(b)(6)

....... U.S. Departmeot of Homelaod 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: APR 0 3 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 D. 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 f~e 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

(b)(6)

)

Page2

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. § t"l53(b)(5). The petition is based on an investment in a car conversion business, iocated in California Counsel indicated· in his initial memorandum in support ofthe petition that "is involved in ... the business of exPQrting automobiles (mostly luxury cars) to Chjna in accordance with customers' specialized requestsfor said automobiles." The petitioner indicated on part 2 ofthe petition that the business is not located in a targeted employment area Thus, the required amount of capital in this case is $1,000,000.

In her July 12, 2012 decision, the director denied the petition on two grounds: (1) 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; and (2) the petitioner failed to establish that the claimed investment has created or will create at least 10 full-time positions for qualifying employees.

On appea~ the petitioner submits a statement and additional evidence. For the reasons discussed below, the petitioner has not overcome either of tlie director's two grounds for deniaL In addition, the petitioner has failed to document the lawful source of the required amount of capital. The appeal will therefore be 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 amotmt 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 4aughters).

(b)(6)

Page3

II. PROCEDURAL AND FACTUAL BACKGROUND

1The petitioner '·filed the petition on January 3, 2012, supported by the following types of evidence: (1) identification documents. relating to the petitioner and his family; (2) November 2011 bank statement for an account ending in (3) a copy of a processed check in the amount of$1,000,000 drawn from the petitioner's account ending in and deposited into

; account; (4) the petitioner's March 2011 to November 2011 bank statements for accounts with account numbers ending in ; (5) ; corporate documents; (6) undated business plan; (7) a sublease between

; (8) an unsigned copy of a Standard Industrial/Commercial Single-Tenant Lease, and related documents; (9) documents relating to

; (10) a June 17. 2011 document entitled "Gift Agreement"; (11) two June 2011 On-line Banking Electronic Receipts; (12)

, 2011 bank statement for an account ending in (13) a June 27, 2011 Application for Mone Transfer Acknowledgement; (14) June 2011 bank statement for an account endmg in ; (15) the petitioner's bank. statement for an aceount ending in (16) a July· 11, 2011 declaration and other documents relating to the petitioner's relatives and friends wiring funds to the petitioner's account ending in . ( 1 7) documents relating to

and the netitioner's claimed investment in the company; (18) documents relatin~ to - ; (19)

naudited financial statements; (2:0) documents. relating to the petitioner's 2011 taxes; (21) -documents relating to _ employees; and (22) State of California Secretary of State Statement oflnformation relating to

On April 13, 2012, the director issued-a Request for Evidence (RFE), requesting that the petitioner provide additional information, including: (1) evidence that the petitioner has irivested or is actively in the process of investing the required amount of capita~ (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 full-time positions for qualifying employees.

On June 22, 2012, the petitioner responded to the director's RFE with a letter from counsel dated June 19, 2012, and a number of documents, some ofwhich the petitioner had previously filed. The documents fi'Ied in response to the RFE include: (1) a si~ed copy' of the Standard Industrial/Commercial Single-Tenant Lea8e between and

(2) · a signed copy of a Sublease between and (3) . invoices; (4) November 2011 through May 2012 bank statements for an account ending in (5) color photographs purported to show operation; (6) bills from AT&T; (7) uncertified translations .ofdocuments entitled ''Personal Income Tax Report" from October 2000 through 2008; (8) copies of checks issued to ; (9) a July 30, 2008 report from

, and its attachments; (1 0) documents relating to r (11) a January 18, 2012 document from and

insurance related documents; (12) an undated document entitled "Revised Business Plan of

(b)(6)

Page4

; (13) Business Tax Rec~ipt and Certification Form: (14) a 2009 Authorized Dealer Program Certificate , issu~ to

: (15) Internal Revenue Service (IRS) Form 941, Employer's . Quarterly Federal Tax Return, for the first quarter in 2012, and other employee-related documents;

