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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: NAY 1 6 2013

OFFICE: CALIFORNIA SERVICE CENTER FILE:

INRE:

PETITION:

PETITIONER:

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 in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office.

If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

Ron Rosenberg Acting 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 petition is based on an investment in a business, , a general automobile repair and service business located at

Florida. The petitioner failed to indicate on part 2 of the petition whether the business is located in a targeted employment area. The petitioner has provided no evidence establishing that the business is located in a targeted employment area. Thus, the required amount of capital in this case is $1,000,000.

In her June 5, 2012 decision, the director denied the petition on two bases. First, the petitioner failed to demonstrate that he has placed the required amount of capital at risk for the purpose of generating a return on the capital. Second, the petitioner failed to document the lawful source of the required amount of capital.

On appeal, the petitioner, through counsel, submits a two-page letter and additional documents. For the reasons discussed below, the petitioner has not overcome either of the director's two grounds for denial. In addition, the petitioner has not shown that his claimed equity investment has created or will create at least 10 new, full-time qualifying positions. Accordingly, the petitioner's appeal is dismissed.

I. THE 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 BACKGROUND

The petitioner filed the petition on October 4, 2011, sul?Ported by extensive evidence, including: (1) documents relating to the formation of (2) documents relating to the petitioner; (3) 's 2011 and 2010 unaudited financial statements; (4) 's 2010 and 2009 U.S. Corporation Income Tax Returns, Internal Revenue Service (IRS) Forms 1120; (5) documents relating to 's employees; (6) 's business plan; (7) a May 31, 2011 document entitled ' 's Additional Paid-in Capital"; (8) documents relating to .'s business operation; (9) 's bank statements for accounts ending in 2076, 9717, 1652, and 0838; (10) documents relating to the purchase of vehicles and

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equipment; (11) documents relating to the August 2008 purchase of real property located at Florida, and personal property at the location; (12) a June 2011 document

entitled "Total Investment Made by [the Petitioner] and [the Petitioner's Wife]"; (13) a June 30, 2011 document entitled "[the Petitioner and his Wife's] Statement of Net Worth"; (14) documents relating to (15) documents relating to loans the petitioner and his wife made to during 2008 through June 2011; (16) documents relating to

(17) color photographs and promotional material relating to ; (18) documents relating to the petitioner's claimed investments in the United States; and (19) documents relating to the petitioner and his wife's 2006 purchase of a residential property located at

Florida.

On February 3, 2012, the director issued a Request for Evidence (RFE), requesting the petitioner to provide additional information, including (1) evidence that the petitioner has invested or is actively in the process of investing the required amount of capital; (2) evidence of the lawful source of the petitioner's funds; and (3) evidence that the claimed investment has created or will create at least 10 new, full-time positions for qualifying employees.

The petitioner responded to the director's RFE with a letter from counsel dated April 23, 2012, and documents, many of which the I>etitioner had previously provided. The documents include: (1) documents relating to (2) documents relating to deposits made in

j s bank accounts from 2008 to 2011; (3) documents relating to the purchase of vehicles and egui ment; (4) documents relating to the petitioner's claimed investment in

(5) documents relating to the August 2008 purchase of real property located at Florida, and personal property at the location; (6) the petitioner and his wife's 2007

through 2010 U.S. Individual Income Tax Returns, IRS Forms 1040; (7) documents relating to the 2007 sale of s warehouse in Florida, and related bank documents; (8) the petitioner and his wife's bank statements for accounts ending in 1514, 9767, 2300, 7433 and 6308; (9) the petitioner's wife and s bank statements for an account ending in 4004; (10) documents from relating to funds transferred to the petitioner and his wife from June 2008 through August 2010; (11) the petitioner's wife's bank statements for an account ending in 5303; (12) the January 2002 to February 2002 bank statement for an account belonging to "Inversiones

.," with an account number ending in 2309; (13) documents relating to the December 2007 sale of the petitioner's real estate property located at Florida; (14) s 2012 updated business plan; (15) documents relating to 's employees and their wages; (16) promotional material; and (17) documents relating to s business operation.

In her June 5, 2012 decision denying the petition, the director concluded that the petitioner's evidence failed to show: (1) the required amount of capital was placed at risk for the purpose of generating a return on the capital, or (2) the lawful source of the required amount of capital.

