dismissed L-1A Case: Business Development

identifying dat& deleted to
prevent cl~~iy wl\varr~ted
invasion.ofpersonalpnvacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: EAC 07 021 50829 Office: VERMONT SERVICE CENTER Date:
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)
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.
~~f
Administrative Appeals Office
www.usds.gov
EAC 07 021 50829
Page 2
DISCUSSION: The Director, Vermont 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 visa petition seeking approval of the employment of the beneficiary as
vice president of the United States operation as an L-1A nonimmigrant intracompany transferee pursuant to
section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The
United States operation is a corporation organized under the laws of the State of Georgia and is allegedly a
business development company. The petitioner is the beneficiary's foreign employer and is allegedly a
business entity formed under the laws of Portugal.
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.
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 to the petitioner asserts that the director
erred and that the beneficiary will primarily perform qualifying duties. In support of the appeal, counsel
submits additional evidence and implies that Citizenship and Immigration Services (CIS) should treat the
petitioner as a "new office."
To establish eligibility for the L-I 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 speci~ lized 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:
(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 him/her to perform the intended
services in the United States; however, the work in the United States need not be the
EAC 07 021 50829
Page 3
same work which the alien performed abroad.
The primary issue in the present 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;
(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.
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of
the Act and, on appeal, the petitioner asserts in a letter dated December 28, 2006 that the beneficiary will be
employed in an "executive managerial position." A petitioner may not claim that a beneficiary will be
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. Given
EAC 07 021 50829
Page 4
the lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary will be employed
as either an executive or a manager and will consider both classifications. Dor v. INS, 891 F.2d 997, 1002 n.
9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis).
In support of its petition, the petitioner submitted an organizational chart describing the personnel structure of
the United States operation. The beneficiary, the proposed vice president, is shown reporting to a chief
operating officer and supervising four account managers. It is unclear whether the United States operation
currently has any employees.
The United States entity described the proposed duties of the beneficiary, the vice president, in an undated
letter appended to the petition as follows:
Executes and implements the delivery of the company's services. Identifies the new areas
and prospects for growth, defines the sales plan, expands the product mix, and creates the
necessary business development and sales structure for the growth of the corporation.
Recruits and manages the business development and sales team - account managers.
Personally manages the company's key accounts. Reports to the [chief operating officer].
The account managers are, in tum, defined as performing the tasks necessary to provide a service.
On November 7, 2006, the director requested additional evidence. The director requested, inter alia, an
organizational chart for the United States operation clearly specifying the beneficiary's proposed subordinates,
detailed job descriptions for the beneficiary's proposed subordinates including a breakdown of the number of
hours devoted to each duty on a weekly basis, copies of the subordinates' educational credentials, and a copy
of the United States operation's 2005 tax return and Forms W-2.
In response, counsel submitted a letter dated November 22, 2006 in which counsel asserts that the beneficiary
will be employed as "chief operating officer" of the United States operation. Neither counsel nor the
petitioner acknowledges that this assertion is materially different from the claim made in the initial petition
that the beneficiary will be the "vice president" of the United States operation. The petitioner also submitted a
materially different organizational chart for the United States operation. The new chart shows the beneficiary
serving as "chief operations officer" and as supervising the "vice president" who, in tum, supervises the
account managers. As counsel asserts in the letter dated November 22,2006 that the beneficiary "will need to
recruit the account managers," it appears that these employees have not yet been hired. Overall, the record
does not establish that the United States operation currently has any employees.
The petitioner also submitted job descriptions for the positions listed on the organizational chart. As these job
descriptions are in the record, they will not be repeated here. Generally, the "chief operating officer" is
described as "overseeing day-to-day operations" and as managing the business. The "vice president" is
generally described as leading the "sales team" and managing sales activities.
On December 18, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
EAC 07 021 50829
Page 5
On appeal, counsel asserts that the director erred and that the beneficiary will primarily perform qualifying
duties. In support of the appeal, counsel submits additional evidence and implies that the Citizenship and
Immigration Services (CIS) should treat the United States operation as a "new office."
Upon review, counsel's assertions are not persuasive.
As a threshold issue, it must be noted that it was appropriate for the director to treat the United States
operation as a fully-fonned entity. Consequently, the director was not obligated to apply the more lenient
"new office" criteria found at 8 C.F.R. § 214.2(l)(3)(v) to the instant petition. The petitioner clearly indicates
in the L Classification Supplement to Form 1-129 that the beneficiary is not coming to the United States to
open a "new office." Furthermore, the record indicates generally that the United States operation has been in
existence and operating since 2004. While the petitioner claims that it purchased its interest in the United
States operation only a few months before the filing of the instant petition, this fact alone would not
necessarily establish that the petitioning organization meets the definition of a "new office" in the regulations.
