dismissed L-1A Case: Cellular/Accessory Wholesale

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PUBLICCO~
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: SRC 03 193 50636 Office: TEXAS SERVICE CENTER Date: DEC 04 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)(l5)(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.
/"----~- / .
Robert ~,"'Chie'f
Administrative Appeals Office
www.uscis.gov
SRC 03 193 50636
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 AAO will d ismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its president as an L­
lA 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 petitioner is a corporation organized under the laws
of the State of Florida and is allegedly a "cellular/accessory wholesaler." I
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's duties are primarily those of an executive or manager.
To establish eligibility for the L-l 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 , executi ve, 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 .
'According to Florida state corporate records , the petitioner's corporate status in Florida was "administratively
dissolved" on September 15, 2006. Therefore , since the corporation may not carry on any business except
that necessary to wind up arid liquidate its affairs , the company can no longer be considered a legal entity in
the United States. See § 607.1405, Fla. Stat. (2006). Therefore , if this appeal were not being dismissed for
the reasons set forth hrere in, this would call into question the petitioner's continued eligibility for the benefit
sought.
SRC 03 193 50636
Page 3
(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 Un ited States need not be the
same work wh ich 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) exerc ises wide latitude in discretionary dec ision-making; and
(iv) receives only general supervision or direction ..from higher le vel executives, the board
of directors, or stockholders of the organization.
The pet itioner does not clarify in the initial petition whether it is claim ing that the beneficiary will be
SRC 03 193 50636
Page 4
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. 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. If the petitioner is
indeed representing the beneficiary as both an executive and a manager, it must establish that the beneficiary
meets each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
As the petitioner did not provide detailed job descriptions for the beneficiary or for his current subordinate
employees, the director requested additional evidence on August 6, 2003. The director requested, inter alia, a
more detailed description of the beneficiary's job duties; an organizational chart; and copies of the petitioner's
state and federal quarterly tax returns for 2003.
In response, the petitioner submitted a letter dated October 16, 2003 in which the beneficiary's job duties were
described as follows:
[The beneficiary] is president of [the petitioner] and is responsible for[the] on going [sic]
business operations and their success, including formulation of our corporate objectives,
growth of our sales and payroll going forward, and otherwise improving upon the execution
of our business objectives. The position requires extensive prior executive or managerial
experience as the success of [the] operations rest[s] on his shoulders. [The beneficiary] is
[the] chief executive and has the highest level of authority in [the] company and engages in
the highest level executive decision making organization wide including [the foreign
employer].
[The beneficiary] is responsible for hiring, trammg, supervision and evaluation of staff,
(approx. 30% of time) negotiating contracts, and overseeing sourcing, inventory
management, new product evaluation, (approx. 40% of time) review of management reports
on market conditions and business opportunities, (approx. 20% of time) and final oversight
over purchasing and financial operations (approx. 10% of time).
The petitioner also submitted an organizational chart showing the beneficiary supervising a "general
manager," who, in turn, is shown supervising a sales and administrative assistant. The beneficiary is also
portrayed as supervising a variety of "outsourced professional services" such as legal, accounting, and
information technology. The petitioner described the alleged subordinate employees in the letter dated
October 16,2003 as follows:
[The beneficiary] has direct supervision over [the] General Manager who [is] in charge of
"-
directing the company's day to day operations, analyzing, reviewing and briefing [the]
president on current retail and wholesale market conditions, competition and emerging
opportunities, and engaging in direct supervision of our sales and administrative assistant
who [is] in charge of office paperwork, shipping, correspondence and customer relations with
regards to on going business activity.
Finally, the petitioner submitted its federal and state wage reports for the third quarter of 2003 (July, August,
SRC 03 193 50636
Page 5
and September). The instant petition was filed on July 2,2003. The third quarter wage reports reveal that the
petitioner employed no one in July or August 2003 and paid a total of $1,250 in wages to three people in
September 2003. The petitioner did not submit wage reports for the first or second quarters of 2003.
Therefore, the record indicates that the petit ioner had no employees for the first eight months of 2003.
On March 19, 2004 , 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 .
On appeal, counsel to the petitioner asserts that the beneficiary's duties are primarily those of an executive or ,
manager.
Upon review, the petitioner's assertions are not persuasive .
When examining the executi ve or managerial capacity of the benefic iary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(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. The pet itioner must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As expla ined above, a petitioner
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are
managerial. A petitioner may not claim that the beneficiary will be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions .
The petitioner's description of the beneficiary 's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition , the petitioner has provided a vague and nonspecific
description of the beneficiary 's duties that fails to demonstrate what the beneficiary will do on a day-to-day
basis. For example , the petitioner states that the beneficiary will formulate "corporate objective s;" improve
upon the execution of "business objectives," review "management reports ," and manage inventory. However,
the petitioner does not specifically define the petitioner's corporate or business "objectives;" does not explain
who will be producing the "management reports" or discuss their content ; and does not explain how , exactly,
the beneficiary willoversee the management of inventory without any subord inate employees. It is al so not
credible that the beneficiary would spend 30 % of his time hir ing, training, supervising, and evaluating his
subordinate staff when the record indicate s that the petitioner had no employees at the t ime the petition was
filed. The fact that the petitioner has gi ven the beneficiary a managerial title and has prepared a vague job
description which includes inflated duties does not establish that the beneficiary will actually perform
managerial 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 of California, 14 I&N Dec. 190
(Reg. Comm. 1972).
Likewise, it appears that the beneficiary will be primarily performing non-qualifying admini strative or
operational tasks, which do not rise to the level of being managerial or executive in nature . For example, the
petitioner states that the beneficiary will negotiate contracts and oversee inventory management, new product
SRC 03 193 50636
Page 6
evaluation, purchasing , and financial operations. However, such duties constitute administrative or
.operational tasks when the tasks inherent to these duties are performed by the beneficiary . As the
organizational chart and job descriptions for the subordinate employees fail to identify any employees or
contractors who will relieve the beneficiary of the need to perform the non-qualifying tasks inherent to these
duties and to the management of the business in general, it must be concluded that he performs these tasks .
Not only are these subordinate employees not described as performing these non-qualifying tasks for the
beneficiary, the very existence of these employees has not been established given that the wage reports
indicate that the petitioner did not employ anyone at the time the petition was filed . As the petitioner has not
established how much time the beneficiary will devote to non-qualifying tasks, it cannot be confirmed that he
will be "primarily" employed as a manager. An employee who "primarily" performs the tasks necessary to
produce a product or to provide services is not considered to be "primarily" employed in a managerial or
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N
Dec. 593, 604 (Corom. 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.
As explained in the organizational chart, wage reports , and job descriptions for the subordinate staff members,
the beneficiary purports to supervise a staff of two employees and , 'indirectly, the provision of certain
specialized services by contracted service providers. However, the petitioner has not established that the
"general manager" is primarily engaged in performing supervisory or managerial duties. To the contrary, it
appears that this vaguely described employee is performing the tasks necessary to produce a product or to
provide a service. It is simply not credible that a business of this nature would require a subordinate
supervisor to supervise an administrative assistant. Inflated job titles and artificial tiers of subordinate
employees are not probative and will not establish that an organization is sufficiently complex to support a
managerial position. Also, the supervision or management of independent contractors will not permit a .
beneficiary to be classified as a managerial employee as a matter of law. See section 101(a)(44)(A)(ii) of the
Act; 8 C.F.R. § 214.2(1)(l)(ii)(B)(2). The Acris quite clear that a managerial employee must manage
~ .
employees in order to be classified as a manager for purposes of this visa classification.
Regardless, as explained above, the petitioner's wage report for the third quarter of 2003 clearly indicates that
the petitioner had no employees in July 2003 when the instant petition was filed . The petitioner also failed to .
submit copies of its wage reports for the first two quarters of 2003 eventhough these reports were specifically
requested by the director in the Request for Evidence. Therefore, it must be presumed that the petitioner had
no employees during that timeframe as well. 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). The non-existence or other
unavailability of required evidence creates a presumption of ineligibility. 8 C.F .R. § 103.2(b)(2)(i). The
record is also devoid of any evidence regarding the petitioner's purported employment of independent
contractors. Once again , 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. Finally , the fact that the petitioner may have resumed employing persons several months after
the petition was filed is not relevant to this proceeding. The petitioner must establish eligibility at the time of
filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner
SRC 03 193 50636
Page 7
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tir e Corp., 17 I&N Dec. 248
(Reg. Comm. 1978).
However , even if the petitioner was proven to have employees , the beneficiary would appear to be primarily a
first-line 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, as the petitioner did not
establish the skill level or educational background requiredjo perform the duties of .the two claimed
subordinate positions, the petitioner has .not established that the beneficiary will manage professional
employees.' Therefore , the petitioner has not established that the beneficiary will be employed primarily in a
managerial capacity? .