On appeal, counsel asserts that the director erred. In support of the appeal, the petitioner files a two­page letter from counsel and documents, many of which the petitioner had previously provided. The documents include: (1) documents relating to (2) documents relating to

; (3) bank statements and other financial documents; (4) documents relating to the 2007 sale of s warehouse in , Florida; (5) documents relating to the

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December 2007 sale of the petitioner's real estate property located at Florida; (6) documents relating to the petitioner's September 2004 sale of C.A., shares; (7) documents relating to the petitioner's wife's inheritance; (8) documents relating to the July 2006 sale of an apartment in Venezuela listing the sellers as the petitioner's wife and

(9) documents relating to the November 2009 sale of C.A. 's commercial property in Venezuela; (10) documents relating to the August 2006 sale of

C.A. 's property known as ' ': (J 1) documents relating to C.A.; and C.A.; and (12) a

March 6, 2000, letter from

III. ISSUES ON APPEAL

A. Investment of Capital

The regulation at 8 C.F.R. § 204.6(e) defines "capital" and "investment." The regulation at 8 C.F.R. § 204.60)(2) explains that a petitioner must document that he or she has placed the required amount of capital at risk for the purpose of generating a return on the capital. Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. The regulation then lists the types of evidence the petitioner may submit to meet this requirement.

In addition, the regulation at 8 C.F .R. § 204.6( e) provides:

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. This definition shall not include a noncommercial activity such as owning and operating a personal residence.

(Bold emphasis added.)

Thus, the petitioner must demonstrate a qualifying investment in a single commercial enterprise that may include a holding company and its wholly-owned subsidiaries. The requirement is not merely technical. The full amount of the requisite investment must be made available to the business most closely responsible for creating the employment upon which the petition is based. Matter of Izummi, 22 I&N Dec. 169, 179 {Assoc. Comm'r 1998). A new commercial enterprise with subsidiaries that are not wholly-owned increases the risk that the full investment is not being made available to the business most closely responsible for creating the employment. Regardless, the plain language of the regulation clearly states that only wholly-owned subsidiaries are part of the new commercial enterprise.

The evidence in the record fails to establish that the petitioner has invested the required amount of capital in or its wholly-owned subsidiaries, if any. According to part 3 of the

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petition, the petitioner made his initial investment in of $1,204,734.78 on March 6, 2008. According to counsel's September 30, 2011 letter, this amount derives from (1) $790,000 in property for the shop, (2) $104,608.63 in cars purchased, and (3) $310,067.10 in deposits made by the petitioner. 1 First, the evidence fails to show that the petitioner invested $790,000 in in the form of purchasing property for 's shop. The petitioner has provided a document entitled "Total Investment Made by [the Petitioner and his Wife] until June 2011 ," showing that the etitioner and his wife's total investment of $790,059.05 was in not The full amount of the requisite investment must be made available to the business most closely responsible for creating the employment, in this case, See Matter of Izummi, 22 I&N Dec. at 179. On appeal, counsel notes that the petitioner and his wife own

The record, however, does not reveal that the new commercial enterprise is a holding company with wholly-owned subsidiaries that could be included within the new commercial enterprise pursuant to the definition of commercial enterprise at 8 C.F .R. § 204.6(e). Rather, are affiliated corporations with similar individual ownership that is not in the form of a holding company with wholly-owned subsidiaries.

The "Total Investment Made by [the Petitioner and his Wife] until June 2011" further shows that $578,674.57 of the $790,059.05 relates to the August 2008 purchase of a real property located at

Florida, and personal property, including shop equipment. is located on this real property and uses the shop equipment. 2 Although , the

petitioner and his wife, along with were listed in the Agreement of Purchase and Sale as buyers, the evidence fails to show that the petitioner purchased the real and personal property using only his own personal funds. Rather, copies of checks show that most of the purchasing funds came from The evidence contains a receipt for a Total Bank cashier's check, dated August 28, 2008, for $166,874.57, showing that the petitioner was the purchaser of the cashier's check. This is the only document in the record that shows that any of the $578,674.57 came from the petitioner. Regardless. as is not a wholly-owned subsidiary of the new commercial enterprise, the petitioner cannot count any investment in towards his qualifying investment.

According to the document labeled "Total Investment Made by [the Petitioner and his Wife] until June 2011," the remaining $211,384.48 of the $790,059.05 investment relates to loan repayments of a loan

obtained from using the real property located at Florida, as collateral. The etitioner has provided no evidence showing that

these loan repayments constitute an investment in Indeed, as discussed above, the evidence shows that are two distinct corporate entities with neither being the wholly-owned subsidiary of the other.

