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U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave. , N.W., MS 2090 Washington, DC 20529-2090

U.S. Citizenship and Immigration Services

DATE: OCT 2 9 2013 Office: CALIFORNIA SERVICE CENTER FILE:

INRE: Petitioner:

PETITION: Immigrant Petition by Alien Entrepreneur Pursuant to Section 203(b)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(5)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO.

Ron Rosenberg Chief, Administrative Appeals Office

www.uscis.gov

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DISCUSSION: The Director, California Service Center, denied the preference visa petition, which is . now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The petitioner seeks classification as an employment creation alien pursuant to section 203(b )(5) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(5). The record indicated that the petition is based on an investment in a new commercial enterprise (NCE), through the expansion of an existing business. As the NCE is not within a targeted employment area, the required amount of capital in this case is $1,000,000. The NCE will engage in real estate sales and property management.

I. LAW

Section 203(b )(5)(A) of the Act, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758 (2002), provides classification to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise:

(i) in which such alien has invested (after the date of the enactment of the Immigration Act of 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and

(ii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters).

II. PROCEDURAL AND FACTUAL HISTORY

The petitioner filed the petition on May 21, 2012, supported by evidence relating to the following issues: (1) the establishment of the NCE; (2) the lawful source of the petitioner's funds; (3) the investment of the petitioner's capital in theNCE; (4) the job creation capabilities of the NCE; (5) the NCE's business activities (6) and identity documents.

On June 26, 2012, the director issued the first request for evidence (RFE). The director requested evidence that the petitioner placed her capital at risk through actual business activity. The petitioner responded on August 9, 2012, with additional documentation. On October 10, 2012, the director issued the second RFE. Within this RFE the director requested: (1) evidence that the petitioner had invested the required amount of capital in the NCE; (2) evidence that the invested capital was at risk; and (3) evidence that the NCE would create the requisite number of jobs for qualifying employees through a comprehensive business plan as the petitioner's business plan did not meet all the requirements of Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm' r 1998). The petitioner responded on December 28, 2012, with additional documentation.

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On February 20, 2013, the director denied the petition determining that the petitioner had not submitted a comprehensive business plan. Specifically, the director determined that theNCE' s focus in real estate property sales diminished after purchasing and an apartment building, and theNCE's business plan lacked verifiable documentation to support its sales and hiring projections.

On March 22, 2013, the petitioner filed an appeal with U.S. Citizenship and Immigration Services (USCIS). On appeal, counsel asserts: (1) the NCE has created five qualifying jobs and submitted sufficient evidence to show that the NCE will create at least five additional jobs; (2) the business plan complies with the Matter of Ho requirements; and (3) the NCE is engaging in significant business activity and is creating jobs on schedule with the business plan.

III. ISSUES PRESENTED ON APPEAL

A. Employment Creation

The regulation at 8 C.F.R. § 204.6G)(4)(i) lists the types of evidence that must accompany a petition for the petitioner to demonstrate that the 10 qualifying employees have already been hired following the establishment of the NCE. In the alternative, this regulation requires that if the employment-creation requirement has not been satisfied prior to filing the petition, the petitioner must submit a "comprehensive business plan" which demonstrates that "due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired." A comprehensive business plan is one that is sufficiently detailed to permit users to conclude reasonably that the enterprise has the potential to meet the job-creation requirements. The regulation at 8 C.F.R. § 204.6( e) defines the terms employee and qualifying employee who are eligible to be counted toward employment creation under the present classification sought by the petitioner. Section 203(b )(5)(D) of the Act defines full time employment as a position that requires at least 35 hours of service per work week. Full-time employment means continuous, permanent employment. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1039 (E.D. Calif. 2001) aff'd 345 F.3d 683 (9th Cir. 2003) (finding this construction not to be an abuse of discretion).

On the Form 1-526 petition, the petitioner indicated that there were no employees at the time of the initial investment in June 2011 and five employees as of the date of petition filing. The petitioner indicated that her investment in the NCE would create eight to twelve additional jobs. The petitioner indicated in response to the second RFE that the NCE had reduced its number of employees from five to three. The director determined the following within her decision:

1. TheNCE's focus in real estate property sales diminished after purchasing an apartment building;

and

2. The petitioner had not demonstrated that the NCE's. employees were working in full-time positions;

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3. The director was unable to determine that the purchase agreements were valid as the seller did not sign and initial the provided documentation and the director was unable to conclude that the NCE was generating sufficient business; and

4. The NCE's business plan lacked verifiable documentation to support its sales and hiring projections and the business plan did not meet all the requirements of Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Conun'r 1998).