(16) documents entitled "Authentication Result: Correct with Current Key," confirming casli transfers to ., between October 2011

and January 2012; and (17) documents relating to and

In her July 12, 2012 decision denying the petition, the director concluded that the petitioner's evidence failed to show: (1) the required amount of capital has been placed at risk for the purpose of generating a return on the capital, and (2} the claimed investment has created or will create at least 10 full-time positions for qualifying employees. ·

On appeal, the petitioner asserts that the director erred. The petitioner submits a four-page letter from counsel, an 11-page document entitled "Brief:" and the following types of evidence, many of which the petitioner had previously provided: (1) uncertified translations entitled "Certificate for China Compulsorv Product Certification"; (2) a Standard IndustriaVCortunercial Single-Tenant Lease between and , (3) an online-printout entitled ·

( 4) sales orders issued to , (5) photographs of a vehicle and its interior; (6) a document entitled "Business Plan of.

'; (7) a Certificate of Liability Insurance, dated January 24, 2012; (8). a document entitled "Revised Business Plan of, "; and (9) an August 18, 2011 Fabrication and Operations Agreement between ., and

III. PERTINENT BUSINESS ENTITIES

At the outset;. it is useful to discuss the relevant business entities. As stated above, the new commercial enterprise is The initial business plan indicated that would "cooperate" with , a· company. "speCialized in converting U.S. originally made cars into custom-made ones according to customers' requests and then export these converted U.S~ automobiles into the Chinese market at wholesale prices." The initial business plan indicates that the .original car providers would include , a "company specialized in the worldwide delivery of Luxury, RV Limousine, Armored vehicle, Towing truck, etc." The plan further explained that would deliver·~cars to which would remove the original equipment manufacturer parts and then tum the cars over to

, which would build and install seats and add interior materials before returning the vehicles to _ _ The revised business plan provides similar information .. The record contains a Fabrication. and Operations Alti'eement wherebv agrees to fabricate the interior comoonents of vehicles for and a sublease whereby

subleases premises to _ .. in China is the purported source of the petiti9ner's funds as a shareholder loan to the petitioner's cousin who then 2ifted the money to the petitioner, but the record also contains evidence of l

doing business with

(b)(6)

PageS

IV. ISSUES ON APPEAL

A. Investment of Capital

The regulation at 8 C.P.R. § 204.6(e) defines "capital" and "investment." The regulation at 8 C.P.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 ofgenerating a return on the capital placed at risk. 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. The full amount of the requisite investment must be mad~ available to the business most closely responsible for creating the employment upon which the petition is based. Matter of lzummi, 22 I&N Dec. 169, 179 (Assoc. Comm'r 1998).

1. Funds At Risk

The evidence in the record shows that ·is a grossly overcapitalized compariy and that the petitioner's claimed $1,000,000 inv~stment has not been placed at risk for the purpose of generating a return on the capital. Matter of Ho, 22 I&N Dec. 206, 210 (Assoc. Comm'r 1998), ~~es: . I

Before it can be said that capital made available to a commercial enterprise has been placed at risk, a petitioner must present some evidence of the actual undertaking of business activity; otherwise, no assurance exists that the funds will in fact be used to carry out the business of the commercial enterprise. This petitioner's de minimis action of signing a lease agreement, without more, is not enough.

Ultimately, the case stands for the proposition that all the funds must be at risk. Matter of Ho states:

/d.

Simply formulating an idea for future business activity, without taking meaningful concrete action, IS similarly insuffici(mt for a petitioner to meet the at-risk requirement.

First, the evidence in the record, including the business plans and Minutes of First Meeting of Board of Directors, shows that the petitioner is th~ sole owner, director, Chief Executive Officer (CEO),

. Chief Financial Officer (CFO) and general manager of. . Second, according to page 8 of .'sbylaws, the CFO "shall disburse the funds ofthe corporation as may be ordered by the Board of Directors," which consists of one director, the petitioner. In other words, the bylaws allow the petitioner to distribute funds that are in account. Third, neither the initial

(b)(6)

Page6

business plan nor the revised business plan specifically provides information relating to how will use the petitioner's $1,000,000 claimed investment.

