dismissed L-1A Case: Automotive Software

ideatifyiDgdatadeletedto
pr.vatt clearlyunwarranted
invasionofpenonalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Room 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
File: SRC 06 033 51558 Office: TEXAS SERVICE CENTER Date: JUN 20 2007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10I(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 110I(a)(l5)(L)
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.
t~~/4~~obert P. WIemann, Chief
I-~dministrative Appeals Office
www.uscis.gov
SRC 06 033 51558
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected pursuant to 8
C.F.R. § 103.J(a)(2)(v)(A)(1).
The petitioner seeks to extend the temporary employment of the beneficiary as its vice president and
managing director in the United States as an L-1A nonimmigrant intracompany transferee pursuant to section
101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The U.S.
petitioner, a corporation organized in the State of Florida, claims to be engaged in the development of
diagnostic software and tools for the automotive industry, and claims to be the subsidiary of Diagnostic
Associates Ltd., located in Manchester, United Kingdom. The petitioner seeks to extend the beneficiary's
stay for an additional two years. The director denied the petition concluding that the petitioner did not
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
On appeal, counsel for the petitioner asserts that the beneficiary is in fact qualified for the benefit sought.
Specifically, counsel asserts that the beneficiary is employed in a primarily managerial capacity since he is
managing an essential function of the petitioner.
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:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(l)(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 him/her 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)(l4)(ii) provides that a visa petition, which involved the
opening of a new office, may be extended by filing a new Form 1-129, accompanied by the following:
(a) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (1)(l)(ii)(G) of this section;
SRC 06 033 51558
Page 3
(b) Evidence that the United States entity has been doing business as defined m
paragraph (l)(l)(ii)(H) of this section for the previous year;
(c) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(d) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(e) Evidence of the financial status of the United States operation.
The issue in this matter is whether the beneficiary will be employed by the United States entity in a primarily
managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines 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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(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;
SRC 06 033 51558
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(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 a letter dated November 2, 2005, the petitioner explained that it currently employed the beneficiary as its
vice president and managing director. In addition, the petitioner claimed that it currently employed six
persons, including the beneficiary.
With regard to the beneficiary's duties, the petitioner provided the following overview:
Upon his transfer to the United States in 2004, [the beneficiary] became Managing Director
and Vice-President of [the petitioner]. [The beneficiary's] responsibilities included oversight
of software development and equipment maintenance for [the petitioner]. He directs the
general management of the business and exercises full authority as delegated by the Board of
Directors in these decisions. He has authority to hire and fire personnel and is directly and
indirectly responsible for all management decisions. He also manages the marketing function
of [the petitioner] and operates at a senior level within the company.
* * *
[The beneficiary's] role is essential to the continued growth of [the petitioner]. We have no
other expert in the management of product manufacturing, installation and design matters
specific to our industry. [The beneficiary] has years of familiarity with our company. [The
petitioner] currently has 6 employees. [The beneficiary's presence is further insurance of our
growth. [The beneficiary] is dedicated to its vision and future success of [the petitioner].
In addition, the petitioner submitted a document entitled "Contract of Employment," which indicated that the
beneficiary's workweek would require 37.5 hours, with overtime as necessary. The petitioner's quarterly tax
returns for the past four quarters further indicated that for the quarter ending September 30, 2005, the
petitioner employed five persons including the beneficiary (not six as claimed in the letter of support). The
quarterly returns further demonstrated that the beneficiary was the petitioner's sole employee for the first six
months of operations.
Moreover, the petitioner's organizational chart showed that as vice-president the beneficiary oversaw the
following employees: Administrative Assistant; and , Office Organization
..
ppearance. i , Marketing / Customer Relations; an~
oversaw Maintenance. An accompanying document entitled "Employee Roster"
provide a brief overview of each employee's job duties.
SRC 06 033 51558
Page 5
On December 13, 2005, the director requested additional evidence. The director requested evidence of the
educational backgrounds of the petitioner's employees, as well as an overview of their positions and whether
any of these employees were subordinate managers or supervisors. In addition, evidence that the beneficiary
would refrain from performing day-to-day tasks of the petitioner was requested, as well as a more detailed list
of duties of the beneficiary and the percentage of time he devoted to each.
Counsel for the petitioner submitted a response dated March 8, 2006. Counsel responded to the director's
requests by specifically claiming that the beneficiary is employed in a primarily managerial capacity.
