dismissed EB-1C Case: Fertility Services

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Wash~ngton, DC 20529 
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PUBLIC COPY 
U. S. Citizenship 
and Immigration 
Services 
y. 
Y 
Office: VERMONT SERVICE CENTER 
EAC 05 074 52769 
 Date: SEP 0 8 Z(Hl6 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
1 Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed instant immigrant visa petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act. The petitioner is a limited 
liability company that is organized under the laws of the State of Delaware and is operating a sperm bank in 
the State of New York. The petitioner seeks to employ the beneficiary as its general manager. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner contends that the beneficiary qualifies as a function manager as a result 
of his management of the petitioner's sales and marketing functions. Counsel submits a brief in support of the 
appeal. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. - An alien is 
described in this subparagraph if the alien, in the 3 years preceding the time 
of the alien's application for classification and admission into the United 
States under this subparagraph, has been employed for at least 1 year by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof 
and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 9 1 10 l(a)(44)(A), provides: 
Page 3 
The term "managerial capacity" means 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 with the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level withn the 
organizational hierarchy or with respect to the function managed; and 
(iv) 
 Exercises discretion over the day-to-day operations of the activity or function for which 
the employee has authority. A first-line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means 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-malung; and 
(iv) 
 Receives only general supervision or direction fkom higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the instant immigrant visa petition on January 19, 2005, noting the beneficiary's proposed 
employment as the general manager of the four-person company in the United States. In an appended letter, 
dated December 20, 2004, the petitioner's president stated that in the position of general manager, the 
beneficiary would possess "complete control of the company" and discretion over its day-to-day operations 
and development, including such "work" as: 
Marketing to consumers and fertility clinics 
Press contact 
Development and overview of sales 
IT [(information technology)] management 
Accounting 
Page 4 
Development of business strategy including short and long term goals 
Human resource management with full authority to hire and fire the personnel, promotion 
and salary decisions 
In the beneficiary's attached resume, his employment in the United States was described as follows: 
Management of [the petitioning entity] including control and development of internal and 
external procedures. Supervision and training of employees in handling and shipment of 
sperm. Responsible for liquid nitrogen handling and refilling of storage tanks. Relationship 
building with clinics. Quality control and accounting. Control and development of sales, 
marketing and accounting. 
The director issued a request for evidence on September 26, 2005, noting that the record was not sufficient to 
establish that the beneficiary's proposed position would be primarily managerial or executive in nature. The 
director requested that the petitioner submit a "detailed description of the beneficiary's proposed 
executive/managerial duties," including an allocation of the amount of time the beneficiary would spend on 
each task per week, as well as a statement addressing the following: (1) the number of subordinate supervisors 
to be managed by the beneficiary; (2) the job titles and job duties of the beneficiary's subordinate employees; 
(3) the managerial, executive or technical skills necessary to perform the beneficiary's job duties; and (4) the 
"degree of discretionary authority" the beneficiary would possess in day-to-day operations. The director 
asked that the petitioner also provide an organizational chart reflecting the United States company's 
management and personnel structure, its 2004 Internal Revenue Service (IRS) Forms W-2 and W-3 and 2005 
payroll register, copies of its quarterly tax returns for the first and second quarters of 2005, and evidence, if 
applicable, of its use of independent contractors. 
The petitioner responded in a letter dated October 14, 2005, and attached a statement explaining the manner 
in which the beneficiary would allocate his time in the United States organization. Specifically, the petitioner 
stated that as the company's general manager, the beneficiary's time is divided indistinguishably among the 
following areas: marketing, public relations, sales, accounting and general marketing. The petitioner 
explained that of the five areas of responsibility, the management, development and control of the company's 
marketing is "the most important part of [the beneficiary's job]." The petitioner included a copy of the 
marketing plan written by the beneficiary, and noted its use of outside contractors to perform the related 
marketing tasks. The petitioner identified the beneficiary's achievements with respect to the company's 
marketing, advertisements and press coverage in magazines and newspapers, online, and on the television and 
radio. The petitioner also noted the beneficiary's responsibilities of managing the company's information 
technology system, which included developing a new website, as well as developing and implementing 
"business development initiatives," and managing, hiring, firing, and promoting personnel. The petitioner 
further stated that with regard to its day-to-day sales, the beneficiary had hired a salesperson, which the 
beneficiary was responsible for training and managing. 
In the attached documentary evidence, the petitioner provided a copy of the beneficiary's employment 
contract with the United States company, which stated that as the company's manager, the beneficiary would 
"be in charge of the day-to-day management of the [petitioner's] entire activities . . . and shall have the 
managerial responsibility of the business area connected hereto." In a separate letter, dated October 14, 2005, 
the petitioner's attorney stated: 
Page 5 
[The beneficiary] is charged with spearheading the North American effort for the worldwide 
enterprise of which [the petitioning entity] forms a part. [The beneficiary] is in charge of 
marketing, operations and finance for the North American business. [The beneficiary] 
managed the termination of the company's predecessor entity and severing the ties with the 
former part owner. He managed the move of the business to New York and re-establishment 
of the business there. He is listed as 'manager' of the US limited liability company. 
