dismissed L-1A Case: Restaurant

U.S. Department of Ifomeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
File: SRC 05 092 5 1562 Office: TEXAS SERVICE CENTER Date: MOV 1 3 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the-~dministrative 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. 
ministrative Appeals Office 
SRC 05 092 5 1562 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the ~dministrative Appeals Office (MO) on appeal. The MO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner, a corporation organized in the State of Florida, 
operates a restaurant. The petitioner claims that it is the subsidiary of - lpcated in 
Caracas, Venezuela. The beneficiary was initially granted a one-year period in L-1A status to open a new 
office in the United States, from August 29, 2003 until August 29, 2004. The director, Texas Service Center 
denied the petitioner's request for an extension of the "new office" petition on January 3, 2005 (SRC 04 226 
50370). The petitioner now seeks to continue to employ the beneficiary as its president until August 29,2006. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be 
employed in a managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
erred in finding that the beneficiary would not serve in a managerial or executive capacity, and contends that 
the director placed undue emphasis on the number of employees supervised by the beneficiary. Counsel also 
submits "newly available evidence" that the petitioner purchased a business on November 30, 2004. Counsel 
asserts that professionals and managers of the purchased business report directly to the beneficiary in his 
capacity as president. Counsel submits a brief and evidence in support of the appeal. 
'To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within 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. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
SRC 05 092 5 1562 
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. 
The regulation at 8 C.F.R. 8 214.2(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 b'eneficiary 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 primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 10 1(a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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, 
SRC 05 092 5 1562 
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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. 5 1101(a)(44)(~), 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 stdckholders of.the organization. 
The nonimmigrant petition was filed on February 10,2005. In an attachment to the Form 1-129, the petitioner 
described the beneficiary's duties as follows: 
Authority to supervise and control the development of the projects to be performed by 
the corporation. 
Present and create new markets projects and its achievements [sic] within the 
corporation standards. 
Set the guidelines, vision; goals and focus of the corporation. 
Power to make decisions affecting commercial economic and legal operations of the 
company. 
The petitioner further indicated that the beneficiary would be responsible for "control, coordination, 
supervision of managers," and "planning and setting organizational goals." The petitioner submitted an 
organizational chart for the U.S. company which identifies a board of directors, a president (the beneficiary), 
an operational manager , accountants, and unidentified "employees." In an attachment to the 
organizational chart, the petitioner reiterated essentially the same duties for the beneficiary, and indicated that 
the operations manager would: direct and supervise the work of employees; verify that procedures of the 
company are complied with; select personnel; plan operational goals and sales strategies; hold authority to 
make decisions related to development of the company; and participate in the preparation and control of 
"operational proposals." The petitioner did not identify the duties performed by the unidentified employees. 
SRC 05 092 5 1562 
Page 5 
The petitioner also submitted a copy of its Florida Form UCT-6, Employer's Quarterly Report, for the fourth 
quarter of 2004, which confirmed the full-time employment of the beneficiary and the operations manager. 
Two other employees received wages of $276.70 and $591.20 during the quarter and thus appear to have been 
employed on a part-time basis. The employees were identified as 
 and m 
The director issued'a request for evidence on February 23, 2005, and instructed the petitioner to submit 
"evidence of how this position of President qualifies and functions as a manager as defined in 8 CFR 
214.2(1)(l)(ii)(B)." The director also requested a list of other employees who report to the beneficiary and 
evidence of their educational background. 
In response, counsel for the petitioner submitted an April 4, 2005 letter, in which he addressed the 
beneficiary's claimed managerial capacity as follows: 
[The beneficiary] is the President and as such manages the entire organization. Below him is 
the previously mentioned Ms. as the Operations Manager of [the petitioner]. Directly 
below her is Ms. -1, Kitchen Manager. Ms. refers to Ms. as 
her r~ght hand slnce Ms. 
 handles all of the dut~es of a first l~ne supervisor. Ms. 
reports directly to Ms. d Under Ms. is Kitchen 
Ass~stant and Wa~tress. Ms. has full supervisory authority over 
both Ms. and Ms. Also reporting to Ms. are the accountants and 
bookkeepers. As President, [the beneficiary] has complete authority over all personnel and 
operations at [the petitioning company.] 