Counsel also provided two bases for this contention. First, he claimed that the beneficiary is primarily a
manager by virtue of his supervision of a subordinate staff of managerial and professional employees.
Second, he claimed that the beneficiary is a "functional manager" because his main duties involved the
management of the petitioner's software development and equipment maintenance.
Counsel also submitted a letter from the foreign entity dated March 6, 2006. The petitioner provided the
following updated list of duties for the beneficiary as well as a breakdown of the percentage of time he
devotes to each of his duties.
• Establishes goals and policies of the U.S. entity as it evolves. (10%)
• Develops the marketing and advertising strategy. (15%)
• Negotiates contracts with vendors and distributors to manage product distribution,
establish distribution networks and develop distribution strategies. (15%)
• Develops pricing strategies, balancing firm objectives and customer satisfaction.
(100/0)
• Identifies, develops, and evaluates marketing strategy, based on knowledge of
establishment objectives, market characteristics, and cost and markup factors. (10%)
• Hires and fires suitable employees and sub-contractors. (10%)
• Coordinates and directs the financial planning, budgeting, procurement, or
investment activities of all or part of a sub-organization. (50/0)
• Develops internal control policies, guidelines, and procedures for activities such as
budget administration, cash and credit management, and accounting. (5%)
• Prepares or direct preparation of financial statements, business activity reports,
financial position forecasts, annual budgets, and/or reports required by regulatory
agencies. (10%)
• Analyzes the financial details of past, present, and expected operations in order to
identify development opportunities and areas where improvement is needed. (5%)
• Delegates authority for the receipt, disbursement, banking, protection, and custody of
funds, securities, and financial instruments. (5%)
The petitioner further stated that:
[The beneficiary] does not engage in the day-to-day operations of [the petitioner]. Rather, in
his managerial role, he exercises discretion and control over how different essential functions
are carried out. Furthermore, [the beneficiary] supervises the general managerial staff of [the
SRC 06033 51558
Page 6
petitioner]. For example, [the beneficiary] supervises Ms. Yvette Blair, a manager who
reports directly to [the beneficiary] ....
In addition to his supervisory role, [the beneficiary] engages as a functional manager as
authorized by our Board of Directors. [The beneficiary] is the only member of [the
petitioner] that possesses expertise in the management of product manufacturing, installation
and design matters specific to our industry. As Managing Director, he handles client
meetings and contracts, as well as all financial aspects of the company. As such, [the
beneficiary] is the only officer in the U.S. entity who is authorized to issue checks and enter
contracts with clients and prospective clients.
On June 13, 2006, the director denied the petition. The director found that the evidence in the record was
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive
capacity. The director concluded that the documentary evidence submitted did not establish that the
beneficiary would function at a senior level within the organization or that the beneficiary had sufficient
subordinate staff to relieve him from performing non-qualifying duties. More specifically, the director
concluded that the beneficiary's subordinates were not managerial, professional, or supervisory employees.
On appeal, counsel for the petitioner attempts to refute the director's basis for the denial by contending that
the beneficiary is alternatively a function manager, and is therefore not required to supervise a staff of
subordinate professionals. In support of his position, counsel relies upon two unpublished AAO decisions. A
final assertion in his argument claims that the initial petition was approved based upon the same facts and
description of duties repeated in the instant petition and, therefore, the director erred by denying the petition
on the same set of facts that had previously been found acceptable. The AAO, however, disagrees with
counsel's assertions.
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 definitions of executive and
managerial capacity have two specific requirements. First, the petitioner must show that the beneficiary
performs the high-level responsibilities that are specified in the definitions. Second, the petitioner must prove
that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or
her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th
Cir. July 30, 1991). The AAO notes that while counsel specifically alleges that the beneficiary is employed
primarily in a managerial capacity, consideration will be given under both regulatory definitions.
The description of duties provided, both in the initial letter of support and in response to the request for
evidence, simply adopt many of the key phrases used in the regulatory definitions of managerial and
executive capacity. General statements such as "establishes goals and policies" and "hires and fires suitable
employees" do little to clarify the exact nature of the beneficiary's duties. Conclusory assertions regarding
the beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103,
1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL
188942 at *5 (S.D.N.Y.). Reciting the beneficiary's vague job responsibilities or broadly-cast business
SRC 06 033 51558
Page 7
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties.
The petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on
a daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co.,
Ltd. v. Sava, 724 F. Supp. at 1108.