The petitioner provided copies of its 2005 first and second quarter tax returns, both of which confirmed the 
employment of the beneficiary and a salesperson. The petitioner also submitted copies of licenses and 
permits obtained by the beneficiary for the petitioner's business operations in the United States, "general 
marketing material," including letterheads, brochures, and magazine advertisements, pictures of the 
beneficiary at business exhibitions, as well as a letter from an outside contractor utilized by the petitioner in 
the development of such marketing materials as "magazine advertisements, stationery, buttons, trade show 
booths, a web site and brochures." 
In his December 5, 2005 decision, the director concluded that the petitioner would not employ the beneficiary 
in a primarily managerial or executive capacity. The director noted an inconsistency between the number of 
employees noted by the petitioner on its Form 1-140 and those actually reported as employees on the 
petitioner's quarterly wage report. The director also noted that the petitioner had provided "vague" and 
"general managerial functions" in its description of the beneficiary's position, which were insufficient to 
establish whether it would be primarily managerial or executive in nature, and stated that the petitioner had 
neglected to submit the requested "complete position description" for its remaining employees. The director 
concluded that, as a result of the limited evidence offered by the petitioner, the beneficiary would be 
"primarily engaged in providing sales, marketing, and services to [the petitioner's] clients, not directing the 
organization." Consequently, the director denied the petition. 
Counsel for the petitioner filed a timely appeal on January 5, 2006. In a subsequently submitted appellate 
brief, dated January 30, 2006, counsel contends that the beneficiary would be employed as a function 
manager of the petitioning entity. Counsel states: 
[TJhe [bleneficiary, as [the petitioner's] manager, directs, controls and manages all sales and 
marketing in the United States, working approximately thirty-seven hours a week plus 
overtime. The [bleneficiary's primary activities include: 1) managing the day-to-day 
operation of the New York office; b) developing and maintaining all marketing plans for the 
United States business; c) contacting and negotiating relationships with outside contractors 
for accounting and other business needs; d) maintaining and updating the website to meet 
ever-growing customer demand; e) supervising and remaining in constant contact with the 
heads of the Danish laboratories and the medical director to ensure compliance with both 
FDA regulations and the customer demand for detailed donor information; f) directing all 
sales decisions by supervising the full time sales associate and controlling internet sales; g) 
reporting to and being under the general supervision of only the [plresident of [the foreign 
entity], Ole Schou; and h) having wide discretion in directing the future development of [the 
petitioning entity]. Although [the beneficiary] does handle some non-managerial duties 
related to sales, and appears on behalf of [the petitioner] at conventions and for interviews 
with the press, the overwhelming proportion of his activities consist of the direction and 
management of other employees and the website to further the sales and marketing of [the 
Page 6 
petitioner]. Therefore, the [bleneficiary has formerly been and will continue to be a top 
functional manager in the [foreign entity's] organization having vast control of all of [the 
foreign entity's] sales and marketing done in the United States. He is and has been 
functioning at a senior level in the organization and will continue to do so fueled by the 
success of his operations in New York. 
Counsel stresses the importance of the petitioner's sales and marketing, emphasizing that they are essential 
functions, and stating: 
The evidence indicates that the beneficiary is the primary individual responsible for 
managing the day-to-day operations of [the petitioning entity], focusing around the sales and 
marketing of European-produced sperm in the United States. [The] [bleneficiary is solely 
responsible for managing the company's website which generates ninety-percent of the 
company's business. Since [the petitioner] must market directly to the consumers, print ads 
and the website are crucial in the marketing of this service. These functions are managed 
exclusively by [the] [bleneficiary on a daily basis. Even though the [bleneficiary does not 
directly supervise many supervisory, managerial or professional employees within his own 
office, he nevertheless manages [the petitioning entity] through other Danish employees at 
[the foreign entity] and through independent contractors in the United States. Through [the] 
[bleneficiary's policy directives, [the foreign entity's] employees adapt their activities to meet 
the needs of the United States market. Here, with tolo] the [plresident of [the foreign entity] 
stationed in Denmark, the [bleneficiary must function at a senior level within [the petitioning 
entity] and control all decision making on a daily basis in the New York office. By managing 
the essential function of sales and marketing in the United States, it is clear that [the] 
[bleneficiary's duties are primarily managerial in relation to the organization. 
