dismissed L-1A Case: Jewelry Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
MAIL STOP 2090 
U.S. Citizenship 
and Immigration 
FILE: EAC 08 108 52702 Office: VERMONT SERVICE CENTER Date: 2 L ZDUh 
PETI'TION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( 15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
3bl SFHALF OF PETITIONER: 
'I'his 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. 
John F. Grissorn, Acting chief 
Administrative Appeals Office 
EAC 08 108 52702 
Page 2 
DISCUSSION: The Director, Vermont 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 is a Tennessee corporation that claims to be engaged in the retail of jewelry and watches. 
The petitioner states that it is a subsidiary of Modem Impex, located in India. Accordingly, the United 
States entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary as a 
nonimmigrant intracompany transferee (L-1 A) pursuant to section 10 1 (a)(15)(L) of the Act as an 
executive or manager to fill the position of president. The petitioner seeks to employ the beneficiary for a 
period of one year to open a new office in the United States. 
The director denied the petition on three separate and alternative grounds. Specifically, the director 
concluded that the record contains insufficient evidence to demonstrate: (1) that the beneficiary will be 
employed in the United States in a managerial or executive capacity; (2) that the beneficiary was 
cmployed by the foreign entity for one year in the three years preceding his entry to the United States as a 
;:onimmigrant; and, (3) that the U.S. company has a qualifying relationship with the beneficiary's claimed 
foreign employer. 
Counsel for the petitioner filed a tinlely appeal on May 27, 2008. On appeal, counsel asserts that the 
henefic~ary qualifies as an executtve. Counsel also states that the beneficiary will enter the United States 
In order to opeti a new officer for the petitioner. Counsel subrnits a business plan for the new office and 
sssens that the beneficlaiy will not pzrform the day-co-day duties as the petitioner recently h~red a sales 
.lssociate. Counsel also states that the forei~m entity and the pet~tloner maintain a qualifying relationshi;). 
Counsel submits a bnef and documentation m support of the appeal. 
To establish eligibility ilnder section I0 1 (a)(l5 )(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the bt:neficiaryls application for admission into th,e 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 
I 
thereof in a managerial, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. 9 214.2(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. 
EAC 08 108 52702 
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 himher 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. 
Prior to reviewing the issues of the case, the AAO must determine if the petition is for a new office or an 
office that has been doing business for over one year. The regulations under Section 214.2(1)(1)(ii) define 
new office as "an organization which has been doing business in the United States through a parent, 
branch, affiliate, or subsidiary for less than one year." The instant petition was filed on March 5, 2008. 
On appeal, counsel for the petitioner states that the petitioner was established in the United States on 
September 18, 2006; however, "the beneficiary has not been operating a business on behalf of the 
Petitioner." Counsel states that the beneficiary "hardly started the procedure to see if there was a future in 
establishing this type of business in the U.S. Only after this initial test period did the beneficiary decide 
to advise the parent company, to go forth with their plans of creating a subsidiary." Counsel further states 
that the petitioner has not been "doing business" in the United States as the petitioner has "not shown any 
,growth ar.d has not shown substantial earning during its existence in the United States." 
!_Jpn review, the AAO disagrees with counsel's assertions and finds that the petitioner has been doing 
business in [he United States and thus, the instant 2etition will not be considered a petition to open a new 
office in the United States pursuant to 8 C.F.R. $ 214.2(1)(3)(v)(A). Upon review of' the record, the 
petitioner filed a letter from the Department of the Treasury that stated that the petitioner received an 
employer identification number on September 29, 2006. In addition, the petitioner submitted bank 
statements for the petitioner from August I, 2007 through January 2008. The bank statements reflect that 
business activities were ongoing as of August 1, 2007.. Moreover, the petitioner submitted its U.S. 
Corporation Income Tax Retum, Form 1120, for 2007 which stated a gross receipts or sales of $209,540. 
The petitioner also submitted a business license, and several photographs of the petitioner's business 
premises. The photographs show a store completely stocked with inventory for retail. The petitioner's 
claim that the U.S. company has not commenced operations is not credible. The petitioner has not 
demonstrated that it qualifies for consideration as a new office pursuant to 8 C.F.R. $ 214.2(1)(3)(~). 
