dismissed L-1A Case: Architectural Design

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preventclearly unwarranted
invasionofpersonalprivacy
PUBLIC COpy
U.S. Department of Homeland Sealrity
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.s.Citizenship
and Immigration
Services
File: WAC 04 250 52508 Office: CALIFORNIA SERVICE CENTER Date: OCT 3 0 2001
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
-s,
IN 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.
Robert P. Wiemann, C ief
ifdministrative Appeals Office
www.uscis.gov
WAC 04 250 52508
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of general
manager to open a new office in the United States as an L-1A nonimmigrant intracompany transferee
pursuant to section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(15)(L). The petitioner, allegedly a general partnership consisting of the beneficiary and his spouse,
claims to be an architectural design and consulting business.
The director denied the petition concluding that the petitioner failed to establish (1) that the petitioner, within
one year of the approval of the petition, will support an executive or managerial position; (2) that the
beneficiary has been employed abroad in a primarily managerial or executive capacity; or (3) that the
petitioner has a qualifying relationship with the foreign employer. The director concluded that, because it was
not established that the foreign entity actually wired the funds to the petitioner, the existence of a qualifying
relationship had not been established.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner sufficiently
established that the intended United States operation, within one year, will support an executive or managerial
position. Counsel asserts that the beneficiary will manage the organization, and that he will not be providing
professional services himself, primarily because he is not licensed to do so. Furthermore, counsel asserts that
the beneficiary had been employed abroad in a primarily executive or managerial capacity. Finally, counsel
asserts that the director erred in determining that the petitioner failed to establish that it has a qualifying
relationship with the foreign entity. Counsel argues that, because both the foreign entity and the petitioner are
general partnerships owned by the beneficiary and his spouse, the petitioner was excused from proving that
the foreign entity was the source of these funds. Since the owners of both the unincorporated foreign entity
and the unincorporated petitioner are the same, the beneficiary may be the source of the start-up funds without
affecting ownership or control for purposes of determining whether the petitioner has established the
existence of a qualifying relationship.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
WAC 04 250 52508
Page 3
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the .petition, will support an executive or managerial position as
defmed in paragraphs (l)(1)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its fmancial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
WAC 04 250 52508
Page 4
The first issue in this matter is whether the petitioner established that the intended United States operation,
within one year of the approval of the petition, will support an executive or managerial position as required by 8
C.F.R. § 214.2(l)(3)(v)(C).
In support of its petition, the petitioner submitted a letter dated September 8, 2004 in which it describes its
proposed United States operation as designing , constructing, and developing residential real estate across
Southern California. The letter further describes the business and the beneficiary's proposed role as follows :
[The beneficiary] will be in overall control of the business and more specifically at the
highest level. He will be the individual responsible for establishing, organizing and
promoting the business. He will be responsible for executing all strategic decisions, and
setting company policies.
He will further be responsible for hiring and training project managers and supervisors to
supervise the workers in the bus iness and control their actions. [The beneficiary] will also be
solely responsible for financial management of the upstart business including managing credit
lines, short and long term fmancing, investment e xpenditures and accumulation of capital.
We confum that [the beneficiary] will not be required to perform any of the day to day
operations of the business. Since he will be overseeing the work of licensed professionals, he
will spend the majority of his time establishing the business , from advising managers and
professionals on direction and seek financial expansion.
He will be responsible for securing funding for the business and the ultimate decision making
authority on all contracts negotiated by our business .
The aforementioned managers will report to [the beneficiary] on all their actions pertaining to
their duties regarding the policy and strategy. [The beneficiary] will have the sole authority
to hire and fire all personnel of the business . He will also institute training programs for staff
and have the appropriate manager supervise such instruction. Specifically [the beneficiary],
will be hiring and managing the following staff in the first 12 months of operations;
1. Licensed Architect (1)
2. Junior Draftsman (I)
3. General Contractor (1)
4. Surveyor (I)
5. Secretary (I)
6. Project Managers as needed (I)
7. Administrative Staff (1)
The petitioner also submitted copies of two letters dated September 7, 2004 from Wells Fargo. The first letter
indicates that the benefic iary opened an account on May 6 , 2004 and that his current balance is $20,154 .76.