Counsel further noted the beneficiary's "managerial control" over the activities performed by four of the 
foreign entity's independent contractors, who occupy the positions of medical director and heads of the 
company's three laboratories. Counsel states that in addition to directing the petitioner's salesperson, the 
beneficiary "directs the day-to-day research development, and testing activities of these [four] employees to 
meet the needs of his U.S. business." 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily 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). When examining the executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
6 204.5Cj)(5). 
The record does not corroborate the petitioner's claim that the beneficiary would be primarily performing 
managerial or executive job duties of the petitioning entity. Throughout the record, both the petitioner and 
counsel emphasize the beneficiary's purported managerial role with respect to the petitioner's marketing and 
sales, going so far as to claim the beneficiary as a function manager, and stating that the beneficiary would 
manage "the day-to-day operation of the New York office." The record, however, undermines these claims, 
and suggests that rather than managing the petitioner's daily functions, the beneficiary would, in fact, be 
responsible for performing non-qualifying functions of the business. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 9 1 101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8 
C.F.R. 5 204.56)(5). In addition, performing the non-qualifying tasks necessary to produce a product or 
service will not automatically disqualify the beneficiary as long as those tasks do not make up the majority of 
the beneficiary's duties; however, the petitioner still has the burden of establishing that the beneficiary is 
"primarily" performing managerial or executive duties. Section 101(a)(44) of the Act. Whether the 
beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has sustained its 
burden of proving that his duties are "primarily" managerial; the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. 
Here, at the time of filing, the petitioner employed the beneficiary and a salesperson. Documentary evidence, 
including a letter from a marketing and design consultant utilized by the petitioner, as well as information 
contained on the petitioner's 2004 income tax return identifying compensation paid by the petitioner for 
"professional" services, suggests that the development of at least some of the petitioner's marketing materials 
and the related marketing functions were performed by outside contractors and not by the beneficiary. The 
AAO notes, however, that the beneficiary personally devised the petitioner's marketing strategy, as is 
evidenced by the fourteen-page "marketing plan" submitted by the petitioner with the Form 1-140. In the 
marketing plan, the beneficiary discusses his "direct marketing campaign," in which he researched fertility 
clinics and drafted a letter to be sent to the clinics' doctors. As a result, while the beneficiary may not have 
personally developed the petitioner's advertisements, stationery, buttons, web site and brochures, his role in 
researching the petitioner's target market, creating the petitioner's marketing plan and preparing a promotional 
letter falls short of being primarily managerial or executive in nature. 
Additional evidence in the record demonstrates that the beneficiary would not be primarily managing the 
petitioner's day-to-day operations as claimed by counsel on appeal. The AAO notes that despite counsel's 
emphasis on the petitioner's role as a marketing and sales office of the foreign entity, the petitioner is also 
responsible for facilitating orders and shipments throughout the United States. In view of these business 
functions, the petitioner has not accounted for the employment of persons who would perform the related 
non-qualifying tasks, such as importing, shipping, bookkeeping, accounts receivable and payable, and 
banking.' As noted by the director, the petitioner represented that its salesperson "[would be] responsible for 
day to day sales," but did not provide the requested outline of the specific job duties related to her sales 
' The AAO notes that under the terms of the petitioner's sublease agreement for office premises, the petitioner 
would receive a receptionist service that would handle any operated assisted calls in the petitioner's voicemail 
system, receive the petitioner's mail and deliveries, and render items for pickup to the intended recipient. 
Page 8 
position, or document her performance of any of the above-noted administrative and operational tasks. As a 
result, it is reasonable to conclude that the beneficiary would be responsible for personally performing these 
non-qualifying job duties. Also, the petitioner recognized that the beneficiary would be responsible for 
maintenance and revisions made to the petitioner's website, an additional responsibility that is not considered 
to be managerial or executive. See $$ 101(a)(44)(A) and (B) of the Act. 
Moreover, regardless of the employment of a sales person, it appears that the beneficiary, himself, is also 
engaged in selling the petitioner's product. In a March 15, 2004 letter submitted to the New York City 
Department of Buildings explaining the petitioner's use of its acquired office space, the beneficiary described 
the business as follows: 
Our primary work during each business day is to reply to e-mail and talk to customers on the 
phone. In the US, we sell directly to consumers, so we get a lot of questions from customers 
and help them find a donor they like. All donors donate in Denmark and are anonymous, and 
a big part of our work is to help the customers feel secure that the donor is a good, healthy 
donor. We are two in the office and we are not doctors or medically educated but both have 
gone to business school. 
Once the customers have decided on a donor, we ship the sperm directly to their fertility 
clinic. This is done via FedEx and shipped in special liquid nitrogen dry shipper containers 
(not hazardous). We are approved by the New York State Department of Health to store and 
ship sperm in New York State. 