The firsi 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. 5 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; 
EAC 08 108 52702 
Page 4 
(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 IOl(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
ptimarily- 
(i) 
 directs the management of the org~ni~stion 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-mahng; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The nonimtnigrant petition was filed on March 5,2008. The Form 1-129 indicates that the beneficiary will be 
employed in the position of president for the petitioner. In a letter of support dated February 29, 2008, the 
beneficiary's proposed duties in the U.S. are described as the following: 
The beneficiary, [the beneficiary], will be employed by [the petitioner] as the General 
Manager and President of the corporation. This position entails unilateral decision making 
authority. The decisions made by [the beneficiary] will greatly impact the manner in which 
[the petitioner] conducts business. [The beneficiary] will have final say in deciding what 
goods will be purchased for retail sale in the United States, as well as seeing that the items 
purchased are distnbuted throughout the United States in a manner which will be most 
beneficial to [the petitioner]. 
Among [the beneficiary's] goals is the development of new business relationships in the 
United States. He will also negotiate the sale of products and will be responsible for 
marketing these products to potential and existing buyers. He will also establish prices for 
EAC 08 108 52702 
Page 5 
the goods and work to sell them at the established pnces. His goal is to sell every product 
imported at a rate which will generate the most profit for [the petitioner]. 
As President of [the petitioner], [the beneficiary's] main objectives would be to plan, 
develop and establish policies. His primary goal would be to plan business objectives, to 
develop organizational policies to coordinate functions and operations, and to establish 
responsibilities and procedures for attaining objectives. To maintain smooth operations, [the 
beneficiary] would also review activity reports and financial statements to determine 
progress and status in attaining objectives and revise objectives and plans in accordance with 
current conditions. Being that he would also assume the responsibility of manager, his 
responsibilities would include directing and coordinating formulation of funding for new or 
3ontinuing operations to maximize productivity. 
[The beneficiary] will also be responsible for the hiring and training of new employees. He 
will also develop [the petitioner's] recruitment efforts and policies. In addition to these 
duties, [the beneficiary] will eventually plan and develop human resources designed to 
supervise and evaluate performance of any other executives or employees hired by [the 
petitioner] for compliance with established policies and objectives of the organization and 
zontribute to meeting objectives. 
rl'he beneficiary';] posrtion can be defined as managerial because he has the executive 
experience of having opened and managed the aperations of foreign businesses. [The 
beneficiary] also has several years experience [o? importing and exporting goods for retail 
and wholesale sale. 
hloreover, [the beneficiary] is more than qualified to perform the tasks involved in importing 
and exporting goods. However, it should be noted that he will not be involved in the 
performance of the day-to-day functions of the business. [The beneficiary] will hire 
additional employees once he receives authorization to work in the United States to perform 
these tasks. [The beneficiary] will directly supervise all future employees. He will direct his 
efforts towards the further expansion of the company in the U.S., training, and hiring future 
employees. It is possible that he may assist in the completion of certain projects when 
needed. 
As stated above, the petitioner also submitted the U.S. company's IRS Form 1120, U.S. Corporation Income 
Tax Return, for 2007. The documents indicate that no salaries and wages were paid in 2007. There was 
however, compensation of officers in the amount of $29,000. The documents also indicate that the petitioner 
has a gross receipts or sales of $209,540 for 2007. 
The director determined that the petitioner submitted insufficient evidence to process the petition. On 
March 12, 2008, the director requested that the petitioner submit additional documentation of the foreign 
entity and the U.S. entity. 
The petitioner submitted a response to the director's request for additional evidence on April 14, 2008. 
Counsel for the petitioner submitted a letter that reiterated the beneficiary's proposed duties for the 
EAC 08 108 52702 
Page 6 
petitioner. The petitioner also submitted an organizational chart of the U.S. company. In the letter dated 
April 11, 2008, counsel for the petitioner explained that the chart is a "projected organization chart" and 
"one of [the beneficiary's] goals is to hire new employees, and therefore, there are currently no 
employees." The organizational chart submitted by the petitioner indicates that the U.S. entity consists of 
the president, held by the beneficiary, who will then supervise the sales and marketing manager, quality 
control officer, three sales associates and a buyer. 