The second letter ind icates that the beneficiary's spouse opened an account on May 7, 2004 and that her
.~ ---- - - - - - - - - - - -- ._ - - - -- ------- -
WAC 04 250 52508
Page 5
current balance is $9,056.25. The petitioner also submitted a letter dated September 5, 2004 from a money
transfer service indicating that the beneficiary received $13,848.00 from Sri Lanka. However, it is not clear
whether this sum was deposited into the beneficiary's personal bank account as discussed in the Wells Fargo
letter dated September 7, 2004. The petitioner did not submit any bank account information for the petitioner.
Finally, the petitioner submitted a document dated September 9, 2004 and titled "business plan." This
document describes the petitioner's business as follows:
Our main objective is to prepare new residential blueprints, as well as handle the
remodeling/improvement planning design of existing properties. While working within the
required construction codes and regulations, our goal is to implement the client's
specifications into the design so as to meet their request.
We will also provide architectural consultancy on location. This professional service will
allow our clients our extended expertise in design situations aside from our blueprints. More
specifically we plan on incorporating esthetic values, colors, and finishes to the project.
Once the initial stages of our architectural services are established and implemented, we plan
on hiring a Licensed General Contractor who will oversee the construction and remodeling
projects according to our blueprints. This will allow [the petitioner] to be somewhat of a one­
stop shop for the design and construction of remodeling efforts.
The "business plan" also indicates that the beneficiary is a Sri Lankan architect; that the petitioner plans to
market the services described; and that the petitioner projects that the majority of its income for the next three
years will be earned by designing "house plans. 11
On October 12,2004, the director requested additional evidence. The director requested, inter alia, a copy of
the petitioner's feasibility study. In response, the petitioner submitted a document which addresses the
housing market in California generally but does not specifically address the petitioner's proposed expansion
plans.
On November 29, 2004, the director denied the petition. The director determined, inter alia, that the
petitioner failed to establish that the United States operation, within one year of the approval of the petition,
will support an executive or managerial position. Specifically, the director determined that the beneficiary
will be primarily providing architectural services and that his managerial or executive duties will be ancillary
to providing architectural design and consulting services.
On appeal, counsel asserts that the director erred and that the beneficiary will be performing primarily
executive or managerial duties within one year. Counsel further argues that, because the beneficiary is
unlicensed to practice architecture in California, he may serve only in a managerial or executive capacity.'
Upon review, the petitioner's assertions are not persuasive.
WAC 04 250 52508
Page 6
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-I nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment , and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 214 .2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties.
As contemplated by the regulations , a comprehensive business plan should contain, at a nummum, a
description of the business, its products and/or services, and its objectives. See Matter ofHo, 22 I&N Dec.
206,213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification , Matter of Ho is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures , and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources . The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffmg requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefor. Most importantly, the business plan must be credible.
Id.
In this matter, the petitioner has failed to establish that the intended United States operation, within one yearof
the approval of the petition, will support an executive or managerial position as required by 8 C .F.R.
§ 214.2(l)(3)(v)(C). First, the petitioner did not specifically and credibly define the scope of the proposed
United States entity, its organizational structure, or its fmancial goals . As explained above, the petitioner
proposes to establish an architectural business even though the beneficiary , who is allegedly both a partner
and the principal employee, is not licensed to practice architecture in the State of California. As discussed in
greater detail below , this alone calls into question the viab ility of the petition. Moreover, the petitioner has
submitted a vague business plan , which fails to provide any details regarding the proposed United States
operation. The petitioner claims that, in the first twelve months of operation, it will hire seven employees
WAC 04 250 52508
Page 7
including a licensed architect, a general contractor, and a surveyor, and that it will commence providing
architectural services to customers . However, the petitioner's business plan does not include any market
analysis or marketing plans, other than the expression of a vague desire to target the Sri Lankan expatriate
community in Tarzana , California. The plan does not include any data regarding the size of this population,
or the financial ability of the Sri Lankan target audience to patronize the business, nor does it analyze the
petitioner's potential competitors or pricing structure. , Consequently, the petitioner offers no bases for its cost
and income projections.
Second, as indicated above, the petitioner's suggestion that it can establish and grow an architectural services
business seems doubtful under California law without altering the petitioner's ownership and control. In this
matter, the petitioner is a general partnership owned by the beneficiary and his spouse. Neither owner is an
architect licensed by the State of California. While unlicensed persons may form partnerships with licensed
architects for the purpose of providing architectural services, and corporations may employ licensed architects
also for these purposes, California law does not appear to permit a partnership or sole proprietorship made up
of unlicensed individual(s) to render architectural services through employed licensed architects. See Cal.