Based on his representations, the beneficiary is assisting in the sale of sperm to the petitioner's customers by 
answering questions, providing information and guiding them in their decisions. Additionally, as noted 
previously, the beneficiary andlor the salesperson is completing the paperwork and transactional functions 
involved in transfemng the sperm samples to the appropriate infertility clinics2. The AAO also notes that in 
connection with the petitioner's importing and shipping functions, the record demonstrates that the beneficiary 
was personally responsible for obtaining necessary import permits and licenses, tasks not typically considered 
to be managerial or executive. See tj$ 10l(a)(44)(A) and (B) of the Act. 
Furthermore, the beneficiary's role as a representative of the petitioning entity at trade shows and conventions 
suggests he is likely performing outside sales for the petitioner. Counsel states on appeal that a small portion 
of the beneficiary's non-managerial duties includes making appearances at conventions on behalf of the 
petitioner. It appears, however, that as the sole representative of the United States company at trade shows 
and conventions3, the beneficiary's responsibilities go beyond common public relations functions and fall 
short of being primarily managerial or executive in nature. See 9 FAM 41.54 N8.2-1. As the primary 
purpose of a convention or trade show is to publicize businesses, it is appropriate to conclude that the 
beneficiary is not merely representing the petitioner as a component of a public relations campaign, but rather, 
is acting as a sales representative of the petitioning entity. The record, therefore, undermines counsel's claim 
on appeal that the beneficiary is "managing the day-to-day operations of [the petitioning entity]", in particular 
An October 13, 2005 letter from a FedEx representative addresses the "customer" relationship the 
beneficiary has maintained with FedEx and confirms "working with" the beneficiary since July 2003. 
3 
 Photographs depict the beneficiary as the sole representative manning the petitioner's booth at a medical 
conference. 
Page 9 
its sales and marketing functions, and instead supports a finding that the beneficiary is primarily performing 
the non-managerial and non-executive tasks related to the sales and daily operation of the petitioner's 
business. An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). As a 
result, the beneficiary cannot be deemed to be a function manager. 
Finally, the petitioner mentions the beneficiary's managerial authority over the activities of the overseas 
company's medical director and the three individuals overseeing the foreign entity's laboratories. Neither the 
petitioner nor counsel, however, specifically explains the beneficiary's role as a manager over these four 
individuals. Counsel's blanket statement that the beneficiary "exercise[s] direct managerial control over the 
activities of the Danish employees" does not specifically address how the beneficiary is directing the day-to- 
day research, development and testing performed by these individuals. Although the sales of the petitioning 
entity are likely dependent on the tasks performed by these four workers, this proposition, by itself, is not 
sufficient to corroborate the claim that the beneficiary is functioning as their manager or executive. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
The AAO also notes that the claim of the beneficiary's purported supervision over four Danish workers does 
not explain the inconsistency raised by the director as to the number of workers claimed by the petitioner on 
its Form 1-140. The petitioner noted a staff of four employees on Form 1-140, while its March 31, 2005 
quarterly wage report identified the employment of two. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
Beyond the decision of the director, an additional issue is whether the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. The petitioner identified the beneficiary as 
occupying the position of business development executive in the foreign entity, during which he was 
responsible for its "[e]xecutive training program," participated in "all managerial processes," represented the 
"office general management," and coordinated the foreign entity's licensing application to sell sperm in the 
State of New York. The petitioner further noted that during his one year of employment with the foreign 
company, the beneficiary "also [went] through training in general sperm banking management by doctors and 
lab technicians." Conversely, the beneficiary noted on his curriculum vitae the additional responsibility of 
"[slales and advertisement of [the foreign entity] in Europe," including perfoming marketing surveys and 
participating in conferences, job duties which were not addressed by the petitioner in its initial letter. The 
petitioner has not addressed the inconsistencies in the differing descriptions offered for the beneficiary's 
former position of business development executive. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
Page 10 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Additionally, based on the petitioner's response to the director's request for evidence, the beneficiary's year of 
employment in the overseas company was focused on training him for his assignment in the United States 
company, and included the performance of such non-qualifying tasks as developing marketing material and 
new shipping containers, registering the foreign entity with the United States Food and Drug Administration, 
obtaining necessary licenses, and training a lower-level sales staff. The AAO notes that these are not 
typically considered to be tasks that are managerial or executive in nature. See $5 101(a)(44)(A) and (B) of 
the Act. Accordingly, the petitioner has not demonstrated that the beneficiary was employed by the foreign 
entity in a primarily managerial or executive capacity for at least one year prior to his entrance into the United 
States as a nonimmigrant. See Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 
Cir. July 30, 1991) (requiring that the petitioner prove that the beneficiaryprimarily performs the high-level 
managerial or executive responsibilities outlined in the statutory definitions and does not spend a majority of 
his or her time on day-to-day functions). For this additional reason, the petition will be denied. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.