dismissed L-1A Case: Construction

U.S. Department of Homeland Security
20 Mass. Avenue, N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLICcopy
File: SRC 04 19650156 Office: TEXAS SERVICE CENTER Date: JUl 06 Z007
INRE: 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)
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.
/L- ~
rrl:0bert P. Wiemann,*h;ef
f!Administrative Appeals Office
www.uscis.gov
SRC 04 19650156
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 dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to the beneficiary 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 petitioner, a Florida limited liability company, states that it intends to engage in
the construction of residential developments. The petitioner claims that it is the affiliate of MG Wood,
located in the United Kingdom. The petitioner seeks to employ the beneficiary as the general manager of its
new office in the United States for a one-year period.
The director denied the petition concluding that the petitioner did not establish that beneficiary has been
employed by the foreign entity 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 for the petitioner asserts that the director
ignored evidence regarding the size of the foreign entity and based the denial on an erroneous view of the
evidence. Counsel further asserts that the director did not clearly state the concise reason for its denial and
thus it is unclear whether the director considered the beneficiary's current foreign employment or proposed
U.S. employment to be in a non-qualifying capacity.
Counsel indicated on Form 1-290B that a brief and/or evidence would be submitted to the AAO within 30
days. The appeal was filed on January 19,2005. As of this date no additional evidence was been incorporated
into the record of proceeding. The AAO attempted to contact counsel by facsimile in order to determine
whether a brief or evidence had been submitted within 30 days of filing the appeal as stated on the Form 1­
290B; however, counsel's facsimile number was no longer in service. Accordingly, the record will be
considered complete.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(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.
SRC 04 19650156
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(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.
If the petition indicates that the beneficiary is coming to the United States as a manager or executive to open
or to be employed in a new office in the United States, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured ;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involved executive or managerial authority over the new
operation; and
(C) The intended United States operation , within one year of the approval of the petition,
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B)
or (C) of this section, supported by information regarding:
(1) The proposed nature of the office describing the scope of the entity , its
organizational structure, and its financial goals;
(2) The size of the United States investment and the financial ability of the
foreign entity to remunerate the beneficiary and to commence doing business
in the United States; and
(3) The organizational structure of the foreign entity.
The sole issue addressed by the director is whether the beneficiary has been employed by the foreign 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;
SRC 04 19650156
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(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 nonimmigrant petition was filed on July 9, 2004. In a letter dated June 5, 2004, the petitioner stated that
the beneficiary is the sole proprietor and general manager of the foreign entity, and described his current
duties as the following:
As general manager of [the foreign entity], [the beneficiary] was responsible for negotiating
and entering into contracts involving the provision of contracting services for construction of
residential development[ s]. He was also responsible for overseeing the execution of the
aforementioned contracts, including supervision of employees, their hiring and firing, and the
promotion of [the foreign entity] as a first rate contractor. [The beneficiary] directs the
management of the organization, establishes its goals and policies, exercises sole discretion in
company decision-making and is the top level executive.
The petitioner provided U.K. tax documents evidencing payments the foreign entity made to a total of 14
subcontractors during the fiscal year ended on April 5, 2003.
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The director issued a request for additional evidence on September 11, 2004, instructing the petitioner to
provide a list of all duties performed by the beneficiary for the foreign entity, the percentage of time spent on
each duty, the number of employees who report to the beneficiary and a brief description of their job titles and
duties, and payroll evidence of the claimed staff.
In a response dated December 2, 2004, the petitioner provided the following description of the beneficiary's
duties as general manager of the foreign entity:
1. Negotiating and entering into contracts and overseeing their execution. This includes
developing and allocating budget and cost controls and obtaining information regarding
types, quantities and specifications of materials for construction projects. In addition, this
task involves creating production schedules and priorities to optimize time and
efficiency. - 300/0
2. Supervising employees. This includes planning, directing and coordinating production
activities and establishing production priorities for construction projects to obtain
effective operations and cost factors. This task also involves reviewing and analyzing
construction operations to determine causes of nonconformity with specifications. The
General Manager must visit the construction site and consult with the foreman regarding
any operation problems or setbacks. - 15%
3. Hiring and firing employees. This includes reviewing budget and cost controls to
identify areas in which reductions or increases can be made. Then, hiring or firing
employees as needed to maintain budget and cost controls. - 2%
4. Selecting and coordinating the work of outside contractors. This task involves consulting
with outside contractors in relation to construction materials and equipment needed to
improve production. In addition, this task includes directing and coordinating the
activities of outside contractors by communicating with them by telephone, email or in
person in order to effect operational efficiency and economy. - 28%
5. Formulating and implementing marketing strategies and promoting the company. This
task involves directing and coordinating the promotion of [the foreign entity] to develop
new markets, increase our share of market, and to obtain a competition [sic] position in
the construction industry. This task involves consulting with advertising sales
representatives to publicize the services offered by [the foreign entity]. - 15%
6. Establishing company goals and policies. This task involves planning, developing and
implementing the company's policies and goals through employee consultation and
management. - 10%
The petitioner provided an organizational chart for the foreign entity that depicts the beneficiary as general
manager responsible for supervising a construction foreman, who in tum supervises an administrative
bookkeeper and eleven bricklayers. The petitioner stated that the construction foreman is responsible for
assisting the beneficiary in supervising and coordinating the activities of construction workers, inspecting
work in progress to ensure conformance with specifications and adherence to work schedules, and
requisitioning tools, equipment and supplies. The petitioner indicated that the administrative bookkeeper is
SRC 04 19650156
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responsible for maintaining and orgamzmg the company's financial records, balancing the company's
accounts, and performing clerical duties.