2In evaluating whether the 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. § 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 realist ic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter ofLing , 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
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 e ssential 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 petit ioner's description of the benefic iary'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 es sential function. The petitioner 's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions , if
any, and what proportion would be non-managerial. Also , as explained above, the record establishes that the
beneficiary will primaril y be a .first-line manager of non-profe ssional employees and/or will be engaged in
performing non-qualifying operational or administrative tasks. Absent a clear and credible breakdown of the
time spent by the benefic iary performing his duties, the AAO cannot determine what proportion of his duties
would 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. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
SRC 03 19350636
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, i ncluding 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 be acting 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 perform ing the tasks necessary to
.produce a product or to provide a service and/or will be a first-line supervisor. Therefore , the petitioner has
not established that the beneficiary will be employed primarily in an executi ve capacity."
It is appropriate for CIS to consider the size of the petit ioning company in conjunction with otherrelevant
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 bu siness
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 will be primarily .
performing managerial <?r executive duties, and the petition may not be approved for that reason.
Beyond the decision of the director, it is noted that the instant petition was filed to extend a previously
approved petition. The previously approved petition was approved from June 30 , 2001 until June 30, 2003 .
The instant extension petition was filed on July 2, 2003. In that petition, the petitioner clearly indicates that
its basis for the classification sought is the "continuation of previously approved employment without
change." The petition also seeks to "extend the stay of [the beneficiary] since [he] now hold[s] this status."
Title 8 C.F .R. § 214.2(l)(14)( i) clearly states that an exten sion petition may only be filed if the validity of the
original petition has not expired. In this case , since the validity of the pre vious petition expired on June 30, .
2003, the instant e xtension petition filed on July 2 , 2003 must be denied as untimely. Therefore , beyond the
decision of the director , the AAO will dismiss the appeal for this additional reason.
Beyond the decision .of the director, the petitioner failed to establish that it has a qualifying relationship with
"Ccunsel cited the Foreign Affairs Manual (FAM) in the brief as authority. It mu st be noted that the FAM is
not binding upon Citizenship and Immigration Services (CIS) . See A vena v. INS, 989 F . Supp. 1 (D.D .C.
1997); Matter of Bosuego, 17 I&N 125 (BIA 1979) . The FAM provides guidance to employees of the
Department of State in carry ing out their offic ial duties, such as the adjud ication of visa applications abroad.
The FAM is not relevant to this proceeding.
SRC 03 193 50636
Page 9
the foreign employer . The regulation at 8 C.F.R. § 214.2(1)(3)(i) states that a peti tion 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)(I)(ii)(G) defines a "qualifying organization" as a firm , corporation , or other legal
entity which "meets exactly one of the qualify ing relationships specified in the definitions of a parent , branch ,
affiliate or subsidiary specified in paragraph (1)(1)(ii) of this sect ion" and "is ,or will be doing business ... as an
employer in the United States." .A "subsidiary" is defined in pertinent part as a corporation "of which a parent
owns, directly or indirectly, more than half of the entity and controls the entity."
The regulation and case law confirm that owner ship 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 Sci entology International, 19 I&N Dec. 593 ; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986) ; Matter of Hughes, 18 I&N Dec . 289 (Comm.
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of
the assets of an entity with full power and authority to control; control means the direct or indirect legal right
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595 .
In this matter, the pet itioner, a corporation, asserts that it is 51 % owned by the foreign employer, In support , the
petitioner submitted a stock certificate indicating that 510 out of 1,000 shares of stock were issued to the foreign
employer on June 26 , 2000. However , this assertion is inconsistent with the petitioner's Forms 1120 , U.S.
Corporation Income Tax Return , for the years 2000 , 2001, and 2002 . The pet itioner asserted in those tax returns
that the beneficiary owns 100% of the petitioner's stock. TPe petitioner offers no explanation for this fundamental
inconsistency in the record regarding the petitioner's ownership and control and , thus, its eligibility for the benefit
sought as a qualifying organization has not been established. 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 pet itioner submits competent objective evidence pointing to where
the truth lies. Matter of Ho, 19 I&N Dec . 582, ~91-92 (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 . Matter ofHo , 19 I&N Dec . 582, 591 (BlA 1988).
Furthermore, as ind icated above, the petitioner's wage report for the third quarter of 2003 clearly indicates
that the petitioner had no employees in July 2003 when the instant petition was filed . The petitioner also
failed to submit copies of its wage reports for the first two quarters of 2003 even though these reports were
specifically requested by the director in the Request for Evidence. Therefore , it must be presumed that the
petit ioner had no employees during that timeframe as well'. Once again , failure to ' submi t requested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R.
§ 103 .2(b)(2)( i). Therefore , because the petitioner failed to establish that it is or will be doing business as an
employer in the United States , the petitioner has failed to establish that it is a qualifying organization as defined
by the regulations .
SRC 03 193 50636
Page 10
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity,
and the petition may not be approved for this additional 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), afJ'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 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.