According to a Commercial Lease Amendment, 's landlord. leases to the real property located at

Florida, and collects a monthly rent of$12,500. As pays-

1 The petitioner has erred when adding the three figures together. Specifically, $790,000 + $104,608.63 + $310,067.10 =

$1,204,675.73, not $1,204,734.78. 2 Additional information relating to the purchase obtained from Florida, Official Records Search, at http://www.bcpa.net/RecMenu.asp, accessed on December 29, 2012, incorporated into record of proceeding.

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rent to something it would not have to do if it owned the property itself, any investment in is not available to and does not benefit

the business responsible for job creation. In addition, the record lacks evidence showing that the petitioner made the loan repayments using only his own personal funds. The record includes a copy of a official check, dated October 28, 2010, for $8,401, showing that the petitioner was the purchaser of the official check. This is the only document in the record that shows that any of the $211,384.48 came from the petitioner.

Second, the evidence fails to show that the etitioner invested $104,608.63 in in the form of purchasing vehicles for The evidence shows that the petitioner or

purchased most of the vehicles using funds from 's accounts, not the petitioner's personal accounts. Specifically, the evidence shows that wired $16,100 on May 6, 2011, to purchase a 1971 Porsche vehicle; wired $19,431 on April 27, 2011 to purchase a 2001 Porsche vehicle; and issued a $4,000 check to purchase a 2000 Porsche vehicle. In addition, the petitioner fails to provide documents, such as canceled checks or other documents from banks, showing that he purchased a 2008 Dodge van, with a selling price of $42,005, with his personal funds. 3 The Car Buyer's Offer and Purchase Option Contract shows as the buyer of the 2008 Dodge van, and the petitioner as a co-buyer. The evidence further shows that they purchased the vehicle through financing using the vehicle as collateral. Under the regulation at 8 C.F .R. § 204.6( e) the funds associated with the purchase of the vehicle do not meet the definition of capital because the regulation only permits "indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness." 8 C.F.R. § 204.6(e). The record contains a December 2009 through January 2010 bank statement for an account belonging to the petitioner and his wife, with an account number ending in 7433, showing that on December 21, 2009, the petitioner purchased a 1989 Dorsey trailer and a 1979 Kenworth truck for $20,000. The certificates of title show that is the registered owner for both vehicles. The bank statement is the only document in the record that shows that any of the $104,608.63 came from the petitioner's personal funds.

Third, the evidence fails to show that the petitioner invested $310,067 in in the form of deposits made into 's accounts. Specifically, the petitioner has failed to show that all of the deposited funds came from his personal funds or accounts. Instead, the evidence shows that some cash deposits into 's accounts have no documented source; some funds came from some funds came from some funds came from the petitioner's personal accounts; and some funds came from unspecified sources. Although the record contains documents entitled "Deposit Summary," noting that the petitioner was the person who physically made certain cash or check deposits into 's accounts, neither the documents entitled "Deposit Summary" nor any other evidence in the record establish that the cash or checks were drawn from the petitioner's personal funds or accounts. For example, an October 16, 2008 "Deposit Summary" indicates that Total Bank "Red From" the petitioner $10,000, with a Memo noting "Transfer." The accompanying document actually shows that the funds of the wire transfer were drawn from 's account, not the petitioner's account. As such, information listed under

3 The petitioner's undated document entitled ' $45,077.63, instead of$42,005, its selling price.

' lists the "amount" of the 2008 Dodge van as

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"Red From" is insufficient to show the source of the funds, or from whose account the funds were drawn. The evidence only shows that the following funds came from the petitioner's personal accounts or funds: (1) on June 3, 2011, the petitioner withdrew $7,000 from his account ending in 9767, and deposited the $7,000 into 's account ending in 2076; and (2) on June 28, 2011, the petitioner transferred $25,000 from his account ending in 9767 to .'s account ending in 2076. In other words, the evidence shows only $32,000 of the $310,067 deposited into

's accounts came from the petitioner's personal funds or accounts.