Ms. holds a degree . . . in Banlung and Finance. . . .Under her authority are a supervisor 
in Ms. and professional in the accountants and bookkeepers. Ms. is in charge 
of the hiring and firing of personnel. In fact, the company is looking to hire additional staff. 
Your office has qualified Ms. as Operations Manager since she qualifies as a position 
employed in a managerla1 capacity as defined by regulations. 
The petitioner submitted evidence that Ms. 
 is the beneficiary of an approved Form 1-129 petition 
granting her L-IA status, along with copies of her educational documents. The petitioner submitted copies of 
applications .for employment for the three claimed employees, as well as* an employment application for 
-. 
The director denied the petition on April 19, 2005, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. The director noted that 
according to the petitioner's organizational chart and the quarterly federal tax returns submitted, the 
beneficiary and the operations manager are the only two full-time employees of the company, while the two 
employees supervised by the operations manager serve as part-time kitchen help in the company's restaurant. 
The director further noted that the petitioner had not substantiated its claim that the company employs 
accountants and bookkeepers. The director concluded that the beneficiary would not be performing duties 
which primarily require him "to plan, organize, direct and control the organization's major functions by 
working through other managerial or professional employees in the United States." 
SRC 05 092 5 1562 
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On appeal, counsel for the petitioner disputes the director's suggestion "that [the beneficiary] does not 
actually perform the work as stated on the application." Counsel emphasizes that the business license permits, 
invoices, bank statements, and other documents all identify the beneficiary's name and establish that "he is 
the person who makes the most important decisions of the business." 
Counsel further asserts that the director erroneously concluded that the U.S. company has only two full-time 
employees, asserting that the petitioner "submitted four employment forms." Counsel contends that the 
"exact same eyidence" was submitted in support of the beneficiary's subordinate's approved L-1A petition, 
and thus the instant decision was "contradictory." Counsel suggests that the director placed "too much 
importance on the number of employees in the business, stating: "It is the Petitioner's assertion that [the 
beneficiary] does indeed qualify as a manager as he primarily manages the organization, supervises Ms. 
, a managerial employee, has the authority over hiring decisions, and exercises discretion over the day to 
day operations of the business." 
Counsel asserts that the director failed to consider the reasonable needs of the organization in light of its 
overall purpose and stage of development, and contends that if given this consideration, the beneficiary also 
qualifies as an executive, because he establishes goals and executes the decisions made on behalf of the 
business. Counsel asserts that the petitioner is successful and expanding, and cites unpublished AAO 
decisions to stand for the proposition that such factors as an increase in the number of employees, growth in 
cash flow, and the presence of significant customers and clientele should be considered in determining the 
need for a managerial or executive employee. 
Finally, counsel asserts that there is "newly available evidence" in the form of a sales contract dated 
November 30, 2004 between the petitioning company and WXC Corporation for the purchase of the assets of 
an internet cafe business. Counsel asserts that the petitioner's operations manager now supervises managers 
and professionals "involved with the information technology aspect of the internet cafe," which counsel 
indicates will operate as "Orion Center." 
In support of the appeal, the petitioner submits an "Agreement for Sale of Assets," between the petitioner and 
WXC Corporation for the business lcnown as "E-Friends Telecommunications Center". The petitioner aIso 
submitted a copy of its application for registration of a fictitious name filed by the petitioner on February 6, 
2005, indicating its intent to operate as "Onon Center" at a location which appears to be adjacent to its 
existing restaurant. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity. 
As a preliminary matter, the AAO notes that the "newly available evidence" will not be considered on appeal. 
Neither counsel nor the petitioner has provided any explanation as to why the evidence would not have been 
available in February 2005 when the petition was filed or in April 2005 when the petitioner responded to the 
director's request for evidence. For th'is reason, the AAO cannot accept counsel's claim that that there is 
"new evidence" that the petitioner purchased a separate business five months prior to the adjudicat~on of the 
petition. Furthermore, the record does not contain evidence to establish that the petitioner was actually 
SRC 05 092 5 1562 
Page 7 
operating an internet cafk when the instant petition was filed on February 10, 2005. 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). Furthermore, a petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to CIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The appeal will be adjudicated based on the evidence 
that was available to the director. 
