dismissed EB-1C Case: Manufacturing

Mentifling data deleted to 
prevent clearly unwarranted 
invasion of personal privacr 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: OFFICE: TEXAS SERVICE CENTER Date: 
SRC 07 800 23 180 
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. 3 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
John F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Nevada corporation that seeks to employ the beneficiary as its chief executive 
officer. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; 2) the petitioner failed to establish that it would employ the beneficiary in a managerial or 
executive capacity; and 3) the petitioner failed to establish that it has a qualifying relationship with 
the beneficiary's foreign employer. 
On appeal, counsel disputes the director's conclusions and submits a brief and supporting 
documentation in an effort to overcome all three grounds for the denial. 
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 and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who 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 empIoyer 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 first two issues in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he would be employed in the United States in a qualifying managerial or 
executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), provides: 
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 within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), 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-making; and 
(iv) 
 receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated July 31, 2007 in which the 
petitioner stated that at the time of filing it had nine employees. The petitioner offered the following 
statements describing the beneficiary's proposed and foreign positions, respectively: 
[The beneficiary] will continue to manage the entire organization, which will include 
supervising the work of other supervisory, professional, or managerial employees. 
He will have authority over all personnel actions, including hiring and firing 
employees. He will exercise discretion over the day-to-day operations of the entire 
organization and establish the goals and policies of the organization. More 
specifically, [the beneficiary] will oversee the management of the manufacturing 
facility; the training of staff on the new equipment; and the marketing of [the 
petitionerl's products. He will coordinate and oversee the implementation of the 
expansion of our products into the international and national markets. . . . 
[The beneficiary] has over twenty years of business management experience. He has 
overseen the successful start[-]up operations of several companies throughout this 
time, including Horizontal Boring. Since 1994, [the beneficiary] has served as CEO 
of Horizonal Boring, where he has built one of the largest drilling companies in South 
Africa. 
His job responsibilities during this time have been the same or similar to what [he] 
will do in the United States. He has managed the entire organization, including 
supervising the work of other supervisory, professional, or managerial employees. 
He has the authority over all personnel actions, including hiring and firing employees. 
He has exercise [sic] of discretion over the day-to-day operations of the entire 
organization and establishes the goals and policies of the organization. . . . 
The petitioner also provided a document entitled "Current Organizational Chart for Cili Minerals," 
which shows the beneficiary at the top of the company's hierarchy and an administrative manager as 
the beneficiary's immediate and only subordinate. The administrative manager is shown as 
overseeing a financial manager, who is shown as overseeing two shipping employees, an ordering 
employee, a bottling employee, and a factory general manager.' 
After reviewing the submitted documentation, the director denied the petition in a decision dated 
June 30, 2008, concluding that the petitioner failed to establish that the beneficiary was employed 
abroad or that he would be employed in the United States in a qualifying managerial or executive 
' The petitioner also provided a second organizational chart entitled "Projected Organizational Chart of August 1'' 2006 
for Cili Minerals." As the instant Form 1-140 was filed in July 2007, it is unclear how this chart is relevant in the present 
matter, as it does not appear to be an accurate representation of the petitioner's organizational hierarchy at the time of 
filing. It appears, therefore, that the projection date on the chart is a typographical error and that the chart is meant to 
describe the petitioner's organizational hierarchy at some future date, which is undetermined due to the perceived 
anomaly. Regardless, as the chart does not appear to reflect the petitioner's organizational hierarchy at the time of filing, 
it has little to no probative value in establishing the petitioner's eligibility for the immigration benefit sought herein. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Cornm. 1971), requiring a petitioner to establish eligibility at the time of filing. 
capacity. 
 The director found that the petitioner's description of the beneficiary's proposed 
employment consisted of broad job responsibilities and various non-qualifying tasks to which the 
petitioner failed to detail the amount of time assigned to perfom each task. 