Bus. Prof. Code Ann. §§ 5535-5535.2 (2007). It appears that the only way the petitioner could provide these
services would be to enter into a partnership with a licensed architect and to include this architect's name in
the operation's title. See Cal. Code Regs. tit. 16, § 134 (2007). As the petitioner's business plan fails to
address these serious regulatory challenges or the effect these will have on its ownership structure and
marketing plans, the petitioner has not credibly described a business operation which is likely to succeed and
rapidly expand as it moves away from the developmental stage to full operations , where there would be an
actual need for a manager or executive who will primarily perform qualifying duties.
Third, the record indicates that approximately $30,000.00 has been invested in the United States operation.
While the origin and control of these funds will be addressed in the context of analyzing whether the
petitioner has established that is has a qualifying relationship with a foreign employer (see infra), the size of
this purported investment appears entirely insufficient to establish and grow the proposed United States
operation given the petitioner's description of its proposed business. As discussed above, the petitioner
intends on establishing an architectural services business , which, in the first twelve months, will hire seven
employees including a licensed architect , a general contractor, and a surveyor . The petitioner predicts
$258,600.00 in costs in the first year. It is simply not credible that a $30 ,000.00 investment, absent a clear
plan to begin ' generating revenue, will permit the United States operation to market its services, hire the
required personnel, and set up the business so that, after one year, there will be a need for a managerial or
executive employee. Moreover, as these funds are not even owned by the petitioner but by the beneficiary
and his spouse individually , these funds may not be considered to be a bona fide investment in the United
States operation.
Overall, the lack of a credible business plan and a sufficient investment indicates that it is more likely than not
that the beneficiary will not be primarily employed in a managerial or executive capacity after one year . To
the contrary, it appears that the beneficiary willlike1y be primarily performing the tasks necessary to produce
a product or to provide a service. 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
WAC 04 250 52508
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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 Intl., 19 I&N Dec . 593,
604 (Comm. 1988).
Fourth, given the petitioner's description of its business organization and the beneficiary's proposed
relationship to this business, it appears more likely than not that the beneficiary will not be an "employee" of
the United States operation after the first year in operation. As explained in 8 C.F.R. § 214.2(l)(3)(v)(C), the
petitioner must establish that, within one year of the petition's approval, the beneficiary will be primarily
"employed" as an executive or manager. 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 L-1 classification. Section 101(a)(15)(L) , 8 U.S.C. § 1l01(a)(15)(L), 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. § 1101(a)(44), defines both managerial and executive capacity as an assignment
within an organization in which an "employee" performs certain enumerated qualifying duties. Finally, the
specific definitionof "managerial capacity" in section101(a)(44)(A),8 U.S.C. § 1101(a)(44)(A), refers repeatedly
to the supervision and control of other "employees." Neither the legacy hnmigration and Naturalization Service
nor Citizenship and Immigration Services (CIS) has defined the terms "employee," "employer ," or
"employed" by regulation for purposes of the L-l classification. See, e.g., 8 C.F.R. § 204.5 and 8 C .F.R. §
214.2(1). Therefore, for purposes of the L-l 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 Communityfor 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 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) of Agency § 220(2) (1958); Clackamas
Gastroenterology Associates, P.e. 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 fmd the answer, . .. all of the
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503
"'.
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u.s. at 324 (quoting NLRB v. United Ins. Co. ofAmerica, 390 U.S. 254, 258 (1968).1
While the legacy Immigration and Naturalization Service (INS) has in the past considered the issue of
employment in the context ofL-lA intracompany transferee petitions, these decisions, which both predate the
Supreme Court's Darden decision by over a decade, can be distinguished from the present matter. The
decisions in Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980) (hereinafter
Aphrodite) and Matter ofAllan Gee, Inc., 17 I&N Dec. 296 (Reg. Comm. 1979) (hereinafter Allan Gee), both
primarily addressed the ability of corporate entities to file petitions on behalf of beneficiaries who have
substantial ownership stakes in those entities. The soundness of this particular conclusion is not being
questioned and is not at issue in the present matter. However, these decisions fail to directly address how, or
whether, petitioners must establish that beneficiaries are bona fide "employees" of the petitioners. The
decisions also fail to address how, or whether, petitioners must establish that they are bona fide "employers"
of employees.