In response to the director's request for evidence of payments made to the foreign entity's employees, the
petitioner re-submitted its April 2003 U.K. Inland Revenue Contractor's Annual Return and "updated Inland
Revenue reports on employees, payments made to them, and taxes deducted." The submitted "Tax Payment
Vouchers" indicate payments to the construction foreman, payments to two individuals identified as
bricklayers, and additional payments to three individuals not identified on the organizational chart. Finally,
the petitioner submitted tax payment vouchers paid to companies, Hanbury Dev. Ltd. and Top Flight
Construction. The payments appear to be for the months of September and October 2004.
The director denied the petition on December 16, 2004, concluding that the petitioner had failed to establish
that the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity.
The director acknowledged the beneficiary's stated responsibilities and noted that "the other employees
claimed consist of a Construction Foreman and an Administrative Bookkeeper." The director observed that
when a company has a very limited number of employees, "it becomes questionable as to whether the
operator of the business is engaged in primarily managerial or executive duties." The director determined that
the beneficiary is required to perform a number of non-managerial daily functions associated with running the
business, and that such non-qualifying duties would be his primary duties.
On appeal, counsel for the petitioner asserts that the director "improperly ignored evidence submitted of the
size and number of employees of the foreign affiliate and based its denial on an erroneous view of the
evidence."
Upon review, the petitioner has not established that the beneficiary has been employed by the foreign entity in
a primarily managerial or executive capacity.
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.
The petitioner's initial description of the beneficiary's duties, in part, merely paraphrased the statutory
definition of executive capacity. See section 101(a)(44)(B) of the Act. The petitioner indicated that the
beneficiary "directs the management of the organization, establishes its goals and policies, exercises sole
discretion in company decision-making and is the top-level executive." 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), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL
188942 at *5 (S.D.N.Y.).
While the petitioner provided a more detailed position description in response to the director's request for
evidence, the description is insufficient to establish that the beneficiary performs primarily managerial or
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executive duties. It is evident based on the position description submitted and a review of the record as a
whole that the beneficiary himself is solely responsible for marketing and selling the foreign entity's services.
Although the petitioner indicates that the beneficiary is "directing and coordinating" the promotion of the
foreign entity, the petitioner has not identified any subordinate employees who would relieve the beneficiary
from performing marketing tasks. Similarly, the beneficiary alone appears to be responsible for preparing
contract bids and proposals and securing contracts for the company. Overall, these sales and marketing duties,
which account for 45 percent of the beneficiary's time, have not been shown to be primarily managerial or
executive in nature.
The petitioner further indicates that the beneficiary devotes 25 percent of his time to "selecting and
coordinating the work of outside contractors," and notes that this involves "consulting with outside
contractors in relation to construction materials and equipment needed to improve production." This duty is
ambiguously described, but appears to involve nothing more than the purchase of materials and equipment
needed for the petitioner's construction projects. Furthermore, the petitioner has indicated that the foreign
entity's construction foreman is responsible for requisitioning tools, equipment and supplies, and has not
explained the apparent overlap between the duties performed by the general manager and foreman.
Regardless, absent further explanation, the petitioner has not established that "consulting ... in relation to
construction materials and equipment" would fall under the statutory definitions of managerial or executive
capacity. 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. at 1108.
The petitioner stated that the beneficiary devotes 15 percent of his time to "supervising employees," including
"planning, directing and coordinating production activities and establishing production priorities," "reviewing
and analyzing construction operations," and visiting construction sites. Again, some of these duties appear to
overlap with the responsibilities performed by the claimed construction foreman, and the AAO cannot
determine to what extent the beneficiary is engaged in the first-line supervision of non-professional
employees performing the petitioner's bricklaying work, or what specific tasks are involved in "directing and
coordinating production activities," or "analyzing construction operations," such that they can be classified as
managerial or executive in nature.