On appeal, counsel describes the beneficiary as the top executive within the foreign entity's 
organizational hierarchy, claiming that the foreign entity consists of two divisions whose directors 
report directly to the beneficiary, while the beneficiary "focused on higher level responsibilities such 
as developing new clients, negotiating sales of products, evaluating product lines, evaluating project 
specifications and finalizing all products offered." Counsel also states that the beneficiary set the 
company's goals and reviewed all financial data. With regard to the beneficiary's proposed U.S. 
employment, counsel claims that the beneficiary would oversee the work of other managers and set 
the company's goals and policies. Counsel further claims that the beneficiary "continues to develop 
and design new equipment to manufacture mineral supplements." 
Additionally, the petitioner provides a sample of the beneficiary's daily activities as well as a list of 
the beneficiary's job duties and responsibilities with the U.S. and foreign entities. The following is 
information offered with regard to the beneficiary's proposed U.S. employment: 
Bi-weekly meetings with heads of divisions and departments. 
Weekly meetings with South African company managers and directors via internet, 
email, Skype, and landlines. 
Overseeing and exercising discretion over [the] entire operation in South Africa and 
the U[.]S[.]A. 
Board meetings bi-weekly with South Africa and the U[.]S[.]A[.] directors on live 
internet feed or conference calls. 
Meeting and negotiating with international and national distribution and marketing 
companies. 
Final say on staff placement and removal. 
Creating goals for divisions, departments, and managers for better business 
performance. 
Negotiating with prospective retail customers. . . . 
Supervising the construction of new offices as the old retail division burnt down 
June gth, 2008. 
Overseeing compliance with FDA and other applicable regulations. 
Finalizing and deciding on our new product ranges and the mineral make[-]up of 
each product. . . . 
Co-ordination of, and, [sic] implementation of manufacturing, wholesale, and 
retailing policies of [the] entire organization. 
Negotiating with international trade organizations and N[AFTA]. 
Negotiating with suppliers and wholesalers for products. 
Negotiating with old and current South Ahcan clients interested [in] utilizing 
[Bloring technoIogy to lay underground cables and pipes. 
Meeting with physicians, chiropractors, naturopaths and other health practitioners 
regarding [the petitioner's] non-invasive health products. 
Designing manufacturing equipment. 
Page 6 
Obtaining bids for ingredients of each product to negotiate the best deal for the 
company. 
Developing and overseeing new technologies in mineral supplements. . . . 
The beneficiary's sample daily schedule shows that the first two hours of the beneficiary's day would 
be spent on conference calls with representatives of the foreign entity as a means of overseeing the 
foreign entity's business activities. The beneficiary would spend another hour meeting with the 
petitioner's managerial staff and one more hour meeting with the accounting manager to check the 
petitioner's finances. The beneficiary would then spend an hour and a half consulting with 
customers of the foreign and U.S. entities and negotiating the purchase and sale of products. 
Another two hours would be spent consulting with engineering companies to ensure that product 
orders are on schedule and meeting with health practitioners to discuss private labeling, bulk buying 
and legal issues pertaining to FDA and AMA regulations. The beneficiary would spend the 
remaining hour and a half ensuring timely production and distribution. 
The petitioner submitted a similar list of job duties and sample daily schedule for the beneficiary's 
position abroad. As the beneficiary's job duties abroad did not include overseeing any entity other 
than the foreign entity, the beneficiary's work day abroad was shorter. Similarly, the list of the 
beneficiary's foreign job duties did not include any tasks performed for the U.S. entity. However, in 
all other respects, the beneficiary's tasks with the foreign and U.S. entities were virtually identical. 
