U.S. Citizenship and Immigration Services

MATTER OF M-I-, INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 29,2016

PETITION: FORM I-129, PETITION FOR NONIMMIGRANT WORKER

The Petitioner, a company trading in granite and tile, seeks to temporarily employ the Beneficiary as its vice president and general manager under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) § 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-lA classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work temporarily in an executive or managerial capacity.

The Director, Vermont Service Center, denied the petition, concluding that the evidence of record did not establish that the Beneficiary has been employed by the Petitioner's claimed foreign affiliate in a qualifying managerial or executive capacity.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional documentation and asserts that it provided sufficient evidence to establish that the Beneficiary was employed in a managerial capacity abroad.

Upon de novo review, we will dismiss the appeal.

I. THE LAW

To establish eligibility for the L-1 nonimmigrant 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. § 214.2(1)(3) states that an individual petition filed on Form I-129, Petition for a Nonimmigrant Worker, shall be accompanied by:

Matter of M-1-, Inc.

(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) ofthis 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.

(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 him/her 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.

II. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

The only issue addressed by the Director is whether the Petitioner established that the Beneficiary has been employed abroad in a qualifying managerial or executive capacity.

Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 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

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supervisor's supervisory duties unless the employees supervised are professional.

Section 101(a)(44)(B) of the Act, 8 U.S.C. § 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.

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. See section 1 01 (a)( 44 )(C) of the Act.

A. Facts

The Petitioner filed the Form I-129 on June 18, 2014. The Petitioner stated on the Form I-129 that the Beneficiary was employed by its Indian affiliate, from 2011 until 2013. 1 The Petitioner indicated that "is engaged in reconditioning and refurbishing of drums, bins, and barrels."

In a letter dated June 12, 2014, the Petitioner described the Beneficiary's duties as follows:

Since 2011, [the Beneficiary] was working as General Manager for the foreign entity. He has played a key role in developing [the foreign entity] and is credited with its growing success. In that role, [the Beneficiary] developed, implemented, and consistently applied business-related policies to optimize the quality of the organization, service and employees. [The Beneficiary] also met with decision makers at retail establishments and negotiated commercial contracts for manufacturing and supplying food products, promoted business sales by overseeing quality of the products that were manufactures [sic], purchased and distributed, and for the services provided by sales staff. In addition, [the Beneficiary] developed and implemented marketing strategies using current

1 The record shows that the Beneficiary was in the United States at the time of filing and was last admitted in 8-2 nonimmigrant status on December 28, 20 13.

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market information, competitive and economic conditions, and innovative programs to help boost sales. Furthermore, [the Beneficiary] developed pricing strategies that include price and transportation costs, and the import and export of products. [The Beneficiary] also met with the appropriate officials to ensure compliance with laws and ordinances and worked with auditors to prepare sales reports, reconciliation of business transactions and other related documents.

The Petitioner's letter included a pie chart with a general breakdown of the Beneficiary's duties as follows: Management Decisions - 30%; Company Representation - 20%; Sales Promotions - 20%; Team Building- 15%; Marketing Strategies- 1 0%; and Business Development- 10%.

The Petitioner submitted copies of the foreign entity's internal payroll documentation dating from April 2013 through March 2014. These monthly payroll records reflected that the Beneficiary served as general manager during this time with net earnings of 17,700 rupees per month. The payroll records further indicated that the foreign employer employed an assistant general manager, an accountant, two supervisors, three technicians, a laborer and a driver. Each monthly payroll record bears the Beneficiary's signature next to his name, including the three records that post-date his entry to the United States in December 2013. In addition, the Petitioner provided a salary statement for the Beneficiary on the foreign company's letterhead for the same time period (April 2013 through March 2014). The salary information provided for the Beneficiary is different from that provided in the monthly payroll records and indicates that he had net earnings of 14,048 rupees per month.