Indeed, the evidence, including bank statements for an account endmg in 6615, shows that seven months afterthe petitioner's November 1, 2011 claimed investment of$1,000,000, over 80 percent of the investment remained in the account unused. Specifically, bank statements for the account ending in shows that the company's most recent balance at the end of May 2012 was $813,673.15, or approximately 81.4 perc~nt of the petitioner's claimed investment of$1.000.000. 1 Moreover, evidence relating to expenses fails to show how will use the petitioner's $1,000,000 claimed investment. Specifically, the processed checks attached to bank statements for an account ending in show that between November 2011 and May 2012, the vast majority of payments, including those to telephone company provider, suppliers and employees, were under $1,000.

The entire financial plan in the revised business plan states:

Since the project involves EB5 application and $1 Million investment fund must be invested by the investor under the law and said amount ·must be sustained during period required by the law; fiance [sic] shall not be an issue for this project.

and will receive income 'from their services of conversion of the luxury vehicles although risk oflos~ will ::~lw::~vs exist like any other active business. Once the vehicles are comnleted_ (and other similar car oroviders) is invoiced and is naid in fulL After

being paid, a check will be written. from : to for cost of any materials or inventory purchased, cost of labor, plus the

profit.

Neither the initial business plan nor the revised business plan contains any expense projections explaining what capital expenditures will be requireq in the next two years. Thus, the petitioner has never explained the need for a $1,000,000 investment such that he has established that his funds are at risk. See Matier of Ho, 22 I&N Dec~ at 210; ·see also AI Humaid v. Roark, No. 3:09-CV-982-L,

I 2010 WL 308750 (N.D. Tex. Jan~ 26, 2010).. · . .

As such, the petitioner has failed to show that his $1,000,000 claimed. investment in has been placed at risk for the purpose of generating a return.

2. Sublease

Although the bank statements show that , pays ., $5,000 a month to sublease its rental property, this monthly expense amounts to merely 0.50 percent .of the

I $813,673.J5 + $1,000,000 X 100::::81.4.

(b)(6)

Page7

petitioner's claimed investment of$1,000,000? Moreover, the record contains inconsistent evidence relating to what space, if ~y, is subleasmg from First, the petitioner h s submitted an Au~st 18, 2011 Standard lndustriaVCommercial Single-Tenant Lease between and , and a November 1, 2011 Sublease, sh~ned by on behalf of , and the petitioner on behalf of

The Standard lndustriaVCommercial Single-Tenant Lease provides that ., leases from ·"art annroximately 17,400 square foot freestanding building," located at California, from November 1, 2011 to November 30, 2014.· The Sublease provides that subleases from , "all" of the same property for the same period. The Sublease further provides that is located at California. According to the "Company Summary'' section of initial and revised qusiness plans, occupies the 17,400 square foot property described in the Standard Industrial/Commercial Simde-Tenant Lease. Other documents in the record, including invoices from and

and bills from AT&T, however,_ show that does not occupy the entire 17,400 square foot property. Some documents, includin~ent navment invoices, indicate that the property is · occupied by both and , with

occupying Unit B, and occupying Unit A, of the property. An April 2012 through May 2012 U-Verse Statement from AT&T notes that .

occupies Unit A, not the entire property or Unit ,B. Moreover, the lease sets base rent payments at $9,570, -with the addendum increasing the rent to $9,918 on December 1, 2012 and $10,266 on December 1, 2013. The sublease, however, lists the rent as $5,000 withno specified increases, far less than the r.ent amount for the entire premises. The August 15, 2011 .Fabrication and Operations Agreement, which delineates the relationship between and

specifies that will be responsible for the balance of the rent, further suggesting that did not lease the entire premises. · ,

Second. the Standard IndustriaVCommercial Single-Tenant Lease between and , and a document entitled "Air Commercial Rea Estate Association,