In the 1980 Aphrodite decision, the INS Commissioner addressed whether a petitioner may seek to classify a
beneficiary as an intracompany transferee even though the beneficiary was a part owner of the foreign entity
and, apparently, not an "employee" of either the foreign entity or the petitioner. The district director and
regional commissioner determined that the beneficiary could not be classified as an intracompany transferee
because "he is 'an entrepreneur, a speculative investor, and not an employee of an international company. III 17
I&N Dec. at 530. Relying on Matter of M--, 8 I&N Dec. 24 (BIA 1958), the Commissioner disagreed,
declined to require that to intracompany transferees be "employees," and specifically noted that the word
"employee" is not used in section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 17 I&N Dec. at 531. The
1 While the Darden court considered only the definition of "employee" under the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly indicates
legislative intent to extend the definition beyond the traditional common law definition." See, e.g., Bowers v.
Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2 nd Cir. 1994), cert.
denied, 513 U.S. 1000 (1994). However, in the case of the above-cited sections of the Immigration and
Nationality Act, there is no indication that Congress intended for the undefined terms "employer" or
"employed" to have a broader application than that of the corresponding undefined term "employee."
Therefore, in the absence of an intent by Congress to impose broader definitions, the "conventional master­
servant relationship as understood by common-law agency doctrine," and the Darden statutory construction
test, apply to the terms "employee," "employer," and "employed" as used in 8 C.F.R. § 214.2(1),8 U.S.C. §
1101(a)(15)(L), 8 U.S.C. § 1101(a)(44); and 8 U.S.C. § 1I53(b)(1)(C). That being said, there are instances in
the Act where Congress may have intended a more defined application of the term "employer" than what is
encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of the Act, 8
U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-IB intracompany
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the
employment of unauthorized aliens).
WAC 04 250 52508
Page 10
Commissioner further reasoned that adopting the word "employee" would exclude "some of the very people
that the statute intends to benefit: executives" and noted that the Webster's New Collegiate Dictionary did not
defme "employee" to include "executives."
However, the Aphrodite decision, while otherwise sound, predates both the 1990 codification of the
definitions of "managerial capacity" and "executive capacity" in 8 U.S.C. § 1101(a)(44), Pub. L. No. 101-649,
§ 123, 104 Stat. 4978 , § 123 (1990), and the Supreme Court's decision in Darden. As the definitions of both
"managerial capacity" and "executive capacity" now clearly use the word "employee" in describing
intracompany transferee managers and executives , the commissioner's decision in Aphrodite declining to
impose an employment requirement upon intracompany transferees, while correct at the time, ceased being a
valid approach to determining an alien's eligibility for L-l classification in 1990 .2 Furthermore, given that
Congress did not define the term "employee" in codifying the defmitions of "managerial capacity" and
"executive capacity," the Supreme Court instructs that one should conclude "that Congress intended to
describe the conventional master-servant relationship as understood by common-law agency doctrine ."
Darden, 503 U .S. at 322-323 . Therefore, while the Aphrodite decision remains instructive as to whether a
petitioner may seek L-l classification for a beneficiary having a substantial ownership interest in the
organization, the determination that an intracompany transferee employed in an executive capacity need not
be an "employee" has been superceded by statute. Finally, the AAO notes that the Commissioner's reliance
on the dictionary definition of the term "employee" is neither binding nor persuasive when compared to the
common law treatment of the complex subject.
Moreover, in the 1979 Allan Gee decision, the acting regional commissioner of INS determined that the
petitioning corporation could seek L-l classification for the beneficiary even though the beneficiary was the
sole stockholder of the petitioner. 17 I&N Dec. at 298. Relying on the basic legal tenet that corporations are
separate and distinct from their stockholders, INS correctly concluded that the Act does not prohibit a
petitioning corporation from employing, and petitioning for, a beneficiary who happens to own all of a
petitioner's stock. 17 I&N Dec. at 297-298. Importantly, however, the decision does not address how, or
whether, petitioners must establish that such beneficiaries are bona fide "employees" of the petitioners. It is
unclear why the acting regional commission did not take this crucial next step in the analysis. While it is
correct that a petitioner may employ and seek L-l classification for a beneficiary who happens to have a
significant ownership interest in a petitioner, this does not automatically mean that such beneficiaries are bona
fide employees . The Allan Gee decision simply fails to address the issue being addressed in the instant
matter.