In addition, the Petitioner provided a support letter from the foreign employer dated April 7, 2014, stating that the Beneficiary "is working as a General Manager since 2011 till date." The foreign employer stated that the Beneficiary had "obtained a contract with (one of the major coal mining companies in Asia)" and worked with this client "to find and develop a detoxification machine ... successful in detoxifying around seventy five thousand barrels without using water and any kind of solvent/chemical." The foreign employer indicated that this idea led to the company "receiving detoxification orders from (power generating company) and

The Director issued a notice of intent to deny (NOID) on February 10,2014. The Director advised the Petitioner that the NOID resulted from an overseas investigation into the Beneficiary's claimed foreign employment. The Director advised that "investigation results determined that the beneficiary was not employed at the foreign entity in the claimed capacity and that the business has moved all activities to a different location." The Director acknowledged the Petitioner's claim that the Beneficiary has worked for the foreign entity as its general manager since 2011, but advised that the "investigation indicates that the foreign entity has six full-time employees and does not include the beneficiary."

The Director requested that the Petitioner submit a description of the Beneficiary's duties abroad, including his typical managerial and executive level duties. The Director asked the Petitioner to

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provide copies of the Beneficiary's pay or other personnel records to substantiate his foreign employment. The Director also requested that the Petitioner provide the foreign entity's organizational chart reflecting the names, titles, duties and salaries of the Beneficiary's colleagues and subordinates.

In response, the Petitioner acknowledged the foreign entity's change in location and provided a letter from the foreign entity explaining that the move occurred on September 1, 2014. With respect to the Beneficiary's employment, the Petitioner stated that the Beneficiary had worked for the foreign employer from 2011 to 2013. The Petitioner asserted that the Beneficiary "started working in his family business at an early age, while attending college" where he worked "under the supervision of his father." In addition, the Petitioner stated that the Beneficiary "supervised Assistant General Manager, Production Supervisor, Accountant, all degreed individuals."

The Petitioner also submitted a letter from the foreign entity which included the following description ofthe Beneficiary's duties:

[The Beneficiary] developed, implemented and consistently applied business­related policies to optimize the quality of the organization, service and employees. [The Beneficiary] also developed strategic plan by studying technological and financial opportunities; presenting assumptions; recommending objectives. In addition, [the Beneficiary] coordinated efforts by establishing procurement, production, marketing, field, and technical services policies and practices; coordinate actions with corporate staff. Furthermore, [the Beneficiary] built company image by collaborating with customers, government, community, organizations, and employees; enforcing ethical business practices; maintained quality service by establishing and enforcing organization standards. [The Beneficiary] also met with the appropriate officials to ensure compliance with laws and ordinances and worked with auditors to prepare sales reports, reconciliation of business transactions and other related documents.

The Petitioner submitted an organizational chart for the foreign company reflecting that the Beneficiary, as general manager, reported to the proprietor (his father), and oversaw an assistant general manager. The assistant general manager was shown to supervise a "supervisor production," an accountant and a "supervisor purchasing." The chart indicated that the supervisor production oversees three machine operators and the supervisor purchasing oversees a driver and laborer. The Petitioner provided job duties for these employees, including the Beneficiary. The chart indicated that the Beneficiary was "responsible for managing sales, purchase, administration, accounts, commercial tax, income tax, site work, planning, site visiting, attending negotiations, etc." The Petitioner explained that the assistant general manager was "responsible for all business duties in presence or absence of General Manager." The Petitioner stated that the supervisor production was tasked with "sorting stocks on arrival, sending right quantity to production as per orders pending" and that the supervisor purchase was responsible for "submitting proposals for purchases once approved by Proprietor/General Manager immediate arranging transportation and contract for labor

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for loading & unloading." Further, the Petitioner indicated that the accountant was tasked with "managing day to day accounts, submitting VAT returns, attending Income tax department etc."

The Petitioner provided copies of the foreign entity's "Muster Rolls" for the months of October 2011 through December 2012 reflecting the same ten employees listed in the aforementioned organizational chart, including the Beneficiary. The Petitioner resubmitted the previously provided payroll documentation for the period April 2013 through March 2014 indicating that the foreign entity employed the same ten individuals identified in its organizational chart.