Counsel for the petitioner, however, attempted to answer this question by providing two alternative
descriptions of the beneficiary's role in the company in his response to the request for evidence. First,
counsel claims that the beneficiary is primarily a manager by virtue of his supervision of a subordinate staff
of managers and professionals. Simultaneously, however, counsel claims that the beneficiary is a function
manager and that he is not required to supervise a subordinate staff since he is in charge of a function,
namely, software development and equipment maintenance, which constitutes an essential component of the
petitioner's business. The AAO will address each of these contentions separately.
Although the beneficiary is not required to supervise personnel, if it is claimed that his managerial duties
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory,
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act.
Though requested by the director, the petitioner did not provide the level of education required to perform the
duties of its four other employees. Any 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)(l4). Thus, the petitioner has not
established that these employees possess or require a bachelor's degree, such that they could be classified as
professionals. Despite counsel specific claim that the beneficiary's subordinates are professional and
managerial employees, no independent evidence to corroborate these claims has been submitted. Without
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec.
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N
Dec. 503, 506 (BIA 1980). Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972».
The only documentation addressing the subordinate employees is the organizational chart and accompanying
employee roster. These documents, however, indicate that the beneficiary directly oversees an administrative
assistant and a housekeeper. By virtue of these titles alone, it cannot be deemed that these employees are
professional, supervisory, or managerial in nature. More importantly, the record contains no evidence to
demonstrate that these positions require a bachelor's degree as a prerequisite to perform the stated duties.
Although the organizational structure suggests that each of these employees oversees another employee, there
is no definitive evidence in the record that these employees supervise subordinate staff members or manage a
clearly defined department or function of the petitioner, such that they could be classified as managers or
supervisors. Furthermore, the suggestion that an administrative assistant would oversee a marketing and
client services employees is questionable. The petitioner indicated that this employee's duties include
answering phones, handling client appointments, issuing invoices, creating files, purchasing office supplies
and scheduling travel. If CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact.
See e.g. Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F.
SRC 06 033 51558
Page 8
Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Thus, the
petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional, or
managerial, as required by section 101(a)(44)(A)(ii) of the Act.
Nor has the petitioner shown, as counsel claims in the alternative, that the beneficiary is acting as a function
manager. The term "function manager" applies generally when a beneficiary does not supervise or control the
work of a subordinate staff but instead is primarily responsible for managing an "essential function" within
the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be
performed, i.e. identify the function with specificity, articulate the essential nature of the function, and
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8
C.F.R. § 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.
An employee who primarily performs the tasks necessary to produce a product or to provide services is not
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.NS., 67 F.3d 305 (Table),
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604
(Comm. 1988)).
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function.
The first problem is that the petitioner claims the beneficiary is primarily a function manager while
simultaneously claiming that he supervises a staff of subordinate employees. It appears that the claim of
function manager was claimed as an alternative in the event that the beneficiary's subordinate staff was found
to be non-managerial. In an attempt to overcome the director's findings in this matter, counsel repeatedly
alleges that the beneficiary is managing the essential function of the petitioner, which is software
development and equipment maintenance. However, the description of duties and organizational structure of
the petitioner's enterprise demonstrate the beneficiary himself is primarily performing the essential functions
of the business.
While performing non-qualifying tasks necessary to produce a product or service will not automatically
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive
duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns in
part on whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial.
In the present matter, the petitioner fails to document what proportion of the beneficiary's duties would be
managerial functions and what proportion would be non-managerial. Although the petitioner submitted a
detailed breakdown of the beneficiary's duties with the percentage of time he devoted to each, the description
itself identifies tasks that do not fall directly under traditional managerial duties as defined in the statute. For
example, the description of duties claims that the beneficiary negotiates contracts with vendors, prepares
financial statements, and develops the marketing strategy. In addition, the petitioner claims that the
beneficiary is the only person with the authority to issue checks and enter into contracts. Based on this
statement, it is uncertain, absent a clear and credible breakdown of the time spent by the beneficiary
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performing his duties, whether the beneficiary is primarily engaged in the performance of these critical tasks,
or whether he is primarily performing the duties of a function manager. See IKEA US, Inc. v. U.s. Dept. of
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
In the instant matter, it is unclear how the beneficiary can engage only in managerial or executive tasks,
particularly when the positions of three of the four subordinate employees are employed in maintenance,
housekeeping, and administrative positions. Although there is one employee whose position is identified as
marketing and customer service, his role is unclear since the petitioner specifically claims that the beneficiary
is the only person authorized to enter contracts and thus deal with new clients and customers. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). The
petitioner claims that the beneficiary oversees a subordinate staff of managerial and/or professional
employees, and is thus qualified for an extension of the petition. The ultimate fact, however, is that the
employment situation presented before the AAO is not credible.