2 INS adopted regulations substantially similar to the defmitions of "managerial capacity" and "executive
capacity" ultimately codified in 1990 at 8 U.S.C. § 1101(a)(44) . See 8 C.F.R. §§ 214 .2(l)(I)(ii)(B)-(C) ; 52
F.R. 5738-01 (Feb . 26, 1987) . These regulations, which also require that L-l managers and executives be
employees , were generally upheld as consistent with the Act even prior to the 1990 codification of these
defmitions . See National Hand Tool Corp. v . Pasquarell, 889 F .2d 1472 (5 th Cir. 1989). Therefore, an
employment requirement was arguably imposed upon managers and executives seeking L-l classification as
early as 1987.
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Page 11
Regardless, as with the Aphrodite decision, the Allan Gee decision was decided approximately 13 years
before the Supreme Court's decision in Darden. As explained above, the Darden decision indicates that
where Congress fails to define the term "employee," courts should conclude "that Congress intended to
describe the conventional master-servant relationship as understood by common-law agency doctrine."
Darden, 503 U.S. at 322-323. As indicated above, the Act fails to define the terms "employee," "employer,"
and "employed" for L-l classification purposes. Therefore, while a petitioner, which is solely or primarily
owned by a beneficiary, may file a petition for that beneficiary as an L-IA intracompany transferee, the
question of whether such a beneficiary will truly be an "employee" as now required by the Act is a separate
and independent matter which will be scrutinized on a case-by-case basis utilizing the analysis set forth by the
Supreme Court in Darden, 503 U.S. at 323-324, and Clackamas, 538 U.S. at 449-450.
In other words, while a petitioner may file a petition for a beneficiary who is its sole or primary owner, this
does not necessarily mean that the beneficiary will be a bona fide "employee." See Clackamas, 538 U.S. 440.
In fact, courts employing this analysis in considering whether an owner of an "employer" is also an
"employee" have concluded, in certain contexts, that the owner is not an "employee." See, e.g., Ziegler v.
Anesthesia Associates of Lancaster, Ltd., 74 Fed. Appx. 197, 2003 WL 22048003 (3rd Cir. 2003)
(unpublished); Solon v. Kaplan, 398 F.3d 629 (7th Cir. 2005). Using similar analysis, CIS could reasonably
conclude that beneficiaries who own and control a petitioning corporation or partnership, as in the cases of
Allan Gee Inc. and Aphrodite Investments Limited, might not, given the facts of individual cases, be
"employees" of those petitioners.
Therefore, in considering whether or not one is an "employee" or an "employer," CIS will focus on the
common-law touchstone of control. Clackamas, 538 U.S. at 450. Factors indicating that a worker is an
"employee" of an "employer" are clearly delineated in both the Darden and Clackamas decisions. 503 U.S. at
323-324; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when,
where, and how a worker performs the job; the continuity of the worker's relationship with the employer; the
tax treatment of the worker; the provision of employee benefits; and whether the work performed by the
worker is part of the employer's regular business. See Clackamas, 538 U.S. at 448-449; cf. New Compliance
Manual, Equal Employment Opportunity Commission, § 2-III(A)(I), (EEOC 2006) (adopting a materially
identical test and indicating that said test was based on the Darden decision).
It is important to note that the factors listed in Darden and Clackamas are not exhaustive and must be
evaluated on a case-by-case basis. Other aspects of the relationship between the parties may affect the
determination of whether an employer-employee relationship exists. Furthermore, not all or even a majority
of the listed criteria need be met; however, the fact finder must weigh and compare a combination of the
factors in analyzing the facts of each individual case. The determination must be based on all of the
circumstances in the relationship between the parties, regardless of whether the parties refer to it as an
employee or as an independent contractor relationship. See Clackamas, 538 U.S. at 448-449; New
Compliance Manual at § 2-III(A)(1).
Within the context of L-1 nonimmigrant petitions, 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
WAC 04 250 52508
Page 12
to the organization's "contro1." See Clackamas, 538 U.S. at 449-450; see also New Compliance Manual at §
2-III(A)(1)(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).
Again, it is important to note that this list need not be exhaustive and such questions cannot be decided in
every case by a "shorthand formula or magic phrase." Id. at 450 (citing Darden, 503 U.S. at 324). Moreover,
in applying the above test, the mere fact that a "person has a particular title - such as partner, director, or vice
president - should not necessarily be used to determine whether he or she is an employee or a proprietor."
Clackamas, 538 U.S. at 450; cf Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm.