Fourth, the evidence shows that the funds deposited into 's accounts were not an equity investment from the petitioner; rather, they were loans from the petitioner. The petitioner titled documents that list all the deposits by year as follows: "Loan from [the Petitioner and his Wife] to

, Jan to Jun 2011," "Loan from [the Petitioner and his Wife] to Year 2010," "Loan from [the Petitioner and his Wife] to Year 2009," and "Loan from [the Petitioner and his Wife] to

Year 2008." Similarly, within the document the petitioner submitted entitled ' Additional Paid-in Capital, as of May 31, 2011," the petitioner categorized the "paid-in capital"

as "Loan from Stockholder." The document concludes with the "Total LOAN FROM STOCKHOLDER" of $348,444.92. An August 4, 2011 document entitled " Transactions by Account" lists all the transactions in account "ADDITIONAL PAID-IN CAPITAL" but itemizes the transactions as "LOAN FROM STOCKHOLDER," totaling $409,359.47 as of August 4, 2011. 's 2009 U.S. Corporation Income Tax Returns, IRS Form 1120, Schedule L, Item 19, indicates that as of the beginning of 2009, had an outstanding $116,253 in "loans from shareholders," which it repaid by the end of the year. Item 23 shows that as of the beginning of 2009, received no "additional paid-in capital." The 2009 Schedule L, Item 23, shows that as ofthe end of2009, received a total of$174,487 as "additional paid-in capital," and the 2010 Schedule L, Item 23, shows that as of the end of 2010, had a total of $255,946 as "additional paid-in capital." The unaudited balance sheet for

as of June 30, 2011 shows $2,000 in stock and total additional paid-in-capital of $409,359. The petitioner has provided inconsistent documents relating to whether he had transferred funds to

as paid-in capital or as shareholder loans. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence. Attempts to explain or reconcile the conflicting accounts [or evidence], absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice." Matter of Ho, 19 I&N Dec. at 591-92. The petitioner has provided no such evidence to explain or reconcile the inconsistent documents.

In summary, the evidence in the record shows that the petitioner has made a total investment of personal funds of $218,874.57, which includes the $166,874.57 he used to purchase real and personal property located at Florida, the $20,000 he used to purchase the 1989 Dorsey trailer and 1979 Kenworth truck, and the $32,000 he deposited into Tuners Mall Corp.'s accounts. The petitioner and his wife's 2007 to 2010 U.S. Individual Income Tax Returns, IRS Forms 1040, fail to show that the petitioner had sufficient personal funds to invest an additional $781,125.43 in , to reach the $1,000,000 required amount of capital.4 The 2007 Individual Tax Return shows that the petitioner and his wife's total income was $159,531. The 2008 Individual Tax Return shows that the petitioner and his wife's total income was $45,676. The 2009 Individual Tax Return shows thatthe petitioner and his wife's total income was $32,557. Finally, the 2010 Individual

4 $1,000,000- $218,874.57 = $781,125.43

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Tax Return shows that the petitioner and his wife's total income was $51,573. These documents fail to show that the petitioner has sufficient funds to invest an additional $781,125.43 in Tuners Mall Corp.

In light of the above, the petitioner has not demonstrated a qualifying equity investment of personal funds of at least $1,000,000.

B. Source of Funds

In order to establish the lawful source of funds, the regulation at 8 C.F.R. § 204.6(j)(3) lists the type of evidence a petitioner must submit, as applicable, including foreign business registration records, business or personal tax returns, or evidence of other sources of capital. A petitioner cannot establish the lawful source of funds merely by submitting bank letters or statements documenting the deposit of funds. Matter of Ho, 22 I&N Dec. 206, 210-211 (Assoc. Comm'r 1998); Matter of Izummi, 22 I&N Dec. at195. An unsupported letter indicating the number and value of shares of capital stock held by the petitioner in a foreign business is also insufficient documentation of source of funds. Matter of Ho, 22 I&N Dec. at 211.

On appeal, counsel asserts that most of the invested funds came from relatives and transactions overseas. The evidence shows the following transfers:

Date Amount Source Destination October 18, 2006 $281,171.53 The petitioner's wife The petitioner's wife 2004-2011 $221,000 total

I ' The petitioner and his

wife 2011 $70,000 total The petitioner and

2003-2005 $54,990 total The petitioner and his wife

June 28, 2011 $100,000 The petitioner and his wife

2003 $22,426 total The petitioner and his wife

2010 $56,000 total The petitioner and his wife

2007 $14,172.54 total I

The petitioner's wife

January 15, 2007 $7,820,87

the petitioner's wife August 5, 2009 $5,000 The petitioner and his

wife June 3, 2011 $9,945 I The petitioner's wife

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The record contains no explanation for the above transfers, such as whether they were gifts, loans, lawful income or compensation belonging to the petitioner and his wife.