Guaranty of Lease," are dated August 18, 2011. On appeal, the petitioner submitted the August 15, 2011 Fabrication and Operations Agreement, noting that both and

"have signed as the guarantors of the lease for the entire property located at ." The etitioner, .on behalf of and

ort behalf of __J executed the agreement on August 15, 2011, three days before the execution of either the lease or the guararity. Moreover, the petitioner did not incorporate

until September 8, 2011, almoSt a month after signing the Fabrication and erations Agreement on behalf of . Further, according to the Sublease,

and , executed the lease on August 8, 2011. The Standard IndustriaVCommercial Single-Tenant Lease and ·all accompanying documents, however, are dated August 18, 2011, not August 8~ 2011. ·

2 $5,000 + $1,000,000 X 100= 0.50.

(b)(6)

PageS

The petitioner has provided inconsistent documents relating to what space, if any, , , is subleasing from "[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. 582, 591-92 (BIA 1988). The petitioner has provided no such evidence to explain or reconcile the inconsistent documents.

Furthermore, according to section 12 ofthe Standard Industrial/Commercial Single-Tenant Lease, , must obtain prior written consent before subleasing

the property. The record contains no document showing that had given such consent prior to the petitioner's signing oHheNovember I. 2011 Sublease. On appeal, the petitioner has provided a statement claiming that was aware of intention to sublease the property to and as-such, "requested· and [the petitioner to] sign a personal Guarantee to the lease." The evidence in the record, however, does not support the petitioner's statement that is aware of the sublease .. Although the oetitioner signed both the. lease and the guaranty, he did so on behalf of

not on behalf of Neither of these documents, the only documents the petitioner· has established that executed, shows the petitioner's affiliation with.

or establishes that consented to the subleasing ofthe property in writing, as required by the plain language of the lease. Indeed, other than the petitioner's self-serving statement, the record contains no document showing that · provided a written consent to . subleasing of the property before the petitioner executed the November 1, 2011 sublease. Going,on record without supporting documentary evidence is not sufficient for the purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972))~ · ·

I

3. Equipment and Supply Purchases

According to the bank statements, since_ its inception, biggest expense was an April12,.2012 expense of$146,479.64, or approximately 14.6 percent ofthe petitioner's $1.000.000 clHim.ed investment.3 The record, however, contains insufficient evidence showing that

rather than incurred this expense. · Acoording to a sales order dated April 9, 2012, shiooed to. $146,479.64 worth of equipment and supplies, but billed for the purchase. The record contains a second, almost identica~ sales order, also dated April 9, 2012 but lacking a "posted" stamp, showing that

equipment and supplies were shipped to not as indicated in the first sales order. The record contains no explanation relating to

the _ issuance of two sales orders on the same date, relating to the identical equipment and supplies.

On appeal, the petitioner claims that purchased and used the equipment and supplies. He further claims that the first sales order shows the equipment was shipped to •

~------------~

J $}46,479:64 + $1,000,000 X 100::::: 14.6~

(b)(6)

Page9 I.

because, in part, "[a]t the time of putting the order, just relocated to this new address [ a:t from its old address and did not start to run yet." The evidence in the record, however, contradicts this explanation. Specifically, both sales orders were dated April9, 2012. According to bank statements for an acoount ending in

has been in operation, paying its employees, its rent and its suppliers, since December 2011. It has also been receiving supplies from suppliers using its address, including supplies from and since December 2011. The petitioner has provided inconsistent documents relating to the April 12, 2012 expense of$146,479.64. "It is incumbent upon [him] 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. On appeal, the petitioner has provided an online printout entitled "

to show that the $146,479.64 equipment and supplies are used and needed in operation. This document, however, does not resolve the issue of two identical mv01ces tor the same order number shipped to

and The petitioner has not provided objective evidence to explain or reconcile the inconsistent documents;

Moreover, according to an invoice dated January 16, 2012, billed and shipped to ~ , $932.90 worth of supplies. Januarv 2012 bank statement for an account ending in co.nfirms that , not

paid the amount on January 18,2012. It is unclear from the record why would oav for supplies, or would even receive a copy of an invoice

issued to

In light of the above, the petitioner has not demonstrated a qualifyinl! at-risk eauitv investment of $1,000,000 of personal funds made available to the job creating entity,

B. Employment Creation

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 1 0 qualifying employees.