1988) (stating that a job title alone is not determinative of whether one is employed in an executive or
managerial capacity). Likewise, the "mere existence of a document styled 'employment agreement'" shall not
lead inexorably to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, as
was true in applying common-law rules to the independent-contractor-versus-employee issue confronted in
Darden, the answer to whether a shareholder-director is an employee depends on 'all of the incidents of the
relationship ... with no one factor being decisive.III Id. at 451 (quoting Darden, 503 U.S. at 324).
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 within its first year in business. As
explained above, the petitioner purports to be a general partnership consisting of the beneficiary and his
spouse. The petitioner claims that the beneficiary will manage the organization as its principal employee and
owner. The beneficiary's spouse, the other partner in the claimed general partnership, is described as a
subordinate employee (a secretary) in the proposed organizational chart. The petitioner did not submit a
partnership agreement, employment contract, or any other document describing the beneficiary's claimed
employment relationship with the petitioner. In view of the above, it appears that the beneficiary will be a
proprietor of this business and will not be an "employee" as defined above. It has not been established that
the beneficiary will be "controlled" by the petitioner or that the beneficiary's employment could be
'Iil.... _
WAC 04 250 52508
Page 13
terminated. To the contrary , the beneficiary is the petitioner for all practical purposes . He will control the
organization; he cannot be fired; he will report to no one; he will set the rules governing his work; and he will
share in all profits and losses. Therefore, based on the tests outlined above, the petitioner has not established
that the beneficiary will be "employed" as an "employee" within one year, and the petition may not be
approved for that reason.
Accordingly, the petitioner failed to establish that the intended United States operation, within one year of the
approval of the petition, will support an executive or managerial position as required by 8 C .F.R.
§ 2l4.2(l)(3)(v)(C).
The second issue in the present matter is whether the petitioner has established that the beneficiary has been
employed abroad in a primarily managerial or executive capacity as required by 8 C.F.R. § 2l4.2(l)(3)(v)(B).
Section lOl(a)(44)(A) of the Act, 8 U.S.C. § llOl(a)(44)(A) , defmes the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization , or a department , subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised , has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization) , or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority . A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section lOl(a)(44)(B) of the Act, 8 U.S.C. § llOl(a)(44)(B) , defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
WAC 04 250 52508
Page 14
(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.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to have been primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. On appeal, counsel asserts that the beneficiary has been employed either as
a manager or an executive. Therefore, the AAO will consider both classifications.
The petitioner described the beneficiary's job duties in its response to the director's Request for Evidence as
follows:
*
*
*
*
PRE-CONTRACT PERIOD: 50% of position responsibility.
* Supervise initial team meeting about the tentative project and stimulate group
brainstorming sessions chaired by the Operations Coordinator with design staff.
Review budget estimates and quantity surveys as prepared by the quantity surveyor.
Issue final approval of permit drawings, design developments and detail drawings
with regards to details of foundation, roof, interior, electrical, drainage etc.
Issue final decision regarding design brief as prepared by the senior draftsman prior
to submission to the client.
Review and suggest necessary changes on tentative contracts as prepared by
Operations Coordinator.
Sign and approve all contracts on behalf of business.
Evaluation of tender documents, select contractor.
*
*
*
*
POST CONTRACT PERIOD: 30% of position responsibility
* Final site inspection
* Review and approve work scheduling, cost planning and deadlines -.
* Review the tentative workforce plan and material scheduling as prepared by the
Operations Coordinator, Site Supervisors and the Quantity Surveyor.
Supervise when necessary site progress meetings.
Provide overall project management as executive for [the petitioner].
*
*
ADDITIONAL EXECUTIVE RESPONSIBILITIES: 20% of position responsibility
* Review Marketing reports and raw research as prepared by Operations Coordinator.
Utilize this research for the efficient marketing of company services; example
advertise in the same trade publications and in the same newspapers as our direct
competition.
Attend various Achitectural Industry meetings in Sri Lanka and the Maldive Islands.
Meet with the accountant on a monthly basis to review company's financial position
and to develop strategies which should expand company's assets.
WAC 04 250 52508
Page 15
The petitioner also submitted an organizational chart for the foreign entity. The chart shows the beneficiary at
the top of the foreign organization supervising seven employees including a surveyor, an operations
coordinator, two site supervisors, and four draftsmen. The petitioner also provided brief job descriptions for
the subordinate employees which indicate that they were primarily engaged in performing the tasks necessary
to provide the foreign entity's services.