Second, the petitioner has failed to show that he invested the $287,626.70 that received on September 19 2007, for the sale of a warehouse located at

Specifically, the record includes a Commercial Contract relating to the sale of the warehouse with a selling price of $290,000, and bank statement showing a September 2007 deposit of $287,626.70 and a February 2007 deposit of $15,000. The petitioner, however, has not provided any evidence showing that the limited liability corporation's funds are the petitioner's personal funds or that he deposited his personal funds into

's accounts or that he used his personal funds in 's business operation. It is well established that funds of a corporation do not constitute funds of the corporation's shareholder. "It is an elementary rule that a corporation is a legal entity separate and distinct from its stockholders, and this is true even though one person may own all or nearly all of the capital stock." See Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm'r 1980); Matter ofTessel, 17 I&N Dec. 631 (Act. Assoc. Comm'r 1980); Matter of Allan Gee, Inc. , 17 I&N Dec. 296, 297 (Reg'l Comm'r 1979) (citing Dalton v. Bowers, 287 U.S. 404, 408, 410 (1932); Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Haese v. A.R. Demory Inv. Co., 38 F.2d 232 (9th Cir. 1930), cert. denied, 282 U.S. 841 (1930)); Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333 (1925).) "The fact that one person owns a majority or all of the stock in a corporation, does not, of itself, make him [entitled to the assets or] liable for the debts of the corporation .... " Id. at 297-298.

Third, the petitioner has failed to show that he invested the $179,917.21 the petitioner received on December 6, 2007, for the sale of a residential property located at

Specifically, the record includes a U.S. Department of Housing and Urban Development Statement of Settlement relating to the sale of the property with $179,91 7.21 due to the petitioner, and the petitioner's bank statements for an account ending in 7433, show two December 2007 deposits, totaling $179,917.21. The petitioner has not, however, provided any evidence, i.e .. subsequent bank statements, showing that he invested any of the sales proceeds in

by depositing the funds into _ .'s accounts or using the funds for 's business operation. In short, he fails to show that his claimed investment in

came from the sales proceeds of the property.

Fourth, the petitioner has failed to show that he actually received any funds from his sale of shares in C.A.; his wife's inheritance; the sale of an apartment in Venezuela; the

sale of Inversiones s commercial property; or his wife's ownership interests in various businesses. Specifically, the petitioner has failed to point to any evidence in the record, i.e., bank­related documents, showing that he received funds from any of the abovementioned transactions or ownership interests. In short, he fails to show that his claimed investment in came from any of the funds relating to these transactions or ownership interests.

In light of the above, the petitioner has not shown that he lawfully accumulated $1,000,000 or documented the lawful source ofhis claimed investment in

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C. Employment Creation

As an additional issue, the petitioner has not established that the new commercial enterprise has created or will create the requisite employment. 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), aff'd, 345 F.3d 683 (91

h Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).

The regulation at 8 C.F.R. § 204.6(j)(4)(i) lists the evidence that a petitioner must submit to document employment creation, including photocopies of relevant tax records, Form 1-9, or other similar documents for 1 0 qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or a copy of a comprehensive business plan showing the need for not fewer than 10 qualifying employees. The regulation at 8 C.F.R. § 204.5(e) defines "employee" and "qualifying employee" as including, among other restrictions, full-time direct employees other than the petitioner. If the petitioner invests in a pre-existing, ongoing business, then the petitioner must create no fewer than 10 qualifying positions, and he "cannot directly cause a net loss of employment." Matter ofHsiung, 22 I&N Dec. 201,204-05 (Assoc. Comm'r 1998). Moreover, "it is the job-creating business that must be examined in determining whether a new commercial enterprise has been created," or if the business is a pre-existing, ongoing business. Matter of Soffici, 22 I&N Dec. 158, 166 (Assoc. Comm'r 1998).

A comprehensive business plan as contemplated by the regulations should contain, at a minimum, a description of the business, its products and/or services, and its objectives. Matter of Ho, 22 I&N Dec. at 213. Elaborating on the contents of an acceptable business plan, Matter of Ho states that the plan should contain a market analysis, the pertinent processes and suppliers, marketing strategy, organizational structure, personnel's experience, staffing requirements, timetable for hiring, job descriptions, and projections of sales, costs and income. The decision concludes: "Most importantly, the business plan must be credible." !d.