Further, the Petitioner submitted copies of correspondence from the foreign employer which contains references to the Beneficiary, as well as two letters from unaffiliated companies attesting to the Beneficiary's employment as general manager from 2011 to 2013, one noting that he was responsible for "fabricating barrel reconditioning systems" and "getting orders for detoxification of barrels." The Petitioner provided eleven additional letters from 2013, addressed to the foreign entity's vendors and customers, and ostensibly signed by the Beneficiary in his capacity as general manager.

The Director denied the Petition on June 23, 2015, concluding that the Petitioner did not establish that the foreign entity employed the Beneficiary in a qualifying managerial or executive capacity for one year in the three years preceding the filing of the petition. The Director acknowledged the Petitioner's explanations for inconsistencies between the record and the results of the overseas investigation and found that those inconsistencies had not been overcome. The Director advised the Petitioner that "managers interviewed at the foreign company location indicated that the beneficiary is a young man that occasionally came with his father to the business location," but did not corroborate the Petitioner's claim that the Beneficiary was employed on a full-time basis as the foreign entity's general manager beginning in 2011 when he was 19 years old. Further, the Director noted that the investigation revealed that the foreign entity had changed its business location well before the petition was filed, and not in September 2014 as claimed.

On appeal, the Petitioner asserts that it is customary for individuals to enter into managerial positions in India at a very early age. The Petitioner again sets forth the Beneficiary's duties and contends that he acted in a managerial capacity overseeing other professional and managerial subordinates, and also that he acted in a qualifying executive capacity. The Petitioner submits a letter from its president further describing the Beneficiary's duties with the foreign entity, and letters from two customers of the foreign entity who state that they have had dealings with the Beneficiary in his role as general manager.

B. Analysis

Upon review of the petition and the evidence, and for the reasons discussed herein, the evidence of record does not establish that the Beneficiary has been employed in a qualifying managerial or executive capacity with the foreign employer.

Matter of M-1-, Inc.

First, the Petitioner has not submitted sufficient explanations or evidence to address discrepancies revealed by the USCIS site visit to the foreign employer, namely evidence indicating that the Beneficiary was not employed as the foreign entity's general manager. Specifically, the Petitioner has not directly addressed the fact that managers at the foreign company indicated to USCIS investigators that the Beneficiary only occasionally accompanied his father, the foreign entity's proprietor, to the business location.

In addition, there are unresolved inconsistencies in the evidence submitted to document the Beneficiary's employment with the foreign entity. For instance, the Petitioner submitted copies of monthly payroll reports listing the Beneficiary as general manager for the period from April 2013 to March 2014, and each of these reports included the Beneficiary's signature. However, elsewhere the Petitioner and foreign entity have stated that the Beneficiary was employed by the foreign entity only until "2013" and the record reflects that the Beneficiary was in the United States in January, February and March 2014 and could not have signed these internal monthly payroll documents. Further, the salary information provided for the Beneficiary in these monthly payroll documents is different from that provided in a separate salary statement prepared for the Beneficiary which covers the same period of time. The Petitioner also submitted an Indian tax return for the Beneficiary, but it is not signed and the wages reported on the tax return do not match the wages reported for him on either version of the foreign entity's payroll documents. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).

We acknowledge that the Petitioner has also submitted the foreign entity's "muster rolls" dating back to October 2011 in support of its claim that the Beneficiary assumed the general manager position at that time. We note that the submitted documentation, as a whole, indicates that the foreign entity employed the same ten workers over a period of three and one half years with no new hires, no turnover, and no temporary increases or decreases in staffing levels, despite the Petitioner's claim that one of the Beneficiary's duties was to recruit, hire and train new workers, and despite evidence indicating that the company relies on day laborers.