On November 29,2004 , the director denied the petition. The director concluded , inter alia, that the petitioner
failed to establish that the beneficiary has been employed abroad in a primarily managerial or executive
capacity. The director concluded that the record establishes that the beneficiary was primarily engaged in
providing architectural services .
On appeal, the petitioner asserts that the beneficiary's duties were primarily those of an executive or manager.
Upon review, the petitioner's assertions are not persuasive . 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. § 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be
performed by the beneficiary and indicate whether such duties are either in an executive or managerial
capacity.ld.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary acted in
a "managerial" capacity . In support of its petition, the petitioner has described the beneficiary as a provider of
professional architectural services . However, tasks associated with the provision of a professional service are
not qualifying managerial duties . In this matter, the beneficiary was the sole architect on staff and, with the
assistance of his subordinate workers, allegedly provided professional services to his clients. While the
beneficiary may have also "managed" his business as the sole managerial employee, it appears that these
managerial duties were ancillary to his provision of professional services. As the only architect affiliated with
the practice, the petitioner has not established that the beneficiary was relieved of the need to perform non­
qualifying professional services by subordinate architects. 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; see also Matter of Church
ScientologyInternational, 19 I&N Dec.at 604.
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the organizational chart and job descriptions for the subordinate staff members, the beneficiary
appears to have supervised a staff of seven workers. However, the petitioner has not established that any of
these workers was primarily engaged in performing supervisory or managerial duties. To the contrary, it
appears that these employees were performing the tasks necessary to produce a product or to provide a
service, i.e., drafting and surveying. While some of the workers, such as the senior draftsmen, are described
as having a supervisory function, the petitioner has not established that these workers were primarily
supervisory workers. In view of the above, the beneficiary would appear to have been primarily a first-line
WAC 04 250 52508
Page 16
supervisor of non-professional employees, the provider of actual services, or a combination of both. A
managerial employee must have authority over day-to-day operations beyond the level normally vested in a
first-line supervisor, unless the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see
also Matter of Church Scientology International, 19 I&N Dec. at 604. Moreover, the petitioner has not
established that the beneficiary managed professional employees? Therefore, the petitioner has not
established that the beneficiary was employed primarily in a managerial capacity."
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
3In evaluating whether a beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1l01(a)(32), states that "[t]he tennprofession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, II I&N Dec. 686 (D.D. 1966). In this matter, the petitioner has not established that any of the
subordinate workers has the equivalent of a baccalaureate degree or that such a degree is necessary to perform
the functions of any of the subordinate workers.
4While the petitioner has not argued that the beneficiary managed an essential function of the organization,
the record nevertheless would not support this position even if taken. 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. 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 in managing the essential function, 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. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, 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. In this matter, the petitioner has
not provided evidence that the beneficiary managed an essential function. As explained above, the record
establishes that the beneficiary was primarily a first-line manager of non-professional employees and/or was
engaged in performing non-qualifying professional tasks. Absent a clear and credible breakdown of the time
spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties were
managerial, nor can it deduce whether the beneficiary was primarily performing the duties of a function
manager. See IIillA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
WAC 04 250 52508
Page 17
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary acted primarily in an executive capacity. The job description provided for the
beneficiary indicates that he was primarily engaged in providing professional architectural services.
Moreover, as explained above, the beneficiary appears to have been primarily employed as a first-line
supervisor in conjunction with his provision of these professional services. Therefore, the petitioner has not
established that the beneficiary was employed primarily in an executive capacity.
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct business
in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary was primarily performing
managerial or executive duties abroad, and the petition may not be approved for this reason.
The third issue in the present matter is whether the petitioner has established that it has a qualifying
relationship with the foreign entity.
The regulation at 8 C.F.R. § 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by:
Evidence that the petitioner and the organization which employed or will employ the alien are
qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this section.
Title 8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the defmitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(I)(ii) of this section" and "is or will be doing business." An
"affiliate" is defined in pertinent part as "[o]ne of two legal entities owned and controlled by the same group of
individuals, each individual owning and controllingapproximately the same share or proportionof each entity." 8
C.F.R. § 214.2(1)(I)(ii)(L)(2). ill this matter, the petitioner asserts that both it and the foreign employer are
general partnerships owned and controlledby the beneficiary and his spouse thus establishing,if true, that the two
businesses are affiliates.
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; see also Matter of
WAC 04 250 52508
Page 18
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 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. As ownership is a critical element of this visa classification,
the means by which ownership interests were acquired by the purported owners is relevant. Evidence of this
nature should include documentation of monies, property, or other consideration furnished to the entity in
exchange for an ownership interest.
