supervisor, and other 
personnel during 2004 who will be responsible for locating and meeting with potential customers, making 
Page 10 
shipping and transport arrangements, and making presentations to clients. Counsel's statement suggests that 
the beneficiary was performing many of these duties at the time the petition was filed. While the petitioner 
may indeed be growing and hiring additional personnel, the petitioner must establish eligibility at the time of 
filing the nonirnmigrant 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). 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the petition to support an executive 
or managerial position. In order to qualify for an extension of L-1 nonimmigrant classification under a 
petition involving a new office, the petitioner must demonstrate through evidence, such as a description of 
both the beneficiary's duties and the staff of the organization, that the beneficiary will be employed in a 
primarily managerial or executive capacity. In the instant matter, the petitioner has not reached the point that 
it can employ the beneficiary in a predominantly managerial or executive position. 
The fact that an individual manages a small business does not necessarily establish eligibility for classification as 
an intracompany transferee in a managerial or executive capacity within the meaning of section 101(a)(44) of the 
Act. The record does not establish that a majority of the beneficiary's duties have been or will be primarily 
directing the management of the organization. The record indicates that a preponderance of the beneficiary's 
duties have been and will be directly providing the services of the business. 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. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). The petitioner has not demonstrated that the beneficiary will be primarily supervising a subordinate staff 
of professional, managerial, or supervisory personnel who relieve her from performing non-qualifying duties. 
The petitioner has not demonstrated that it has reached or will reach a level of organizational complexity wherein 
the hiringifiring of personnel, discretionary decision-making, and setting company goals and policies constitute 
significant components of the duties performed on a day-to-day basis. Nor does the record demonstrate that the 
beneficiary primarily manages an essential function of the organization or that he operates at a senior level within 
an organizational hierarchy. Based on the evidence furnished, it cannot be found that the beneficiary has been or 
will be employed primarily in a qualifying managerial or executive capacity. For this additional reason, the 
petition may not be approved. 
Beyond the decision of the director, at the time the petitioner seeks an extension of the new office petition, the 
regulations at 8 C.F.R. 5 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing 
business for the previous year. The term "doing business" is defined in the regulations as "the regular, 
systematic, and continuous provision of goods and/or services by a qualifying organization and does not 
include the mere presence of an agent or office of the qualifying organization in the United States and 
abroad." 8 C.F.R. 5 214.2(1)(l)(ii). There is no provision in CIS regulations that allows for an extension of 
this one-year period. If the business is not sufficiently operational after one year. the petitioner is ineligible by 
regulation for an extension. 
Page 11 
In the instant matter, the new office petition was approved for a one-year period commencing on December 3, 
2003. The beneficiary received an L-1 visa on March 17, 2003, but did not enter the United States until 
almost two months later, on May 9, 2003. He made one additional short visit to the U.S. in May 2003, 
departed on June 3, and did not return again until September 9, 2003. The petitioner did not hire any 
additional employees until September 2003, and none of the documentation submitted as evidence of the 
petitioner's business transactions is dated prior to September 2003. Finally, the petitioner's Form 1120, U.S. 
Corporation Income Tax Return for 2003 reflects gross receipts of only $12,272. The director noted these 
facts in her decision, but nonetheless did not enter a determination that the petitioner was not doing business 
for the year preceding the filing of the instant petition. 
On appeal, counsel for the petitioner explains the reasons for the beneficiary's delayed entry to the United 
States and subsequent three-month absence, noting that the beneficiary and his family experienced delays in 
visa issuance. Counsel also states in his brief that "[the beneficiary] could not enter with his family to the 
United States until September 9, 2003. At that date, [the beneficiary] commenced his operations as the 
manager of [the petitioner] in the United States." Counsel later states "[the beneficiary] set up the office in 
May 2003 commenced to operate the office on that date. Because [the petitioner] is an importlexport trading 
company, it is rational for [the beneficiary] to travel and not return to the United States until September 
2003." Finally, counsel states "[the petitioner] has engaged in the systematic movement of goods for more 
than one year as of May 2004." 
Therefore, based on counsel's statements on appeal, the petitioner commenced doing business in either May 
2003 or September 2003. 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). Upon review of the evidence submitted, the petitioner has not established 
that it was doing business prior to September 2003, ten months after the approval of the initial petition. 
Therefore, the petitioner has not met the requirements set forth at 8 C.F.R. 5 214.2(1)(14)(ii)(B) and is 
ineligible by regulation for an extension. Although the petitioner provided an explanation for the delay in the 
beneficiary's arrival and his subsequent departure from the United States, there is no provision in CIS 
regulations for an extension of the one-year period granted to establish a new office. Furthermore, the 
petitioner provided no supporting documentation to substantiate its claims regarding delays in visa issuance or 
other factors delaying the commencement of business operations in the United States. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Although 
the petitioner submitted evidence purportedly demonstrating business conducted in 2004, 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). 
It is also noted that the invoices and shipping documents fail to list the petitioner as a party to the business 
transactions. Although the record includes e-mails purportedly sent by the beneficiary in conjunction with the 
transactions, the e-mails at most demonstrate that the beneficiary acted as an agent. Pursuant to 8 C.F.R. 
5 214.2(1)(l)(ii)(H), "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. 
Accordingly, the petitioner has not demonstrated that it has been doing business for the previous year, as 
required by 8 C.F.R. 5 214.2(1)(14)(ii)(B). For this reason, the petition may not be approved. 
Finally, the petitioner has claimed that the beneficiary is the sole owner of both the United States and foreigr. 
entities. It remains to be determined that the beneficiary's services are for a temporary period. The regulation 
at 8 C.F.R. 3 214.2(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 the absence of persuasive evidence, it cannot be concluded that 
the beneficiary's services are to be used temporarily or that he will be transferred to an assignment abroad 
upon completion of his services in the United States. As the appeal will be dismissed, this issue need not be 
examined further. 
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). 
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. 3 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.