First, while the petitioner did not answer the relevant question on the petition, the evidence in the record shows that the petitioner invested in a pre-existing, ongoing business. See Matter of Sojfici, 22 I&N Dec. at 166. Specifically, according to section 1.1 of the updated business plan, filed in response to the director's RFE, "is a company that purchased an existing auto-repair service center." The purchasing agreement confirms the purchase of a preexisting business. As such, the petitioner must create no fewer than 10 additional qualifying positions, and he "cannot directly cause a net loss of employment." Matter of Hsiung, 22 I&N Dec. at 204-05. The petitioner has provided no evidence relating to how many full-time qualifying employees the previous automobile repair and service business employed. Accordingly, the petitioner has failed to establish that he has not directly caused a net loss of employment.

Second, the petitioner has not established that he has created at least 10 qualifying positions. According to part 5 of his petition, employed no employees when he made his initial investment on March 6, 2008, and employed eight employees as of October 4, 2011, the date he filed the petition. .'s Employer's Quarterly Federal Tax Return, IRS Form 941, indicates

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that employed 10 employees from October to December 2011. The petitioner, however, has failed to provide sufficient evidence showing that all the employees were full-time qualifying employees. See 8 C.F.R. § 204.6(e). According to an attached list of employees, the petitioner, who is not a qualifying employee, is listed as one of the 10 employees. In addition, five of the remaining nine employees do not appear to be full-time employees. Specifically, during this quarter, earned $2,493.75, earned $2,940,

earned $3,150, earned $2,631.60, and earned $3,216.40. These amounts are lower than $3,326.05, which is the amount someone would earn for working 35 hours per week, for 13 weeks between October and December 2011, earning a minimum wage at $7.31 per hour. 5 The employee names and compensation also differ on the various documents as follows:

Employee 2011 Payroll 2011 Form W-2 Updated Business Fourth Summary Plan Quarter 2011

Form 941 Not included $2,940 $30,000 $2,940 $10,200 $22,113 $22,000 $5,225 Not included $17,002.55 $17,000 $8,436.30 $20,400 $42,704 $42,704 $9,350 Not included $3,150 $40,000 $3,150

$14,400 $31,068.80 $31,068 $7,150 Not included None submitted $20,000 Not included Not included $4,768.40 Not included Not included $2,750 $3,391.67 Not included Not included $6,023.75 $6,023.75 Not included Not included $551,30 $551,30 Not included Not included $1,440 $9,093.75 Not included $2,493.75 Not included $50,050 Not included $21,175 Not included $5,848 Not included $2,631.60 Not included $750 Not included Not included Not included $153.51 Not included Not included Not included $2,225.94 Not included $3,216 Not included $2,200 Not included Not included Not included $716.38 Not included Not included Not included $925 Not included Not included

The record contains no explanation for the variances in the identity and compensation of 's employees.

Finally, the petitioner's business plan fails to show that will need no fewer than 10 qualifying employees. See Matter of Soffici, 22 I&N Dec. at 168. The record contains two business plans. The petitioner submitted the first one along with the petition. The petitioner submitted the updated one in response to the director's RFE. The initial business plan lists eight employees and their job descriptions. The business plan fails to indicate if all eight employees are full-time employees. Indeed, as discussed, the evidence in the record shows that at least four - - - - - - --

5 See http://www.floridajobs.org/minimumwage/FloridaMinimumWageHistory2000-2013.pdf, accessed on December 29, 2012, and incorporated into the record of proceeding.

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- of the eight employees listed in the initial business plan are not full-time employees. The initial business plan also fails to include information relating to the hiring of additional employees. Rather, it merely states in a conclusory manner: "Determining the success of the company, additional employees will be hired to help with operations at " The initial business plan thus fails to meet the minimum requirements for a comprehensive business phm.

Similarly, the updated business plan fails to meet the minimum requirements for a comprehensive business plan. Specifically, according to section 6 of the plan, the "projected number of employees is ten by the third year," which is 2011. The updated business plan provides that the positions of crew chief and marketing director will "soon [] be hired," but provides no timetable for hiring, as required under Matter of Ho, 22 I&N Dec. at 213. Moreover, the u dated plan lists 10 individuals. As discussed, at least four - . of the 10 employees listed in the updated plan are not full-time employees.

In light of the above, the petitioner has not demonstrated that his claimed investment has created or will create at least 10 full-time positions for qualifying employees.

D. SUMMARY

For all of the reasons set forth above, considered in sum and as alternative grounds for denial, this petition cannot be approved. The burden of proof in these proceedings rests solely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. The petitioner has not met that burden.

ORDER: The appeal is dismissed.