In this matter, the petitioner submitted copies of two letters dated September 7, 2004 from Wells Fargo. The
first letter indicates that the beneficiary opened an account on May 6, 2004 and that his current balance is
$20,154.76. The second letter indicates that the beneficiary's spouse opened an account on May 7,2004 and
that her current balance is $9,056.25. The petitioner also submitted a letter dated September 5,2004 from a
money transfer service indicating that the beneficiary received $13,848.00 from Sri Lanka. However, it is not
clear whether this sum was deposited into the beneficiary's personal bank account as discussed in the Wells
Fargo letter dated September 7,2004. It is also not clear whom or what was the source of this wire transfer.
The petitioner did not submit any bank account information for the petitioner.
On November 29, 2004, the director denied the petition. The director determined that the petitioner failed to
establish that the foreign entity owns and controls the petitioner.
On appeal, counsel argues that, because both the foreign entity and the petitioner are general partnerships
owned by the beneficiary and his spouse, the petitioner was excused from proving that the foreign entity was
the source of these funds. Since the owners of both the unincorporated foreign entity and the unincorporated
petitioner are the same, the beneficiary may be the source of the start-up funds without affecting ownership or
control for purposes of determining whether the petitioner has established the existence of a qualifying
relationship.
Upon review, counsel's assertions are not persuasive.
As indicated above, 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. Moreover, the means by which the purported owners obtained their ownership interests is
relevant to the analysis. In this matter, the petitioner failed to establish the ultimate source of the funds
supposedly being used to establish the new office. While counsel is correct in observing that the beneficiary
and his spouse may be the source of these funds as the sole owners of both the foreign and domestic general
partnerships, the record does not establish that the beneficiary and his spouse were the source of these funds
or that these funds have been contributed to the general partnership. The petitioner has only disclosed that the
beneficiary and his spouse maintain personal banks accounts and that a sum of money was wired to the
beneficiary from Sri Lanka. The record does not establish that the beneficiary or his spouse was the source of
these wired funds or that their personal bank accounts will be used to acquire partnership interests. Going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
I
WAC 04 250 52508
Page 19
in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter ofTreasure Craft
ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
Furthermore, given the organization and nature of the foreign business, it is not likely that the foreign employer
will continue to do business. As explained above, the foreign business appears to be an architectural firm
primarily owned and operated by the beneficiary as the sole architect on staff. Without the presence of the
beneficiary, it is not credible that the foreign business will continue to be engaged in the regular, systematic, and
continuous provision of goods and/or services under the leadership of the senior draftsman.
Accordingly, the petitioner has not established that it has a qualifying relationship with the foreign employer,
and the petition may not be approved for this reason.
Beyond the decision of the director, the petitioner has not established that the beneficiary has been
"employed" abroad as an "employee" as required by 8 C.F.R. § 214.2(l)(3)(iii). As explained above, the
foreign employer is a general partnership owned and operated by the beneficiary and his spouse. According
to the organizational chart, the beneficiary was the "managing director" of the business and his spouse was
subordinate to him. Similar to the proposed United States operation, it appears that the beneficiary was a
proprietor of this business and was not an "employee" as defined by common-law. It has not been established
that the beneficiary was "controlled" by the foreign partnership or that the beneficiary's employment could
have been terminated. To the contrary, the beneficiary was the foreign employer for all practical purposes.
He controlled the organization; set the rules governing his work; and shared in all profits and losses.
Therefore, based on the definitions above, the petitioner has not established that the beneficiary was
"employed" as an "employee" abroad, and the petition may not be approved for this additional reason.
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon
completion of the temporary assignment in the United States. 8 C.F.R. § 214.2(l)(3)(vii).
As indicated above, the petitioner is claimed to be a general partnership owned and controlled by the
beneficiary and his spouse. As an owner of the petitioner, the petitioner would be obligated to establish that
the beneficiary's services will be used for a temporary period and that he will be transferred to an assignment
abroad upon completion of the assignment. Id. However, the record is devoid of any evidence establishing
that the beneficiary's services will be used temporarily. Going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici,
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972». Furthermore, the director specifically requested evidence of the temporariness of the
assignment. Counsel, however, chose not to provide this information. Failure to submit requested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary
assignment in the United States, the petition may not be approved for this additional reason.
WAC 04 250 52508
Page 20
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683
(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).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. 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., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.