In response to the NOID, the Petitioner submitted business correspondence which ostensibly includes the Beneficiary's stamp and signature identifying him as general manager; however, the Beneficiary's name appeared on none of the foreign entity's business documents submitted at the time of filing, which were signed by the Beneficiary's father as proprietor or by the claimed assistant general manager on behalf of the proprietor. The Petitioner claims that the Beneficiary assumed the general manager position at the age of 19 while also attending college, but it has not identified the name of the college or university he attended or provided evidence of his attendance so that we can confirm that he did in fact attend a school in the vicinity of the foreign entity's work location. Overall, the evidence is insufficient to overcome the questions raised by the overseas site investigation.

Matter of M-1-, Inc.

Nevertheless, even if the evidence did establish that the Beneficiary was employed as the foreign entity's general manager, the record does not establish that the position was in a qualifying managerial or executive capacity.

When examining the executive or managerial capacity of the beneficiary, we will look first to the Petitioner's description of the job duties. See 8 C.P.R. § 214.2(1)(3)(ii). The definitions of executive and managerial capacity have two parts. First, the Petitioner must show that the Beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the Petitioner must prove that the Beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991).

The Petitioner and foreign entity provided overly vague duty descriptions for the general manager position which did not provide insight into the day-to-day duties involved. For instance, the Petitioner initially stated that the Beneficiary "developed, implemented, and consistently applied business related policies," "met with decision makers at retail establishments and negotiated commercial contracts for manufacturing and supplying food products," "promoted business sales," "developed and implemented business strategies and innovative programs," "developed pricing strategies," and "ensured compliance with laws and ordinances." The Petitioner did not articulate or document the Beneficiary's creation of policies, his development of strategies or innovative programs, or his development of pricing strategies. Further, it is unclear why the general manager of a company that cleans, refurbishes and re-sells used barrels and bins would meet with retailers and negotiate contracts for manufacturing and supplying foods. Reciting a 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. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 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), aff'd, 905 F.2d 41 (2d. Cir. 1990).

Beyond the required description of the job duties, United States Citizenship and Immigration Services (USCIS) reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary, including the company's organizational structure, the duties of the beneficiary's subordinate employees, the presence of other staff to relieve the beneficiary from performing operational duties, the nature of the business, and any other factors that will contribute to understanding a beneficiary's actual duties and role in a business.

For the reasons noted above, the Petitioner's evidence of the foreign entity's staffing levels lacks credibility as the documentation shows that it employed the same ten workers, including the same five day laborers, continuously for over three years with no changes at all in its roster. As noted, the 2014 payroll reports appear to bear the Beneficiary's signature despite his physical presence in the United States at that time and the petitioner's submission of such reports calls into question the remainder of the evidence submitted to establish the foreign entity's structure and staffing levels.

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Even if we accept that the Petitioner had no turnover in its staffing levels, we note that the Petitioner indicates that the Beneficiary allocated 35% of his time to sales promotions, marketing strategies and business development, while all of the claimed subordinates are tasked with purchasing, production or accounting tasks. As such, the Petitioner did not establish who, other than the Beneficiary, would have been available to perform day-to-day sales, marketing and business development activities that he is claimed to oversee.

Based on the deficient job description and lack ofreliable supporting evidence of the foreign entity's structure and staffing levels during the relevant time period, the record does not support a finding that the Beneficiary's claimed general manager position was in a qualifying managerial or executive capacity.

Overall, the evidence establishes that the foreign entity is owned by the Beneficiary's father and that it is doing business as a recycler of used barrels, but it does not establish that the foreign entity employed the Beneficiary in a qualifying managerial or executive capacity on a full-time basis for one continuous year in the three-year period preceding the filing of the petition. Accordingly, the appeal will be dismissed.

III. BEYOND THE DIRECTOR'S DECISION

Beyond the Director's decision, the evidence of record does not establish: (1) that the Beneficiary will be employed in a qualifying managerial or executive capacity in the United States; or (2) that the Petitioner has a qualifying relationship with the Beneficiary's claimed foreign employer.