The director denied the petition on April 25, 2008 on the ground that the petitioner did not establish that 
the beneficiary will be zmployed in a primarily managerial or executive capacity. The director stated that 
the since the United States entity does not have any subordinate managers or professionals, it appears that 
the beneficiary will be carrying out the day-to-day operations of the U.S. entity rather then supervising 
subordinate employees who would relieve the beneficiary from primarily performing non-qualifying 
duties. 
Or1 appeal, counsel for the petitioner asserts that the petitioner has not been doing business and thus is a 
new office. Counsel also states the following: 
The majority of the daily operations of an average jewelry store are performed by sales 
associates. This includes funcuons such as cleaning and maintenance of jewelry on 
display, strategically displaying jewelry to appeal to customers, close interaction with 
c-lJstomers, procuring ;ales, and use of a cash regiqter. 
Note ihat none of the above duties were listed m the beneficiary's job. The benefic~ary 
will riot be expected to perform these I'unctlons once baslc personnel are h~red (1.e. 
cashiers, and sales associates). 
 Note that the beneficiary has already hired a sales 
associate, 
 to handle these day to day duties. 
The petitioner did not submit any documentation evidencing that 
 was hired as a sales 
associate. 
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 -4AO will look first to the petitioner's description 
of the job duties. See 8 C.F.R. 4 214.2(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 
e:;ecutive 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 prove that the beneficiary primarib 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 WI, 144470 (9th Cir. July 30, 1991). 
EAC 08 108 52702 
Page 7 
Here, while the beneficiary will evidently exercise discretion over the day-to-day operations of the 
business, the petitioner's description of his proposed duties suggest that the beneficiary's actual duties 
will be providing the services of the business. 
The beneficiary's proposed job description includes vague duties such as the beneficiary will "establish 
prices for the goods and work to sell them at the established price;" "have final say in deciding what good 
will be purchased for retail sale in the United States, as well as seeing that the items purchased are 
distributed throughout the United States in a manner which will be most beneficiary;" "plan, develop and 
establish policies;" and "develop new business relationships." 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), afd, 905 F.2d 41 (2d. Cir. 1990). 
The job description also includes several non-qualifying duties such as the beneficiary will "review 
financial reports and financial statements to determine progress and status in attaining objectives;" "hiring 
and training of new employees;" "develop human resources;" "tour the sales floor regularly talking to 
customers and gathering business intelligence data;" and "analyzing sales figures and forecasting future 
sales vn!umes to maximize prokits." It appears. that the beneficiary will be providing the services of ihe 
business rather then directing such activities through subordinate employees. An employee who 
"~rimarily" performs the tasks necessary to produce a product or provide a service is not considered to be 
"yrimarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the 
Act (requiririg that one "primarily" perform the enumerated managerial or executive duties); see also 
Matter $Church Scientology lntenzutional, 19 I &, N Dec. 593, 603 (Comm. 1988). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of providing that his duties are "primarily" managerial or executive. See sections 
101(a)(U)(A) and (B) of the Act. The word "primarily" is defined as "at first," principally,' or "chiefly." 
FJebster's I1 New College Dictionary 877 (2001). Where an individual is "principally" or "chiefly" 
performing the tasks necessary to produce a product or to provide a service, that individual cannot also be 
"principally" or "chiefly" perform managerial or executive duties. Contrary to counsel's contention that 
the petitioner's failure to "guess" at such percentages is irrelevant, CIS must determine that the 
beneficiary is primarily engaged in a managerial or executive capacity. To make such a determination it 
is necessary to require detailed description of the beneficiary's duties and the time the beneficiary devotes 
to these duties. 