· A comprehensive business plari as contemplated by the regulations1 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 proces~es and suppliers, marketing strategy, organizational structure, personnel's experience, staffmg 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.

(b)(6)

Page 10

\ ' '

The regulation at 8 C.F.R. § 204.6(e) defines· "employ~e" as an individual who provides services directly to the new commercial enterprise and excludes independent contractors. . The same regulation defmes "qualifying employee" as "a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States.". The definition excludes the petitioner, the petitioner's spouse, sons, or daughters, or any nonimmigrant alien. Section 203(b)(5)(D) of the Act, as amended, defines "full-time employment" as "employment in ·a position that requires at least 35 hours of service per week at any time, regardless of who fills the position." Full-time employment also means continuous, permanent employment. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1039 (E.D. Ca. 2001), aff'd, · 345 F.3d 683 (9th Cir. 2003) (finding this construction not to be an abuse of discretion).

' '

The petitioner has failed to provide sufficient evidence showing· that he has met the statutory requirement of employment creation. First, the record contains conflicting information on employment creation. According to information counsel initially provided under "Job Creation" of the initial memorandum in support of the petition, first five full-time employees would start working. at the beginning of 2012. payroll documents in the record, however, contradicted the claim of five employees in .the bel!inninl! of2012. Specifically, according to the payroll documents, four employees, including not five employees, began working for , on December 26, 2011. Employer's. Quarterly Federal Tax Return, IRS Form 941, similarly shows that between January 2012 and March 2012,

had four, not five employees. Moreover, for the pay period between February 6, 2012 and February 19, 2012, the petitioner has provided two varying payroll documents for all four employees.· Specifically, according to one set of payroll documents, with a February 22, 2012 pay date, all four employees' year-to-date {YTD) earnings were $2,240. According to a s~cond set of payroll documents, with a February 10, 2012 pay date (nine days before the pay period ended), all four employees' YTD earnings were $1,600 .. The record contains no document explaining the different YTD amounts for the same pay period, why generated a report nine days before the pay period ended, or why the employees were paid twice for work performed in the same pay period. Furthermore, the payroll documents for reflect him as a full-time employee for at 80 hours over a two-week pay period in February 2012. Mr.

however, also signed the Fabrication and Operations Agreement, the lease and the sublease on behalf of . In January, February and March 2012 Mr. signed checks that issued. On appea~ counsel asserts that Mr. is employed by both and but provides no evidence that his hours for allow him to work full-time for . As 'the petitioner has provided inconsistent documents relating to employment creation, "[i]t is incumbent upon [him] 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.

Second, the petitioner has provided a copy of · Employee's Withholding Allowance Certificate, IRS Form W-4, dated December 5, 2011. This document, however. aooears to be altered. The alteration is most obvious in part 1 ·of the form relating to her address.

(b)(6)

Page 11

Employment Eligibility Verification, Form I-9, also appears to be altered. The alternation is most obvious in section 1 of the form relating to her address.

Third, assuming arguendo that has hired four full-time employees, as the evidence does not show that the petitioner's investment has resulted in the creation of at least 10 qualifying, full-time positions, the regulation at 8 C.F.R. § 204.6(j)(4)(i) requires the petitioner to provide a copy of a comprehensive business plan showing the need for not fewer than 10 qualifying employees. See Matter of Ho, 22 I&N Dec. at 213. The record contains two business plans. Neither business plan, however, constitutes a comprehensive business plan as discussed in Matter of Ho, '22 I&N Dec. at 213. Although the. revised business plan provides in a conclusory manner that "[b]y the end of the second anniversary from now on, expects to employ a total of 10 to. 12 full-time employees," it fails to provide a timetable for hiring. Both business plans provide that

will hire an operations manager, a project manager, a human resources manager, a purchasing and inventory manager, an interior fabrication manager, and five staff members. Neither plan includes a specific timetable showing when each of the positions will be filled. Moreover, according to counsel's June 19, 2012 letter, filed in response to the director's RFE,