See 8 C.F.R. § 214.2(l)(1)(ii)(F). Absent a specific assertion that the beneficiary is coming to the United
States to open a new office coupled with evidence that the petitioning organization meets the regulatory
definition of a "new office," the director appropriately treated the United States operation as a fully-fonned
entity. Regardless, counsel's attempt to first raise this issue on appeal was inappropriate. A petitioner may
not make material changes to a petition on appeal in an effort to make a deficient petition conform to CIS
requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Corom. 1998).1
It must also be noted that the petitioner's attempt to change the beneficiary's job duties and level of
responsibility in its response to the Request for Evidence was also inappropriate. As indicated above, the
petitioner clearly asserts in the initial petition and supporting documentation that the beneficiary will be
employed as the "vice president," that he will report to a "chief operating officer," and that he will supervise
the account managers. However, in response to the Request for Evidence, the petitioner attempts to change
the beneficiary's job title to "chief operating officer" and to claim that the beneficiary will supervise a "vice
president" who, in turn, will supervise the account managers. The purpose of the Request for Evidence is to
elicit further infonnation that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R.
§ 103.2(b)(8). When responding to a Request for Evidence, a petitioner cannot offer a new position to the
beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or
its associated job responsibilities. The petitioner must establish that the position offered to the beneficiary
when the petition was filed merits classification as a managerial or executive position. Matter of Michelin
Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). If significant changes are made to the initial request
for approval, the petitioner must file a new petition rather than seek approval of a petition that is not
supported by the facts in the record. Therefore, the AAO will consider the job title (vice president), and the
lIt is noted that, even applying the more lenient "new office" criteria found at 8 C.F.R. § 214.2(l)(3)(v), the
petitioner has failed to establish its eligibility for the benefit sought. The record is devoid of evidence
establishing that the United States operation has secured sufficient physical premises to house the new office,
that a sufficient investment has been made in the United State operation, or the scope, nature, and financial
goals of the enterprise. Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972).
EAC 07 021 50829
Page 6
associated level of responsibility (direct supervisor of account managers), ascribed to the beneficiary in the
initial petition.
2
In view of the above, 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. Id. A petitioner cannot claim that
some of the duties of the position entail executive responsibilities, while other duties are managerial. As
explained above, a petitioner may not claim that a beneficiary will be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions.
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a
day-to-day basis. For example, the petitioner states that the beneficiary will "create and manage sales and
business development plans" and "obtain new, profitable business." However, the petitioner does not define
these plans nor does it explain specifically what new and profitable business the beneficiary will obtain.
Furthermore, the petitioner does not clarify what, exactly, the beneficiary will do in coaching and managing
the sales staff given that the petitioner does not appear to employ any account managers. The fact that the
petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description
which includes inflated job duties does not establish that the beneficiary will actually perform managerial or
executive duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d.
Cir. 1990). Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190.
It appears that the beneficiary will primarily perform non-qualifying administrative or operational tasks which
will not rise to the level of being managerial or executive in nature. For example, the job duties ascribed to
the beneficiary are primarily related to selling and marketing the petitioner's services. However, sales and
marketing duties are non-qualifying administrative or operational tasks, and the petitioner has not established
that a subordinate staff is available to relieve the beneficiary of the need to perform these tasks. The United
States operation's plan to hire additional staff members to assist the beneficiary in the performance of his
duties is not relevant to the instant petition. The petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. A visa petition may not be approved based on speculation of future eligibility or
2It is also noted that, on appeal, counsel attempts to supplement the record with additional evidence
addressing the beneficiary's proposed job duties. However, the director specifically requested that the
petitioner provide a detailed job description for the beneficiary in the Request for Evidence. The petitioner
was put on notice of required evidence and given a reasonable opportunity to provide it for the record before
the visa petition was adjudicated. The petitioner failed to submit the requested evidence and now submits it
on appeal. However, the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19
I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be
adjudicated based on the record of proceeding before the director.