A. U.S. Employment in a Managerial or Executive Capacity

On the Form I-129, the Petitioner stated that it is engaged in the sale of granite and tile, has 12 employees, and gross annual income of $2.8 million. The record shows that the Petitioner does business as

The Petitioner stated that the Beneficiary, as Vice President/General Manager, "will have overall responsibility of planning and developing the U.S. investment" and that he will be "responsible for all our planning, expansion, investment, budgeting, and marketing." The Petitioner explained that he would "hire and assign other managers and employees" to increase the sales of the company. The Petitioner stated that the Beneficiary would have the authority to "establish goals and policies ... based upon policies and procedures developed by shareholders." The Petitioner indicated that the Beneficiary would be responsible for "negotiating and supervising the drafting of purchase agreements," "ensuring the marketing of products," "overseeing legal and financial due diligence," "developing organizational policies and objectives," "developing trade and marketing strategies," "formulating pricing policies and advertising techniques," and "developing and implementing plans." In addition, the Petitioner also offered that the Beneficiary would be tasked with "coordinating with engineers in environmental testing," "overseeing licensing and dealing with governmental officials," "developing trade and consumer market strategies," "creating a plan to

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secure additional retail locations," and "evaluating and improving policies and procedures as necessary."

The Petitioner also provided a breakdown of the Beneficiary's duties, noting that he will spend 25% of his time on management/operational decisions and conducting due diligence for acquisition of outlets; 30% of his time on combined company representation and business negotiations; 30% of his time on combined financial decisions and business negotiations; and 15% of his time on organizational development and putting a management team into place.

The Petitioner submitted a 2012 IRS Form 1120S U.S. Income Tax Return for an S Corporation indicating that it earned approximately $2.8 million revenue and paid $284,925 in wages during that year.

The Petitioner also provided its most recent IRS Form 941 Employer's Quarterly Federal Tax Return from the first quarter of 2014 reflecting that it employed thirteen individuals and that it paid over $41,000 in wages during that quarter. The Petitioner's Texas quarterly wage report for the same quarter lists the employees and wages paid during the three-month period as follows:

- $24,000 -$348

-$3,697 -$435

- $1,800

-$2,400 -$2,576

$1,102 L----- - $1,783

$450 - $1,268

-$1,740 - $145

The Petitioner also provided an employee list which includes names, job titles, and salaries for all employees as follows:

Name

[The Beneficiary] (to be)

do we have to add this?

Designation President GM AGM

manager manager sales labour labour sales sales sales/accounts

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Approximate amount (per month) $8,000 $3,000 $2,500 $2,000 $1,350 $1,377.50 $1,335 $1,200 $1,200 $1' 160 $1015 $800

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On appeal, the Petitioner submitted a copy of its 2014 IRS Form 1120S, U.S. Income Tax Return for an S Corporation which shows that it paid $126,000 to its owner, , and $105,238 to all other employees.

Upon review of the evidence, we find that the Petitioner has not established that the Beneficiary will be employed in a qualifying managerial or executive capacity in the United States.

When examining whether a beneficiary is employed in a managerial or executive capacity, we will look first to the petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991).

Beyond the required description of the job duties, United States Citizenship and Immigration Services (USCIS) reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary, including the company's organizational structure, the duties of the beneficiary's subordinate employees, the presence of other staff to relieve the beneficiary from performing operational duties, the nature of the business, and any other factors that will contribute to understanding a beneficiary's actual duties and role in a business.