. . .

hifed in the position of "assembly" and l in the position. of "sewing & upholstery." The business plans, however, do not discuss either of these positions or provide job descriptions. It is unclear from the record. if these two positions constitute two of the five staff member positions discussed in the business plans. According to the business plans, the staff . members ''will be hired to work directly under the Interior Fabrication Manager to provide the manual labor for each project." The record; however, does not include any evidence showing that

has hired an interior fabrication manager. As such, the evidence fails to show that these two positions constitute two of the five staff member positions. In short, the petitioner has not met the regulatory requirement of providing a comprehensive business plan showing the need for not fewer than 10 qualifying employees. See Matter of Ho, 22 I&N Dec. at 213.

Finally, it is the job-creating business that must be examined in determining whether a new commercial enterprise has been created.· Matter of Sojjici, 22 I&N Dec. at 166. Moreover, the petitioner may not cause a net loss of employment when assuming an existing business. Matter of Hsiung, 22 I&N Dec. at 204-05. If the . is simply assuming former portions of the business of either

simply absorbing those jobs is not sufficient job creation.

In light of the above, the petitioner has.not demonstrated that the claimed investment has created or will create at least 1 0 full-time positions for qualifying employees.

C. Source ofFunds

As an additional issue, 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. The AAO maintains de novo review. See 8 C.P.R. § 103.3(a)(1)(iv); Soltane ·v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd; 345 F.3d 683 (9th Cir. 2003) (reoognizing the AAO's de novo authority). A

(b)(6). .. . . .

Page 12

petitioner cannot establish the lawful source of funds merely by submitting bank lettersor statements documenting the deposit of funds. Matter of Ho, 22 I&N Dec. at 210-211; Matter of lzummi, 22 I&N Dec. at 195. An unsupported letter indicating the mimber 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.

According to a document entitled "Memorandum Re 1-526 Petition,"- initially filed in support of the petition, the petitioner "accumulated his funds for his investment through two ways, 1) [a] Gift from his cousin, ; and 2) [the] Savings from his business income." The record, however, includes inoonsistent evidence relating to the source ofthe petitioner's investment. Specifically, according to a document entitled ' , Applicatio.n for Money Transfer Acknowledgement," on June 27, 2011, wired 6,500,000 Renminbi (RMB), approximately $1,001,310, to the petitioner's account ending in 4 The record also includes a July 11, 2011 declaration, in which 20 of the petitioner's relatives and friends declared ~hat between June 28, 2011 and June 29, 2011, the petitioner wired. money to them from his account ending in ' and they then wired the money to the petitioner's account. The declaration states that the petitioner wired 325,000 RMB to each of his 20 relatives and friends. These documents, however, are inconsistent with a document entitled ' , Account Transaction Details," which shows that on June 27, 2011, 6,500,000 RMB was deposited into .the petitioner's account ending in , and that between June 28, 2011 and June 29, 2011, the petitioner wired 325,000 RMB twenty t~es from his account ending in _ .. As the record does not document the source of the 6,500,000 RMB deposit into the account ending in the record contains a break inthe path of the funds between the accounts ending in Without documentation ofthe path of the funds, the petitioner cannot meet his burden of establishing that the funds are his own funds. Matter of lzummi, 22 I&N Dec. at 195. ·

In light of the above, the petitioner has not documented the lawful source of his claimed $1,000,000 investment in -

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 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden ..

ORDER: The appeal is· dismissed.

4 u.s. dollar amount calculated using the exchange rate for June 27, 2011 at Www.oand8.com/currency/converter/, accessed on February 5, 2013 and incorporated into the record of proceeding.