After reviewing the supplemental information offered on appeal, the AAO finds that counsel's 
arguments are not persuasive. It is noted that in examining the executive or managerial capacity of 
the beneficiary, U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's 
description of the job duties. See 8 C.F.R. tj 204.5(~)(5). In the present matter, the job descriptions 
offered do not establish that the primary portion of beneficiary's time has been and would be spent 
performing qualifying tasks. First, with regard to the description of the beneficiary's prospective 
U.S. employment, the petitioner claimed that the first two hours of the beneficiary's day would be 
spent communicating with the foreign entity as a means of overseeing that entity's activities. It is 
noted, however, that any time spent performing any tasks, oversight or otherwise, for the foreign 
entity cannot be considered in determining whether the beneficiary's prospective employment with 
the petitioner would be within a qualifLing capacity. Even if these specific tasks would normally be 
deemed managerial or executive with regard to the foreign entity, they would be deemed tasks 
necessary to provide a service, albeit a management service, on behalf of the petitioner and, thus, 
would be non-qualifying. It is noted that 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 lOl(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 International, 19 I&N Dec. 593,604 (Comm. 1988). 
Second, the beneficiary's U.S. and foreign job descriptions include such non-qualifying tasks as 
meeting and negotiating with marketing companies; negotiating with prospective retail customers, 
international trade organizations, and suppliers and wholesalers; meeting with health practitioners to 
promote the company's health products; and designing manufacturing equipment. These various job 
duties are outside the scope of what is deemed to be within a qualifying capacity, as they are 
suggestive of tasks that are necessary to produce a product or to provide services. Again, it is noted 
that 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" perfom the enumerated 
managerial or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 
at 604. Although the petitioner has provided sample schedules of the beneficiary's daily activities 
both abroad and in the United States, neither schedule establishes the portion of the beneficiary's 
time that has been and would be spent designing manufacturing equipment and meeting with 
marketing companies, international trade organizations, and suppliers and wholesalers, despite the 
fact that these non-qualifying job duties were all listed in the beneficiary's job descriptions. Thus, 
neither daily schedule allows the AAO to accurately assess how much of the beneficiary's time has 
been and would be allotted to numerous non-qualifying job duties that were included in the job 
descriptions offered on appeal. While the job descriptions also indicate that the beneficiary has and 
would assume a position involving a high degree of discretionary authority, the petitioner fails to 
establish that the primary portion of the beneficiary's time has been and would be spent exercising 
his discretionary authority or performing other tasks within a qualifylng managerial or executive 
capacity. Accordingly, the AAO cannot conclude that the beneficiary was employed abroad or that 
he would be employed in the United States in a qualifjring managerial or executive capacity and, on 
the basis of these two independent grounds of ineligibility, this petition cannot be approved. 
The other issue in this proceeding is whether the petitioner has a qualifylng relationship with a 
foreign entity. 
The regulation at 8 C.F.R. 5 204.50)(2) states in pertinent part: 
AfJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
In support of the Form 1-140, the petitioner provided a copy of a document entitled "Unanimous 
Written Consent in Lieu of First Meeting of the Board of Directors," which identifies the beneficiary 
Page 8 
as the owner of 600 shares of the petitioner's stock with a capital contribution of $60; and = 
and 
 each as owner of 200 shares of the petitioner's stock with a capital 
contribution of $20 each. 
 The record contains stock certificate nos. 1-3 reiterating the same 
ownership scheme as was conveyed in the above document. With regard to the foreign entity, the 
petitioner provided a photocopy of a translated foreign document naming the beneficiary, 
as owner and founder of the foreign entity. The same document also indicates that the foreign entity 
has only one member. 
In light of the above, the AAO finds that the director failed to properly consider the foreign 
document as a testament of the beneficiary's ownership of the foreign entity. As such, the director's 
finding that no evidence was submitted to establish who owns the foreign entity is hereby 
withdrawn. 
Notwithstanding the director's oversight, the record as presently constituted precludes the AAO from 
finding that a qualifying relationship exists between the beneficiary's foreign and U.S. employers. 