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. 9 214.2(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. A petitioner may not claim to employ a beneficiary as a 
hybrid "executive/manager" and rely on partial sections of the two statutory definitions. A petitioner must 
establish that a beneficiary meets each of the four criteria set forth in the statutory definition for executive and 
the statutory definition for manager if it is representing the beneficiary is both an executive and a manager. In 
this case, the petitioner has asserted that the beneficiary performs both executive and managerial functions. 
The petitioner submitted a vague job description for the beneficiary which failed to convey any understanding 
of the day-to-day duties he would perform as the president of the U.S. company. For example, the petitioner 
indicated that he would "supervise and control the development of the projects to be performed by the 
corporation," and "present and create new markets projects." The petitioner did not, however, clarify what 
types of "projects" have been and would be undertaken, or what specific duties are involved in "presenting," 
"creating," or "controlling" such projects. The remainder of the beneficiary's duties include setting guidelines 
and goals and making decisions on behalf of the corporation, but the petitioner provided no concrete examples 
of the beneficiary's goals or decisions, nor identify any specific tasks associated with these broad 
responsibilities. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). 
In response to the director's request for evidence to establish how the beneficiary's position qualifies as 
managerial under the governing regulations, counsel for the petitioner simply stated that the beneficiary 
"manages the entire organization," and asserted that the beneficiary's "work in a managerial capacity is 
consistent with regulation." 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. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), am, 905 F.2d 41 (2d. Cir. 1990). 
Further, the petitioner's vague 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 portrayal of the beneficiary's role within the organizational 
hierarchy. Counsel correctly observes that a company's size alone, without talung into account the reasonable 
SRC 05 092 5 1562 
Page 8 
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See 3 10 1(a)(44)(C) of the Act, 8 U.S.C. 
 1 10 1 (a)(44)(C). However, it is appropriate for CIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
As noted by the director, there is a discrepancy between the petitioner's organizational chart submitted in 
response to the director's request for evidence, and the company's most recent Florida Form UCT-6, 
Employer's Quarterly Report, submitted at the time of filing. The petitioner initially claimed to employ four 
workers and submitted its Form UCT-6 for the fourth quarter of 2004 confirming the full-time employment of 
the beneficiary and the operations manager, and the part-time employment of two additional workers, 
nd -he petitioner did not identify the duties or job titles of the part-time 
employees. In response to the director's request for evidence, the petitioner claimed to employ a kitchen 
manager,, a lutchen assistant, - and a waitress, 
 The only 
evidence submitted in support of these assertions were the applications for employment submitted by each 
worker. The petitioner has not submitted evidence that the U.S. company employed 
 or - 
- at the time the petition was filed. In fact, both of these individuals were identified on the 
company's quarterly reports earlier in 2004, but were not employed in the fourth quarter of 2004. Absent 
evidence in the form of payroll records or pay stubs showlng that these employees were re-hired between 
December 2004 and February 2005, the petitioner has not established that they were employed when the 
petition was filed. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 
19 I&N Dec. 582,591 (BIA 1988). 
Therefore, at the time of filing, the petitioner, which operates a restaurant, employed the beneficiary as 
president, an operations manager, and two part-time workers, who were compensated at a rate of 
approximately $100 to $200 per month in the quarter preceding the filing of the petition and clearly worked a 
limited number of hours. Although the petitioner indicates that both the beneficiary and the operations 
manager perform primarily managerial or executive duties as defined at section 101(a)(44) of the Act, the 
petitioner has not demonstrated that the reasonable needs of a restaurant could be met by two managers and 
two part-time workers. The petitioner reasonably requires workers to order food, equipment and supplies, 
monitor inventory, receive deliveries, prepare menus, prepare food, greet and serve customers, clear tables, 
wash dishes, maintain the cleanliness of the kitchen, dining area and restrooms, ring up customer purchases 
on a cash register, and perform other routine administrative and operational duties inherent in operating any 
business, such as marketing, advertising, routine bookkeeping and banking tasks and paying bills. It is 
reasonable to assume, and has not been shown otherwise, that both the beneficiary and the operations 
manager would be required to participate extensively in these non-managerial duties in order for the 
restaurant to remain operational. 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 
SRC 05 092 5 1562 
Page 9 
enumerated managerial or executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
In addition, the AAO notes that counsel's assertion that the beneficiary will manage a staff of supervisory, 
professional or managerial employees is not supported by the record. Specifically, counsel emphasizes that 
the beneficiary's claimed subordinate is currently employed by the petitioner as an L-1A intracompany 
transferee, and thus the beneficiary can be deemed a managerial employee pursuant to section 
101(a)(44)(A)(ii) of the Act. However, notwithstanding the operations manager's previously accorded L-1A 
status, the evidence presented with the instant petition indicates that this employee would only occasionally 
supervise non-professional personnel and would spend the remainder of her time participating in the non- 
qualifying day-to-day functions of operating a restaurant. The instant record does not establ~sh that the 
petitioner's operations manager is employed as a/supervisor, manager or professional. 