As the United States company had zero employees at the time of filing, it is reasonable to conclude, and 
has not been proven otherwise, that the beneficiary will be directly performing sales, promotion, 
purchasing, marketing and financial development, and all or many of the various operational tasks 
inherent in operating a retail store on a daily basis, such as acquiring products, maintaining inventory, 
paying bills, and customer service. Based on the record of proceeding, the beneficiary's job duties are 
principally composed of non-qualifying duties that preclude him from functioning in a primarily 
managerial or executive role. Accordingly, the director reasonably concluded that the beneficiary will be 
EAC 08 108 52702 
Page 8 
~erfornling the day-to-day operations and directly be providing the services of the business rather than 
directing such activities through subordinate employees. 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather 
the AAO must determine based on a totality of the record whether the description of the beneficiary's 
duties represents a credible perspective of the beneficiary's role within the organizational hierarchy. The 
record does not demonstrate that the beneficiary has any employees in the United States employed full- 
time who could perform the non-managerial tasks associated with operating a retail store six days per 
week. The petitioner's general description of the beneficiary's duties and the lack of sufficient personnel 
to perform these tasks make it impossible to conclude that the beneficiary would plausibly perform 
primarily managerial or executive duties. Counsel for the petitioner states that the petitioner will hire new 
employees once the beneficia~j enters the United States; however, the petitioner did not provide a 
timeline of when the new employees will be hired. As noted above, on appeal, counsel for the petitioner 
states that the petitioner hired a sales associate. The petitioner did not submit documentation evidencing 
that this individual was actually hired, or his duties in the position of sales associate. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
CruB of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
On appeal, counsel tor thz petition51 asserrs that the beneficiary will function in an executive capacity. 
The statutory definition of the term "executive capacity" focllses on a person's elevated position within a 
complex orga~~izational hierarchy, including major components or filnctions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. 
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals snd policies" of that 0rg:mization. Inherent to the definition, the organization must 
 , 
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiarybmust 
primarily focus on the broad goals and policies of the organization rather than the day-to-operations of'the 
enterprise. An individual will not be deemed an executive under the statute simply because they have an 
executive title or because they "direct" the enterprise as the owner or sole managerial employee. The 
beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. As discussed above, the petitioner does not have any employees, and the petitioner has 
not demonstrated that the beneficiary will be primarily focused on the broad goals and policies of the 
company within one year. Based on the foregoing discussion, the petitioner has not established that the 
beneficiary will be employed in a primarily executive capacity. 
As discussed above, the totality of the record supports a conclusion that the beneficiary would be required 
to perform primarily non-qualifying duties associated with the petitioner's day-to-day functions, as the 
petitioner has not identified sufficient staff within the petitioner's organization, subordinate to the 
beneficiary, who would relieve the beneficiary from performing routine duties inherent to operating the 
business. 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or 
medium size businesses. However, the AAO has also long required the petitioner to establish that the 
beneficiary's position consists of primarily managerial and executive duties and that the petitioner has 
EAC 08 108 52702 
Page 9 
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks. It is 
the petitioner's obligation to establish however, through independent documentary evidence that the day- 
to-day non-managerial and non-executive tasks of the petitioning entity are performed by someone other 
than the beneficiary, although, these employees need not be professionals. Here, the petitioner has not met 
this burden. 
The MO acknowledges the petitioner's claim that employees will be hired in the future. However, as 
discussed above, the petitioner has not established that it qualifies as a new office, and therefore must 
establish eligibility as of the date of filing. 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). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be 
employed in a primarily managerial or executive capacity. For this reason, the appeal will be dismissed. 
The second issue in this matter is whether the petitioner established that a qualifying relationship exists 
between the foreign company and the United States entity. To establish a "qualifying relationship" under 
the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the 
proposed U.S. employer is the same employer (i.e. one entity with "branch" offices), or related as a 
"parent and st;bsidiaryU or as "affiliates.". See genernlly section 101(a)(15)(L) of the Act; 8 C.F.R 
g 214.'2(1). 
The petitiol~er ciaims to be a subsidiary of the beneficiary's foreign employer, Modem Impex. As stated 
in a letter dated April i 1, 2008, counsel for the petitioncr asserts that the beneficiary owns 50% of the 
foreign ,company and 100% of the (J.S. entity. ?'he petitioner has not submitted documentation to 
evidence the ownership of'the foreign conlpany or the U.S. company. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 
534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
In a letter dated April 11, 2008, counsel for the petitioner states that the petitioner is unable to provide 
documents such as stock certificates or stock ledgers for the foreign company. Counsel states that 
"companies ill India are not required to have documentation of stock ownership unless they are the major 
companies included in the Indian Stock Market." Counsel further explained that "when a company is 
sstablished in India, they document the existence of the company with a hand-written or unofficial 
document for the owners of the company." The petitioner did not submit any documentation to prove the 
ownership of the foreign company, such as a partnership agreement. The petitioner did submit a 
Certificate of Registration. income tax returns. and a balance sheet dated March 3 1. 2005. The balance 
these individuals were the owners of the business as of that date. The beneficiary's name does not appear 
on any of the documentation submitted for the foreign entity. 