The AAO bases its conclusion on significant discrepancies found in the record. Specifically, while 
the above documentation indicates that the petitioner is owned by three separate individuals who 
were issued a total of 1,000 shares in exchange for a capital contribution of $100, the petitioner's 
2006 corporate tax return, which was also submitted in support of the Form 1-140, names the 
beneficiary as the sole owner, owning 100% of the petitioner's common stock.2 Schedule L, item 
22(b) of the same tax return shows that the petitioner received $5,000 in exchange for issuing its 
common stock. 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, 591-92 (BIA 1988). In the present matter, it is clear that the 
information found in the petitioner's 2006 tax return is inconsistent with the remainder of the 
supporting documents. The petitioner has provided no documentation that would account for or 
reconcile what the AAO deems to be a considerable inconsistency. 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 
1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N Dec. at 595. In the present matter, the above described anomalies with regard 
to the ownership of the petitioning entity preclude the AAO from being able to rely on the submitted 
documentation. Therefore, the AAO cannot conclude that the foreign and U.S. entities are similarly 
owned and controlled. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
"ee Form 1120 for 2006, Schedule E. 
In the present matter, the petitioner has indicated that its retail store and offices burned down on June 9, 
2008. The AAO therefore questions the petitioner's ability to continue its U.S. operations as a result of 
the given circumstances. 
According to the regulation at 8 C.F.R. 4 204.5(j)(2), the term multinational applies to the qualifying 
entity, or its affiliate, or subsidiary that conducts business in two or more countries, one of which is 
the United States. The regulation at 8 C.F.R. 8 204.5(j)(2) also states that doing business means "the 
regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other 
entity and does not include the mere presence of an agent or office." As the petitioner lost the physical 
premises used to conduct business, the AAO questions the petitioner's ability to do business in the 
United States such that it continues to fit the definition of a multinational entity.3 
Lastly, while also not addressed in the director's decision, by virtue of the beneficiary's claimed 
ownership of the U.S. petitioner, it appears more likely than not that the beneficiary will not be an 
"employee" of the United States operation. As explained in 8 C.F.R. 4 204.50)(5), the petitioner 
must establish that the beneficiary will be "employed" in an executive or managerial capacity. It is 
noted that "employer," "employee," and "employed" are not specifically defined for purposes of the Act 
even though these terms are used repeatedly in the context of addressing the multinational executive and 
managerial immigrant classification. Section 203(b)(l)(C), 8 U.S.C. 4 1153(b)(l)(C), requires 
beneficiaries to have been "employed" abroad and to render services to the same "employer" in the 
United States. Further, section 101(a)(44), 8 U.S.C. 4 1101(a)(44), defines both managerial and 
executive capacity as an assignment within an organization in which an "employee" performs certain 
enumerated qualifjrlng duties. Finally, the specific definition of "managerial capacity" in section 
101 (a)(44)(A), 8 U.S.C. 8 1 101(a)(44)(A), refers repeatedly to the supervision and control of other 
"employees." Neither the legacy bigration and Naturalization Service nor U.S. Citizenship and 
Immigration Services (USCIS) has defined the terms "employee," "employer," or "employed" by 
regulation for purposes of the multinational executive and managerial immigration classification. 
See, e.g., 8 C.F.R. 4 204.5 and 8 C.F.R. 4 214.2(1). Therefore, for purposes of this immigrant 
classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") 
(quoting Communi@ for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
"he petitioner bears the ultimate burden of proving eligibility; its burden is not discharged until the immigrant visa is 
issued. Tongatapu Woodcraft ofHawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984). 
Page 10 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) ofAgency $ 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at $ 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which the petitioner claims is ultimately owned and controlled 
by the beneficiary, who purports to assume a role as the petitioner's principal. Regardless of whether 
the beneficiary is the sole or majority owner of the U.S. entity, as simultaneously indicated by the 
documentation discussed above, there is no evidence that anyone other than the beneficiary himself 
is in a position to exercise any control over the work to be performed by the beneficiary. As such, it 
appears the beneficiary is the employer for all practical purposes. He will control the organization; 
set the rules governing his work; and share in all profits and losses. 
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), afd, 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). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. $ 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.