Furthermore, a document entitled Financial Projections for Profit and Loss in 2005 discussed anticipated
monthly revenue of $12,000 from "the vacation home side of the business." Although no additional
information regarding this venture is provided, the financial statement anticipates an increase in this revenue
as "the number of homes grows." The petitioner, however, has provided no information regarding this
endeavor, nor has it indicated which employees are dedicated to performing the' duties associated with this
aspect of the petitioner's business. Since the petitioner has failed to demonstrate that the beneficiary will be
relieved from performing non-qualifying duties related to the software side of the business, the addition of a
second business venture in an unrelated field further abates the petitioner's claim. The record, as discussed
above, indicates that three of the beneficiary's four subordinates are engaged in maintenance, housekeeping,
and administrative positions. This fact, coupled with the simultaneous existence of a new and unrelated
vacation home business, further insinuates that the petitioner's employment situation is less than credible.
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at
591.
Based on the record of proceeding, and absent evidence to the contrary, the beneficiary's job duties appear to
be principally composed of non-qualifying duties that preclude him from functioning in a primarily
managerial or executive role. The record as presently constituted, therefore, is not persuasive in
demonstrating that the beneficiary has been or will be employed in a primarily managerial or executive
capacity. The petitioner indicates that it "has not yet been able to realize its full potential because of delays in
hardware and software development," and claims that the beneficiary's presence in the United States is
critical, because it is he who "must continue to develop contracts" for the petitioner. The regulation at 8
C.F.R. § 214.2(l)(3)(v)(C), however, allows the intended United States operation one year within the date of
approval of the petition to support an executive or managerial position. There is no provision in Citizenship
and Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the
business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an
extension.
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Based on the evidence presented, the petitioner has not reached the point that it can employ the beneficiary in
a predominantly managerial or executive position. For this reason, the appeal will be dismissed.
Beyond the decision of the director, a question to be further examined is whether the petitioner and the
foreign organization are qualified organizations as defined by 8 C.F.R. § 214.2(l)(l)(ii)(G). The regulation
defines the term "qualifying organization" as a United States or foreign firm, corporation, or other legal entity
which:
(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent,
branch, affiliate or subsidiary specified in paragraph (l)(I)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not required) as an
employer in the United States and in at least one other country directly or through a
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United
States as an intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.
Additionally, the regulation at 8 C.F.R. § 214.2(l)(l)(ii) provides:
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries.
(J) "Branch" means an operating division or office of the same organization housed in a
different location.
(K) "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.
(L) "Affiliate" means
(1) One of two subsidiaries both of which are owned and controlled by the same
parent or individual, or
(2) 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, or
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(3) In the case of a partnership that is organized in the United States to provide
accounting services along with managerial and/or consulting services and that
markets its accounting services under an internationally recognized name under
an agreement with a worldwide coordinating organization that is owned and
controlled by the member accounting firms, a partnership (or similar
organization) that is organized outside the United States to provide accounting
services shall be considered to be an affiliate of the United States partnership if
it markets its accounting services under the same internationally recognized
name under the agreement with the worldwide coordinating organization of
which the United States partnership is also a member.
The record clearly indicates that the petitioning enterprise does not maintain a qualifying "affiliate"
relationship with the overseas company. The evidence indicates that four individuals own the foreign
company. The record further indicates that five individuals own the petitioning entity in the United States.
Accordingly, the two entities are not "owned and controlled by the same group of individuals, each individual
owning controlling approximately the same share or proportion of each entity . . . ." 8 C.F .R. §
214.2(1)(l)(ii)(L)(2)(emphasis added). In addition, there is no parent entity with ownership and control of
both companies that would qualify the two as affiliates, nor does anyone individual own a majority interest in
both companies. For this additional reason, the petition may not be approved.
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). When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if he shows that the AAO abused it discretion with respect to all of the AAO's
enumerated grounds. See id.
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. Here, that burden has
not been met.
ORDER: The appeal is dismissed.