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 show 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 test is basic to ensure that a person not only has
the requisite authority, but that a majority of his or her duties are related to operational or policy management,
not to the supervision of lower-level employees or the performance of the duties of another type of non­
managerial or non-executive position.
The fact that the beneficiary manages a business does not necessarily establish eligibility for classification as
an intracompany transferee in a managerial or executive capacity within the meaning of section 101(a)(l5)(L)
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of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 101(a)(l5)(L) of the Act does
not include any and every type of "manager" or "executive"). While the AAO does not doubt that the
beneficiary exercises discretion over the foreign entity's day-to-day operations and has the appropriate level of
authority, the petitioner has failed to demonstrate that his duties have been primarily in a managerial or
executive capacity.
Counsel suggests on appeal that the director "ignored evidence submitted of the size and number of
employees of the foreign affiliate and based its denial on an erroneous view of the evidence." The AAO
observes that the only employees specifically referenced in the director's decision are the construction
foreman and the administrative bookkeeper, while the petitioner also claims to employ eleven bricklayers on a
contract basis.
A company's size alone, without taking into account the reasonable needs of the organization, may not be the
determining factor in denying a visa to a multinational manager or executive. See § 101(a)(44)(C) of the Act,
8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for U.S. Citizenship and Immigration Services
(USCIS) 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 USCIS notes discrepancies in the record and fails to believe that
the facts asserted are true. Id.
Upon review, the AAO finds insufficient evidence in the record to establish the actual staffing of the foreign
entity as of July 2004, when the instant petition was filed. The petitioner twice submitted its U.K. annual
return of payments to subcontractors for the tax year ended on April 5, 2003, as well as an accountant's
financial report for the same fiscal year, but this evidence does not assist in determining the beneficiary's
employment capacity as of the date of filing. The petitioner did not provide any evidence of its financial
status, business operations, or evidence of payments to contractors or employees for the first half of 2004.
Accordingly, the AAO cannot determine the number or type of contractors regularly utilized by the foreign
entity as of the date of filing, the extent of their services, and, as a result, cannot determine whether the
contracted employees would have reasonably relieved the beneficiary from performing non-qualifying duties
associated with operating the business. Although the petitioner claims the foreign entity employs an
administrative bookkeeper, the petitioner has not identified this employee by name and his or her employment
cannot be verified.
Finally, although the AAO acknowledges evidence of payments to the individual identified as "construction
foreman" in the 2002 to 2003 period, and two payments made to him in September and October 2004, this
evidence is insufficient to establish that he is regularly employed by the foreign entity in the claimed
supervisory position and is able to relieve the beneficiary from the non-managerial tasks of supervising
bricklayers and other construction workers. The AAO notes that this employee's wages for the months of
September and October 2004 were essentially equivalent to the wages paid to an individual identified as a
bricklayer. Going on record without supporting documentary evidence is not sufficient for purposes of
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meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Thus, while the director did not discuss the deficiencies in the evidence regarding the staffing of the foreign
entity in detail, the AAO finds that the director was justified in concluding that the petitioner had not
established that the foreign entity's staffing levels are sufficient to relieve the beneficiary from performing
non-qualifying duties. The AAO has long interpreted the regulations and statute to prohibit discrimination
against small or medium size businesses. However, the AAO has also consistently required the petitioner to
establish that the beneficiary's position consists of primarily managerial and executive duties and that the
petitioner has sufficient personnel to relieve the beneficiary from performing operational and administrative
tasks. Here, as discussed above, the petitioner's description of the beneficiary's job duties suggests his
involvement in sales, marketing and purchasing tasks, and the record is unclear with respect to the
beneficiary's role in supervising the day-to-day activities of the company's lower-level workers. The
petitioner's evidence of the foreign entity's staffing levels does not adequately support its claims that the
beneficiary has subordinates to perform the non-qualifying first-line supervisory, administrative, financial and
operational tasks inherent to operating a construction contracting business.
The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily"
employed in a managerial or executive capacity as required by the statute. See sections 101(a)(44)(A) and (B)
of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who
allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, but those needs
will not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties.
The petitioner has not submitted evidence on appeal to overcome the director's determination with respect to
this issue. Accordingly, the appeal will be dismissed.