EAC 07 021 50829
Page 7
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire
Corp., 17 I&N Dec. 248; Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). As it appears that the
beneficiary will primarily perform the tasks associated with the sales and marketing duties ascribed to him, it
has not been established that the beneficiary will be "primarily" employed as a manager or an executive. An
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see
also Matter ofChurch Scientology International, 19 I&N Dec. 593,604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
First, as indicated above, the record is not persuasive in establishing that the beneficiary will supervise any
employees. It appears that the beneficiary's subordinates, the account managers, have not yet been hired.
Second, even assuming that the account managers have been hired, the petitioner has not described these
. employees as having supervisory or managerial responsibilities. To the contrary, these employees are
described as performing the tasks necessary to provide a service. In view of the above, the beneficiary would
appear to be primarily a first-line supervisor of non-professional workers, 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 ofChurch Scientology International, 19 I&N Dec. at 604.
Moreover, even though the petitioner asserts that the account managers must possess bachelor's degrees, the
petitioner has not established that these workers are truly "professional" employees. In evaluating whether
the beneficiary will manage 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. § 1101(a)(32), states that "[t]he term profession 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 of Shin, 11 I&N Dec. 686 (D.D. 1966). In this matter, the petitioner has not ascribed duties to the
account managers which would truly require a bachelor's degree for entry into the field of endeavor. The
United States operation's subjective preference to employ account managers having bachelor's degrees will
not establish that the positions are truly "professional" in nature. Therefore, the petitioner has not established
that the beneficiary will be employed primarily in a managerial capacity.3
3While the petitioner has not argued that the beneficiary will manage 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
EAC 07 021 50829
Page 8
Similarly, the petitioner has failed to establish that the beneficiary will act 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
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 will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary will be primarily employed as, at most, a first­
line supervisor and will primarily perform the tasks necessary to produce a product or to provide a service.
Therefore, the petitioner has not established that the beneficiary will be employed primarily in an executive
capacity.
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations
are substantial enough to support a manager." Family, Inc. v. u.s. Citizenship and Immigration Services, 469
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C.
Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v.
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, 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). The size of a company may be especially relevant when
CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id.
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 will manage an essential function. The petitioner's vague job
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained
above, the record establishes that the beneficiary will primarily be, at most, a first-line supervisor of non­
professional employees and will perform non-qualifying operational or administrative sales and marketing
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 will be managerial, nor can it deduce whether the
beneficiary will primarily perform 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).
EAC 07 021 50829
Page 9
In this matter, the petition contains serious inconsistencies regarding the proposed staffing of the United
States operation. As indicated above, the petitioner initially asserts that the beneficiary will be employed as
the "vice president." In response to the Request for Evidence, the petitioner attempts to completely change
the beneficiary's level of authority and claim that the beneficiary will be employed as the "chief operating
officer." The petitioner offered no explanation for this fundamental change in responsibilities, which
undermines the genuineness of both the position offered to the beneficiary and the United States operation in
general. 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). 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.
Id. at 591.
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or
executive duties, and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. §§
214.2(l)(3)(iii) and (iv).
The petitioner described the beneficiary's duties abroad in a letter dated October 10, 2006 as follows:
[The beneficiary] has been the business director for [the foreign employer] here in Portugal
over the last five years. In this position he has been responsible for not only the development
of all commercial endeavors but also for the day-to-day responsibilities of a six person sales
team. His responsibilities and accomplishments are demonstrated in the continued expansion
of our investor and developer client base.
The beneficiary's duties were also described in the Form 1-129 as follows:
Manager of 6 person team. Service to key accounts. Development of new business.
Recruitment of sales people. Marketing and advertising. Organization of financing for
customers.
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a
managerial or executive capacity. The petitioner failed to specifically describe the beneficiary's job duties
abroad. Specifics are clearly an important indication of whether a beneficiary's duties were primarily
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. Furthermore, although
vague, the job duties ascribed to the beneficiary appear to be primarily non-qualifying sales and marketing
tasks, first-line supervisory tasks related to the supervision of a sales team, and the provision of actual
services to clients. Absent detailed descriptions of the duties of both the beneficiary and his purported
subordinates, it is impossible for CIS to discern whether the beneficiary was "primarily" engaged in
performing managerial or executive duties abroad and, more specifically, whether he supervised and
EAC 07 021 50829
Page 10
controlled the work of other supervisory, managerial, or professional employees or managed an essential
function of the organization. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church
Scientology International, 19 I&N Dec. at 604.
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or
executive capacity for one continuous year in the three years preceding the filing of the petition, and the
petition may not be approved for this reason.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (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 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. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.