It, must be emphasized that that each petition filing is a separate proceeding with a separate record. See 8 
C.F.R. tj 103.8(d). In making a determination of statutory eligibil~ty, CIS is limited to the information 
contained in that individual record of proceeding. See 8 C.F.R. 3 103.2(b)(16)(ii). If the nonirnmigrant 
petition filed on behalf of the petitioner's other employee was approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomely, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
The petitioner's general description of the beneficiary's duties and the lack of sufficient full-time personnel in 
the United States to perform the many non-managerial duties associated with operating a restaurant prohibit a 
finding that the beneficiary would be employed in a primarily managerial or executive capacity. 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 perfonns these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). 
While the beneficiary in this matter would evidently exercise discretion over the day-to-day operations of the 
company, the record shows that the beneficiary would be required to personally perform many non- 
managerial duties rather than managing or supervising the performance of these routine duties by other 
subordinate employees. 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 
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks. The 
petitioner has not established the basic eligibility requirement in this matter, that the beneficiary is primarily 
performing managerial or executive duties. 
SRC 05 092 5 1562 
Page 10 
The petitioner indicates that it plans to hire additional managers and employees in the future. However, 8 
C.F.R. tj 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. 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. In the instant matter, the petitioner has not reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position. For this 
reason the appeal will be dismissed. 
Beyond the decision of the director, it is noted that the petitioner indicated under penalty of perjury in Part 4 
of the Form 1-129 petition that the beneficiary had never been denied the requested classification. This 
petition was filed on February 10,2005. As noted in the recitation of the procedural history of this matter, the 
beneficiary's previous L-1 petition (SRC 04 226 50370) was denied by the director on or about January 3, 
2005. The regulations at 8 C.F.R. tj 214.2(1)(2)(i) state that "[flailure to make a full disclosure of previous 
petitions filed may result in a denial of the petition." As the petitioner 'indicated on the form that the 
beneficiary had never been denied the requested classification, and the petitioner failed to fully disclose the 
previously filed petitions, this petition will be denied as a matter of discretion. 
Another issue to be discussed in the present matter is whether the petitioner has established that a qualifying 
relationship exists with the beneficiary's former overseas employer. 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 are the same employer (i.e. one entity with "branch" offices), or related as a "parent 
and subsidiary" or as "affiliates." See generally section 10 1 (a)(15)(L) of the Act; 8 C.F.R. tj 2 14.2(1). 
The petitioner claims to be a wholly-owned subsidiary of Seguros Diversificados, S.A., located in Caracas, 
Venezuela, and has submitted a copy of its stock certificate number one, showing that the company issued all 
1,000 of its authorized shares to the foreign entity on January 9, 2003. However, the petitioner's 2003 IRS 
Form 1120, U.S. Corporation Income Tax Return, indicates that the petitioner has four shareholders identified 
as the beneficiary, and thus contradicting the petitioner's claim 
that it is a subsidiary of the foreign entity. 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 evidence submitted, it cannot be concluded that 
. 
 the petitioner has a qualifying relationship with the beneficiary's foreign employer. For this additional reason, 
the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
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 and the appeal dismissed 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 
SRC 05 092 5 1562 
Page 11 ' 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.