The AAO notes that counsel expresses some confusion as to the grounds for denial of the petition. Counsel
states that it is not clear from the notice of decision whether the director concluded that the beneficiary's
proposed position in the United States would not be in a primarily managerial or executive capacity. As
discussed above, the sole ground for denial of the petition related to the beneficiary's employment capacity
with the foreign entity. However, beyond the decision of the director, the AAO finds insufficient evidence to
establish the petitioner's and beneficiary's eligibility under the regulations at 8 C.F.R. § 214.2(l)(3)(v), which
govern the establishment of a "new office" in the United States.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. Accordingly, if a petitioner indicates that a beneficiary is
coming to the United States to open a "new office," it must show that it is prepared to commence doing
business immediately upon approval so that it will support a manager or executive within the one-year
timeframe. See generally, 8 C.F.R. § 214.2(l)(3)(v). At the time of filing the petition to open a "new office,"
a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to house the new
office and that it will support the beneficiary in a managerial or executive position within one year of
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approval. Specifically, the petitioner must describe the nature of its business, its proposed organizational
structure and financial goals, and submit evidence to show that it has the financial ability to remunerate the
beneficiary and commence doing business in the United States. Id. This evidence should demonstrate a
realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the
developmental stage to full operations, where there would be an actual need for a manager or executive who
will primarily perform qualifying duties.
Although the petitioner has provided a copy of a lease agreement and a job description for the beneficiary and
six proposed employees, the record does not adequately demonstrate that the U.S. entity is prepared to
commence business operations or that it would employ the beneficiary in a managerial or executive capacity
within one year. The petitioner has not provided a business plan outlining the proposed nature of the U.S.
company, provided evidence of the size of the investment required to commence operations, nor submitted
any evidence that any financial investment had been made in the United States as of the date of filing. As
contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a description
of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 206, 213
(Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefore. Most importantly, the business plan must be credible.
Id.
Although the petitioner did not submit a business plan detailing the proposed nature of the office describing
the scope of the entity and its financial goals, it did submit a proposed employee structural plan indicated that
several employees would need to be hired, that subcontractors would need to be hired, that marketing
operations would commence, and that resources necessary to complete any contracts acquired would need to
be purchased. However, the petitioner failed to detail how this would be achieved and what, if any, amount
of money had been invested in the petitioner. As the petitioner has not provided a sufficient business plan or
evidence of investment, the AAO cannot determine whether its proposed staffing structure is feasible for the
first year of operations. In response to the director's request for evidence related to the proposed U.S. entity,
counsel for the petitioner acknowledged the requirements set forth at 8 C.F.R. § 214.2(1)(3)(v), yet failed to
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submit the majority of the required evidence. For example, in response to the director's request for evidence
of the funding or capitalization of the U.S. entity, the petitioner submitted the foreign company's April 2003
accountant's report showing net profit of £32,225 and an October 2003 bank statement for the beneficiary's
U.K. business account with an ending balance of £452. Contrary to counsel's assertions, this evidence is not
probative of the size of the financial investment in the U.S. entity and its ability to commence doing business
in the United States. Again, going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
Overall, the evidence submitted is insufficient to establish that the U.S. entity will support the beneficiary in a
primarily managerial or executive position within one year, as required by 8 C.F.R. § 214.2(l)(3)(v)(C). For
this additional reason, the petition cannot be approved.
Finally, beyond the decision of the director, the AAO finds insufficient evidence to establish that the foreign
entity is a qualifying organization doing business as defined in the regulations. The regulation at 8 C.F.R. §
214.2(l)(l)(ii)(H) defines "doing business" as the regular, systematic, and continuous provision of goods and/or
services by a qualifying organization and does not include the mere presence of an agent or office of the
qualifying organization in the United States and abroad.
The petitioner initially submitted the foreign entity's U.K. tax return for the tax year ended on April 5, 2003,
accountant's financial reports for the fiscal years ended in April 2002 and April 2003, evidence of employer's
liability insurance valid through August 2004, a bank statement for October 2003, and two purchase orders
for the foreign entity's bricklaying services, both of which were dated in 2002. On September 11, 2004, the
director requested evidence of the viability of the foreign entity, including current financial and tax records,
employee rosters, annual reports, and evidence of business conducted, such as copies of invoices, bills of sale,
and/or product brochures of goods sold or produced by the company abroad.
In response, the petitioner submitted: an October 5, 2004 letter from Hanbury Developments Ltd., addressed
to the beneficiary thanking him for his tender and accepting his quotation; an undated letter from Hurtsbridge
Homes, accepting the beneficiary's tender to build a house; and, the above referenced tax payment vouchers
issued to subcontractors in September and October 2004.
Upon review, the petitioner has not submitted sufficient evidence to show that the foreign entity was doing
business in a regular, systematic and continuous manner as of the date of filing. The petitioner's 2003
accountant's report is not sufficient evidence of its ongoing operations as of July 2004, nor does the AAO find
the two invoices from 2002, and the minimal evidence submitted in response to the request for evidence
sufficient to document the foreign entity's status as a qualifying organization doing business abroad as defined
in the regulations at 8 C.F.R. §§ 214.2(1)(l)(ii)(G) and (H). For this additional reason, the petition cannot 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
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Page 12
(9th Cir. 2003); see also Dar 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 or she shows that the AAO abused its discretion with respect to all of the AAO's enumerated grounds.
See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d
683 (9th Cir. 2003).
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.