The Petitioner has submitted a vague duty description for the Beneficiary's proposed employment in the United States that does not sufficiently articulate the Beneficiary's actual day-to-day duties. For instance, the Petitioner did not provide sufficient detail or examples regarding the Beneficiary's proposed duties. The Petitioner submitted only vague objectives and responsibilities that could apply to any manager or executive acting for any company in any industry, such as the Beneficiary being tasked with responsibility for planning and developing the U.S. investment, hiring and assigning managers and employees to increase sales, establishing goals and policies based on shareholder direction, negotiating purchase agreements, marketing products, overseeing due diligence, developing organizational policies and objectives, developing trade and marketing strategies and formulating pricing policies and advertising strategies. In each case, the Petitioner has not provided specific examples or supporting evidence to substantiate investments the Beneficiary will plan and develop, employees or managers he will hire, goals and policies the Beneficiary will implement, purchase agreements he will negotiate, products he will market, due diligence he will conduct, or policies and objectives he will implement. 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. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 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), affd, 905 F.2d 41 (2d. Cir. 1990).

In addition, throughout the Beneficiary's duty description, the Petitioner does not make a single reference to its asserted business, the trading of tile and granite. However, the Petitioner does

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indicate that the Beneficiary will be responsible for "coordinating with engineers in environmental testing" and "overseeing licensing and dealing with governmental officials," tasks which on their face appear incongruent with its stated business. Further, the Petitioner states that the Beneficiary will be developing a financial plan with the "Chief Financial Officer," a position the Petitioner does not otherwise claim to have within its organization, and states that the Beneficiary will "conduct weekly meetings with the Vice President/General Manager," which is the position the Petitioner states the Beneficiary himself will hold. The Petitioner does not explain why the Beneficiary would be tasked with "placing a management team to run the operations" when the company has been operating for over ten years and has a senior manager, the owner and president, already in place.

Furthermore, the Petitioner submits an internal listing of employees and payroll that is materially different from its most recent tax documentation. For instance, five employees in the Petitioner's internal payroll listing are not reflected in its most recent IRS Form 941 from the first quarter of 2014 and only the president of the company is shown to be paid a monthly salary consistent with that reflected in its most recent IRS Form 941. 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. at 591-92.

In addition, the Petitioner did not provide an organizational chart, not did it submit job descriptions or other supporting documentation relevant its employees to substantiate their place within the organization. Therefore, in totality, the Petitioner has not submitted sufficient supporting evidence to support a conclusion that the Beneficiary will be employed in the United States in a qualifying managerial or executive capacity. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). For this additional reason, the petition cannot be approved.

B. Qualifying Relationship

The remaining issue to be addressed is whether the evidence of record establishes that the Petitioner has a qualifying relationship with located in India. 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 101(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1).

The Petitioner claims to be an affiliate of the foreign entity based on common majority ownership by the same individual, The evidence of record shows that is the sole owner of the petitioning company, a Texas corporation established in The Petitioner states that

acquired a 51% interest in in 2014, while the Beneficiary's father owns the remaining 49% of the foreign entity.

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The Petitioner submitted evidence that the foreign entity was established and operating as a sole proprietorship owned by the Beneficiary's father during his claimed period of employment abroad. The Petitioner submitted a copy of a memorandum of understanding, executed and notarized in India on June 7, 2014, which states that was investing $18,500 to the

and that such investment was intended "as a 51% purchase of share holding in the proprietary firm." The document states that, immediately upon payment, would be "entitled as a partner in the proprietary firm which will be converted into Partnership firm, entering as a partner of 51% share." The memorandum of understanding further states that would invest $12,500 within 180 days of entering the partnership deed.

The Petitioner submitted documentation which appears to reflect two wire transfers from the Petitioner or to the foreign entity which totaled $18,500 in June 2014. The Petitioner did not submit an executed partnership agreement between and the sole proprietor of

to show that the partnership was formed or that the foreign entity is currently majority­owned by The memorandum of understanding and initial transfer of funds is not sufficient to show that the change in ownership did in fact occur. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)).

Accordingly, the evidence of record does not substantiate the claimed qualifying relationship between the two entities. For this additional reason, the petition cannot be approved.

We may deny an application or petition that fails to 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, 1037 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003).

IV. CONCLUSION

The appeal will be dismissed and the petition will remain denied 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofM-I-, Inc., ID# 15768 (AAO Feb. 29, 2016)

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