In addition, the U.S. entity is a Tennessee corporation. A corporation in the United States should have 
stock certifications, articles of incorporation and bylaws; however, the petitioner did not submit any 
EAC 08 108 52702 
Page 10 
documentation evidencing the ownership of the U.S. entity, although it was specifically requested by the 
director. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. 9 103.2(b)(14). 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. at 593; see 
also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N 
Dec. 289 (Cornm. 1982). In the context of this visa petition, ownership refers to the direct or indirect 
legal right of possession of the assets of an entity with full power and authority to control; control means 
the direct or indirect legal right and authority to direct the establishment, management, and operations of 
an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, the stock certificates, the corporate 
stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual 
siiareholder meetings must be examined to determine the total number of shares issued, the' exact number 
issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control. 
Additionally, a petition~ng company niust disclose all agreements relating to the voting of shares, ,the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting 
zctual control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure 
~f ail relevant documents, CIS is unable to determine the elements of ownership and control. For this 
cdditional reason, the appeal will be c!ismissed. 
Tne third and final issue addressed by the director is whether the beneficiary was employed for one full 
year within the three years preceding the filing of the petition. 'The regulation at 8 C.F.R. 8 214.2(1)(3)(iii) 
states that an individual petition filed on Form 1-129 shall be accompanied by "evidence that the alien has at 
least one cor~tir,uous year of full time employment abroad with a qualifying organization within the three 
years preceding the filing of the petition." The regulation at 8 C.F.R. 8 214.2(1)(l)(ii)(A), in pertinent part, 
provides the following: , 
Periods spent in. the United States in lawful status for a branch of the same employer or a 
parent, affiliate, or subsidiary thereof and brief trips to the United States for business or 
pleasure shall not be interruptive of the one year of continuous employment abroad, but such 
periods shall not be counted toward fulfillment of that requirement. 
According to the letter from the human resources manager of the foreign company, the beneficiary was 
employed by the foreign company from January 2002 until September 2003. In addition, the Form 1-129 
states that the beneficiary last entered the United States on September 13, 2003 and that he currently holds 
H-1B status. He has not left the United States since that date. Thus, the evidence on record does not 
establish that the beneficiary completed one continuous year of full time employment abroad with a 
qualifying organization within the three years preceding the filing of the instant petition on March 5, 
2008. There is no evidence that the beneficiary's two H-1B employers are branches, parents, affiliates or 
subsidiaries of the foreign entity. Accordingly, the beneficiary's period of employment in H-1B status is 
interruptive of his employment with the foreign entity. On appeal, counsel argues that while in the United 
States working in H-1B status for an unrelated employer, the beneficiary "did continue to perform his 
EAC 08 108 52702 
Page 11 
duties as a major shareholder for the foreign entity." It appears that counsel is attempting to argue that the 
beneficiary's H-1B employment is not interruptive. Counsel's unsupported assertions are not persuasive. 
As discussed above, there is no evidence that the beneficiary is or ever has been a shareholder of the 
foreign entity. As correctly noted by the director, the record does not even contain persuasive evidence 
that the foreign company existed during the beneficiary's claimed period of employment abroad. For this 
additional reason, the appeal will be dismissed. 
Beyond the decision of the director, the record contains insufficient evidence to establish that the overseas 
company employed the beneficiary in a primarily managerial capacity. Although the petitioner states that 
tile beneficiary was employed by the foreign company as president, the petitioner did not present any 
corroborating evidence of his job duties or evidence that he was actually employed by the foreign 
company. 'The director requested copies of the beneficiary's pay stubs from the foreign employer 
however, counsel for the petitioner said that the beneficiary was paid in cash. 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). 
Based on the foregoing discussion, the appeal will be dismissed. 
,4-n application or petii-ion 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 Enterp-ises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
ajyd. 345 F.3d 683 (9th Cir. 2003); ;see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)fnoting 
that the AAO reviews appeals on a de novo basis). 
'fie petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. In visa petition proceedings, the burden of proving eligbility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that 
burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.