Regarding item 1 listed above, the business plan submitted with the petition stated: "[The NCE] will focus its operations in acquiring prime real estate, both residential and conunercial for its clients and itself, and will manage the commercial properties, including multi-family residential properties for its clients." Therefore, the original business plan did provide for purchasing and managing property, even through a subsidiary such as Thus, the record does not support this element of the director's decision.

Regarding item 2 listed above, the petitioner provided multiple Forms 1-9, Employment Eligibility Verification; Forms W-4, Employee's Withholding Allowance Certificate; and qualifying employee documents relating to three employees. The petitioner provided this evidence in response to the director's second RFE. "Forms 1-9 verify, at best, that a business has made an effort to ascertain whether particular individuals are authorized to work; they do not verify that those individuals have actually begun working" or that they work full-time Matter of Ho, 22 I&N Dec. at 212. The petitioner also provided documents reflecting each employee's monthly pay and Form 941, Employer's Quarterly Federal Tax Returns covering April 2012 through September 2012. Neither form of evidence established the number of hours each employee worked per week. The director acknowledged that the petitioner had submitted tax .returns but concluded that they did not reflect sufficient wages for full-time employment.

The director' s decision put the petitioner on notice that the evidence on record was not sufficient to demonstrate its employees were working in full-time positions. On appeal, the petitioner did not provide additional evidence relating to each employee's full-time employment. "In the absence of such evidence as paystubs and payroll records showing the number of hours worked, the petitioner has not met his burden of establishing that he has created full-time employment within the United States." Matter of Ho, 22 I&N Dec. at 212 (Emphasis added). One of the NCE's employees earned $4,816 in the second quarter of 2012. While this amount is sufficient to cover full-time employment at California's minimum wage, the record lacks any claims of the hourly wage or salary for any of the NCE's employees. In other words, while employees earning less than $3,640 in a quarter could not have worked full-time at minimum wage; it does not follow that employees earning at least that amount or more did work full-time.1 Without evidence of each employee's wages per hour or actual hours worked, the petitioner cannot establish that theNCE's employees occupy full-time positions as defined at 8 C.F.R. § 204.6(e).

1 Minimum wage per quarter calculated at $8/hour x 35 hours/week x 13 weeks = $3,640. Information relating to California's llllmmum wage rate since January 2008 obtained from http://www.dir.ca.gov/ dlsc/FAO MinimumWage.htm, accessed on September 10, 2013, and incorporated into the record of proceeding.

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Regarding item 3 listed above, the petitioner provided property purchase agreements that lacked relevant seller signatures and initials throughout the contracts. On appeal, the petitioner provides property management agreements that do contain the appropriate signatures and initials by both the property owner and the real estate manager. The agreements the petitioner submits on appeal are new agreements with different property owners when compared with the agreements the petitioner submitted before the director. These documents do not reflect that both parties executed the agreements the petitioner submitted in response to the RFE and the petitioner did not support the new agreements with bank records reflecting income from these new agreements.

Regarding the requirements pursuant to Matter of Ho, 22 I&N Dec. at 212-213, to be "comprehensive," a business plan must be sufficiently detailed to permit the USCIS to draw reasonable inferences about the job-creation potential. Conclusory assertions do not enable the USCIS to determine whether the job-creation projections are any more reliable than hopeful speculation. Matter of Ho also provides a list of the elements that, at a minimum, should be included in a comprehensive business plan as contemplated by the regulations:

1. A description of the business, its products and/or services, and its objectives; 2. A market analysis, including the names of competing businesses and their relative

strengths and weaknesses; 3. A comparison of the competition' s products and pricing structures, and a description

of the target market/prospective customers of the new commercial enterprise; 4. The required permits and licenses obtained; 5. If applicable, it should describe the manufacturing or production process, the

materials required, and the supply sources; 6. Any contracts executed for the supply of materials and/or the distribution of products. 7. It should discuss the marketing strategy of the business, including pricing,

advertising, and servicing; 8. The business's staffing requirements; 9. A timetable for hiring, as well as job descriptions for all positions; 10. The business's organizational structure; 11. The business's personnel experience; and 12. Sales, cost, and income projections and detail the bases therefor.

Most importantly, the ~usiness plan must be credible.

While the business plan the petitioner provided does contain the elements of 1-8, 10, and 12, it does not contain the remaining required elements of items 9 and 11. A business plan should contain as many of the above enumerated elements as necessary "to permit [USCIS] to draw reasonable inferences about the job-creation potential." Business plans that are insufficiently detailed will not satisfy the petitioner's requirements as contemplated by the regulations.

The timetable for hiring is vital to the petitioner's eligibility as it reveals whether the business will generate the need the applicable employment level. A petitioner who does not provide a timetable for hiring the required employees within theNCE has effectively "failed to show that [the] business has or will engage in either employment maintenance or employment creation." See Matter of Soffici,

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22 I&N Dec. 158, 168 (Assoc. Comm'r 1998). Regarding the requirement that the business plan contain job descriptions for all positions within item 9 of the Matter of Ho requirements, the petitioner's business plan does not meet this requirement. Although the business plan did contain a brief description of the management positions, it did not contain descriptions for all the NCE's qualifYing positions. Without such required evidence, the petitioner has not demonstrated that the NCE's business plan sufficiently meets the Matter of Ho requirements, nor has she satisfied the regulation at 8 C.F.R. § 204.60)( 4)(i)(B). The petitioner's claim within the appeal that theNCE is creating jobs on schedule with the business plan is not persuasive because the plan does not contain a timetable for hiring.

The petitioner has not established that her planned investment will create the required ten or more full-time positions. Accordingly, she has not comply with the regulation at 8 C.F.R. § 204.6G)(4)(i).

B. Other Discrepancies in the Record

The record also contains several discrepancies that the director did not raise. First, incorporated on May 7, 2010, listing as the agent, and filed the amendment to change the name to on December 14, 2010. On May 7, 2010, however, adopted its bylaws and resolved that Mr. would be the registered agent. also resolved on May 7, 2010 that it would issue 20,000 shares to Mr.

as trustee for for $20,000, but the December 14, 2010 amendment indicates that the corporation had not issued any shares. 2010 Internal Revenue Service (IRS) Form 1120, U.S. Corporation Income Tax Return, schedule L, lists the total stock as $20,0000. Schedule K-1 lists Mr. not a trust, as the 100 percent owner. Moreover, despite the 2010 documents reflecting stock issuance in 2010, the record contains stock certificate number 1, which

issued to on June 29, 2011.

The record also contains discrepancies relating to purchase of _ and purchase of property. First, the record contains September 27, 2011 meeting notes that the presidents of both and _ signed agreeing to

purchase of however, issued a stock certificate to on September 1, 2011, prior to the September 27, 2011 meeting. Moreover,

while the meeting notes authorize repayment of Mr. $700,000 loan to ~ the notes do not specify the actual purchase price. The record also lacks evidence tracing $700,000 from Mr.

~ Finally, while the closing statement for purchase of property is dated September 27, 2011, the grant deed is dated August 11, 2011.

In addition, the record contains a lease dated February 29, 2012 for the address has been using since 2010. is the listed landlord.

It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Id The record does not contain evidence resolving these numerous inconsistencies.

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Finally, the record contains the Notice of Transaction filed with the State of California on May 8, 2012, reporting the petitioner's investment from June 29, 2011. Like a delayed birth certificate, the Notice of Transaction filed nearly a year after the claimed transaction raise serious questions regarding the truth of the facts asserted. Cf Matter of Bueno, 21 I&N Dec. 1029, 1033 (BIA 1997); Matter of Ma, 20 I&N Dec. 394 (BIA 1991)(discussing the evidentiary weight accorded to delayed birth certificates in immigrant visa proceedings).

The AAO may deny an application or petition that does not comply with the technical requirements of the law 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), aff'd, 345 F.3d 683 (91h Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). Any future filing must address the above discrepancies with competent objective evidence.

IV. Summary

The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. ·

ORDER: The appeal is dismissed.